Home / Focus / Law Firms & Legal Affairs Nov. 2008 / Self-Policing: State Bar of Arizona’s lawyer discipline program a mix of successes and challenges

Self-Policing: State Bar of Arizona’s lawyer discipline program a mix of successes and challenges

Attorney J. Scott Rhodes of Jennings, Strauss and Salmon, PLC.

From billboards to late-night TV ads, Arizonans are bombarded with reminders that when facing legal trouble, finding a lawyer should be the first step. But what happens when it’s the lawyer who has stepped over the line≠
Enter the State Bar of Arizona’s lawyer discipline program.
Similar to a civil or criminal trial, the lawyer discipline program involves a multi-layered and complex process. While cases move from investigation to conviction in a manner loosely resembling a civil trial, the proceedings are governed by a specific set of rules laid out by the Arizona Supreme Court.
Accused attorneys and attorneys who represent them say the bar’s program has a flaw common to the larger civil and criminal-trial process. They say the worst actions often go unpunished, while low-level violations are excessively penalized.
Much of the lawyer discipline program is operated in-house by the bar. The courts remain largely uninvolved in the disciplinary process until after a case has been investigated and a sanction recommended. Supreme Court justices only become involved with cases warranting high-level sanctions — censure, suspension or disbarment.
‘Bad apples’ get off easy
Despite the intricacies of the system, some lawyers worry the “bad apples” of the legal community too often go unpunished, while lower-level offenders are excessively punished.
“If you polled members of the State Bar, many of them would tell you that their criticism of the process is that the State Bar doesn’t end up prosecuting lawyers who are out there and are really bad,” says Attorney J. Scott Rhodes of Jennings, Strauss and Salmon, PLC.
“There is a feeling, and I share that feeling, that there are some really rotten lawyers out there who seem to be getting away with it.”
Rhodes says the bar’s difficulty in prosecuting major offenders stems from an overworked system initiated only after a complaint is filed.
“Sometimes unscrupulous lawyers have very strong personalities, and people are very afraid to turn them in,” he says. “And when you have a case involving an obvious misconduct, it is often going to be a rather complicated case, and the State Bar isn’t really equipped to handle complicated cases.”
The complaint
The majority of discipline cases begin with a client’s complaint, which, regardless of the severity, is initially forwarded to the Attorney/Consumer Assistance Program (A/CAP).
“If you call any number at the State Bar and say you want to complain about a lawyer, it is routed to A/CAP,” says Bob Van Wyck, chief bar counsel. “So as long as you hit somewhere in the building, you’ll get there.”
All complaints — 4,000 in 2007 alone — are screened by A/CAP. The enforcement role the division plays depends on whether the allegation, when and if substantiated, would be a violation of ethics rules laid out by the Supreme Court or other general rules of conduct — such as theft, lying to a judge or failing to communicate with a client.
If a client’s complaint does not rise to the level of an ethical violation, A/CAP enforces an informal punishment.
“The A/CAP attorneys will often call the other attorney and say ‘you know you need to talk to your client and figure it out,’” Van Wyck says. “Often with that sort of very informal mediation, the problem is taken care of.”
Cases beyond A/CAP’s authority move up the system to the State Bar’s Lawyer Regulation Office, a 12-attorney office that conducts formal investigations into cases, much like the police department does in a criminal case.
Cases taken up by the office differ from regular criminal investigations in one major way: Accused lawyers, or respondents, are expected to cooperate with the investigation.
“If you are the defendant in a civil or criminal case, you can refuse to help the other side,” says Rhodes, an attorney who represents lawyers in the disciplinary system. “For respondents, they can still defend themselves, but they have a duty to be forthcoming and recognize any deficiencies that have occurred and participate in the finding of the truth.”
If the case remains unresolved after an in-depth investigation, it is passed along to a probable-cause panelist — a member of the State Bar’s Board of Directors, who acts as sort of a grand jury.
“In theory, the probable-cause panelist is supposed to be a kind of a check and balance, a third-party review of what the bar has done,” says Rhodes. “In reality, the probable-cause panelist almost always does what the State Bar recommends.”
However, if the panelist does not believe the case warrants a trial, the panelist can punish the respondent with either an informal, private reprimand or supervised probation.
The panelist also can sentence a respondent to an education program designed to help the respondent fix the error that led to the misconduct in the first place.
“If a lawyer doesn’t make it to court a few times in a row, and it turns out it is because he doesn’t have a very good calendaring system, then we get him into an education program to help him get him get his calendar organized,” says Van Wyck. “The program monitors him for a little while, and then the case is dismissed.”
Serious cases land in state Supreme Court office
Only the most serious offenses move beyond the jurisdiction of the panelist and State Bar’s disciplinary program. If the panelist determines an offense warrants a high-level sanction, an official written complaint is filed with the disciplinary clerk of the Arizona Supreme Court and the case is referred to a hearing officer.
During the hearing, a “consent agreement” or plea bargain can be made between the respondent and the prosecutor, who represents the State Bar in its complaint against the accused attorney.
In the event a consent agreement is not reached and the hearing officer determines a high-level sanction — such as published censure, a suspension ranging from less than six months to more than 5 years or disbarment — is needed, the case is automatically forwarded to the Disciplinary Commission of the Supreme Court.
Of the 4,000 complaints received in 2007, only 101 cases — or 2.5 percent — were forwarded to the commission.
The nine-member commission is similar to an appellate court, and therefore can only consider evidence presented by the hearing officer. No new evidence is admissible once the case has reached this level.
Respondents also have the right to appeal to the commission any sanction decision rendered at any time during the disciplinary process.
The decision of the commission is final in most instances. But if the hearing officer and the commission agree that a high-level sanction is required, the punishment can be enforced only by an order from the Supreme Court.
As in criminal trials, the Supreme Court has the discretion to review any case.
However, if the Supreme Court chooses not to review and issue a ruling on a case within 60 days, the finding of the Disciplinary Commission stands and a concurring Supreme Court order is issued.
Because of the potential for the process to be complex and time-consuming, the Supreme Court has set limits on how
many months a case can sit at each level of the bar’s lawyer discipline program.
From the day a complaint is filed with A/CAP, the bar has 22 months to settle the case, although Van Wyck says most cases are settled well before the deadline.

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