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Rules of the Supreme Court Attorneys (1974)
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RULES OF THE SUPREME COURT ATTORNEYS - ADMISION - DISCIPLINE
RULE 27(l) Disciplinary Board of the State Bar of Arizona.
(1) There is hereby created a "Disciplinary Board of the State Bar of Arizona" (hereinafter referred to as the "Disciplinary Board!), which shall consist of seven lawyers, active members of the State Bar of Arizona, and two non-lawyers The Board of Governors shall appoint the lawyer members of the Disciplinary Board and the Supreme Court shall appoint the two mon-lawyer members. Three lawyer members shall be residents of Miricopa County; two of Pi= County and two of a county or counties other than Maricopa and Pima Counties.
Of those members initially appointed, three members of the State Bar of Arizona shall serve for a term of one (1) year; two members of the State Bar of Arizona and one non-lawyers member shall serve for a term of two (Z) years; two members of the State Bar of Arizona and one non-lawyers member shall serve for a term of three (3) years. Thereafter, each appointment shall be for a term of three (3) years, except that a member shall continue to serve until his successor is duly appointed. Appointments to fill a vacancy shall be for the unexpired portion of the term, and filled in the same manner as the original appointment.
Non-Lawyers members shall have all the powers and duties of attorney members of the Disciplinary Board, including confidentiality of proceedings [see Rules 32(d) and 37(1)]. No member of the Disciplinary Board may serve more than two three-year terms.
(2) The Board of Governors of the State Bar of Arizona may delegate any and all of its powers and duties relating to the discipline of members of the State Bar for misconduct, as set forth in the Rules of the Arizona Supreme Court relating to the discipline of attorneys This may include the power to enforce all disciplinary rules of the Supreme Court and to review and supervise all disciplinary proceedings and make recommendations on disciplinary matters to the Supreme Court.
(3) The Disciplinary Board shall select from Its a chairman and a vice chairman.
(4) The Disciplinary Board shall act only with the .concurrence of five or more members. Five members shall constitute a quorum
Disciplinary Board =,embers shall receive no compensation for their services but may be reimbursed for their travel and other expenses incidental to the performance of their duties.
(6) If, in any given case, the number of Disciplinary Board members who may properly render a decision falls below a quorum, the Board of Governors or the President of the State Bar may appoint, for that case only, the number of ad hoc members necessary to restore the Disciplinary Board to full membership. Each ad hoc member shall fulfill all the responsibilities of the Disciplinary Board member whom he replaces.
(7) The Board of Governors may for good cause shown remove members of the Disciplinary Board. Disciplinary Board members who fail to attend two consecutive meetings also may be removed by the Board of Governors. Vacancies which occur as a result of removal of members of the Disciplinary Board by the Board of Governors shall be filled as provided in these rules.
(8) The Disciplinary Board shall hold as many meetings per year at such times and places as it may determine.
(9) The Disciplinary Board shall submit to the Board of Governors a written report every three months, outlining the status of every matter pending before the Disciplinary Board and each Local Administrative Committee. The Disciplinary Board shall also provide the Board of Governors such additional information as the Board of Governors may request.
(10) All expenses incurred by the Disciplinary Board, including clerical, secretarial and general staff assistance and meeting accommodations shall be provided by the State Bar of Arizona. All final recommendations of the Disciplinary Board shall be submitted to the State Bar office for transmittal to the Supreme Court and other appropriate parties, as provided by these rules.
RULE 29.. Duties, Obligations and Discipline of members. 29(a) Governing Rules. The duties and obligations of members shall be as described by the Code of Professional Responsibility of the American Bar Association, effective November 1, 1970, as amended by this Court.
As used in the Disciplinary Rules of the Code of Professional Responsibility:
(1) "Differing interests" include every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest
(2) ."Law firm" includes a professional legal corporation.
(3) "Person" includes a corporation, an association, a trust, a partnership, and any other organization or legal entity.
(4) "Professional legal corporation" means a corporation, or an association treated as a corporation, authorized by law to practice law for profit.
(5) "State" includes the District of Columbia,, Puerto Rico, and other federal territories and possessions.
(6) "Tribunal" includes all courts and all other adjudicanry bodies.
(7) "A Bar association" includes a bar association of specialists as referred to in DR 2-105(A) (1) or (4).
(8) "Qualified legal assistance organization means an office or organization of one of the four types listed in DR 2-103(D)(1)(5), inclusive that meets all the requirements thereof.
"Confidence" and "secret" are defined in DR 4-101(A).
DR 1-101 Maintaining Integrity and Competence of the Legal Profession.
(A) A lawyer is subject to discipline if he has made a materially false statement in, or if he has deliberately failed to disclose a material fact requested in connection with, his application for admission to the bar.
(B) A lawyer shall not further the application for admission to the bar of another person known by him to be unqualified in respect to character-, education, or other relevant attribute.
DR 1-102 Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit or misrepresentations
(5) Engage in conduct that is prejudicial to the administration of justice any other conduct that adversely
(6) Engage in reflects on his fitness to practice law.
DR 1-103 Disclosure of Information to Authorities.
(A) A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.
(B) A lawyer possessing unprivileged knowledge or evidence concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges.
DR 2-101 Publicity in General.
(A) A lawyer shall not prepare, cause to be prepared, use, or participate in the use, of any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients as used herein, "public communication" includes, but is not limited to, communication by means of television, radio, motion picture, newspaper, magazine or book.
(B) A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements display advertisements in the city or telephone directories or other means of commercial publicity, nor shall lie authorize or permit others to do so in his behalf. However, a lawyer recommended by, paid by, or whose legal services are furnished by, a qualified legal assistance organization may authorize or permit or assist such organization to use means of dignified commercial publicity, which does not identify any lawyer by name, to describe the availability or nature of its legal services or legal service benefits. This rule does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name:
(1) In political advertisements when his professional status is germane to the political campaign or to a political issue.
(2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.
(3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.
(4) In and on legal documents prepared by him.
(5) In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof,
(6) In communications by a qualified legal assistance organization, along with the biographical information permitted under DR 2-102(A) (6), directed to a member or beneficiary of such organization.
(C) A lawyer shall not compensate or give anything of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item.
DR 2-102 Professional Notices Letterheads, Offices, and Law Lists.
(A) A lawyer or law firm shall not use professional cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings, or similar professional notices or devices, except that the following may be used if they are in dignified form: (1) A professional card of a lawyer identifying him -by name and as a lawyer, and giving his addresses, telephone numbers, the name of his law firm and any information permitted under DR 2-105. A professional card of a law firm may also give the names of members and associates Such cards may be used for identification but may not be Published in Periodicals, magazines, newspapers,
(2) A brief professional announcement card Stating new or changed associations or addresses, change of firm name, or similar matters pertaining to the professional office of a lawyer or law firm, which may be mailed to lawyers, clients, former clients, personal friends, and relatives. It shall not state biographical data except to the extent reasonably necessary to identify the lawyer or to explain the change in his association, but it may state the immediate past position of the lawyer. It may give the names and dates of predecessor firms in a continuing line of succession. It shall not state the nature of the practice except as permitted under DR 2-105.
(3) A sign on or near the door of the office and in the building directory identifying the law office. The sign shall not state the nature of the practice, except as permitted Under DR 2-105.
(4) A letterhead of a lawyer identifying him by name and as a lawyer and giving his addresses, telephone numbers, the name of his law firm and any information permitted under DR 2-105. The letterhead of a law firm may also give the names of members and associates, and names and dates relating to deceased and retired members. A lawyer may be designated "of Counsel" on a letterhead if he has a continuing relationship with a lawyer or
law firm, other than as a partner or -associate. A lawyer or law firm may be designated as "General Counsel" or by similar professional reference on stationery of a client if he or the firm devotes a substantial amount of professional time in the representation of that client. The letterhead of a law firm may give the names and dates of predecessor firms in a continuing line of succession.
(5) A listing of the office of a lawyer or law firm in the alphabetical and classified sections of the telephone directory or directories for the geographical area or areas in which the lawyer resides or maintains offices or in which a. significant part of his clients resides and in the city directory of the city in which his or the firm's office is located; but the listing may give only the name of the lawyer or law firm, the fact he is a lawyer, addresses, and telephone numbers. The listing shall not be in distinctive form or type. A law firm may have a listing in the firm name separate from that of its members and associates. The listing in the classified section shall not be under a heading or classification other than "Attorneys" or "Lawyers", except that additional headings or classifications descriptive of the types of practice referred to in DR 2-105 are permitted.
(6) A listing in a reputable law list 077 legal directory giving brief biographical and other informative data. A law list or
directory is not reputable if its management or contents are likely to be misleading or injurious to the public or to the
profession. A law list is conclusively established to be reputable if it is certified by the American Bar Association as
being in compliance with its rules and standards. The published data may include only the following name, including
name of law firm and names of professional associates; addresses and telephone numbers; one or more fields of law
in which the or law a statement practice is limited to one or more fields of law; a statement that the lawyer or law
firm specializes in a particular field of law or law practice but only if authorized under DR 2-105 (A)(4); date and place
of birth; date and place of admission to the bar of state and federal courts; schools attended with dates of
graduation, degrees,. and other scholastic distinctions; public or quasi-public offices; military service; posts of honor;
legal authorship's; legal teaching positions; memberships offices committee assignments, and section memberships
in bar associations; memberships and offices in legal fraternities a legal societies; technical and professional associations and societies; foreign language ability; names and addresses of references, and, with their consent names of clients regularly represented.
(B) A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one -or more of the lawyers in the firm, except that the name of a professional corporation or professional association may contain "P.C." or "P.A." or similar symbols indicating the nature of the organization and if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which he is not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use his name in the firm name or in professional notices of the firm.
(C) A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners.
(D) A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumeration of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all, listed jurisdictions; however, the same firm name may be used in each jurisdiction.
(E) A lawyer who is engaged both in the practice oil- law and another profession or business shall not so indicate on his letterhead, office sign, or professional card, nor shall he identify himself as a lawyer in any publication in connection with his ocher profession or business.
(F) Nothing contained herein shall prohibit a lawyer from using or permitting the use, in connection with his name, of an earned degree or title derived there from indicating his training in the law.
DR 2-103 Recommendation of Professional Employment.
(A) A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer.
(B) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client, except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103(D).
(C) A lawyer shall not request a person or organization to recommend or promote the use of his services or those of
his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner, except that:
(1) He may request referrals from a lawyer referral service operated, sponsored, or approved by a bar association and
may pay its fees incident thereto.
(2) He may cooperate with the legal service activities of any of the offices or organizations enumerated in DR 2-
103(D) (1) through (5) and may perform legal services for those to whom he was recommended by it to do such work
(a) The person to whom the recommendation is made is a member or beneficiary of such office or organization; and
(b) The lawyer remains free to exercise his independent professional judgment on behalf of his client.
(D) A lawyer shall not knowingly assist a person or organization that furnishes or pays for legal services to others to promote the use of his services or those of his partner or associate or any other lawyer affiliated with him or his firm except as permitted in DR 2-101(B). However) this does not prohibit a lawyer or his partner or associate or any other lawyer affiliated with him or his firm from being recommended, employed or paid by, or cooperating with, one of the following offices or organizations that promote the use of his services or those of his partner or associate or any other lawyer affiliated with him or his firm if there was no interference with the exercise of independent professional judgment in behalf of his client: (1) A legal aid office or public defender office:
(a) Operated or sponsored by a duly accredited law school.
(b) Operated or sponsored by a bona fide nonprofit community organization.
(c) Operated or sponsored by a governmental agency.
(d) Operated, sponsored, or approved by a bar association.
(2) A military. assistance office.
(3) A lawyer referral service operated, sponsored, or approved by a bar association.
(4) Any bona fide organization that recommends, furnishes or pays for legal services to its members or beneficiaries, provided the following conditions are satisfied: (a) Such organization including any affiliate, is so organized and operated that no profit is derived by it from the rendition of legal services by lawyers, and that, if the organization is organized for profit, the legal services are not rendered by lawyers employed, directed, supervised or selected by it except in connection with matters where such organization bears ultimate liability of its member or beneficiary. (b) Neither the lawyer, nor his partner, nor associate, nor any other lawyer affiliated with him, or his firm, nor any non-lawyer, shall have initiated or promoted such organization for the primary purpose of providing financial or other benefit to such lawyer, partner, associate or affiliated lawyer.
(c) Such organization is not operated for the purpose of procuring legal work or financial benefit for any lawyer as a private practitioner outside of the legal services program of the organization.
(d) The member or beneficiary to whom the legal services are furnished, and not such organization, is recognized as the client of the lawyer in the matter.
Any member or beneficiary who is entitled to have legal services furnished or paid for by the organization may, if such member or beneficiary so desires, select counsel other than that furnished, selected or approved by the organization for the particular matter involved; and the legal service plan of such organization provides appropriate relief for any member or beneficiary who asserts a claim that representation by counsel furnished, selected or approved would be unethical, improper or inadequate under the circumstances of the matter involved and the plan provides an appropriate procedure for seeking such relief.
(f) The lawyer does not know or have cause to know that such organization is in violation of applicable laws, rules of court and other legal requirements that govern its legal service operations.
(g) Such organization has filed with the appropriate disciplinary authority at least annually a report with respect to its legal service plan, if any, showing its terms, its schedule of benefits, its subscription charges) agreements with counsel, and financial results of its legal service activities or if it has failed to do so, the lawyer does not know or have cause to know of such failure.
(5) A public interest law firm, which is defined a,-A nonprofit firm which provides, without cost or at a substantially reduced fee, legal services which could not be provided by a governmental agency or by any other means, and has been recognized and approved as such by the Board of Governors of the State Bar of Arizona., and which falls exclusively into one or more of the following areas: (a) Poverty Law: Legal services in civil and criminal matters of importance to a client who does not have the financial resources to compensate counsel.
(b) Individual Civil Rights Law: Legal representation of an important right of an individual which society has a special interest in protecting, but which the client would not otherwise seek to vindicate.
(c) Public Rights Law: Legal representation involving an important right belonging to the public at large, where those assorting the right would not otherwise seek its vindication.
(d) Charitable organization Representation: Legal service to charitable, religious, civic and educational institutions in matters in furtherance of their organizational purpose of customary legal fees would significantly deplete the organization's economic resources.
(e) A lawyer shall not accept employment when lie knows, or it is obvious that the person who seeks his services does so as a result of conduct prohibited under this Disciplinary Rule.
DR 2-104 Suggestion of Need of Legal Services.
(A) A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that
(I) A lawyer may accept employment by a close friend relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client.
(2) A lawyer may accept employment that results from his participation in activities designed to educate laymen to recognize legal problems, to make intelligent selection of counsel or to utilize available legal services if such activities are conducted or sponsored by any of the office or organizations enumerated in DR 2-103(D) (1) through (5) and to the extent and under the conditions prescribed therein,
(3) A lawyer who is recommended,. furnished or U.1iJ by a qualified legal assistance organization enumerated in DR 2-103(D) (1) through (5) may represent a member or beneficiary thereof, to the extent and under the conditions prescribed therein.
(4) Without affecting his right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as he does not emphasize his own professional experience or reputation and does not undertake to give individual advice.
(5) If success in asserting rights or defenses of his client in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept, but shall not seek, employment from those contacted for the purpose of obtaining Chair joinder.
DR 2-105 Limitation of Practice.
(A) A lawyer shall not hold himself out publicly as a specialist or as limiting his practice, except as permitted under DR 2-102 (A) (6) or as follows (1) A lawyer admitted to practice before the United States Patent Office may use the designation "Patents," "Patent Attorney," or "Patent Lawyer," or any combination of those terms, on his letterhead and office sign. A lawyer engaged in the trademark practice may use the designation "Trademarks," "Trademark Attorney," or "Trademark Lawyer," or any combination of those terms, on his letterhead and office sign, and a lawyer
.engaged in the admiralty practice may use the designation "Admiralty," "Proctor in Admiralty," or "Admiralty Lawyer," or any combination of those terms, on his letterhead and office sign.
(2) A lawyer may permit his name to be listed in lawyer referral system offices according to the fields of law in which he will accept referrals.
(3) A lawyer available to act as a consultant to or as an associate of other lawyers in a particular branch of law or legal service may distribute to other lawyers and publish in legal journals a dignified announcement of such availability, but the announcement shall not contain a representation of special competence or experience. The announcement shall not be distributed to lawyers more frequently than once in a calendar year, but it may be published periodically in legal journals.
(4) A lawyer specializing in a particular field of law or law practice may hold himself out as such specialist but only in accordance with the rules as prescribed by the Board of Governors of the State Bar of Arizona.
DR 2-10.6 Fees for Legal Services.
(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.
(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a
definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in
determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform
the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
(C) A lawyer shall not enter into an arrangement for, charge, or collect a contingent 'Lee for representing a defendant in a criminal case.
DR 2-107 Division of Fees Among Lawyers. (A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless:
(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.
(2) The division is made in proportion to the services performed and responsibility assumed by each.
(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.
(B) This Disciplinary Rule does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement.
DR 2-108 Agreements Restricting the Practice of a Lawyer.
(A) A lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits.
(B) In connection with the settlement of a controversy or suit, a lawyer shall not enter into an agreement that restricts his right to practice law.
DR 2-109 Acceptance of Employment.
(A) A lawyer shall not accept employment on behalf of a person if he knows or it is obvious that such person wishes to: (1) Bring a legal action, conduct a defense, or assert a position in litigation, or otherwise have steps taken for him, merely for the purpose of harassing or maliciously injuring any person. (2) Present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing law.
DR 2-110 Withdrawal from Employment. In general.
(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.
(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client,, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules.
withdraws from employment shall
(3) A lawyer who with refund promptly any part of a fee paid in advance that has not been earned. (B) Mandatory withdrawal. A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from, employment, and a lawyer representing a client in other matters shall withdraw from employment, if: (1) He knows or it is obvious that his client is bringing the legal action, conducting the defense or asserting a position in the litigation, or is otherwise having steps taken for him merely for the purpose of harassing or maliciously injuring any person.
(2) lie knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.
(3) His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively.
(4) He is discharged by his client.
(c) Permissive withdrawal. If DR-2-110 (B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal and may not withdraw in other matters, unless such request or such withdrawal is because:
(1) His client:
(a) Insists upon a claim or defense that is not warranted under existing law and cannot be supported by good faith
argument for an extension, modification, or reversal of existing law.
(b) Personally seeks to pursue an illegal course of conduct.
(c) Insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules.
(d) By other conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively.
(e) Insists, ill a matter not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules. (f) Deliberately disregards an agreement or obligation to the lawyer as to expenses or fees.
(2) His continued employment is likely to result in a violation of a Disciplinary Rule.
(3) His inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal.
(4) His mental or physical condition renders it'. difficult for him to carry out the employment effectively.
(5) His client: knowingly and freely assents to termination of his employment.
(6) He believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.
DR 3-101 Aiding Unauthorized Practice of Law.
(A) A lawyer shall. not aid a non-lawyer in the unauthorized practice of law,
(B) A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.
DR 3-102 Dividing Legal Fees With a Non-Lawyer.
(A) A lawyer or law firm shall. not share legal fees With a non-lawyer, except that's (1) An agreement by a lawyer with his firm, partner, or associate may provide for the payment of money, over a reasonable period of time after his death, to his estate or to one or more specified persons. (2) A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer.
(3) A lawyer or law firm may include non-lawyer employees in a retirement plan, even though the Plan is based in whole or in part on a profit-sharing arrangement
DR 3-103 Forming a Partnership with a Non-Lawyer
(A) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.
DR 4-101 Preservation of Confidences and Secrets of a Client.
(A) "Confidence" refers to information protected by the attorney client privilege tinder applicable law, and "secret" refers to other information gained in the professional relation ship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
(B) Except as permitted by DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
(C) A lawyer may reveal:
(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them
(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
(3) The intention of his client to commit a and the information necessary to prevent the crime.
(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.
(D) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101 (C) through an employee.
DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
(A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business property, or personal interests.
(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
(1) If the testimony will relate solely to an uncontested matter.
(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
(3) If the testimony will relate solely to the nature and value of legal services rendered in the case
by the lawyer or his firm to the client.
(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive
value of the lawyer or his firm as counsel in the particular case.
DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness.
(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B) (1) through (4).
(B) If, after undertaking employment in contemplated or pending that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.
DR 5-103 Avoiding Acquisition of Interest in Litigation.
(A) A lawyer shall not acquire a proprietary interest in
the cause of action or subject matter of litigation he
is conducting for a client, except that he may:
(1) Acquire a lien granted by law to secure his fee
(2) Contract with a client for a reasonable contingent
fee in a civil case'.
(11) While representing a client in connection will contemplate or pending litigation a lawyer shall not advance or guarantee financial assistance to his client, except that the lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses.
DR 5-104 -Limiting Business Relations with a Client.
(A) A lawyer shall not-enter into a business transaction with a: client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.
(B) Prior to conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which he acquires an interest in publication. rights with respect to the subject matter of his employment or proposed employment.
DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf- of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105 (A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each. and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each
(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.
DR 5-106 Settling Similar Claims of Clients.
(A) A lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement of the claims of or against his clients, unless each client has consented to the settlement after being advised of the existence and nature of all the claims involved in the proposed settlement, of the total amount of the settlement, and of the participation of cacti 'person in the settlement.
DR 5-107 Avoiding Influence by Others Than the Client.
(A) Except with the consent of his client after full disclosure, a lawyer shall. not: (1) Accept compensation for his legal services from one other than his client. (2) Accept from one other than his client any thing of value related to his representation of or his employment by his client.
(B) A lawyer shall not permit a person who recommends, another employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.
(C) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice
law for a profit, if:
- A non-lawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the 'lawyer for a reasonable time &,ring administration; A non-lawyer is a corporate director or officer thereof; or A non-lawyer has the right to direct or control the professional judgment of a lawyer.
DR 6-101 Failing to Act Competently.
(A) lawyer shall not:
(1) (DR 6-101(A) I) was omitted by the Arizona Supreme Court in its Order adopting the Code of Professional Responsibility.)
(2) Handle a legal matter without preparation adequate in the circumstances. Neglect a legal matter entrusted to him. Limiting Liability to Client.
(A) A lawyer shall not attempt to exonerate himself from
or limit his liability to his client for his personal
DR 7-101 Representing a Client Zealously.
(A) A lawyer shall not intentionally:
(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this. Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
(2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102 and DR 5-105.
(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(3).
In his representation of a client, a lawyer may:
(1) Where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client.
(2) Refuse to aid or participate in conduct that he believes to be unlawful, even though there is some support for an argument that the conduct is legal.
DR7-102 Representing Client Within the Bounds of the taw. (A) In his representation of a client, a lawyer shall. not:
(1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client .when he knows or when it is obvious that such action would Serve merely "-o harass or maliciously injure another.
(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.
(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.
(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidence when lie knows or it is obvious that the evidence is false.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.
(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.
(B) A lawyer who receives information clearly establishing that:
(1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal.
(2) A person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.
DR 7-1.03 Performing the Duty of Public Prosecutor or
Other Government Lawyer.
(A) A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knot-is or it is obvious that the charges are not supported by probable cause.
(B) A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor or
other government lawyer, that Lends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.
DR 7-104 Communicating With One of Adverse Interest.
(A) During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so. (2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.
DR 7-105 Threatening Criminal Prosecution.
(A) A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.
DR 7-106 Trial Conduct.
(A) A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling.
(13) In presenting a matter to a tribunal, a lawyer shall
(1) Legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel.
(2) Unless privileged or irrelevant, the identities of the clients he represents and of the persons who employed him.
(C) In appearing in his professional capacity before a tribunal,
a lawyer shall not:
(1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.
(2) Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.
(3) Assert his personal knowledge of the facts in issue, except when testifying as a witness.
(4)Assert his personal opinion as to the justness of a cause , as to the credibility of a witness, as to-the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
(5) Fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of his intent not to comply.
(6) Engage in undignified or discourteous conduct which is degrading to a tribunal.
(7) Intentionally or habitually violate any established rule of procedure or of evidence.
DR 7-107 -Trial Publicity. (A) A lawyer participating in or associated with the investigation of a criminal matter shall not make or participate in making an extra judicial statement that a reasonable person would expect to be disseminated by means of public communication and -that does more than state without elaboration: (1) (2) (3)
Information contained in a public record. That the investigation is in progress. The general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim. A request for assistance in apprehending a suspect or assistance in other matters and the information necessary thereto. A warning to the public of any dangers.
(B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not, from the time of the filing of a complaint, information, or indictment, the issuance' of an arrest warrant, or arrest until the commencement of the trial or disposition without trial, make or participate in making an extra judicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to:
(1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused.
(2) The possibility of a plea of guilty to the offense charged. or to a lesser offense.
(3) The existence or contents of any confession, admission, or statement given by the accused or his refusal or failure to-make a statement.
(4) The performance or results of any examinations or tests or the refusal or failure of the accused to submit to examinations or tests. The identity, testimony, or credibility of a prospective witness.
(5) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.
(C) DR 7-107(B) does not preclude a lawyer during such period from announcing:
(1) The name, age, residence, occupation, and family status of the accused.
(2) If the accused has not been apprehended, any information necessary to aid in his apprehension or to warn the public of any dangers he may present.
(3) A request for assistance in obtaining evidence.
(4) The identity of the victim of the crime.
(5) The fact, time, and place. of arrest, resistance, pursuit, and use of weapons.
(6) The identity of investigating and arresting officers or agencies and the length of the investigation.
(7) At the time of seizure, a description of the physical evidence seized, other than a confession, admission, or statement.
(8) The nature, substance, or text of the Charge.
(9) Quotations from or references to public records of the court in the case.
(10) The scheduling or result of any step in the judicial proceedings.
(11) That the accused denies the charges made against him.
(D) During the selection of a jury or the trial of a criminal matter a lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extra judicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial, except that he may quote from or refer without comment to public records of the court in the case.
(E) After the completion of a trial or disposition without trial of a criminal matter and prior to the imposition of sentence, a lawyer or law firm associated with the prosecution or defense shall not make or participate in making an extra judicial statement that a reasonable person would expect to be disseminated by public communication and that is reasonably likely to affect the imposition of sentence.
(F) The foregoing provisions of DR 7-107 also apply to professional disciplinary proceedings and juvenile disciplinary proceedings when pertinent and consistent with other law applicable to such proceedings.
(G) A lawyer or law firm associated with a civil action shall not during its investigation or litigation make or participate
in making an extracurricular statement, other than a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication and that relates to:
(1) Evidence regarding the occurrence or transaction involved.
(2) The character, credibility, or criminal record of a party, witness, or prospective witness. The performance or results of any examinations or tests or the refusal or failure of a party to submit to such. His opinion as to the merits of the claims or
defenses of a party, except as required by law.
(3) administrative rule.
(5) Any other matter reasonably likely to interfere
with a fair trial of the action.
(H) During the pendency of an administrative proceeding, a lawyer or law firm associated therewith shall not make or participate in making a statement, other than a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication if it is made outside the official course of the proceeding and relates to: (1) Evidence regarding the occurrence or transaction involved. (2) The character, credibility, or criminal record of a party, witness, or prospective witness. (3) Physical evidence or the performance or results of any examinations or tests or the refusal or failure of a party to submit to such. (4) His opinion as to the merits of the claims, defenses, or positions of an interested person. (5) Any other matter reasonably likely to interfere with a fair hearing.
(I) The foregoing provisions of DR 7-107 do not preclude a lawyer from replying to charges of misconduct publicly made against him or front participating in the proceedings of legislative, administrative, or other investigative bodies.
(J) A lawyer shall exercise reasonable care to prevent his employees and associates from making an extracurricular statement that he would be prohibited from making under DR 7-107.
DR 7-108 Communication with or Investigation of Jurors.
(A) Before the trial of a case a lawyer connected therewith shall not communicate with or cause another to communicate with anyone he knows to be a member of the venire from which the jury will be selected for the trial of the case.
(B) During the trial of a case:
(1) A. lawyer connected therewith shall not communicate with or cause another to communicate with any member
of the jury.
(2) A lawyer who is not connected therewith shall not
communicate with or cause another to communicate
with a juror concerning the case.
(C) DR 7-108(A) and (B) do not prohibit a lawyer from communicating with veniremen or jurors in the course of official proceedings.
(D) After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.
(E) A lawyer shall not conductor cause by financial
support or otherwise, another to conduct a vexatious or harassing investigation of either a venireman or .a juror.
(F) All restrictions imposed by DR 7-103 upon a lawyer also apply to communications with or investigations of members of a family of venireman or a juror.
(G) A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror, or by another toward a venireman or a juror or a member of his family, of which the lawyer has knowledge.
DR 7-109 Contact with Witnesses.
(A) A lawyer shall not suppress any evidence that he or his client has a legal obligation to reveal or produce.
(B) A lawyer shall not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness therein.
(C) A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: (1) Expenses reasonably incurred by a witness in attending or testifying.
(2) Reasonable compensation to a witness for his
loss of time in attending or testifying.
(3) A reasonable fee for the professional services of an expert witness.
DR 7-110 Contact with Officials.
(A) A lawyer shall not give or lend any thing of value to
a judge, official, or employee of a tribunal.
(B) In an adversary proceeding, a lawyer shall not communicate,
or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:
(1) in the course of official proceedings in the cause.
(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if ha is not represented by a lawyer
(3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.
(4) As otherwise authorized by law.
DR 8-101 Action as a Public Official.
(A) A lawyer who holds public office shall not:
(1) Use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest.
(2) Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client.
(3) Accept any thing of value from any person when the lawyer knows or it-is obvious that the offer is for the purpose of influencing his action as a public official.
DR 8-102 Statements Concerning Judges and Other Adjudicatory Officers.
(A) A lawyer shall not knowingly make false statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office.
(B) A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer.
DR B-103 Lawyer Candidate for Judicial office.
(A) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of Canon 7 of the Code of Judicial Conduct.
DR 9-101 Avoiding Even the Appearance of Impropriety.
(A) A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.
(B) A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.
(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.
DR 9-102 Preserving Identity of Funds and Property of a Client.
(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows: (1) Funds reasonably sufficient to pay bank charges may be deposited therein. (2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
(B) A lawyer shall:
(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.
Further duties and obligations of members shall be as prescribed-by the following rules, and shall include the duty:
1. To support the constitution and the laws of the United States and of this State.
2. To maintain the respect due to courts of justice and' judicial officers.
3. To counsel or maintain no other action, proceeding or defense than those which appear to him legal and just, excepting the defense of a person charged with a public offense.
4. To employ for the purpose of maintaining causes confided to him such means only as are consistent with truth, and never seek to mislead the judges by any artifice or false statement of fact or law.
5. To maintain inviolate the confidence and preserve the secrets of a client.
6. To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or a witness unless required by the justice of the cause with which lie is charged.
7. Not to encourage either the commencement or continuation. of an action or proceeding from any corrupt motive of passion or interest, and never to reject for -any consideration personal to himself the cause of the defenseless or oppressed. RULE 29(b) Grounds for disbarment, suspension or censure. Grounds for disbarment, suspension or censure of members shall be as follows:
1. Violation of the Code of Professional Responsibility
adopted by, the American Bar Association, as amended by this Court.
2. Willful disobedience or violation of an order of a court requiring him to do or forebear to do an act connected with or in the course of his profession.
3. Any violation of the oath taken by him or of his duties as an attorney.
4. Corruptly and without authority appearing as attorney for a party to an action or proceedings.
5. Lending his name to be used as an attorney by any person who is not a member of the bar of this state in good standing.
6. Failure for thirty days after written demand and payment or tender of the fees and expenses due him from his clients to pay over or deliver to his client any money or another property belonging to his client which 110
has received as attorney in the course of his employment.
7. Soliciting law business through other persons not attorneys at law and agreeing to pay or paying such persons a remuneration for any such business.
8. Failure to maintain such special mental and moral fitness as would have entitled the member to admission in the first instance.
9. Any action or omission, dither related or unrelated to the practice of law, indicating mental or moral unfitness to continue the practice of law.
29(c) Conviction of felony or misdemeanor. A member shall be disbarred upon conviction of any felony, whether or not involving moral turpitude, and shall be disciplined as the facts warrant, upon conviction of a misdemeanor involving moral turpitude. Proof of conviction shall be conclusive evidence of guilt of the crime for which convicted in any disciplinary proceeding based on the conviction. In those cases involving conviction of a misdemeanor that does or may involve moral turpitude, the appropriate committee shall conduct a disciplinary hearing in accordance with these rules, but the only issues to be determined by the committee shall be whether the crime does involve moral turpitude and the discipline it shall recommend.
Upon conviction of a member of a felony, or of a misdemeanor that does or may involve moral turpitude, the clerk of the court in which the conviction is had shall within twenty days thereafter transmit to this court and to the board a certified copy of the record of conviction.
29(d) Suspension for felony conviction. A member shall be automatically suspended from the practice of law ten days after his conviction of a felony under either state or federal law, whether such conviction be after a plea of guilty, nolo contendere, not guilty or otherwise, and regardless of the pendency of post conviction motions or an appeal, unless within said ten day period the member shall file with this court a verified petition showing good cause why he should not be so suspended. The court may permit the petitioner to present oral argument in support of his petition and shall promptly grant or deny the petition. If the petition is denied, the member shall be suspended as of the date the petition is denied. If the petition is granted, the member shall not be suspended pending completion of a disciplinary proceeding based on such conviction. When a member is suspended under this rule, such suspension shall end upon the conviction being set aside, vacated or reversed and the member shall thereupon be reinstated. Suspension under this rule shall also end in disbarment upon such conviction becoming final.
29(e) Jurisdiction over non-members. A non-member engaged in the practice of law in the State of Arizona or admitted to practice for a particular matter before any court in the State of Arizona thereby submits himself to the disciplinary jurisdiction of this court in accordance with these Rules relating to discipline of attorneys.
RULE 30. ADMINISTRATION OF DISCIPLINARY RULES AND RESIGNATION IN LIEU OF DISBARMENT
30(a) Administration of disciplinary rules. When the conduct of a member is questioned it shall be considered and dealt with as prescribed by these Rules relating to discipline of attorneys.
30(b) Resignation in lieu of disbarment.
1. Any member against whom a formal complaint has been filed may resign by filing with the board, in duplicate original, a written, verified resignation in the form prescribed in these Rules. The resignation shall be effective only upon acceptance by this court. The form of resignation in lieu of disbarment shall be as follows:
IN THE SUPREME COURT OF THE STATE OF ARIZONA
IN RE: (Name of member)
RESIGNATION IN LIEU OF DISBARMENT A member of the State Bar of Arizona.
(Name of attorney), residing at (City and street address), tenders his resignation as a member of the State Bar of Arizona and consents to the removal of his name from the roster of those permitted to practice before this court and from the roster of the State Bar of Arizona.
I acknowledge that a formal complaint has been filed against me by a local administrative committee of the State Bar of Arizona, and I have read the formal complaint and the charges made against me are true in substance and in fact. I further acknowledge that I cannot successfully defend the charges made against me. I do not desire to contest or defend the charges, but wish to resign in lieu of disbarment. This resignation is submitted freely and voluntarily and not under coercion or intimidation. I am aware of the Rules of the Supreme Court with respect to discipline, resignation and reinstatement, and I understand that any future application by me for admission or reinstatement as a member of the State Bar of Arizona will be treated as an application by a member who has been disbarred for professional misconduct, as set forth in the formal complaint filed against me. The misconduct of which I am accused is described in the formal complaint filed against me by Local Administrative
t me by Local Administrative Verification
2. The Board shall immediately forward a duplicate original of the resignation to the clerk of the court, along with a copy of the formal complaint filed against the member. Upon acceptance of the resignation by this court, the court shall promptly enter an order striking the name of the resigning member from the roll of attorneys, and he no longer shall be entitled to the rights and privileges of an attorney, but will remain subject to the jurisdiction of this court with respect to matters occurring while he was a member of the State Bar, and lie shall immediately comply with the requirements of 37(h) of these rules.
3. Upon the acceptance of the resignation by this court, and unless otherwise ordered by this court, no further disciplinary action shall be taken by the board or by an administrative committee in reference to the matters which were the subject of the formal complaint upon which the resignation was based.
30(c) Effect of criminal action. The pendency of a criminal action against a member shall not in and of itself preclude the processing of any disciplinary matter against a member in accordance with these Rules relating to discipline of attorneys.
1. Members in good standing who wish to resign from membership in the State Bar of Arizona may do so, and such resignation shall become effective when filed in the office of the State Bar, accepted by the Board of Governors, and approved by this court. After the resignation is approved by this Court, such member shall be known as a "resigned member in good standing." Provided, however, that any such resignation shall not be a bar to institution of subsequent disciplinary proceedings for any conduct of the resigned member occurring prior to the resignation. In the event such resigned member thereafter is disbarred, suspended or censured, the said resigned member's status shall be changed from the status of "resigned member in good standing" to that of a person so disciplined.
2. Resigned members in good standing may be reinstated to membership in the same manner and on the same terms as members suspended for nonpayment of membership fees.
3. A member wishing to resign shall apply on a form approved by the Board of Governors and shall furnish such information as is required upon such form and shall make such allegations, under oath, as are required on such form.
4. If disciplinary proceedings are instituted against him a "resigned member in good standing" may resign in accordance with Rule 30(b).
RULE 31. LOCAL ADMINISTRATIVE COMMITTEES. 31(a) Designation of districts; number of committees and committee membership. For the purpose set forth in these Rules relating to discipline of members, one or more local administrative committees shall be appointed for each of the districts designated in this subdivision. The number of committees in each district and the members thereof shall be determined by the Board of Governors with the approval of this Court. The districts and counties comprising each district are as follows: District No. 1, Mohave and Yavapai Counties; District No. 2, Apache, Navajo and Coconino Counties; District No. 3, Gila, Graham and Greenlee Counties; District No. 4, Cochise, Santa Cruz, Pima and Pinal Counties; District No. 5, Maricopa County; and District No. 6, Yuma County.
31(b) Appointment of committee members. The board shall appoint active members in their respective districts as such committee members, and shall designate the chairman of each committee.
31(c) Committee members; acceptance of appointment; term; vacancies. 1. Appointees, upon notification of their appointment as committee members and chairman respectively, shall execute an acceptance of the office and file it with the board and a certificate of appointment shall thereupon issue.
2. Each committee member shall serve for a term of three years from the date his certificate of appointment issues and until his successor is appointed and qualified; provided, however, that such appointment may be terminated for cause at any time by the board or by order of this court. No person shall be appointed for more than two successive three year terms. The board shall promptly notify this court of the appointment and qualification of each committee member. The member of each committee designated as chairman in such capacity during the term of his appointment.
3. If an appointee fails to qualify or if a vacancy otherwise occurs in the membership of any committee in any district, the vacancy shall be filled in the manner provided for the original appointment.
4. On the effective date of these Rules one member of each committee shall be appointed for a term of one year, one member shall be appointed for a term of two years and one member shall be appointed for a term of three years. In order to establish continuity with the committees existing on the effective date of these rules, at least one member of each committee established by Rule 31(a) shall be selected from the existing committees. The expiration of the term of any member serving on the date these Rules become effective, or thereafter appointed, shall not disqualify such member from concluding any matter pending before him in which a disciplinary hearing has been held.
1. Committee meetings may be held at a time and place within the district fixed by the chairman or any two committee members. Notice of such meeting shall be given orally or by mail or telegram addressed to each committee member at his office not less than one day prior to the meeting.
2. Notice to members of the committee of a disciplinary hearing shall be given by mailing a copy of the notice of disciplinary hearing to each member of the committee at his office at the same time that such notice is given to the respondent.
RULE 32. PROCEDURAL POWERS AND REQUIREMENTS
32(a). Powers of committee members; quorum.
1. Any committee member may administer oaths and affirmations. The committee may take and hear evidence with respect to matters concerning the conduct of members of the state bar, and may compel the attendance of witnesses and the production of books, papers and documents pertaining to such matters and may issue subpoenas therefore, which, when ordered by the committee, may be signed by any member thereof. Depositions may be taken and used in the same manner as provided in civil actions. When a person subpoenaed to appear and give testimony or to produce books, papers or documents as required by the subpoena, refuses to appear or testify before the committee, or to answer any pertinent or proper questions, he shall be deemed in contempt of the committee, and the chairman of the committee shall report such fact to the superior court of the county in which the investigation, trial or hearing is being held, whereupon such court shall issue an attachment in the form usual in the court, directed to the sheriff of any county in the state, commanding the sheriff to attach such person and forthwith bring him before the court. Upon return of the attachment and production of the person attached, the court shall have jurisdiction of the matter, and the person charged may purge himself of the contempt in the same way, and the same proceedings shall be had, and the same penalties may be imposed and the same punishment inflicted as in the case of a witness subpoenaed to appear and give evidence on the trial of a civil cause before a superior court.
2. For the purpose of Conducting a disciplinary hearing a quorum shall consist of the full committee. All actions taken by the committee at a disciplinary hearing shall be by majority vote of the committee.
32(b) Power of board of governors to appoint special committee, or members, or order removal from district. If for any reason the board of governors is of the opinion that good cause exists for the appointment of a special committee to act in any certain disciplinary matter instead of the regularly appointed local administrative committee, the president may appoint such special administrative committee and its chairman to act in the particular disciplinary matter with all powers of a regularly appointed committee. If good cause exists for the removal of a disciplinary matter to another administrative committee of the same district or to an administrative committee of another district, the board, the president, a vice president or the executive director acting under the authority of the board, may order such removal. At the request of any committee member, or on its own motion, the board, the president, a vice president or the executive director acting under the authority of the board, may appoint from the active membership another member to act in place of a regular committee member in a particular disciplinary matter.
32(c) Rights of respondent. Any person against whom a formal complaint has been filed shall have the right to defend against the charge by the introduction of evidence, the right to be represented by counsel, and the right to examine and cross-examine witnesses. He shall also have the right to have subpoenas issued for the attendance of witnesses to appear and testify or produce books and papers.
32(d) Privacy of records and proceedings.
1. Except when ordered by the board of governors pursuant to the provisions of subparagraph 32(d)(2) hereof, or unless otherwise provided in these rules relating to discipline of attorneys, the investigations, disciplinary hearings and all proceedings under these rules shall be private and the name of the member under investigation shall not be disclosed in any communication or to any person other than to such member and the persons whose services or testimony are necessary in connection with the proceeding, except that when requested by the respondent a disciplinary hearing and the entire record and proceedings shall cease to be private and shall be made public. Witnesses may be placed under the rule at the instance of the respondent.
2. When an investigation or formal proceeding concerns a subject matter which has become generally disseminated to the public and in which confidence in the legal profession, the administration of justice, or the state bar may be jeopardized by strict adherence to the principles of confidentiality, the president of the state bar, or some other designated representative of the state bar, upon order of the board of governors, may release to the -public the fact that an investigation or proceeding is pending against a member of the state bar, the procedural aspects involved in such a proceeding, and the current status of the proceeding
When it is determined by the board of governors that information secured by representatives of the state bar during the course of any disciplinary proceeding should, in the interest of justice, be released or disclosed to prosecuting or other public authorities, the president of the state bar, or some other designated representative of the state bar, upon order of the board of governors, shall release to such prosecuting authorities or other public officials designated by the board of governors any such information, facts or documents obtained by the state bar in the course of any disciplinary investigation.
3. The file and record of any investigation or- disciplinary hearing shall be preserved by the committee and shall not be open for inspection except to the committee members, bar counsel and staff examiner in the particular matter, the respondent, his counsel and the board members and officers, and except as provided in Rule 3 2 (d) (1) and 3 2 (d) (2)
RULE 33. INVESTIGATION FILING SYSTEM AND HEARING
33(a) Investigation and filing system.
1. When the conduct of a member is questioned the committee of the district in which such member then resides, or any other committee requested by the board, shall investigate his conduct and fitness to continue as a member, provided that an informal investigation may be conducted pursuant to Rule 33(a). The committee may proceed upon its own motion, upon written complaint, or upon request of the board or this court. When the conduct of a member is questioned, other than on motion of a committee or upon request by the board or this court, a written complaint shall be filed by the complainant with the board in the office of the state bar, or with the chairman of the committee. If the complaint is first filed in the office of the state bar, it shall forthwith be assigned a number and a copy of it may be forwarded to the appropriate committee chairman for investigation by his committee, and the original shall be retained in the office of the state bar. If the complaint is first filed with a committee chairman, he shall forthwith mail the original to the board whereupon it shall be assigned a number and a copy of the complaint with the number assigned to it may be mailed to the committee chairman for investigation by his committee. The complainant, if any, shall receive prompt notice from the board that his complaint has been referred for investigation. When the conduct of a member is questioned on the motion of a committee or upon the request of the board or this court, the committee chairman shall promptly notify the board in writing of the name of the member and the nature of the charges made against him. Upon receipt of such communication by the board, a number shall be assigned to the case and the committee chairman shall forthwith be advised of the number so assigned.
2. All complaints received in the state bar office shall be reviewed by the executive director acting under the authority of the board of governors. Based upon such review, the executive director may conduct an informal investigation or refer the matter directly to a local administrative committee. Following an informal investigation, the executive director may dismiss the complaint or refer it to a local administrative committee. Such dismissals by the executive director shall be reviewed by the first vice president who may approve, modify, or refer the complaint to a local administrative committee for further investigation pursuant to these rules.
33(b) Investigation, formal complaint, hearings bar counsel, staff examiner.
1. If, based upon an informal investigation as provided by Rule 33(a)2, the executive director believes that a member should be given an informal letter of reprimand, the matter shall be referred to the first vice president with the recommendation that an informal reprimand be issued. The first vice president shall review the record and either issue an informal letter of reprimand, order that the matter be dismissed, order that additional investigation be conducted, or order that the matter be referred to a local administrative committee. Any informal letter of reprimand shall be made on a confidential basis and not be referred to this court, but such informal reprimand shall be maintained in the state bar files and-may be considered in any subsequent disciplinary proceedings. An informal letter of reprimand shall be accompanied by a copy of this rule. Should the member under investigation object to the informal letter of reprimand, such member must do so in writing to the first vice president within ten (10) days after service on him of the informal reprimand and request that the matter be refer-red to a local administrative committee. Upon receipt of such request, the first vice president shall refer the matter to a local administrative committee. The local administrative committee, upon receipt of such matter, shall proceed with an investigation in accordance with these rules.
2. When a complaint is referred to a committee the committee shall conduct such preliminary investigation as will enable it to determine whether there is probable cause to believe that the member in question is or may be guilty Of misconduct justifying disciplinary action. If, after such preliminary investigation, the committee is of. the opinion that no such probable cause exists, it shall so report to the board in writing. The board shall advise the complainant, if any, in writing of the action taken by the committee. if, after such preliminary investigation, the committee is of the opinion that such probable cause does exist, it shall conduct such additional investigation as it deems necessary to enable it to institute a formal complaint against the member in question and shall designate one or more active members, other than one of their number, to act as bar counsel in the investigation and presentation of evidence in the matter under consideration. Prompt notice shall be given to the board of the name of bar counsel. As soon thereafter as possible the committee shall prepare a formal complaint against the member stating specifically the acts of misconduct charged and noticing the member in question to appear before the committee at a date certain for a hearing to determine the truth of the charges made against him and whether discipline is warranted. The formal complaint shall be signed by the chairman of the committee.
3. At any stage of investigation the committee may file a written request to the board to provide the committee with one or more staff examiners to aid it in conducting its investigation. The request shall describe in detail the reason why a staff examiner is needed and the scope of the work to be done. The board shall act on the request at its next regular meeting or at a special meeting If time will not permit waiting until the next regular meeting. If the board grants the request, it shall employ a suitable staff examiner for the committee for the purposes described in the request. The person or persons employed as a staff examiner shall work under the supervision of bar counsel.
4. Staff examiners may but need not be members of the state bar and may be selected from the regular employees of the state bar. The general function of bar counsel and staff examiners in all stages of a disciplinary matter shall be to present all the material facts to the appropriate committee, the board or this court. Their function is not that of a prosecutor.
33(c) Notice of disciplinary hearing; form.
Notice of disciplinary hearing shall be signed by the chairman of the committee, shall be served upon the respondent at least twenty days prior to the time therein for his appearance before the committee, and shall be substantially in the following form:
33(d) Place and time of disciplinary hearing. All disciplinary hearings shall be conducted in the district where the respondent resides, or in the district where the misconduct is alleged to have been committed, at the election of the committee, unless otherwise ordered by the board, but the committee in its discretion and with the express consent of respondent may hold hearings at any place in the state. The disciplinary hearing shall be scheduled for a time not more than forty days after the date of issuance of the notice of disciplinary hearing, except as provided in Rule 34(d)5.
33(e) Joinder; consolidation.
1. Any number of acts, omissions or transactions alleged to constitute misconduct by respondent may be set forth in the same formal complaint. One formal complaint may be directed to two or more respondents when the alleged misconduct of each arises out of the same or related facts and when, in the discretion of the committee no substantial rights of either of the members will be prejudiced thereby.
2. When two or more formal complaints are directed to the same respondent or respondents, the hearings thereon may be consolidated when, in the discretion of the committee, no substantial rights of the respondent or respondents will be prejudiced thereby.
3. When there is a joinder or consolidation, the findings and recommendations of the committee may, in its discretion, be joint and several.
33(f) Notice to board. At the time the notice of disciplinary hearing and formal complaint are served upon the respondent, a copy of the same shall be mailed to the board and thereafter prompt notice shall be given the board of any stipulation or order to continue a disciplinary hearing.
RULE 34. PLEADINGS AND PROCESS
34(a) Pleadings; time for filing answer.
1. Pleadings permissible upon disciplinary hearings are the formal complaint and the answer thereto.
2. If a written answer is made to a formal complaint, it shall be filed within twenty days from the date of service of the formal complaint and notice of disciplinary hearing. For good cause shown the committee may extend the time for filing an answer, but in no event beyond the commencement of the disciplinary hearing.
34(b) Form of answer. The answer shall contain the title of the proceedings, respondent's admission, denial or explanation of the charges set forth in the formal complaint and other matters by way of defense as are proper, and shall be signed by respondent or his attorney. The answer shall contain the address to which all further notices to the respondent in relation to the proceedings may be sent.
34(c) Amendment. The committee at any time prior to the conclusion of the disciplinary hearing may allow amendments to the formal complaint or the answer. The formal complaint may be amended to conform to the proof or to include further charges, whether occurring before or after the commencement of the disciplinary hearing. If an amendment to the formal complaint is made., respondent shall be given reasonable time to answer the amendment, to produce evidence and to respond to the charges.
34(d) Service of papers. Unless otherwise provided papers shall be served in the following manner:
1. A notice of disciplinary hearing and a formal complaint shall be served by delivering a copy to the respondent.
2. Subpoenas shall be served by delivering a copy to the person addressed therein.
3. The answer to a formal complaint shall be served by delivering an original and two copies thereof to the committee chairman at his office address.
4. Papers may be served by any person over the age of eighteen years except the complainant. The affidavit of the person making service shall be prima facie proof thereof and shall be filed in the proceedings.
5. The clerk of the Supreme Court is designated the agent, for service of the notice of disciplinary hearing and the formal complaint, of a member who has absented himself from the State of Arizona for a continuous period of more than thirty days, or who cannot otherwise be found and personally served in this state. If it appears to the satisfaction of the committee that respondent cannot be personally served in this state with the notice of disciplinary hearing and the formal complaint, it may order that service of the same be made by serving two copies of-the notice of disciplinary hearing and the formal complaint, signed by the chairman of the committee, on the clerk of the Supreme Court. The clerk shall immediately send by registered mail one copy of the notice of disciplinary hearing and the formal complaint to respondent at his last known address as shown by the records of the state bar. Such notice
Rule 35. CONDUCT OF HEARING
35(a) Holding of disciplinary hearing; continuance; rights of complainant. At the time and place fixed in the notice of disciplinary hearing, the committee shall proceed with hearing unless for good cause shown they shall continue the hearing. No continuance shall be for a longer period than thirty days nor for periods aggregating more than sixty days without approval of the board.
When testimony cannot be concluded in one hearing the matter may be continued from time to time for the taking of additional testimony and presentation of additional evidence, but in no event for a total period of time exceeding sixty days from the date of the first hearing, without approval of the board granted upon a showing of good cause.
The complainant, if any, is not a party to the disciplinary proceeding and shall have no right to be present during a disciplinary hearing or any other part of the proceedings, except when called to give evidence and when so called may be accompanied by counsel. Neither the complainant nor his counsel shall have the right of confrontation or cross-examination of the respondent or any other witness. Neither unwillingness nor neglect of the complainant to cooperate, nor settlement, compromise nor restitution will excuse the completion of an investigation or disciplinary hearing.
35(b) Witnesses and evidence. All witnesses shall be sworn in proceedings under these Rules relating to the discipline of attorneys. The rules of evidence applicable in the superior court shall be followed as far as practicable.
35(c) Action of committee; dismissal; findings and recommendations; censure; suspension.
1. Within thirty days after the conclusion of the disciplinary hearing the committee shall determine whether or not there is sufficient evidence of misconduct to warrant a recommendation of disciplinary action against respondent.
2. If the committee determines that any or all of the charges should be dismissed, it shall enter its order accordingly and shall promptly file with the board a copy thereof, together with the entire record before it. A copy of such order of dismissal shall be furnished bar counsel and respondent. The order shall state the basis upon which the charges were dismissed. The board shall review such order of dismissal, together with the record, and if it concurs with the committee, shall advise the complainant, if any, in writing, of the action taken by committee, as concurred with by the board, and the reasons therefore. Should the board not concur with the committee regarding such dismissal, it shall notify respondent and bar counsel of such action, in like manner as required by Rule 35(e) and thereafter, proceedings shall be had thereon in accordance with Rule 36.
3. If the committee determines that the respondent should be disciplined, it shall make findings of fact and adopt recommendations as to the nature of the discipline, and promptly file the same with the board, furnish a copy thereof to bar counsel, and serve a copy thereof on the respondent. The board shall advise the complainant, if any, in writing, that the committee has completed its investigation and disciplinary hearing and filed a report with the board.
4. If the committee recommends censure or suspension for a specified time the respondent shall have ten days after service of the report on him to file with the chairman an objection in writing to the committee's recommendation. The committee shall thereafter promptly file with the board its report and recommendation, together with respondent's objections, if any, and the board shall review the same. If no objections are filed, and the board concurs with the committee's recommendation, it shall promptly file with the court a copy of the same. If the board fails to concur with the recommendation of the committee', whether objected to or not, it shall promptly direct the preparation of the record as provided in Rule 35(d), shall notify the respondent in accordance with Rule 35(e), and thereafter proceedings shall be had thereon in accordance with Rule 36 and Rule 37.
35(d) Action by the committee; findings and recommendations; report of testimony. When the committee recommends disbarment, or when censure or suspension has been recommended by the committee and objected to by the respondent, or if the recommendation of the committee has not been concurred with by the board, the testimony of all witnesses at the hearing shall be transcribed, and together with all documents, papers, pleadings, depositions and evidence filed therein, shall accompany the report and shall constitute the record.
35(e) Committee report to board; transmittal to respondent and bar counsel. When the report of the committee to the board is received, a copy of the record shall be sent by the state bar to the respondent and bar counsel, together with a copy of subdivisions (a) through (d) of Rule 36. A copy of the letter of transmittal, bearing the date of mailing and the name of the person mailing it, shall be retained in the office of the state bar and shall be prima facie evidence of the mailing thereof upon such date.
RULE 36. PROCEEDINGS AFTER COMMITTEE REPORT
36(a) Respondent's statement. The respondent, at any time within twenty days after receipt of the record but in no event more than thirty days after mailing thereof as provided in Rule 35(e), may file with the board the original and two copies of a typewritten statement. Such statement may include an application for presentation of additional evidence, but such application shall be supported by affidavit, stating the substance of any new evidence which respondent desires to present and the reason why the evidence was not presented to the committee. Respondent shall promptly serve a copy thereof upon bar counsel.
36(b) Right of respondent to appear before board. Within the time stated in Rule 36(a), respondent may request in writing permission to appear before the board and if he so requests he shall be given an opportunity to be heard orally before the board, before the board takes final action on the recommendation of the committee. The board shall notify respondent at least ten days prior thereto of the time and place it will consider the recommendation of the committee, the respondent's statement, if any, and the oral presentation of the respondent or his attorney, or both, if any. In the event respondent requests to be heard orally before the board, notice of the time and place of such hearing shall be given to bar counsel and he shall, if he so requests prior to or at the hearing, be given an opportunity to respond to the respondent's oral presentation.
36(c) Action of board upon statement; remand further proceedings.
1. If the board finds the proceedings to have been irregular to the extent that error has been committed which has resulted or will result in a miscarriage of justice or that additional evidence should be received it may remand the matter to the committee with instructions as to further proceedings in accordance with such order. A matter may be remanded by the board before or after the hearing provided for in Rule 36(b).
2. The order remanding the matter shall specify with particularity the procedure thereafter to be had before the committee. When the remand is solely for the purpose of receiving new evidence, the evidence specified in the order shall be received. At the conclusion of the proceedings on an order to remand, the committee shall make and file with the board findings of fact and recommendations as on an original proceeding.
36(d) Final action of board; notice. Within thirty days after the recommendations of the committee are considered by the board as provided in Rule 36(b), the board shall make its decision upon the record submitted by the committee, the statement of respondent, if any, and the oral arguments presented to the board, if any. The board shall either dismiss the charges, remand pursuant to Rule 36(c)(1), or recommend discipline. If the charges are dismissed by the board it shall enter its order accordingly, stating the basis upon which the charges are dismissed, and shall mail a copy of the order to respondent, bar counsel, the local administrative committee and the complainant, if any. If the board recommends discipline it shall do so in writing specifying the nature and extent thereof, shall notify respondent in writing of the recommendation, and such recommendation shall be promptly filed with the clerk of this court together with a copy of the record. An affirmative vote of a majority of the entire board shall be required for a decision. If the board recommends censure or suspension for a specified time, the respondent shall have ten days after service of the recommendation on him to file with the board an objection to the recommendation. A failure on the part of respondent to file such objection shall constitute an acceptance of the censure or suspension and the board shall promptly file with the court a copy of its recommendation. If censure has been so accepted, the board shall notify the respondent, bar counsel, the administrative committee and the complainant, if any, that the respondent has been censured and has accepted the censure. If suspension for a specified time has been so accepted, this court shall upon receipt of the recommendation of the board promptly enter an order suspending respondent for the time specified. If the respondent objects to the censure or suspension, a copy of the objection shall be filed with the clerk of this court along with the record and the recommendation of the board.
RULE 37. PROCEEDINGS BEFORE COURT; BRIEF AND ORAL ARGUMENT; DECISION
37(a) Time for filing briefs; form of briefs. Upon receipt by the clerk of this court of the recommendation of the board the clerk shall mail written notice of such filing to the board, the respondent and bar counsel. Respondent shall have thirty days. from the date of mailing of the clerk's notice to him of receipt of the record in which to file objections to the findings and recommendations of the committee and the board. The objections shall be in the form of a brief containing arguments and citations of authority in support thereof and shall be in the form of an appellant's opening brief as required by the rules relating to civil appeals adopted by this court. The original and five copies of the brief shall be filed with the clerk of this court, two copies shall be served upon bar counsel and one copy upon the board. Bar counsel shall have thirty days from the date of service on him of respondent's brief to file an answering brief and the original and five copies shall be filed with the clerk of the court, two copies shall be served upon respondent and one copy upon the board. Respondent shall have ten days after service of the brief of bar counsel on him to file, if he so desires, a reply brief and to serve the same as in the case of his opening brief.
37(b) Extension of time; failure to file brief. No extension of time for filing of briefs shall be granted except for good cause shown by affidavit. In the event respondent fails to file his brief when due, the court shall deem the matter submitted and render its decision on the record submitted to it. In the event bar counsel fails to file his brief when due, the court shall deem the matter submitted and render its decision on the record submitted to it, including the respondent's brief.
37(c) Bar counsel in supreme court. The board may appoint new or additional bar counsel for preparation of briefs and presentation of oral arguments before this court.
37(d) Oral argument. In the event respondent desires oral argument before this court, he shall file a request for oral argument, separately and in writing, at the time he files his opening brief, and shall serve a copy of such request on bar counsel and the board.
37(e) Time for hearing arguments. If oral argument has been requested by respondent, the court shall, upon the expiration of the time for filing of the briefs permitted by this rule, set a time for hearing arguments. Following oral argument the matter shall be submitted for decision. If no oral argument has been requested, the matter shall be deemed submitted upon the expiration of the time for filing of the briefs permitted by this rule, except as provided in Rule 37(b).
37(f) Priority over other civil matters. Matters arising out of recommendations for discipline in the form of suspension or disbarment shall take precedence over all other civil cases in this court.
1. The judgment of this court in any disciplinary proceedings shall fix the amount of costs and expenses to be paid by the respondent attorney before he may be reinstated and no suspended attorney shall resume practice until the amount of the costs and expenses so fixed has been fully paid, and no disbarred attorney may file a petition for reinstatement until the amount of the costs and expenses so fixed has been fully paid and until he has repaid the Client's Security Fund any amount paid by the Client's Security Fund on any claim or claims arising out of the conduct of said disbarred attorney. Where the discipline imposed is censure, the costs as fixed by this court shall be paid within 30 days of the date of the order of censure. Should such member fail to pay the costs in compliance with the order of this court, such failure shall result in suspension. In such case, reinstatement shall then proceed under Rule 40 on the same basis as applied to those members suspended for nonpayment of membership fees.
2. The term "costs" is defined to be all sums so taxable in a civil proceeding, and the term "expenses" is defined as all other obligations in money necessarily incurred by the state bar in the complete performance of its duties under these Rules. Expenses shall include, by way of illustration and not limitation, necessary expenses of administrative committee members, bar counsel, staff examiner employed by the board pursuant to Rule 33(b), charges of expert witnesses, charges of court reporters and all other direct, provable expenses.
3. Within-ten days of the receipt of the notice provided for in Rule 37(a), bar counsel shall file with the clerk of this court and serve upon the respondent attorney and the board, a verified statement of costs and expenses taxable in accordance with these Rules. Respondent shall have ten days after such service in which to file objections to the statement of costs and expenses.
37(h) Duty to clients upon suspension, disbarment or resignation in lieu of disbarment.
1. A disbarred, suspended or resigned attorney shall promptly notify, or cause to be notified, by registered or certified mail, return receipt requested, all clients being represented in pending matters, other than litigation or administrative proceedings, of his disbarment, suspension or resignation and his consequent inability to act as an attorney after the effective date of his disbarment, suspension or resignation and shall advise said clients to seek legal advice of the client's own choice elsewhere.
2(a). A disbarred, suspended or resigned attorney shall promptly notify, or cause to be notified, by registered or certified mail, return receipt requested, each of his clients who is involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matters or proceedings, of his disbarment, suspension or resignation and consequent inability to act as an attorney after the effective date of his disbarment, suspension or resignation. The notice to be given to the client shall advise the client of the desirability of the prompt substitution of another attorney or attorneys of the client's own choice in his place. The notice shall inform the client that his file is available to him immediately
2(b). in the event the client does' not obtain substitute counsel before the effective date of the disbarment, suspension or resignation, it shall be the responsibility of the disbarred, suspended or resigned attorney to move in the court or agency in which the proceeding is pending for leave to withdraw.
2(c). The notice to be given to the attorney or attorneys for an adverse party shall state the place of residence of the client of the disbarred, suspended or resigned attorney.
3. Orders imposing suspension or disbarment shall be effective on the date set forth in the court order. The disbarred, suspended or resigned attorney, after entry of the disbarment, suspension or resignation in lieu of disbarment, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. However, during the period from the entry date of the order and its effective date he may wind up and complete, on behalf of any client, all matters which were pending on the entry date.
4. Within ten days after the effective date of the disbarment, suspension, or resignation order, the disbarred, suspended or resigned attorney shall file with the Supreme Court an affidavit showing: (1) That he has fully complied with the provisions of the order and with these rules; (2) all other state, federal and administrative jurisdictions to which he is admitted to practice; and, (3) that he has served a copy of such affidavit upon the board of governors. Such affidavit shall also set forth the residence or other address of the disbarred, suspended or resigned attorney where communications may thereafter be directed to him.
5. The board shall cause a notice of the suspension, disbarment or resignation to be published in the Arizona Bar Journal and in a newspaper of general circulation in each county in which the disciplined attorney maintained an office for the practice of law.
6. The board shall promptly transmit a certified copy of the order of suspension, disbarment or resignation to all judges of courts of record in this state and the presiding judge of each county shall make such further order as he deems necessary to fully protect the rights of the clients of such attorney.
7. A disbarred or suspended attorney shall keep and maintain records of the various steps taken by him under these rules so that, upon any subsequent proceeding instituted by or against him, proof of compliance with these rules and with the disbarment, suspension or resignation in lieu of disbarment order will be available. Proof of compliance with these rules shall be a condition precedent to any petition for reinstatement.
8. In the event the suspended, disbarred or resigned attorney does not comply with the notice of requirements of this rule or does not, in a timely manner, return the client's files to or at the direction of the client, or if the affidavit of compliance required by this rule is thought to be incomplete or inadequate, the board of governors is authorized to obtain whatever court orders are necessary to assist it in obtaining the records of the attorney to send out such notices and to obtain the client's files and return them to the client. The board of governors shall incur no liability for acting or failing to act under this rule.
37(i) Privacy of record. Notwithstanding the provisions of Rule 32(d)(1), the findings and recommendations of the committee and the board and the record filed with the clerk of this court by the board shall cease to be private and shall be public upon the filing by respondent of objections to the findings and recommendations as provided in Rule 37(a), or upon the expiration of the time for filing such objections if no objections are filed.
RULE 38. LIMITATIONS AND VALIDITY OF DISCIPLINARY PROCEEDINGS
38(a) Effect of dismissal and prior discipline.
1. The determination by a committee before a disciplinary hearing that no probable cause exists shall not be a bar to further action based upon the same facts.
2. A dismissal by the board after a disciplinary hearing shall be a bar to further action based upon the same facts before any committee or the board.
3. The acceptance by a respondent of a recommendation of censure or suspension by the board shall be a bar to further action based upon the same facts.
4. A prior disbarment, suspension or censure by this court, or a prior acceptance of censure or suspension by the respondent, may be considered by the committee, the board and this court in recommending or imposing discipline.
38(b) Validity of proceedings. No action taken by the committee on any formal complaint, or thereafter by the board or this court, shall be subject to challenge because of defective or insufficient service, if in fact the respondent had ample notice of the disciplinary hearing and full opportunity to be heard. No findings or recommendations made in any proceeding shall be invalidated because of an error in pleading, or in procedure, or upon any other ground, unless upon review it appears from the entire record, including the evidence, that error has been committed which has resulted or will result in a miscarriage of justice.
RULE 39. REINSTATEMENT GENERALLY; CRITERIA; RESOLUTION OF THE BOARD
The Board shall make a favorable recommendation to this court upon an application for reinstatement only when satisfied that the applicant possesses the moral qualifications and the learning in the law required for admission to practice law in this state, and only by a resolution adopted by a majority of the entire board. If the applicant has been suspended or disbarred for ten (10) years or more, he shall be required to apply for admission and pay only the fees required of an applicant for admission to the bar and to submit to the regular written examination required by Rule 28.
RULE 40. REINSTATEMENT AFTER SUSPENSION FOR NONPAYMENT OF MEMBERSHIP FEES
Any member suspended for nonpayment of membership fees to the state bar may apply for reinstatement within ten years from the date of his or her suspension by application to the board in the form the board prescribes and requires. The application shall be accompanied by a payment equal to the amount of the dues which the applicant would have been required to pay had he been an active member during the period of suspension. The board shall consider the application, the moral fitness of the applicant and his activities and employment during the period of suspension, and shall make its recommendation to this court. The board may charge to and collect from the applicant, as a prerequisite to disposition of the application, the estimated cost of any investigation regarding the activities and employment of the applicant during the period of suspension. If the costs advanced by the applicant do not cover the actual cost of investigation the applicant will be required to satisfy any such deficiency before action is taken on his application. If the costs advanced by the applicant exceed the actual cost of investigation such excess will be promptly refunded to the applicant. This court will then consider the application and the recommendation of the board and grant or deny reinstatement. No reinstatement shall become effective until membership fees and other charges accruing after the filing of such application have been paid.
RULE 41. REINSTATEMENT AFTER SUSPENSION FOR MISCONDUCT OR AFTER DISBARMENT
41(a) Application. A member who has been either suspended or disbarred for misconduct may be reinstated only upon application as provided in this Rule. The application may be made only after expiration of the period of suspension when the applicant was suspended for a definite period, or if the applicant was disbarred or indefinitely suspended, after the expiration of two years from the date of the order of suspension or disbarment. Applications for reinstatement shall be in writing, verified by the applicant, addressed to the board, accompanied by a filing fee of fifty dollars, and filed at the office of the state bar in Phoenix. The application shall set forth fully and accurately the following information concerning the period of rehabilitation, which for the purpose of the application shall be the time between the date of disbarment or suspension and the date of filing the application:
1. Name, age, residence and address of the applicant.
2. The offense or misconduct upon which the disbarment or suspension was based, together with the date of disbarment or suspension.
3. The names and addresses of all complaining witnesses in disciplinary proceedings which resulted in disbarment or suspension, and the name of the judge or names and addresses of the committee and of the acting members thereof before whom the disciplinary proceedings were heard, or of the trial judge, complaining witness and prosecuting attorney, if disbarment was based upon conviction of a felony or misdemeanor involving moral turpitude.
4. A detailed description of applicant's occupation during the period of rehabilitation, with names and addresses of all partners, associates in business, and employers, if any, and dates and duration of all such relations and employments.
S. A statement showing the approximate monthly earnings and other income of applicant, and the sources from which all such earnings and income were derived for the period of rehabilitation.
6. A statement showing all residences maintained during such period, with the names and addresses of landlords, if any.
7. A statement showing all financial obligations of applicant at date of filing of the application, together with the dates when such obligations were incurred, and the names and addresses of all creditors.
8. A statement covering the period of rehabilitation showing the dates, general nature and final disposition of every civil action wherein applicant was either a party plaintiff or defendant or in which he had or claimed an interest together with the dates of filing complaints, titles of courts and actions, and the names and addresses of attorneys for such parties and of the trial judge, or judges, and the names and addresses of all witnesses who testified in the action or actions.
9. A statement covering the period of rehabilitation showing dates, general nature and ultimate disposition of every matter involving the arrest or prosecution of applicant for any crime, whether felony or misdemeanor, together with the names and addresses of complaining witnesses, prosecutors and trial judges.
10. A statement showing whether or not any applications were made during the period of rehabilitation for a license requiring proof of good character for its procurement, and as to each such application, the dates, the name and address of the authority to whom it was addressed and the disposition thereof.
11. A statement covering the period of rehabilitation setting forth any procedure or inquiry concerning applicant's standing as a member of any profession or organization, or holder of any license or office, which involved the censure, removal, suspension, revocation of license or discipline of applicant, and as to each, the dates, facts and disposition thereof, and the name and address of the authority in possession of the record thereof.
12. A statement of any charges of fraud made or claimed against applicant during the period of rehabilitation, whether formal or informal, together with the dates, names and addresses of persons making such charges.
13. A concise statement of facts claimed to justify readmission to the state bar.
RULE 41 (b)
41(b) Papers supporting application. Applicant shall file with his application copies of the judgment of conviction, findings and judgment of the trial court and opinions of the appellate courts, or findings and recommendations of the committee and board, and decision or order of this court, as appropriate, by virtue of which the applicant was suspended or disbarred. Applicant shall also submit copies of all prior applications for reinstatement which have been filed in his behalf, and of all findings, decisions or orders made or entered in connection therewith and, when required, shall furnish further information which in the opinion of the board, the committee, or person to whom the application is referred, is necessary or desired.
41(c) Referral of application by board. The board may in its discretion refer the application for reinstatement for formal hearing and findings, or for investigation and report on the fitness of applicant or on other facts to the committee of the district where the applicant resides, to the committee on examinations and admissions, or to one or more active members.
41(d) Hearing; time and notice. The board or the committee or person to whom the application for reinstatement is referred shall set a time and place for hearing, and notice thereof shall be given at least five days prior to the hearing to the applicant and to such other persons as ordered by the board or by any member of the committee or by the person to whom the application is referred. Any of such persons, any other interested person, or any local bar association may appear before the committee or person in support of or in opposition to the application at any time or times fixed for hearings thereon.
RULE 41 (e)
41( e) Examiners; appointment; duties. The board or committee, or person to whom an application for reinstatement is referred, may appoint, or may request any local bar association to appoint, from the active members, one or more examiners who shall appear at the hearings and prepare and present before the board or such committee or person evidence which in the opinion of the board or committee or person or of the examiners should be considered in passing upon the application.
41(f) Report on application for reinstatement; transmittal applicant, examiners and local bar association. The board or the committee or person to whom an application for reinstatement has been referred shall file at the office of the state bar in Phoenix its findings or report on such application for reinstatement. A copy thereof shall be sent by the secretary to the applicant and to the examiners and to each local bar association which has appeared in the proceeding.
41(g) Statements in opposition or support. At any time wit in ten days after mailing of the report as provided by subdivision (f) of this Rule the applicant or examiner or any local bar association may file in the office of the state bar in Phoenix an original and two copies of a typewritten statement either in opposition to or in support of the report.
41(h) Recommendation by board; transmittal to court. After the period for filing opposition statements has expired, the board shall promptly consider the application, all evidence, findings, reports and statements received in connection therewith, the moral fitness of the applicant and his activities during the period of suspension or disbarment, and shall make its recommendation to this court. The secretary of the state bar shall promptly transmit to this court the recommendation of the board, together with the record made before the board on the application for reinstatement.
41(i) Grant or denial of reinstatement by court. This court will then consider the application and the recommendation of the board and grant or deny reinstatement.
41(j) Effective date of reinstatement. No reinstatement shall become effective until membership fees accruing after the filing of an application for reinstatement have been paid.
RULE 42. EFFECT OF INCOMPETENCY OF MEMBER
42(a) Grounds for suspension. The license to practice of any member (1) who has been judicially declared incompetent, or (2) who is committed to an institution, pursuant to the provisions of A.R.S. Title 36, Chapter 5, other than by voluntary admission, or (3) who has failed to maintain such special mental fitness as would have entitled the member to admission to the state bar in the first instance, or (4) who has committed any act or omission either related or unrelated to the practice of law indicating mental unfitness to continue the practice of law, shall be suspended until reinstatement by this court.
42(b) Certification of judicial record to court. The clerks of the superior court shall immediately transmit a certified copy of any such judicial declaration or order of commitment to this court and this court, upon receipt of such record, shall enter an order suspending the member from practice until reinstatement by this court.
42(c) Suspension for mental unfitness; procedures. The license to practice of any member who has failed to maintain such special mental fitness as would have entitled the member to admission to the state bar in the first instance, or who has committed any act or omission either related or unrelated to the practice of law indicating mental unfitness to continue the practice of law, as referred to in Rule 29(b), shall be suspended until reinstatement by this court. Procedure for suspension in these instances shall follow the rules provided for the discipline of members on other grounds except that the member shall be represented by counsel of his own choice or counsel appointed by the committee or the board, as the case may be, at all stages of the proceedings.
42(d) Disciplinary proceedings pending incompetency. No disciplinary proceedings other than proceedings to suspend the license of a member as provided in this rule shall be instituted or maintained against a member who has been judicially declared incompetent or who has been committed to an institution pursuant to the provisions of A.R.S. Title 36, Chapter 5, other than by voluntary admission, until either (1) judicial restoration to competency has occurred, or (2) a determination has been made either by the committee or the board in an appropriate proceeding after notice to the member and appointment of counsel to represent the member, that the member understands the nature of the. charges against him and is competent to aid in his own defense. Upon such restoration or determination, the proceedings shall be instituted or recommenced at the same stage where the proceedings were abated.
42(e) Certification of defense of incompetency to court. If a member interposes the defense of his incompetency to abate any disciplinary proceedings filed or then pending against him, the committee or the board, as the case may be, shall immediately certify this fact to this court and upon receipt thereof, this court shall enter an order suspending the member from practice until reinstatement by this court.
42(f) Submission to examination by physician. If in any proceeding under this rule the member introduces medical evidence of his mental condition by a physician who has examined or treated the member, the committee or the board, as the case may be, may require the member to submit to examination by a physician chosen by the committee or board and evidence based upon such examination may be received by the committee or the board.
RULE 43. REINSTATEMENT AFTER SUSPENSION FOR INCOMPETENCY
43(a) Application. A member who has been suspended for incompetency may be reinstated upon application as provided in this rule. Applications for reinstatement shall be in writing, verified by the applicant and addressed to the board (accompanied with a filing fee of Fifty Dollars), and filed in the office of the state bar in Phoenix. The application shall set forth the following information:
1. Name, age, residence and address of the applicant.
2. A brief statement of the facts and circumstances surrounding the suspension of applicant.
3. A detailed description of applicant's activities since suspension setting forth in detail the following:
(a) Any employment or occupations of applicant during suspension, together with the names of employers, partners or business associates, if any, the dates and duration of all such relations and employment and a statement of any earnings during the period of suspension.
(b) A statement showing all residences maintained during the period of suspension, including the names and addresses of landlords, if any.
(c) The details with respect to any matter involving any arrest or prosecution of the applicant for any crime, whether a felony or misdemeanor, during the period of suspension.
(d) The details of any civil litigation of any nature involving the applicant at the time application is made for reinstatement.
4. A statement of the facts and circumstances, which in the opinion of the applicant entitle him to be reinstated.
5. The names and addresses of all physicians, psychiatrists, counselors, and all other persons who have treated applicant or who have counseled with applicant with respect to the matters which brought about the suspension.
6. The names of all hospitals or other institutions in which applicant has been hospitalized, confined or treated during the period of his suspension.
7. A statement of any other matters which applicant believes should be brought to the attention of the board in connection with his application.
43(b) Papers supporting application.
1. If applicant has been restored to competency by an order of the superior court, a certified copy of such order shall accompany his application.
2. If applicant has been treated by a physician with respect to the matters involved in his suspension, the application should be accompanied by a letter from such physician summarizing the current condition of the applicant. If applicant has been hospitalized or confined in an institution, the application should be accompanied by a statement from such hospital or institution showing the date and circumstances of his discharge from such hospital or institutions
43(c) Waiver of privilege. The filing of a petition for reinstatement under this rule shall constitute a waiver of any privilege which applicant may have with respect to any communication by him, or any determination or finding by any physician who has treated applicant, with respect to any conditions involved in his suspension.
43(d) Examination of applicant. The committee may employ a physician and may require the applicant to submit to a physical and mental examination by such physician.
43(e) Applicable rules. The provisions of subdivisions (c) to (j) inclusive, of Rule 41 apply to an application for reinstatement after suspension for incompetency under this Rule.
RULE 44. APPLICATION FOR REINSTATEMENT
44(a) Examination of applicant for reinstatement not required. Unless otherwise ordered by this court an applicant for reinstatement shall not be required to submit to the regular written examination required by Rule 28.
44(b) Limitation upon renewal of application for reinstatement. No application for reinstatement shall be considered by the board within one year next after an adverse decision of this court upon a former application, unless a different period is fixed by the court in its order denying the application for reinstatement.