In July 2009, the Arizona Supreme Court created the Attorney Discipline Task Force for the purpose of preparing a motion to amend the rules that govern the regulation of Arizona lawyers. The Court directed the Task Force to review and adopt the best practices from the lawyer regulation system in Colorado.
In December 2009, the Task Force filed a rule-change petition that reflects the results of its work. The petition proposed sweeping changes to the current Arizona system. The proposed changes are intended to achieve several objectives, including:
- Better public involvement. Under the proposed system, members of the public will be involved much earlier in the decision-making process.
- Attorney Regulation Committee. Currently, there is no official public involvement in a lawyer discipline case until the appellate phase before the Disciplinary Commission of the Arizona Supreme Court. The Disciplinary Commission currently consists of six lawyers and three non-lawyers, but the Commission does not weigh in on a case until after months of investigations and, often, a hearing on the merits of a case. Under the proposed changes, the Disciplinary Commission will be supplanted by a new body, known as the Attorney Regulation Committee ("ARC"), which also will consist of six lawyers and three non-lawyers. However, the new committee's involvement in a case will occur much earlier than the current Disciplinary Commission's involvement. The role of the ARC will be to decide whether there is probable cause to file a formal complaint against a lawyer; thus, the ARC will be involved at the start of a case instead of near the end. Depending on the ARC's work load, it can make probable cause decisions as a full panel of nine, or in smaller panels of three, but there must always be at least one public member serving on the smaller panels.
- Communications with the ARC. The complainant in a discipline case often is a member of the public. Under the proposed new system, the complainant will have the right to submit a written statement directly to the ARC. (The respondent lawyer will have the same right.) Under the current system, bar counsel present the positions of both the complainant and the respondent to a probable cause officer. That practice will be replaced with an opportunity for direct, written communication.
- Involvement in settlements. The State Bar will be required, under the new system, to advise a complainant in writing of any settlements reached with respondent lawyers. If the complainant wishes to comment on the settlement, he or she will be given an opportunity to do so at a hearing on the settlement.
- Hearing Panels. The public will now also be involved in evidentiary hearings on lawyer discipline cases. Hearings will occur before a panel of three: the Presiding Disciplinary Judge (discussed below), a volunteer lawyer, and a member of the public.
- Communications with Complainants. The proposed rules contemplate that the State Bar will engage in more thorough communications with complainants to explain the rationale for the Bar's decisions.
- Appeal of Dismissals. Complainants will also be given an opportunity to appeal a dismissal by the Bar to the ARC. That option currently exists but not to a body that contains at least one member of the public.
- Faster Final Results. The new process is intended to result in a substantially decreased elapsed time from the initial complaint to final outcome, without sacrificing the attorney's due process, as described below. Many cases are anticipated to be resolved through agreements that occur either prior to formal proceedings or in the early stages of formal proceedings. The formal process will be sped up substantially because decisions of the Presiding Disciplinary Judge and/or Hearing Panel final absent an appeal to the Supreme Court. Currently, any case that could result in discipline is required to go both to the Disciplinary Commission and the Court before it becomes final.
- Preservation of Due Process for Lawyers and Appropriate Treatment of "Low Level" Violations. Arizona lawyers often complain of an imbalance in the current system that results in discipline for isolated and/or well-intentioned errors, while more serious misconduct is not prosecuted. Whether or not statistics support this impression, the impression nevertheless exists and has undermined many lawyers' trust in the integrity of the system. The proposed rules are also intended to address and correct this situation:
- More than Just a Probable Cause Finding. Under the current system, a single probable cause panelist (who is a member of the State Bar Board of Governors) decides whether there is probable cause to conclude that an ethical violation has occurred. By rule, if there is probable cause, the case proceeds to a formal complaint. Nothing in the current rules directly addresses whether the degree of misconduct justifies a potential public sanction and/or the use of State Bar resources to pursue the case through formal proceedings. Under the new system, once the ARC decides there is probable cause, the ARC then proceeds to a second level of inquiry, which includes such matters as whether the evidence is sufficient to prove the misconduct at a hearing, whether the conduct warrants discipline, actual or potential injury, and prior discipline. The ARC's authority is not limited to authorizing the State Bar to file a complaint. It may also dismiss a case, order additional investigation, refer a matter to diversion, and order lower-level discipline.
- Increased Frequency of Diversion. The rules do not require the State Bar to offer diversion more frequently to lawyers, but the intent of the rules (and the experience in Colorado) is clearly to encourage this practice. Cases of isolated misconduct or misconduct that does not show a callous disregard for a lawyer's responsibilities or where there was little risk of prejudice should be handled by a diversion contract that gives a lawyer a chance to learn from and correct errors without the public stigma of formal discipline.
- Right to Refuse Informal Discipline. As with the current system, a respondent is not required to accept informal discipline or diversion but may decline and demand formal proceedings.
- Communications of Charges and Opportunity to Respond. The new process will not affect the current system of affording respondent lawyers an opportunity to respond to allegations before the case proceeds to the ARC or to a resolution before going to ARC. The new process will, however, formalize contempt authority for the Presiding Disciplinary Judge for handling those lawyers who fail or refuse to cooperate with the State Bar's investigation.
- Direct Appeal to the Supreme Court. The current Disciplinary Commission will no longer as an intermediary appellate body under the new system. The current discretionary review by the Supreme Court, however, will be replaced with a right of direct appeal.
- Consistency and Availability of Interim Decisions. Under the current system, there are several hearing officers. Under the new system, there will be a Presiding Disciplinary Judge ("PDJ"). Depending on the volume of cases, the PDJ can appoint additional disciplinary judges. However, the establishment of a PDJ position is intended to keep the process moving and also to assure consistency among the treatment of cases.
- Separation of the State Bar Board of Governors from State Bar Lawyer Regulation. Currently, the Probable Cause Panelist is a member of the State Bar Board of Governors, the body that controls the budget of the State Bar's Lawyer Regulation Division. Many Arizona attorneys have been concerned that the close relationship between the elected Board of Governors and the prosecutors directly or indirectly could influence decisions on particular cases. The new rules would address this concern by replacing the Probable Cause Panelist with the ARC, which will be under the administrative supervision of the Arizona Supreme Court, and also be establishment of the PDJ position, who will have adjudicatory authority over all formal cases and, therefore, can monitor (and if necessary correct) any pre-hearing conduct that appears to favor unfairly either the respondent or the complainant.
There are many other aspects of the proposed rule changes. Lawyers and members of the public have a chance to review the entire rule change petition and submit written comments by April 1, 2010. The Task Force will meet again in April to review the comments and determine whether any changes to the current proposal are appropriate