The Discipline Process
The State Bar's Lawyer Regulation Department is designed to resolve most disputes informally, and to formally investigate serious allegations of misconduct. Almost all disputes or concerns start with the Bar's Intake Department.
Intake serves as the intake and pre-screening function of the State Bar's Lawyer Regulation Department. Intake may be able to help if a client is having a dispute with his/her attorney, if an attorney, alternative business structure (ABS), or Legal Paraprofessional (LP) is having a dispute with his/her client, or if an attorney, ABS, or LP is having a dispute with another attorney, ABS, or LP.
Other more serious matters are referred for a screening investigation.
Charges can be made by any person, and can be submitted in writing, over the telephone or through the State Bar’s website. Once a charge is received an Intake Lawyer is assigned to review the charge and determine if it should be dismissed, can be resolved quickly and informally or if it should be forwarded to Litigation for further investigation.
Intake lawyers will often call the Complainant making the charge as well as the Respondent attorney to discuss the charge and to gather preliminary information. If the Intake Lawyer determines there are not sufficient grounds to proceed with a disciplinary charge, the Intake Lawyer may dismiss the charge at this point. A Complainant who disagrees with that decision to dismiss has the right to appeal the Intake Lawyer’s decision to the Chief Bar Counsel, who will review the decision and decide whether to uphold the dismissal or to conduct further investigation.
If the Intake Lawyer determines there are sufficient evidentiary grounds to believe the lawyer violated the ethics rules, the Intake Lawyer may decide to offer diversion to the Respondent attorney to resolve the charge. If the intake Lawyer believes the violation is serious enough to warrant more than diversion, the Intake Lawyer may request a written charge from the Complainant and refer the matter to the Litigation Department for a screening investigation.
Once the written charge has been referred to the Litigation Department for a screening investigation, the assigned litigation attorney forwards a copy of the charge to the Respondent attorney with a request for written response. By Rule, the Respondent attorney may receive one extension of time, up to 20 days in length, by requesting such from the Litigation attorney. Further extensions can only be granted by the Chief Bar Counsel upon a showing of good cause. Once the Respondent attorney’s response to the charge has been received, it is forwarded to the Complainant. At this time, the assigned Litigation attorney reviews the charge, response and evidence, and may conduct additional investigation or obtain additional evidence as needed. The assigned Litigation attorney then creates a Report of Investigation detailing their findings and making a recommendation as to the appropriate outcome of the matter.
If the recommendation is for diversion or discipline, a copy of the Report of Investigation will be sent to the Respondent attorney. If the recommendation is for dismissal, a copy of the Report of Investigation is not sent to the Respondent attorney. The Complainant is not provided with a copy of the Report of Investigation, in any event however, both the Respondent attorney and Complainant are notified of the decision of the assigned Litigation attorney. If the Complainant disagrees with a recommendation of dismissal, they have the right to appeal that decision to the Attorney Discipline Probable Cause Committee.
If the Litigation attorney is recommending diversion or discipline, the recommendation is submitted to the Attorney Discipline Probable Cause Committee (ADPCC). ADPCC is a Committee of the Supreme Court of Arizona, and is independent from the State Bar of Arizona. The Committee meets on a monthly basis, and reviews the recommendations submitted by the State Bar as well as dismissal appeals submitted by Complainants. The Respondent attorney who has a matter on the calendar to be considered by ADPCC may submit a written response to the State Bar’s report of investigation and have it considered by the Committee. Bar Counsel appears at the ADPCC meeting and makes a brief presentation of the matter to the Committee. The meetings are not public, and neither Respondent attorneys nor the public may attend.
The ADPCC has the ability to affirm the Bar’s decision, to change that decision, to dismiss the matter or to direct the State Bar to conduct further investigation. If the Committee affirms the Bar’s decision to issue an order of diversion or an order of informal discipline (an Admonition, Probation, Restitution), then the order becomes final absent further objection from the Respondent attorney. If the Respondent attorney wishes, they may object to this order and demand formal proceedings. If this occurs, or if the Bar is recommending a formal sanction (Reprimand, Suspension, Disbarment), then the ADPCC issues an order of probable cause and directs the Bar to engage in formal disciplinary proceedings.
Formal proceedings are initiated by the State Bar’s filing of a Complaint with the Disciplinary Clerk of the Supreme Court. The process is overseen by the Presiding Disciplinary Judge, and proceeds similarly to litigation in a traditional court action. Once the Complaint has been filed, the Respondent attorney files an Answer, a scheduling conference occurs before the Presiding Disciplinary Judge and the parties engage in discovery and disclosure.
A settlement conference is generally held in formal litigation matters, and the parties have the ability to enter a consent agreement, which is a type of settlement. Consent Agreements must be approved by the Presiding Disciplinary Judge before becoming final.
If the matter does not settle, it will proceed to a hearing on the merits, which is similar to a trial. The hearing is held before a disciplinary panel consisting of the Presiding Disciplinary Judge, a volunteer attorney and a volunteer non-attorney member of the public. Witnesses are called and evidence is presented. The two sides make their respective arguments. After the hearing, the Disciplinary Panel issues a decision regarding the outcome of the matter.
If neither party appeals the decision of the Disciplinary Panel, the decision becomes final. However, either party may choose to appeal the decision to the Arizona Supreme Court. Should one of the parties appeal, the Court sets a briefing schedule, the parties submit briefs and the Court may or may not hold oral argument. The Supreme Court then reviews the matter de novo, and may uphold the order of the Disciplinary Panel, modify the order, dismiss the matter or remand the matter back to the Panel for further proceedings. If the Court affirms the order, modifies it or dismisses the case, that decision is final.
There are many possible outcomes to a disciplinary case. A case may be dismissed or the attorney may be ordered into a diversion program (such as taking CLE or receiving law office management assistance). Diversion is not discipline, but rather, is an alternative to discipline. Lawyers may receive an order of Admonition, may be placed on probation or may be required to pay restitution. These are all considered “informal” sanctions. Formal sanctions, which can only be issued by the Presiding Disciplinary Judge or the Supreme Court, consist of orders of Reprimand, suspension (both short-term and long-term) and disbarment.
Lawyers disciplined as a result of disciplinary proceedings are required to pay the cost of the proceedings, which vary depending on the procedural stage in which the matter is resolved.
Attorneys, ABSs or LPs who have been suspended or disbarred, or had their license revoked as a result of discipline must be reinstated prior to resuming the practice of law.
Attorneys or LPS who have been suspended for six months or less (a short-term suspension) may file an affidavit pursuant to Supreme Court Rule in order to apply for reinstatement. Attorneys who have been suspended for over six months (a long term suspension) must file a formal application for reinstatement and participate in a formal reinstatement hearing before a Disciplinary Panel to show rehabilitation and fitness to practice. The State Bar may or may not oppose the reinstatement. Attorneys who have been disbarred may formally apply for reinstatement after a period of five years has passed, and must go through formal reinstatement proceedings to show fitness to practice and rehabilitation.
An ABS whose license has been suspended 90 days or less may file an affidavit pursuant to Supreme Court Rule in order to apply for reinstatement. An ABS whose license has been suspended for more than 90 days shall file a written application for reinstatement pursuant to ACJA Section 7-209(I).
Click here for information regarding how to apply for reinstatement.