The Discipline Process
How
the Lawyer Discipline Process Works
What
happens after a bar charge is filed?
Do not wait to explore other possible
remedies!
What discipline can be
imposed?
What are the alternatives to
discipline?
How do I initiate a bar charge
against a lawyer?
What happens after a bar
charge is filed?
If you initiate a charge against a lawyer, bar counsel will
review the allegations to determine whether an investigation is
appropriate. If an investigation is appropriate, bar counsel will
give the lawyer written notice of the allegations and the lawyer
will be asked to submit a written response to those allegations. In
most cases, you will receive a copy of that response. You may be
asked to provide additional information based on that
response.
If your information does not meet the
threshold for an investigation, you will be notified of that fact.
The lawyer will receive notice of the charge for informational
purposes.
If, after investigation, the State Bar
determines that there is enough information to believe that the
lawyer violated the ethics rules and there is clear and convincing
evidence to show the violation, formal disciplinary charges may be
filed against the lawyer. Under those circumstances, a hearing may
be held, and you may be required to appear as a witness.
Do not wait to explore other
possible remedies
Do not delay in exploring other possible remedies you may have
against the lawyer simply because you have filed a bar charge. You
can lose valuable legal rights if you wait for the conclusion of
the State Bar's investigation. If you want to find out if you have
other remedies against the lawyer, you should contact private
counsel. If you believe a lawyer has acted illegally, you should
report that conduct to appropriate prosecuting authorities. The
State Bar's staff lawyers cannot give you legal advice or tell you
what you should do.
What discipline can be
imposed?
If the charge against a lawyer is found to violate the Rules
of Professional Conduct, the lawyer may be required to pay
restitution, ordered to pay costs, be issued an admonition, be
placed on probation, reprimanded, suspended, or disbarred.
What are the alternatives to discipline?
Diversion
The State Bar has established diversion programs that concentrate
on helping the lawyer change his or her practices. The programs are
designed to address acts of ethical misconduct that typically can
be linked to poor law office management, chemical dependency, or
other behavioral problems.
Diversion is not an alternative to
discipline in cases of serious misconduct or which factually
present little hope that diversion will achieve program goals.
Diversion may be considered in cases where the sanction would be a
reprimand or less. Successful completion of diversion results in
the underlying matter being dismissed.
Currently the State Bar has several
diversion programs, which include the use of the following: Law Office
Management Assistance program (LOMAP), Member Assistance
Program (MAP), Trust Account Ethics Enhancement Program
(TAEEP), and the Trust Account Program (TAP).
How do I
initiate a bar charge against a lawyer?
Discipline proceedings begin when you contact the State Bar
and complain about a lawyer's conduct that indicates the
lawyer may have engaged in misconduct or may be incapacitated. You
should call the Attorney/Consumer
Assistance Program to discuss your problem prior to writing to
the State Bar.
Definitions
Charges are handled in several
ways
Prescreening
Screening
Probable Cause
Formal proceedings
Arizona Supreme Court
Definitions
In the following explanation, several terms are introduced which
are explained as follows:
"Charge" is a specific allegation against a lawyer.
"Respondent" is a lawyer who must
respond to charges.
"Complainant" is the individual(s)
making the charge against the lawyer.
"Bar Counsel" is a lawyer employed by
the State Bar who reviews, investigates and/or prosecutes
charges.
Charges
are handled in several ways
1. Charges are
dismissed if the lawyer's conduct does not violate the Rules of
Professional Conduct contained within Rule 42, Ariz. R. Sup.
Ct., or other applicable Supreme Court Rules.
2. Charges may be referred to the Peer
Review Program or other appropriate remedial programs when the
lawyer has not violated the Rules of Professional Conduct but has
shown incivility or unprofessionalism toward clients or others.
3. Low-level violations or client
relation problems may be resolved by the
Attorney/Consumer Assistance Program.
4. If the charge againsts a lawyer is
found to violate the Rules of Professional Conduct, the lawyer may
be referred to a diversion program, required to pay restitution,
assessed costs, issued an admonition, reprimanded, suspended or
disbarred.
Prescreening
Bar proceedings begin when information alleging unprofessional
conduct, misconduct or incapacity is received. Each charge is
reviewed to determine whether it can be resolved in A/CAP or must
be further investigated or "screened." The State Bar may, in the
exercise of its discretion, refer the matter for a full
investigation if the alleged conduct would warrant the imposition
of a sanction.
Screening
When a case is screened, the complainant is notified, and the
lawyer is given written notice of the investigation and the nature
of the allegations. The lawyer is asked for a written
response and has twenty days to provide the
response. Extensions of time to answer may be granted
for good cause.
Bar counsel forwards a copy of the
respondent's response to the complainant, unless a request for
confidentiality is granted. The complainant may be asked to provide
further information based on the response. In addition, an
investigator is assigned to each case. The investigator
and assigned bar counsel will conduct interviews, obtain
records or other necessary information and undertake appropriate
research. Bar counsel will then have all the necessary
information needed to make a recommendation about what should
happen next.
Probable cause review
Once bar counsel have sufficient information to recommend how a
charge should be resolved, they prepare an investigative report of
the file. The report and recommendation are submitted to the
Attorney Discipline Probable Cause Committee ("Committee"), who
decides whether there is enough evidence to continue on to formal
proceedings or whether another course of action is appropriate.
Recommendations to the committee may include: diversion,
probation, restitution, admonition, reprimand, costs, probable
cause to file a complaint, probable cause to file a disability
petition, or stay. If there is enough evidence to continue to
formal proceedings, the committee will issue a probable cause
order. Both the lawyer and complainant are notified of the
recommendation and are given an opportunity to provide a written
response to the Committee.
Formal proceedings
Once a probable cause order is issued, bar counsel prepares a
complaint and represents the State Bar in the formal disciplinary
proceedings. Formal proceedings begin when bar counsel files a
complaint with the Disciplinary Clerk.
The respondent's answer is due within
20 days after service of the complaint. After the answer is filed,
the matter is set for a settlement conference and a hearing.
Mandatory settlement conferences are held before the hearing. Bar
counsel and respondents often enter into consent agreements to
settle a matter without a hearing.
If no agreement is reached, a
contested hearing is held before a hearing panel which
includes the Presiding Disciplinary Judge, a lawyer member and a
public member. Following a hearing, a written report
containing findings of fact, conclusions of law and an order
regarding sanction is filed and is final subject to the parties'
right to appeal. The hearing panel can dismiss the
charges, order diversion, admonition, probation, costs,
reprimand, suspension, or disbarment. Either party may
appeal the hearing panel's order to the Supreme Court.
Arizona Supreme Court
Either party may appeal the hearing panel's order by filing with
the disciplinary clerk a notice of appeal. The parties
must timely file opening briefs and answering briefs. The
Court may, in its discretion schedule oral argument. The
Court may dismiss the complaint, order diversion, admonition,
probation, costs, reprimand, suspension, or
disbarment.