Fortunately, most lawyers will never have to contemplate a day when they will receive an order of the Arizona Supreme Court suspending or disbarring them.[i] For those lawyers whose discipline cases include the possibility of a long-term suspension or disbarment, however, planning early for discipline can be important.[ii] This is true even in cases where the lawyer has a sound defense that could result in dismissal of all charges, or mitigation that could dramatically reduce the sanction.
It is often possible to analyze a range of potential sanctions before the State Bar states its sanction position, which often occurs before a formal complaint is filed. If the upper end of possible sanctions includes a long-term suspension (six months and one day or longer), or disbarment, then the respondent lawyer is well-advised to consider the reinstatement process early, ideally while she is preparing her initial response to the State Bar's screening investigation.
This is not to say that a lawyer facing potential disbarment or a long-term suspension should give up and not present a defense. As in any litigation, an early risk-benefit analysis can allow a lawyer to determine where best to invest her financial, professional, and emotional resources. Even in those cases that will involve a vigorous defense, early consideration of the reinstatement process can be an integral and effective part of the lawyer's overall planning and strategy if the allegations could result in disbarment or a long-term suspension.
A few preliminary concepts help explain why early consideration of reinstatement is important. First, disbarment is not permanent in Arizona. After five years, a disbarred lawyer may retake the Bar exam and apply for reinstatement.[iii] A lot can happen in five years. A lawyer who believes her professional life is over after disbarment may have another perspective five years later. Even a disbarred lawyer (or a lawyer who has received a long-term suspension) who does not want to resume the practice of law may nevertheless apply for reinstatement to remove the stigma and demonstrate that she has the character to practice law.
Second, even lawyers who are suspended for six months or less technically must be reinstated before they can resume their practice. As discussed below, failure to follow procedural steps at the beginning and end of suspension can delay (or impede) the lawyer's reinstatement.
Third, any disbarment or long-term suspension requires the lawyer to apply for reinstatement, which can be complex and onerous. Reinstatement starts with a voluminous application that requires disclosure of personal information. Thereafter, the applicant must present evidence at a hearing and wait for review by the Disciplinary Commission[iv] and the Arizona Supreme Court before her reinstatement becomes effective. Given the proof necessary to be reinstated, having a defined plan in place at the start of the disbarment or long-term suspension is almost essential.
Rules Applicable to All Suspended or Disbarred Lawyers
An order of suspension or disbarment is effective thirty days after the Supreme Court issues it.[v] This does not mean, however, that a lawyer can take on new clients, or new assignments for existing clients, for the next thirty days: "Respondent, after entry of a judgment of disbarment or suspension, shall not engage in the practice of law, except that during the period between entry and the effective date of the order, respondent may complete on behalf of any client all matters that were pending on the entry date."[vi] If the lawyer has not planned for the order in advance, she may be busy over the next ten days. For pending matters (active or inactive), Rule 72 of the Arizona Supreme Court Rules requires the disbarred or suspended lawyer, within ten days of the date of the order, to provide written notice to all clients, any co-counsel, any opposing counsel, and each court and division.[vii] The lawyer must also return client property, including unearned fees and files "notwithstanding any claim of an attorney lien."[viii] The lawyer must also move to withdraw from any pending litigation where the client does not obtain replacement counsel.[ix] Finally, within ten days of the date of the order, the lawyer must file an affidavit with both the Disciplinary Commission and the Supreme Court, and serve a copy on Bar counsel, attesting that she has met all requirements of Rule 72, and providing other information.[x]
These requirements apply to every suspension, from thirty days to five years.[xi] Although disbarment and suspension orders refer to Rule 72, and many attorneys comply with most of those requirements, failure to file the affidavit (a "Rule 72(e) affidavit") and serve it on Bar counsel is a relatively common problem. Because reinstatement requires an applicant to attest to or prove "compliance with all applicable discipline orders and rules,"[xii] failure to file and serve the affidavit could complicate the reinstatement process. Thus, in this respect, reinstatement begins during the first ten days after the disbarment or suspension order.[xiii]
Because the rules covering the first ten days of a disbarment or suspension can be onerous (and come at a time when the lawyer likely is not feeling motivated), some lawyers begin the process before receiving the order. The lawyer discipline process usually leaves a lawyer time between the Disciplinary Commission's recommendation of disbarment or suspension and the Supreme Court's order. Lawyers may prefer to start winding down their practices (even for a short-term suspension) before the order is issued for several reasons, including a desire to talk personally to clients and explain the Court's anticipated action, discuss and obtain client consent on the amount of fees (if any) due for refund, transfer files to replacement counsel, and move to withdraw where necessary. A lawyer who anticipates the order could have nothing left to do under Rule 72 after the order issues, except the Rule 72(e) affidavit. Even that can be prepared in advance.[xiv]
A smooth transition into disbarment or suspension can also benefit the lawyer in the reinstatement process. Because suspension or disbarment cases often involve prejudice to one or more clients, both the lawyer and the client(s) may find closure through the lawyer's explanation of what happened and acknowledgement of responsibility.[xv] During the reinstatement process, the State Bar will contact the complainants (and perhaps other former clients) to ask their opinion on reinstatement. A client who believes the lawyer closed her practice professionally and ethically, and who talked to the lawyer about the misconduct, is more likely to support reinstatement than a client who believes the lawyer did not care. A complainant's negative opinion about reinstatement usually is not dispositive in a reinstatement case, but it still must be overcome. In contrast, having a complainant support reinstatement can be a positive factor.
Reinstatement After a Short-Term Suspension
A suspension of six months or less is considered short term and usually does not require the lawyer to apply for reinstatement. Nevertheless, the lawyer cannot simply resume her practice when her suspension ends. Rule 64(e) of the Arizona Supreme Court Rules requires the lawyer to file an affidavit stating that she has complied with all requirements of the suspension order and paid all costs and expenses. Those requirements include the suspension period, the Rule 72 requirements discussed above, and costs. They may also include restitution, which must be paid before reinstatement.[xvi]
The Rule 64(e) affidavit, like the Rule 72(e) affidavit, must be filed with the Supreme Court Clerk and the Disciplinary Clerk and served on Bar counsel. The State Bar has ten days after service of the affidavit to file and serve a response. If the State Bar does not file a response, it is deemed to consent to reinstatement, and the Clerk may issue an order reinstating the lawyer. [xvii] If the State Bar files a response, however, the lawyer cannot resume practice until the Court reviews the matter. In either case, the lawyer may not resume her practice until the Clerk issues an order.[xviii]
Failure to comply with the reinstatement affidavit requirement can be costly. If the affidavit is not filed within sixty days of the end of the suspension period, the lawyer must follow the same reinstatement process as lawyers who have been disbarred or suspended for more than six months.[xix] The full reinstatement process, as described below, can be long and difficult, and the lawyer cannot practice while it is pending.
There are two potential "traps," then, for the unwary lawyer who receives a short-term suspension: (1) the Rule 72(e) affidavit must be filed within ten days of the suspension order; and (2) the Rule 64(e) affidavit must be filed within 60 days of the end of the suspension. Because failure to file either affidavit can have serious consequences, lawyers facing a possible short-term suspension should prepare in advance.
Reinstatement After Disbarment or Long-Term Suspension
Reinstatement for disbarred and long-term suspended lawyers can be difficult in Arizona. Indeed, certain lawyers face a rebuttable presumption that they are disqualified for reinstatement - those who have been convicted of a misdemeanor involving a "serious crime" or any felony.[xx] Thankfully, relatively few Arizona lawyers are disbarred or suspended for any criminal conduct, much less a felony or misdemeanor involving a serious crime. Lawyers who fall under that category, however, are not alone in facing an arduous reinstatement process.
The stakes are high for any lawyer seeking reinstatement: if an application is denied, the applicant cannot reapply for one year.[xxi] Thus, a lawyer who risks disbarment or a long-term suspension, or who already is under a disbarment or suspension order, should devote the time and resources necessary to prepare and assess the likelihood of success.
Preparing the application can take weeks, and once it is filed, the process can go on for months. (Likely because of the length of the process, the rules permit filing the application 90 days before the end of the suspension period.[xxii]) The application (in the form of a motion) contains an array of personal and financial information. These requirements are contained in Rule 65(a), Arizona Supreme Court Rules, and include, for the period of rehabilitation, such information as: a detailed list of employment; a statement of monthly earnings and other income from all sources; all residences; all financial obligations; and a series of questions related to civil and criminal matters and other professional licenses.[xxiii] In addition, the lawyer is required to submit all state and federal income tax statements during the rehabilitation period.[xxiv]
While, in the underlying discipline case, the State Bar bore the burden of proving its case by clear and convincing evidence[xxv], the roles reverse on reinstatement. The applicant must prove by clear and convincing evidence "the lawyer's rehabilitation, compliance with all applicable disciplinary orders and rules, fitness to practice, and competence."[xxvi] Meeting the burden requires forethought.
Fitness and Competence. Every disbarred lawyer, and any suspended lawyer who has not applied for reinstatement for five years, must pass the Bar exam.[xxvii] Even lawyers who have not been out of practice for five years must nevertheless prove their competence. If retaking the bar exam is not required, a lawyer can prove competence by showing that she has remained abreast of the law, including proof of employment in a law-related field (but not the unauthorized practice of law), meeting CLE requirements, or other similar activities.[xxviii] Proof of fitness can include a successful employment history, preferably with support from the employer or immediate supervisor.
Compliance with Applicable Orders and Rules. The requirement to prove compliance with all applicable orders and rules starts with Rule 72, including the Rule 72(e) affidavit (discussed above). It also includes proof of payment of State Bar costs and any restitution. Lawyers should not wait to pay restitution until they are preparing for reinstatement. Last-minute payments imply indifference. Lawyers with serious financial hardship should communicate with the individuals to whom they owe restitution and, if possible, make installment payments to show good faith. All lawyers who owe restitution should keep records of their payments, including proof of their efforts to find individuals who may have moved.
Rehabilitation. All required elements of proof for reinstatement are important, but none is harder to prove, nor ultimately more important, than rehabilitation. In 2004, the Arizona Supreme Court re-defined the requirement of proving rehabilitation in certain cases and, in so doing, gave some respondent lawyers reason to consider their eventual reinstatement even while they prepare their defense to the underlying case.
In re Arrotta was a post-disbarment reinstatement case where the misconduct included a guilty plea to federal felony charges. [xxix] The applicant presented character and law-related employment evidence to prove rehabilitation. The Court, finding that evidence insufficient, established a sliding scale of necessary proof: "the more serious the misconduct that led to disbarment, the more difficult is the applicant's task of showing rehabilitation."[xxx] Specifically, after Arrotta, it will not be enough simply to complete the sanction: " ‘[N]either the fact that Applicant has been sufficiently sanctioned, nor the mere passage of time, is enough to warrant reinstatement.'"[xxxi] Moreover, while accepting responsibility for misconduct is a factor for consideration, an applicant "must demonstrate more than that he has led a blameless and law-abiding life while disbarred."[xxxii]
Under Arrotta, proof of rehabilitation requires that an applicant "must first establish by clear and convincing evidence that he has identified just what weaknesses caused the misconduct and then demonstrate that he has overcome those weaknesses." [xxxiii] An applicant can meet this burden through testimony from a mental health professional, participation in community or charitable organizations, specialized instruction or education, or similar evidence.[xxxiv]
Although Arrotta involved a post-disbarment reinstatement resulting from criminal misconduct, its standards have been considered in long-term suspension cases where the misconduct was deemed dishonest. Nothing in Arrotta requires a lawyer to consider reinstatement standards while preparing her defense to the discipline case; however, any lawyer accused of dishonest conduct can benefit from an early look ahead to her possible reinstatement case. This is especially true if the lawyer cannot rebut the alleged facts. Because a year (or more) can pass between the initial allegation and the ultimate decision in a lawyer discipline case, a lawyer can use that period to identify and develop evidence of the "weakness" that led to the misconduct at any early date, and start to engage in activity designed to overcome that "weakness."
This process of identifying and controlling the "weakness" that caused misconduct can lead to changes in a lawyer's practice, changes that the lawyer must be willing to embrace. Some such changes can be substantial (e.g., changing jobs and/or areas of practice) but some can be minor (e.g., engaging in better training and other techniques to improve staff retention and loyalty). Either way, a pro-active approach to rehabilitation could affect the outcome of the discipline case. However, affecting the outcome should be neither the expectation, nor the sole purpose, of the process. The lawyer's efforts must be sincerely undertaken and seriously implemented for their own sake. They must be genuine. If the alleged conduct is serious, there is no guarantee that the result will be a lesser sanction.
When a discipline case alleges serious misconduct (including any allegation of dishonesty), and where the State Bar is seeking disbarment or a long-term suspension, if the lawyer can prove both the "weakness" that created the conduct and also that the solution to the "weakness" exists and has a track record of success, it will be a different case than one where the lawyer offers neither a credible defense nor a reason to save her career. Such a case will, at the very least, contain contemporaneous evidence of the Arrotta factors, which can serve, if necessary, as a strong foundation for the lawyer's subsequent reinstatement.
[i] Only the Arizona Supreme Court can censure, suspend or disbar a lawyer. Ariz.R.Sup.Ct. 60(a). Similarly, only the Court can reinstate a suspended or disbarred lawyer. Id., 65(b)(5).
[ii] This article does not cover reinstatement after summary suspension by the State Bar Board of Governors for failure to pay dues or meet annual CLE requirements. A lawyer under such suspensions must apply to the Board within two years and prove she has cured the deficiency that caused the suspension. The Board has authority to reinstate the lawyer. Id., 64(f).
[iii] Id., 64 (c), (d).
[iv] The Disciplinary Commission of the Supreme Court is, in essence, the court of appeals for lawyer discipline cases. See id., 49(c).
[v] Id., 72(d).
[vi] Id. (emphasis added).
[vii] Id., 72(a).
[viii] Id., 72(c).
[ix] Id., 72(b).
[x] Id., 72(e). The additional information consists of a list of all other state, federal and administrative jurisdictions in which the lawyer is admitted to practice, and the lawyer's residence and other addresses for receiving communications.
[xi] While any length of suspension up to five years is permissible, the minimum length of suspension that the Court imposes is 30 days. Thirty-day suspensions are increasingly rare.
[xii] Id., 65(b)(2).
[xiii] Failure to file a Rule 72(e) affidavit, if all other Rule 72 requirements were met, usually is not fatal to a reinstatement application that meets the applicant's burden of proof in all other respects. However, such a failure is a hurdle to jump from the outset and can show either the lawyer's negligence or indifference to the applicable rules at the start of the period of suspension or disbarment.
[xiv] Taking these steps in anticipation of the order would not be appropriate in a case that the lawyer believes the Supreme Court is likely to review. Nor is it necessary to start the process too early, in effect extending the disbarment or suspension period. A lawyer may also opt to prepare all necessary notices in advance, but not send them until the order issues.
[xv] If there is pending or potential civil litigation against the lawyer arising out of the same transactions or events, the lawyer should consult with her defense counsel before taking this step.
[xvi] Note that failure to have filed the Rule 72(e) affidavit may be considered failure to comply with the suspension order.
[xvii] Id., 64(e)(2)(A).
[xviii] Id., 64(e)(2)(B).
[xx] Id., 64(b). "Serious crime" is defined as "any crime, a necessary element of which ... involves interference with the administration of justice, false swearing, misrepresentation, fraud, willful extortion, misappropriation, theft, or moral turpitude, including a conspiracy, a solicitation of another, or any attempt to commit a serious crime."
[xxi] Id., 64(a)(4).
[xxii] Id., 64(e)(1).
[xxiii] Id., 65(a)(1). Lawyers with real estate licenses should note that they may have an obligation to report their lawyer discipline to the Arizona Department of Real Estate. Failure to do so may become an issue for the lawyer's State Bar reinstatement process.
[xxiv] Id., 65(a)(2)(C). The lawyer may move for a protective order sealing the tax statements and any other private information. The lawyer may also redact any private information -such as Social Security numbers-- from documents filed in support of the application.
[xxv] Id., 57(i)(3).
[xxvi] Id., 65(b)(3).
[xxvii] Id., 64(c).
[xxviii] CLE is not mandatory for suspended or disbarred lawyers.
[xxix] 208 Ariz. 509, 96 P.3d 213 (2004).
[xxx] Id., 208 Ariz. at 512, 96 P.3d at 216 (citations omitted).
[xxxi] Id., quoting In re Robbins, 172 Ariz. 255, 256, 836 P.2d 965, 966 (1992).
[xxxii] Id., 208 Ariz. at 515, 96 P.3d at 219.
[xxxiii] Id., 208 Ariz. at 513, 96 P.3d at 217 (emphasis added).
[xxxiv] Id., 208 Ariz. at 516, 96 P.3d at 220.