We write in opposition to the Rule change proposed in Petition R-24-0046.

It is important to the administration of justice and the Rule of Law as enforced through our judicial system that the legal profession remain relatively autonomous and self-regulating.

The duty of members of the State Bar of Arizona to report apparent ethical and professional misconduct by fellow attorneys is an important aspect of the legal profession’s relative autonomy and self-regulation. Watering down and restricting this aspect of self-regulation of the Bar as proposed in Petition R-24-0046 is dangerous because the rule change it proposes would erode the already-declining confidence in Arizona lawyers and in our system of justice and thereby will take a bite out of the Rule of Law and the judicial branch of government of our Constitutional democracy.

The proposed new Rule 53(a) would limit standing to file Bar charges to an individual or entity that has “an attorney-client relationship with the respondent, direct and specific first-hand knowledge of the conduct described in the charge, or they became aware of the conduct in their role as a judicial officer.” This would do harm to no good end.

Arizona Supreme Court Rule 42, Ethics Rule 8.3, entitled “Reporting Professional Misconduct” provides that “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority, except as otherwise provided in these Rules or by law.”

The Comment to this Rule, at paragraph [1] notes that “Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct….An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover.”

The Comment at paragraph [3] notes that a lawyer is not obligated to report every violation, only “those offenses that a self-regulating profession must vigorously endeavor to prevent. … The term ‘substantial’ refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.”

These qualifiers are sufficient to deter lawyers from presenting frivolous charges of alleged misconduct by their fellow lawyers. Lawyers who submit frivolous charges themselves can be subject to discipline. Such discipline is the means by which to prevent the speculative suggestion in the Petition that the disciplinary process could become “weaponized by partisans.” Moreover, concern about the appearance of that occurring could be addressed by publicizing the ability to discipline lawyers who file frivolous Bar charges and by actually imposing discipline if and when warranted. No restriction on standing is necessary or appropriate.

The fact that there has been, in recent years, an unusually high volume of reports of misconduct by lawyers practicing law in Arizona - both by those who are members of the State Bar of Arizona, and those appearing pro hac vice in Arizona - is not a reason to dilute this rule by adding a new standing provision to Rule 53. Indeed, this is precisely the reason not to dilute it.

If non-lawyers or those not subject to regulation under the Arizona State Bar are filing a high number of complaints, either those complaints have validity because of the failure of the State Bar to take appropriate action against lawyer misconduct, in which case the complaints should be filed, or organized and/or political groups are seeking to “weaponize” the system against political philosophies they don’t agree with. If the latter is the case, the solution is not to punish those filing valid complaints but may not know how to investigate beyond news reports (nor is that their duty) but to reject those efforts to attack the Rule of Law. The State Bar could do so by expeditiously dismissing non-meritorious complaints filed for political purposes, and by communicating to the public via the news media the fact that certain individuals or groups are misusing the Bar complaint process improperly for political purposes. It is after all the duty of lawyers to protect the Rule of Law without which we do not have a democracy or a republic or even a profession.

Beginning in November of 2020, the undersigned attorneys complied with our duty under ER 8.3 to report alleged misconduct and violations of the Ethics Rules in Rule 42 and the Professionalism Rule in Rule 41 that we initially came to be aware of via news reports, and that we later verified by reviewing pleadings and other court records, including court orders, as well as transcripts of statements made in open court. That alleged misconduct was committed by attorneys representing candidates for political office who engaged in frivolous litigation without any factual or legal basis, including some frivolous litigation that allegedly was part of a conspiracy associated with the insurrection that occurred on January 6, 2021 which some view as an attempted coup to overturn the results of a free and fair democratic election for President of the United States. We are informed and believe that a number of other similar charges were submitted to the State Bar of Arizona by others relating to the same or related serious misconduct. We do not know whether judicial officers reported this misconduct to the State Bar, nor do we have any way of knowing that.

Because one of us was a member of the Board of Governors of the State Bar of Arizona, the charges we submitted were referred to Independent Bar Counsel. Some of the charges were investigated and dismissed. Others resulted in discipline. We understand from the Administrative Office of the Courts that the remainder of these investigations have been closed, though we have not been provided information as to why.

We have been informed by the State Bar of Arizona and by the Director of the Administrative Office of the Courts himself that the reason the investigations took several years is that there were insufficient resources for Independent Bar Counsel. The Director criticized the attorneys who presented the charges for this problem, complaining that one of us is a member of the Board of Governors which necessitated hiring Independent Bar Counsel. This criticism is misplaced. Far from being considered a problem, it should be considered refreshing and appropriate that a leader of the State Bar is complying with his obligation to report attorney misconduct.

The solution to the problem of inadequate resources is for the Director of the Administrative Office of the Courts to adequately staff the office of Independent Bar Counsel so that it is able to conduct investigations expeditiously and appropriately, not to restrict attorneys and others from filing Bar charges. The failure to do so has resulted in the disappointing, indeed frightening, appearance that the Director himself has put his thumb on the scales of justice to deter appropriate investigation and accountability for serious violations of the Ethics Rules committed by partisan attorneys for political purposes.

As just one example of an unfortunate consequence that would result from the Director’s proposed change to the Rule to impose a standing restriction to file Bar charges, if it is adopted, it is likely that a lawyer engaging in an inappropriate sexual relationship with a client - particularly a vulnerable client such as a victim of domestic violence who is being represented in a divorce proceeding - will be more likely to go unreported. The client herself may too greatly fear retaliation to make a report to the State Bar, and no one else will be authorized to do so. So, the State Bar will be unaware of the misconduct and have no ability to intervene to address it, thus allowing it to continue with respect to the current victim and also enabling future misconduct of the same type. The same could occur with an attorney representing an elderly client, especially one with beginning dementia, with estate planning. The client would never know of or complain about the misconduct but a relative or another attorney might. There are myriad other examples of situations in which this proposed change to the Rule to limit standing to file Bar charges will deter reporting that should be encouraged.

Adopting this rule would be akin to the state adopting a policy prohibiting people from reporting to law enforcement detectives any crime they did not personally witness or suffer as a victim, as a means to reduce a high volume of criminal cases. A parent told by a child that she had been the victim of sexual assault under that scenario would be prohibited from reporting the alleged crime to have it investigated by law enforcement.

We also oppose the other aspect of the Petition, which is to restrict the limited transparency that already exists with regards to Bar charges. The Director of the Administrative Office of the Courts seeks to substitute the State Bar itself as complainant in order to remove the duty and responsibility of the State Bar or Independent Bar Counsel to provide the true complainant with a copy of the respondent’s initial response to the charge and the resolution of the charge.

There already is a provision by which a protective order can be entered in specific cases, where there is appropriate justification. There is absolutely no need for a blanket protective rule to be issued covering all cases.

Lack of transparency undermines faith in the process and thereby undermines faith in lawyers, the judicial system generally, and thus our Constitutional democracy. We believe there already is unduly restricted transparency; there should be more transparency, not less.

In conclusion, we urge the Court to reject this dangerous Petition that would restrict standing to file Bar charges and would reduce the limited transparency that exists with regards to the response to Bar charges.

Additionally, we urge the Court to evaluate the circumstances underlying this Petition brought by the Director of the Administrative Office of the Courts and that the Court assert supervisory authority with respect to appropriate staffing of the Office of Independent Bar Counsel and of the State Bar of Arizona so that both can expeditiously complete investigations of the current volume of Bar charges and can address misconduct appropriately to preserve the integrity of the legal profession, the Bar, and the judicial system that is so vital to our Constitutional democracy.

Dianne Post, Attorney
1826 E. Willetta St.
Phoenix, AZ 85006-3047
602-271-9019
[email protected]

Petitioner’s stated concern is that “charges have been submitted by individuals based on second-hand information concerning the alleged misconduct,” particularly regarding lawyers involved in election-related litigation or who are themselves running for election as attorney general or a county attorney. Petitioner characterizes this as an improper “weaponization” of the disciplinary process and seeks to address this perceived impropriety by depriving these individuals of the rights that they would otherwise have as complainants under the rules.

For all the reasons articulated in the comment from Dianne Post, I urge the Court to deny the petition. As the guardians of a self-regulating profession, the Bar and the Arizona Supreme Court must encourage, not discourage, the reporting of perceived or suspected lawyer misconduct. The notion that the filing of a bar charge against a lawyer is an unfair “attack” on that lawyer or a “weaponization” of the process, is a misperception that the Bar and the Supreme Court should seek to correct, not validate. As members of the legal profession, we agree to be answerable to the Bar and the Court regarding such charges. The Bar can and does dispense with meritless charges in an expeditious manner. To combat any "weaponization" of the process, the Bar can also seek a protective order when appropriate and discipline any lawyer who files frivolous bar charges against other lawyers.

Being the subject of, and having to defend oneself against, charges of misconduct is no fun. But the system isn’t broken simply because some lawyers in high-profile cases might attract more bar charges than others, nor is it broken simply because some of those charges might ultimately be dismissed. It’s no fun to get sued or criminally prosecuted either. But it would be wrong to conclude that the entire justice system is broken just because some defendants get sued more often than others, some plaintiffs lose their lawsuits, and some criminal defendants are acquitted.

Finally, if a rule change with such significant public implications is to be considered, it should be submitted during the normal rule-amendment cycle under Rule 28 so that there is a truly fair opportunity for robust public comment and debate, and a phasing-in period. This petition was filed on April 25, 2024, more than 3 months after the normal 2024 petition-filing deadline and just one week before the last day to post comments on timely-submitted petitions, and it includes an emergency-enactment request. Yet the perceived problem didn’t just develop over the last 6 months; the petition itself notes that “there have been at least 40 election-related cases submitted since November 2020,” a period of approximately 3-1/2 years. This off-cycle emergency filing could, far from increasing the public’s trust in the disciplinary process and the Court itself, be perceived as politically motivated and protectionist.

Regina Nassen
Bar #014574
[email protected]
255 W. Alameda, 7th Floor, P.O. Box 27210, Tucson, AZ 85726-7210
520-837-4207

From my perspective, the petitioner has not provided sufficient justification for the adoption of this proposed new rule, especially on a temporary emergency basis. Has any other U.S. jurisdiction adopted such a rule or anything similar to it? If so, what language did it use and what justification did it provide for doing so? How is Arizona out of the mainstream concerning standing to be considered a complainant and the rights of complainants? How is "direct and specific first-hand knowledge of the conduct described in the charge" to be determined and by whom? Some refinement of the current rule to address the concerns set forth in the petition may be appropriate, but the current justification for emergency action is lacking, in my opinion.

George A. Riemer
Attorney at Law
23206 N Pedregosa Drive
Sun City West, AZ 85375
623-238-5039
[email protected]

I have been an active member of the State Bar for over fifty years, and I believe that approval of Petition R-24-0046 to amend Rule 53 would be a grave mistake. First, the Bar, like many other professions and occupations which require high levels of skills and responsibility, is self-governing and supports its independent status by a system which allows parties inside and outside the Bar to report unethical or improper conduct without having a direct relationship to the party complained about. Second, as responsible members of a democratic society, we are admonished "If you see something, say something," but this amendment sends a message quite the opposite: "If you see something and you are not directly involved, walk away and keep quiet." Third, it is no secret, as every member of the judiciary knows, that the abuse of the legal system to thwart the will of the people as demonstrated in meritless election challenges will continue unabated unless lawyers and of the public have a mechanism to protest the systematic dismantling of our Constitution.

This proposed amendment is purely political in nature and is intended to eliminate one more mechanism within the State Bar which could be utilized to preserve respect for the law, respect for the vote, and respect for the legal profession. I support all the comments made by others who have expressed opposition to this proposed amendment.

Victor Aronow
Bar Number 002764
P.O. Box 27617
Tempe, AZ 85285
[email protected]
(480) 316-2272

Senator Warren Petersen, LD 14
Arizona State Senate President
1700 W. Washington
Phoenix, AZ 85007
602-926-4136
[email protected]
State Bar Number: 038830

I submit this comment as a former Senior Staff Counsel in the Office of Attorney Discipline in Utah (1989 -1991) and a former Senior Bar Counsel for the State Bar of Arizona (1995-2001) and as a lawyer who has for the past twenty three years, devoted my practice to representing lawyers in State Bar matters. I believe this background affords me unique insight into this rule change petition.

There are three main reasons the Petition should be denied.

(1) Prior to 1996, the Supreme Court rules regarding attorney discipline prohibited the State Bar of Arizona (State Bar), the respondent lawyer and the complainant from publicly discussing information related to a bar charge. This rule was euphemistically referred to as the “gag rule.” In 1996, this Court recognized that it could not curtail respondents’ and complainants’ First Amendment rights, and therefore eliminated the gag rule as to respondents and complainants. This rule change meant that only the State Bar was prohibited, for administrative purposes, from disseminating information in its file until certain procedural steps were reached during the process. Complainants and Respondents are not similarly prohibited, as this would run afoul of their Constitutional rights. This rule remains in effect to date. See Rule 70, Arizona Rules of the Supreme Court.

(2) This Court has repeatedly stated, as have other courts throughout the nation, that the privilege of self-regulation granted to the legal profession, and no other licensed professionals, must remain open and transparent to the public, in order to instill trust in the process. The need for this is self-evident.

(3) A rushed process is a flawed process.

DISCUSSION

The Petition argues that: “When these individuals are treated as complainants, they may be provided access to information that may be otherwise confidential [] and then divulge it publicly before the discipline matter is finalized.” This argument is misleading. All respondents and all complainants have rights guaranteed by the First Amendment to discuss and disseminate the information at issue in a bar charge - unless sealed by protective order. The Petition’s use of the word “confidential” in this setting is misleading in that only the State Bar is restricted from disseminating information during its investigation. Whether or not the complainant has direct knowledge of the events is completely irrelevant. The First Amendment protects complainants’ free speech rights, and only the State Bar is restricted, for administrative purposes, from disseminating information during the process. Thus, unless subject to a protective order, information is not “confidential” except as the State Bar is restricted.

The Petition also adopts the word “weaponized” to falsely exaggerate an asserted threat. The Petition claims that “at least 40” election-related cases were submitted since November 2020. However, the Petition fails to acknowledge the merit of those charges or the discipline imposed. The Petition also fails to point out that since 2020, the State Bar processed approximately 2300 bar charges each year. In other words, while failing to acknowledge the merits and the discipline imposed, the Petition claims that 40 bar charges, of the over 9,200 in the last four years, is “weaponizing” the disciplinary process. This argument is also false.

The Petition fails to produce evidence of any adverse effect of the current rule. Even assuming, arguendo, that 40 bar charges of approximately 9,200 results in an insurmountable burden for the State Bar, the proposed rule change does nothing to curtail the number of bar charges. Instead, it proposes to change only who becomes the named complainant. In other words, the proposed rule change does nothing to reduce the number of bar charges filed related to election cases, its purported aim. On the other hand, an untended consequence may be that the overall number of charges submitted to the State Bar may be reduced, to the detriment of the integrity of the lawyer discipline system.

While changing nothing about the number of bar charges filed, the proposed rule accomplishes at least one completely unacceptable result: secrecy and lack of public oversight of the State Bar. Consistent with the Court’s long-standing policy in favor of an open and transparent discipline system, the current rules provide complainants the right to object and appeal when the State Bar dismisses a bar charge after investigation. The recent case involving former Deputy County Attorney Juan Martinez is only one example of the dire need for such oversight. In that case, the State Bar dismissed the bar charge after “completing” its investigation (State Bar File 17-0624). My former law partner, Karen Clark, appealed the dismissal to the Attorney Discipline Probable Cause Committee (ADPCC), which then reversed the State Bar’s dismissal and ordered the State Bar to further investigate it. After that order, Mr. Martinez was ultimately disbarred. Absent the required notice of the State Bar’s dismissal provided to the complainant in that matter, the State Bar’s dismissal would have remained as the final determination, and a lawyer who fully deserved the ultimate sanction of disbarment would have continued to practice law with impunity.

Petitioner requests that the Petition be granted “[] expedited consideration and emergency temporary adoption…”The only basis for this as stated in the Petition is that the “upcoming election cycle and media coverage may again see numerous allegations submitted by those not directly involved in the alleged misconduct.” The fallacy of this argument is demonstrated not only by the hyperbole but by the fact that the rush to adopt a rule this important precludes the open participation, prior to adoption, by members of the Bar and public who may not be aware of this Petition. Providing a mere 30 days for comment prior to the requested “preliminary” adoption is far too little time for such a far-reaching and radical change to the self-regulation function of the lawyer discipline system. Especially when many, if not the majority, of Arizona lawyers – and non-lawyer citizens alike – are completely unaware of this rule change Petition. A rush to adopt the proposed rule is both unwise and completely unwarranted.

CONCLUSION

The Petition is flawed and misleading, and fails to state a legitimate case for eliminating the current rule. This Court has fully recognized that an open disciplinary process is absolutely necessary.

There is no good reason to grant the Petition and ample reason not to. The Petition should be denied.

Ralph Adams
Bar No. 015599 (retired in September 2023 and currently on inactive status)
68-1916 Lina Poepoe
Waikoloa, HI 96738
(602)799-1353

Amelia Craig Cramer
1 W. Broadway Blvd., Apt. 504
Tucson, AZ 85701
[email protected]
(520) 401-6314

Matthew E. Kelley (037353)
David J. Bodney (006065)
Ballard Spahr LLP
1 East Washington Street, Suite 2300
Phoenix, AZ 85004
[email protected]
[email protected]
(602) 798-5400

David K. Byers
Administrative Director
Administrative Office of the Courts
1501 W. Washington, Suite 411
Phoenix, AZ 85007
(602) 452-3301
[email protected]

Petitioner hereby files its Reply to the comments.