Purpose of Lawyer Discipline
The purposes of lawyer discipline
proceedings are:
- to protect the public
- to protect the integrity of the legal system
- to ensure the administration of justice
- to deter further unethical conduct
- to rehabilitate the offending lawyer
- to deter unethical behavior by educating other lawyers and the
public.
How the Discipline Process Works
What Doesn't
the State Bar of Arizona Handle?
- The State Bar cannot investigate charges of malpractice or
resolve legal issues.
- The State Bar does not investigate charges against judges.
Allegations of misconduct against Arizona judges should be referred
to the Commission on Judicial Conduct, Phoenix, AZ,
602.542.5200.
- The State Bar does not investigate charges against lawyers who
are not licensed in Arizona unless they are practicing law in
Arizona.
- The State Bar investigates charges where non-lawyers are
alleged to have engaged in the unauthorized practice of law.
These types of allegations may also be referred to other
appropriate agencies for prosecution.
What Happens After a Charge is Received?
Charges received by the State Bar of
Arizona are handled in several ways:
1. Charges are dismissed if they do
not violate the Rules of Professional Conduct contained in Rule 42 of the Rules of
the Supreme Court of Arizona or other applicable Supreme Court
rules.
2. Charges are 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 unprofessional behavior toward clients or
others.
3. Low-level violations or client
relation problems may be resolved by Attorney/Consumer Assistance
Program. If the charges against an attorney are found to violate
the Rules of Professional Conduct, the attorney may be referred to
a diversion program, required to pay restitution, ordered to pay
costs, be issued an admonition, be placed on probation,
reprimanded, suspended or disbarred.
Informal Proceedings
Prescreening
Bar proceedings begin when allegations
are received which means "any suggestion of misconduct or
incapacity brought to the attention of the State Bar." Each charge
is reviewed to determine whether it meets the threshold for
screening. The test for screening is whether the charge would
warrant the imposition of a sanction. The State Bar, in the
exercise of its discretion, determines the appropriateness of a
full investigation. Typically, though, if a charge meets this
threshold, it is placed into screening (i.e.,
investigation).
Lawyers are notified of charges made
and dismissed or not referred to another State Bar program (e.g.,
peer review or fee arbitration) for informational purposes
only.
Screening
When a case is placed into
investigation, the complainant is notified, and the lawyer is
notified of the investigation and the nature of the
allegations. A written response is requested from the lawyer
and is due within 20 days. Extensions of time may be granted
for good cause but failure to make a timely response can result in
a sanction being imposed for failure to cooperate with the Bar.
Bar counsel is required to forward a
copy of the lawyer's response to the complainant, unless a request
for a protective order is granted. The complainant may be
asked to provide additional information based on the
response. Further investigation may be conducted by bar
counsel and investigative staff. At the conclusion of the
investigation, bar counsel make a recommendation on the disposition
of the charge.
Probable Cause Review
Bar counsel will prepare an
investigative report of the file. A recommendation for
anything other than dismissal must be submitted to the Attorney
Discipline Probable Cause Committee ("Committee"). Both the
lawyer and the complainant receive notice of the recommendation and
are provided an opportunity to submit a written response. The
investigative report and any response from the lawyer or the
complainant are provided to the Committee for consideration.
The Committee is appointed by the Supreme Court and has six lawyer
members and three public members. Recommendations to
the Committee may include: diversion, restitution, costs, stay,
admonition, probation, or probable cause to file a formal
complaint.
Formal
Proceedings
Once a probable cause order is issued,
bar counsel prepares a complaint. Formal proceedings begin when the
complaint is filed by bar counsel with the disciplinary clerk.
The lawyer's answer is due within 20
days of service of the complaint and is filed with the disciplinary
clerk. Motions for extensions of time to answer must be ruled
on by the Presiding Disciplinary Judge. If no timely answer
is filed, the matter will be treated as a default. At least
one settlement conference will be held before a designated
settlement officer prior to the evidentiary hearing, unless the
parties agree otherwise.
Bar counsel and respondent lawyers
often enter into consent agreements to settle a matter without a
hearing. Consent agreements are routinely explored in cases
where the essential facts are not in dispute. A lawyer
against whom a charge has been made or a complaint has been filed
may tender a conditional admission to the charge or complaint or to
a particular count in exchange for a stated form of discipline,
other than disbarment, at any stage of the proceedings.
Consent agreements are governed by Rule 57, Ariz. R. Sup. Ct.
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. At the conclusion of the hearing, the panel issues a
report, containing findings of fact, conclusions of law and an
order regarding sanction. The hearing panel may order
dismissal of the charges, diversion, restitution, assessment of
costs, admonition, probation, reprimand, suspension or
disbarment. The panel's order is final subject to the
parties' right to appeal.
Supreme Court of Arizona
Either party may appeal the order of
the panel within ten days after service of the report and order by
filing a notice of appeal with the disciplinary clerk. An
opening brief shall be filed with the disciplinary clerk no later
than thirty days after the notice of docketing and the answering
brief must be filed no later than thirty days after service of the
opening brief. In the Court's discretion, oral argument may
be scheduled in an appeal upon request of either party or upon the
Court's own motion. The Court may dispose of the appeal in
the same manner as any other matter brought to the Court on appeal,
including affirming or reversing the panel's order, remand to the
panel, or entering any order it deems appropriate.
Discipline Cost
Schedule
The Supreme Court of Arizona has
adopted a schedule of administrative expenses to be
assessed in lawyer discipline.