SUPREME COURT OF ARIZONA
En Banc
In the Matter of: ) Arizona Supreme Court
) No. JC-11-0001
HONORABLE THEODORE ABRAMS )
Tucson Municipal Court ) Commission on Judicial
Pima County, State of ) Conduct
Arizona ) No. 10-286
)
)
Respondent. )
)
) O P I N I O N
__________________________________)
Review from the Commission on Judicial Conduct
CENSURE AND SUSPENSION ORDERED
________________________________________________________________
OSBORN MALEDON PA Phoenix
By Mark I. Harrison
Mark P. Hummels
Attorneys for Theodore C. Abrams
COMMISSION ON JUDICIAL CONDUCT Phoenix
By Jennifer M. Perkins
Attorney for Commission on Judicial Conduct
STATE BAR OF ARIZONA Phoenix
By Maret Vessella, Chief Bar Counsel
Shauna R. Miller, Senior Bar Counsel
Attorneys for State Bar of Arizona
________________________________________________________________
P E L A N D E R, Justice
¶1 On May 25, 2011, we entered an order censuring
Theodore Abrams for violating the Code of Judicial Conduct,
permanently enjoining him from serving as a judicial officer in
Arizona, and suspending him from the practice of law for two
years, with an opinion to follow. This is that opinion.
¶2 Abrams was admitted to the Arizona bar in 1990. He
was appointed as a Tucson City Court Magistrate in 2002. In
December 2010, the Commission on Judicial Conduct (“Commission”)
brought formal disciplinary charges against Abrams based on
allegations of sexual harassment. In January 2011, Abrams and
the Commission entered into a Stipulated Resolution in which he
“acknowledge[d] that his conduct warrants removal from the
bench” and agreed to the imposition of a censure and to resign
his judicial position and never again seek or hold judicial
office.
¶3 We granted sua sponte review of the Commission’s
recommendation that we approve the Stipulated Resolution.
Pursuant to Arizona Supreme Court Rule 46(d), we invited Abrams
and the State Bar to submit briefs on whether attorney
discipline should be imposed and, if so, the appropriate
sanction. We have jurisdiction pursuant to Article 6.1, Section
4 of the Arizona Constitution, Arizona Supreme Court Rule 46(d),
and Commission Rule 29.
I. Facts
¶4 In June 2008, Abrams began an intimate, consensual
relationship with a lawyer (“Attorney A”) whose private practice
included criminal defense work. They engaged in sexual contact
2
for several months and maintained a close personal relationship
through April 2009. During and after the affair, Attorney A
appeared often in cases before Abrams, who neither disqualified
himself nor disclosed the relationship to the parties or other
counsel.
¶5 Attorney A introduced Abrams to an assistant public
defender (“Attorney B”) in July 2008.1 In August 2009, Attorney
B, a recently admitted lawyer, was assigned to cover cases in
Abrams’ courtroom.
¶6 For more than a year, Abrams repeatedly pursued a
sexual relationship with Attorney B, who persistently rebuffed
his advances. Abrams initially made lewd comments and “slurping
noises” to Attorney B. On one occasion, Abrams groped Attorney
B under a table at which they were sitting with others after
work. Between November 2009 and October 2010, Abrams left
Attorney B at least twenty-eight voicemail messages and sent her
at least eighty-five text messages, many of which included
sexual innuendos or explicit sexual content. At least three
voicemail messages contained references to cases in which
Attorney B had appeared before Abrams.
1
Attorney A also introduced Abrams to an assistant
prosecutor (“Attorney C”) in February 2009. Abrams contacted
Attorney C at work to request her personal email address and
subsequently sent her sexually explicit emails. Although
Attorney C appeared before Abrams a few times, she did not
appear before him after February 2009.
3
¶7 In December 2009, Abrams left Attorney B a voicemail
message that even he characterized as “obscene,” in which he
described a sexual act he wanted to perform on her. The next
day, Abrams asked Attorney B to come to his chambers to pick up
some paperwork. While in chambers, Abrams asked Attorney B if
she had received the voicemail message and asked to take her to
a friend’s condominium for sex. She declined. Abrams then
inappropriately touched Attorney B and called her later that day
to repeat the explicit voicemail message.
¶8 Attorney B rejected Abrams’ overtures, telling him
“that a sexual relationship would be improper because of his
position as a judge, her routine appearances in his court, and
the fact that he is married.” At some point, Abrams reminded
Attorney B of her probationary employment status and his
connections in the community.
¶9 In October 2010, Attorney B appeared before Abrams in
her first jury trial. At the end of the state’s case, she moved
to dismiss for lack of jurisdiction. Abrams became upset in the
courtroom and accused Attorney B of wasting judicial resources,
violating her duty of candor, and committing a fraud on the
court. He denied the motion and declared a mistrial. During an
unrelated proceeding several days later, Abrams criticized
Attorney B in front of court staff and the prosecutor. At
another, unrelated in-court conference, Abrams told Attorney B
4
that he would require her to confirm jurisdiction in future
cases, even though the state bears the burden of establishing
jurisdiction.
¶10 The uncharacteristically harsh and inappropriate
treatment of Attorney B prompted an investigation that resulted
in the Tucson City Attorney’s office filing a sexual harassment
complaint against Abrams in October 2010. A Pima County
Superior Court investigator found that Abrams’ actions against
Attorney B were in retaliation for her rejecting his sexual
advances and telling a mutual friend about them.
¶11 The superior court’s presiding judge upheld the claims
of sexual harassment and retaliation in December 2010. Later
that month, the Tucson City Council voted to remove Abrams from
the bench, effective January 19, 2011. Soon thereafter, the
Commission charged Abrams with judicial misconduct and
instituted formal proceedings. On January 18, 2011, Abrams
resigned from the bench.
II. Judicial Discipline
¶12 The Arizona Constitution authorizes the Commission to
recommend judicial discipline. Ariz. Const. art. 6.1, §§ 3, 4.
Although “we give serious consideration to the Commission’s
findings,” the ultimate authority to discipline a judge lies
with this Court. In re Lorona, 178 Ariz. 562, 563, 875 P.2d
795, 796 (1994).
5
¶13 Because Abrams resigned, the harshest sanction
available in judicial discipline proceedings is censure, see In
re Fleischman, 188 Ariz. 106, 113, 933 P.2d 563, 570 (1997), to
which Abrams agreed in the Stipulated Resolution. Accordingly,
we accept the Commission’s recommendation to approve the
Stipulated Resolution, censure Abrams, and permanently enjoin
him from holding judicial office in Arizona.
III. Attorney Discipline
¶14 In recommending the Stipulated Resolution, the
Commission observed that Abrams’ conduct also “reflects upon his
capacity to practice law.” When a judge resigns from office as
the result of judicial discipline, the judge and State Bar may
recommend “whether lawyer discipline . . . should be imposed
based on the record in the judicial proceeding, and if so, the
extent thereof.” Ariz. R. Sup. Ct. 46(d).2 Abrams argues that
2
For purposes of Rule 46(d), the “record” includes “all
documents filed in a case involving formal [judicial
disciplinary] proceedings.” Ariz. R. Comm’n on Jud. Conduct,
Terminology. Contrary to Abrams’ contention, that record is not
limited to the Stipulated Resolution. Rather, under the
Commission’s rules, the record includes all items presented to
the Commission and later transmitted to this Court (including
the City of Tucson’s sexual harassment complaint, the memoranda
prepared by the Pima County Superior Court’s investigator and
presiding judge, and the compact disc that contains voicemail
messages left by Abrams on Attorney B’s cellular phone). In
contrast, on the State Bar’s motion, this Court previously
struck a declaration by Abrams’ wife, which was attached to a
filing by Abrams in this Court, because it was not before the
Commission, filed in the judicial disciplinary proceeding, or
otherwise part of the record.
6
“the most appropriate sanction would be a reprimand and
probation.” The State Bar urges us to impose a lengthy
suspension of Abrams’ license to practice law.
¶15 “The purpose of professional discipline is twofold:
(1) to protect the public, the legal profession, and the justice
system, and (2) to deter others from engaging in misconduct.”
In re Scholl, 200 Ariz. 222, 227 ¶ 29, 25 P.3d 710, 715 (2001).
Attorney discipline also aims “to instill public confidence in
the Bar’s integrity.” In re Phillips, 226 Ariz. 112, 117 ¶ 28,
244 P.3d 549, 554 (2010). Although not meant to punish the
attorney, discipline may have that incidental effect. In re
White-Steiner, 219 Ariz. 323, 325 ¶ 9, 198 P.3d 1195, 1197
(2009); Scholl, 200 Ariz. at 224 ¶ 8, 25 P.3d at 712.
¶16 In assessing sanctions, the Court is guided by the
American Bar Association’s Standards for Imposing Lawyer
Sanctions (“ABA Standards”) (2005). Phillips, 226 Ariz. at 117
¶ 29, 244 P.3d at 554 (citing In re Van Dox, 214 Ariz. 300, 303
¶ 11, 152 P.3d 1183, 1186 (2007)). ABA Standard 5.2 is
“appropriate in cases involving public officials who engage in
conduct that is prejudicial to the administration of justice.”
Under that standard, suspension is appropriate “when a lawyer in
an official or governmental position knowingly fails to follow
proper procedures or rules, and causes injury or potential
7
injury to a party or to the integrity of the legal process.”
ABA Standard 5.22.
¶17 ABA Standard 3.0 prescribes four relevant factors for
determining the appropriate sanction: “(1) the duty violated,
(2) the lawyer’s mental state, (3) the potential or actual
injury caused by the lawyer’s conduct, and (4) the existence of
aggravating or mitigating factors.” Phillips, 226 Ariz. at 117
¶ 29, 244 P.3d at 554. In addition, the Court may “look to
other, similar cases in determining whether the sanction imposed
is proportionate to the misconduct charged.” Van Dox, 214 Ariz.
at 307 ¶ 39, 152 P.3d at 1190 (quoting In re Alcorn, 202 Ariz.
62, 76 ¶ 49, 41 P.3d 600, 614 (2002)).
A. Duty Violated
¶18 Abrams concedes having violated Arizona Supreme Court
Rule 41(c) (failing to “maintain the respect due to courts of
justice”) and Arizona Rule of Professional Conduct (“ER”) 8.4(d)
(engaging in conduct that is “prejudicial to the administration
of justice”). See Ariz. R. Sup. Ct. 42 (containing Arizona
Rules of Professional Conduct). Abrams also violated Rule 41(g)
(unprofessional conduct) and ER 8.4(c) (dishonest and deceitful
conduct).
¶19 In the Stipulated Resolution, Abrams also admitted
that his misconduct violated various provisions in the Code of
Judicial Conduct: Rules 1.2 (failing to “avoid impropriety” and
8
“promote[] public confidence in the independence, integrity, and
impartiality of the judiciary”), 1.3 (“abus[ing] the prestige of
judicial office to advance the [judge’s] personal . . .
interests”), 2.3 (failing to perform judicial duties “without
bias or prejudice” and refrain from sexual harassment), 2.4
(permitting extrajudicial “interests or relationships to
influence the judge’s judicial conduct or judgment”), 2.9
(engaging in improper ex parte communications), 2.11 (failing to
disqualify himself “in any proceeding in which the judge’s
impartiality might reasonably be questioned”), and 3.1 (engaging
in extrajudicial activities that “interfere with the proper
performance of the judge’s judicial duties” and that “appear
. . . to undermine the judge’s independence, integrity, or
impartiality or demean the judicial office”). See Ariz. R. Sup.
Ct. 81 (containing Arizona Code of Judicial Conduct). These
violations are grounds for attorney discipline. See Ariz. R.
Sup. Ct. 54(b).
B. Mental State
¶20 “A lawyer’s mental state affects the sanction imposed
for ethical violations.” White-Steiner, 219 Ariz. at 325 ¶ 13,
198 P.3d at 1197. “Because intentional or knowing conduct
threatens more harm than does negligent conduct, it is
sanctioned more severely.” Id.
¶21 Because mental state generally is a question of fact,
9
we normally defer to a hearing officer’s findings. Van Dox, 214
Ariz. at 304 ¶¶ 14-16, 152 P.3d at 1187; see also Ariz. R. Sup.
Ct. 59(l) (“In reviewing findings of fact, the court shall apply
a clearly erroneous standard.”). We are, however, always the
“ultimate trier of fact and law” in disciplinary proceedings.
In re Zawada, 208 Ariz. 232, 236 ¶ 11, 92 P.3d 862, 866 (2004)
(quoting In re Brady, 186 Ariz. 370, 373, 923 P.2d 836, 839
(1996)). Here, the Commission did not conduct an evidentiary
hearing or make findings of fact because of the Stipulated
Resolution. Thus, we may examine the record before the
Commission and, in the first instance, make findings of fact to
determine an appropriate sanction.
¶22 “Knowledge” is “the conscious awareness of the nature
or attendant circumstances of the conduct.” Van Dox, 214 Ariz.
at 305 ¶ 21, 152 P.3d at 1188 (quoting ABA Standards at 13).
Abrams concedes that “he knowingly failed to inform the parties
before him on more than one occasion of his intimate
relationship with [Attorney A,] who appeared before his court on
behalf of criminal defendants.” Abrams does not expressly
concede that his sexual harassment and retaliation against
Attorney B were knowingly committed. Nonetheless, the record
establishes that he knowingly engaged in that misconduct. As
the Pima County Superior Court investigator reported, Abrams
“began to treat [Attorney B] differently in the courtroom” as
10
she “continued to reject his advances.” Attorney B not only
declined those advances, but also warned Abrams that a sexual
relationship would be improper. Abrams was thus aware that his
sexual overtures were both unwelcome and wrong, yet persisted in
calling and harassing Attorney B over an extended time frame.
C. Actual or Potential Injury
¶23 We next consider “the extent of the actual or
potential injury caused by the lawyer’s misconduct.” ABA
Standards at 9. “Injury” is the “harm to a client, the public,
the legal system, or the profession which results from a
lawyer’s misconduct.” Id. at 13.
¶24 Abrams’ conduct caused actual injury in several ways.
He subjected Attorney B to repeated, unwanted sexual advances,
which undoubtedly caused stress and anxiety. When she rejected
his overtures and confided in a mutual friend about them, Abrams
retaliated by questioning Attorney B’s competence and
professional integrity in open court, embarrassing, demeaning,
and humiliating her.
¶25 Moreover, Abrams injured the legal system by
exploiting his judicial position in pursuit of sexual
gratification. See Ariz. R. Sup. Ct. 81, Rule 1.3. He
maintained an intimate relationship with Attorney A while she
was appearing in cases before him, despite the obvious conflict
and impropriety and without disclosing the conflict to opposing
11
attorneys and their clients. See id., Rule 2.11. And after
Attorney B repeatedly rebuffed Abrams’ sexual propositions, he
abused his power by retaliating against her from the bench.
“Such misuse of public office destroys public confidence in the
integrity and impartiality of the judiciary . . . .” In re
Jett, 180 Ariz. 103, 108, 882 P.2d 414, 419 (1994).
D. Presumptive Sanction
¶26 Because Abrams knowingly engaged in misconduct that
directly conflicted with his role as a judge, adversely affected
at least one attorney who regularly appeared before him, and
undermined the integrity of the legal system, suspension is the
presumptive sanction. See ABA Standard 5.22. This presumption,
however, may be overcome by “[t]he presence of aggravating or
mitigating factors.” Van Dox, 214 Ariz. at 306 ¶ 31, 152 P.3d
at 1189. We next turn to those factors.
E. Aggravating and Mitigating Factors
¶27 ABA Standards 9.2 and 9.3 list aggravating and
mitigating factors to consider in deciding an appropriate
sanction. These factors “need only be supported by reasonable
evidence.” In re Peasley, 208 Ariz. 27, 36 ¶ 36, 90 P.3d 764,
773 (2004).
¶28 The record establishes three aggravating factors.
First, Abrams engaged in a pattern of misconduct over a
significant period of time. See ABA Standard 9.22(c). Second,
12
Abrams committed multiple offenses. See ABA Standard 9.22(d).
Finally, because Attorney B was a new lawyer who regularly
appeared in Abrams’ court, she was a particularly vulnerable
victim. See ABA Standard 9.22(h).
¶29 With respect to mitigation, the record clearly
establishes several mitigating factors, including Abrams’ lack
of a prior disciplinary record, ABA Standard 9.32(a), his
character and prior reputation, ABA Standard 9.32(g), and the
imposition of other penalties, ABA Standard 9.32(k).
¶30 Abrams’ full and free disclosure to the Commission and
cooperative attitude in the judicial disciplinary proceedings
also constitute a mitigating factor. See ABA Standard 9.32(e).
The State Bar challenges this factor because Abrams’ cooperation
enabled him to minimize the Commission’s development of the
record and spared him the embarrassment of a formal hearing.
But Abrams nevertheless settled the case quickly, and by doing
so avoided subjecting his victims to a lengthy, embarrassing
disciplinary process. In addition, Abrams’ cooperation with the
Commission, resignation from his judicial office, and
willingness to expeditiously resolve the judicial disciplinary
charges did not necessarily prevent the Commission from further
investigating the charges and developing a more extensive record
before stipulating to a resolution.
¶31 Based on his uncontroverted averments in the
13
Stipulated Resolution, Abrams claims his misconduct arose from
personal and emotional problems. See ABA Standard 9.32(c). In
2007, Abrams underwent open-heart surgery, after which he became
addicted to pain medication and developed severe depression.
Abrams argues that these problems made it difficult for him to
control his impulses, “affected his judgment,” and “led to
inappropriate relationships and communications.”
¶32 Assuming the factual accuracy of these assertions, we
give them little mitigating weight unless a causal nexus exists
between Abrams’ personal and health issues and his misconduct.
See In re Bowen, 178 Ariz. 283, 287, 872 P.2d 1235, 1239 (1994)
(giving personal and emotional problems “little, if any, weight”
when “no direct causation [existed] between [the attorney’s]
alcoholism and his misconduct”); see also Scholl, 200 Ariz. at
226-27 ¶¶ 25-27, 25 P.3d at 714-15. Other than Abrams’ own
uncorroborated statements, the record contains no evidence of
any such causal link. See In re Augenstein, 178 Ariz. 133, 137-
38, 871 P.2d 254, 258-59 (1994) (concluding that absent any
“medical evidence to corroborate” attorney’s allegation that
personal and “emotional problems caused his misconduct,” record
did not support claim that such “problems constitute a
mitigating factor”).
¶33 Various steps that Abrams took to treat his disorders,
however, show an effort to rectify his misconduct, a mitigating
14
factor. See ABA Standard 9.32(d). In the Stipulated
Resolution, Abrams averred that he sought psychiatric treatment
before the allegations of sexual harassment came to light. And
once Abrams was charged with wrongdoing, he admitted himself to
an intensive substance abuse and psychiatric treatment program.
¶34 Three additional mitigating factors Abrams proposes
are not supported by the record. He asserts that he did not
have a dishonest or selfish motive. See ABA Standard 9.32(b).
But he clearly displayed a selfish motive by pursuing his own
sexual interests without regard for his oath and duties to the
legal system. Abrams claims mental disability and chemical
dependency. See ABA Standard 9.32(i). But this mitigator
requires evidence of a “sustained period of successful
rehabilitation,” id., which is not established here.
¶35 Finally, Abrams asserts remorse as a mitigating
factor. See ABA Standard 9.32(l). Abrams stipulated that his
actions violated the Code of Judicial Conduct and alleged in the
Stipulated Resolution “[d]eep remorse and embarrassment” as a
mitigating factor. But the record does not clearly reflect that
he is remorseful. Cf. Augenstein, 178 Ariz. at 137, 871 P.2d at
258 (“Those seeking mitigation relief based upon remorse must
present a showing of more than having said they are sorry.”
(quotation and alteration omitted)). The memoranda of Pima
County Superior Court’s investigator and presiding judge note,
15
based on that court’s investigation, that “Abrams claims that
[Attorney B] did not necessarily object to [his] sexual
comments,” and “continues to maintain that he does not feel he
was harassing her.”
¶36 Abrams’ mitigation evidence does not overcome the
presumptive sanction of suspension. He admitted to suffering
serious drug addiction and mental health problems, but the
record contains no evidence suggesting he has overcome these
disorders. We do not doubt the sincerity of his efforts to seek
treatment, but the absence of evidence of the success of Abrams’
efforts at rehabilitation diminishes the weight of this alleged
mitigator. See In re Stout, 122 Ariz. 503, 504, 596 P.2d 29, 30
(1979) (“Our primary concern must be the fulfillment of proper
professional standards, whatever the unfortunate cause,
emotional or otherwise, for the attorney’s failure to do so.”
(quotation omitted)); see also Jett, 180 Ariz. at 108, 110, 882
P.2d at 419, 421 (“[U]sing the power of . . . judicial office
for purely personal reasons is grossly improper,” and
“regardless of the reasons, still constitutes willful
misconduct.”).
F. Proportionality Review
¶37 “We may consider the sanctions imposed in similar
cases ‘to preserve some degree of proportionality, ensure that
the sanction fits the offense, and avoid discipline by whim or
16
caprice.’” Phillips, 226 Ariz. at 118-19 ¶ 37, 244 P.3d at 555-
56 (quoting In re Dean, 212 Ariz. 221, 225 ¶ 24, 129 P.3d 943,
947 (2006)).
¶38 No reported Arizona decision addresses the nature and
extent of appropriate attorney sanctions for the type of
judicial misconduct at issue here. But several analogous out-
of-state cases are helpful. In People v. Biddle, a judge who
had an affair with a prosecutor who “occasionally appeared” in
his court and “engaged in various trysts [with that attorney]
both inside and outside the . . . [c]ourthouse” was suspended
from the practice of law for three years after he resigned from
the bench. 180 P.3d 461, 462-63, 465 (Colo. O.P.D.J. 2007).
And in Disciplinary Counsel v. Campbell, a judge who made lewd
and offensive comments to attorneys, engaged in sexual
harassment in open court, and made sexual advances toward an
attorney during an in-chambers meeting was suspended from the
practice of law for one year. 623 N.E.2d 24, 25-28 (Ohio 1993).
¶39 In arguing against suspension, Abrams cites several
Arizona cases that he claims involved comparable misconduct.
But most of these cases dealt only with judicial discipline and
are thus inapposite. See Fleischman, 188 Ariz. at 113, 933 P.2d
at 570; Jett, 180 Ariz. at 111, 882 P.2d at 422; In re Gumaer,
177 Ariz. 280, 283, 867 P.2d 850, 853 (1994); In re Marquardt,
161 Ariz. 206, 217-18, 778 P.2d 241, 252-53 (1989); In re Ackel,
17
155 Ariz. 34, 43, 745 P.2d 92, 101 (1987), overruled in part by
Jett, 180 Ariz. at 109, 882 P.2d at 420; In re Morales, Ariz.
Comm’n on Jud. Conduct No. 06-154 (Mar. 13, 2007).
¶40 The two Arizona cases Abrams cites in which attorney
discipline was imposed for judicial misconduct also are not
particularly helpful. In Dean, we noted that no attorney
discipline was imposed on a judge for his two-year affair with a
prosecutor who appeared regularly in his court, but that result
was due to a procedural error that deprived us of jurisdiction
to impose attorney discipline, not from a reasoned decision that
such discipline was not appropriate. 212 Ariz. at 221-22 ¶¶ 2-
4, 223-24 ¶¶ 15-22, 129 P.3d at 943-46. And in Scholl, we
suspended a former judge from the practice of law for six months
after his convictions of filing false tax returns and illegal
structuring of currency transactions, offenses committed during
Scholl’s judgeship that arose from his gambling addiction. 200
Ariz. at 223 ¶ 1, 228 ¶ 40, 25 P.3d at 711, 716. In Scholl,
however, the judge’s crimes, although serious, were not
committed in his judicial capacity, the offenses occurred
several years before the disciplinary proceedings, and the judge
had successfully rehabilitated himself from his gambling
addiction. Id. at 223 ¶ 1, 224 ¶ 12, 228 ¶ 40, 25 P.3d at 711-
12, 716.
¶41 The out-of-state cases remain the best yardstick for
18
measuring proportionality. Abrams’ proposal of a reprimand
fails to acknowledge the seriousness of his misconduct and the
harm it inflicted on the legal system. He placed his own sexual
desires above his obligation to “exhibit the highest standards
of honesty and integrity.” In re Savoy, 181 Ariz. 368, 371, 891
P.2d 236, 239 (1995).
¶42 Suspension is thus an appropriate and proportionate
sanction for Abrams’ misconduct, despite his resignation from
the bench and agreement to never again seek or hold judicial
office. See, e.g., Biddle, 180 P.3d at 465; cf. Florida Bar v.
Corbin, 540 So. 2d 105, 106-07 (Fla. 1989) (suspending attorney
for three years after he resigned from the bench, based on his
criminal conviction of attempted sexual activity with a minor
while serving as a judge); In re Brooks, 449 S.E.2d 87, 88 (Ga.
1994) (suspending attorney for three years after he left the
bench, based on multiple misdemeanor convictions of sexual
battery while serving as a judge); In re Higgins, 436 N.Y.S.2d
71, 71-72 (N.Y. App. Div. 1981) (suspending attorney for two
years after he resigned from the bench, based on his soliciting
and agreeing to accept sexual favors from a woman whom he
suggested would receive in return favored treatment in his
family court).
G. Length of Suspension
¶43 “Judges are held to higher standards of integrity and
19
ethical conduct than attorneys or other persons not invested
with the public trust . . . . Even in a judge’s personal life,
he or she must adhere to standards of probity and propriety far
higher than those deemed acceptable for others.” James J.
Alfini, Steven Lubet, Jeffrey M. Shaman & Charles Gardner Geyh,
Judicial Conduct and Ethics, at 1-4 (4th ed. 2007). The
judiciary’s authority fundamentally rests “on its reputation for
impartiality.” Mistretta v. United States, 488 U.S. 361, 407
(1989). Nothing threatens public confidence in the courts and
the legal system more than a judge who abuses his power and
exploits the prestige of his office for personal benefit.
¶44 “[T]he judge’s role is so intimate a part of the
process of justice that misbehavior as a judge must inevitably
reflect upon” that person’s fitness to practice law. In re
Mattera, 168 A.2d 38, 41 (N.J. 1961); see also ER 8.4 cmt. 5
(Effective Dec. 1, 2003) (“Lawyers holding public office assume
legal responsibilities going beyond those of other citizens. A
lawyer’s abuse of public office can suggest an inability to
fulfill the professional role of lawyers.”).
¶45 In their oath of admission, Arizona attorneys pledge
to “maintain the respect due to courts of justice and judicial
officers,” “abstain from all offensive conduct,” and “at all
times faithfully and diligently adhere to the rules of
professional responsibility and a lawyer’s creed of
20
professionalism.” See Ariz. R. Sup. Ct. 31 (The Oath of
Admission to the Bar), 37(b). The oath of office for Arizona
judges similarly includes a solemn commitment to “faithfully and
impartially discharge the duties of [one’s] office to the best
of [one’s] ability.” Ariz. Const. art. 6, § 26. Abrams’
misconduct violated both oaths, and “[a] violation of his
judicial oath aggravates the offense of disregarding his oath as
a lawyer.” In re Hasler, 447 S.W.2d 65, 65-66 (Mo. 1969)
(quoting State ex rel. Neb. State Bar Ass’n v. Conover, 88
N.W.2d 135, 138 (Neb. 1958)) (ordering disbarment of attorney
based on his private meetings and conversations with party while
presiding as judge over her divorce proceeding).
¶46 Abrams engaged in “conduct prejudicial to the
administration of justice that brings the judicial office into
disrepute.” Ariz. Const. art. 6.1, § 4. His misbehavior
severely tarnished the justice system and the legal profession.
By abusing his office, Abrams struck at the very heart of the
judiciary’s legitimacy, injuring not just his victims, but the
law as an institution.
¶47 “Faith in public officials is difficult to restore.”
In re Koch, 181 Ariz. 352, 354, 890 P.2d 1137, 1139 (1995).
Judicial misconduct erodes public confidence in our justice
system, and we must help restore the public’s faith in our legal
institutions and deter attorneys from similar misbehavior, two
21
of the primary purposes of professional discipline. To properly
protect the public, we must also ensure that attorneys suffering
from serious mental health issues or drug addiction rehabilitate
themselves before resuming the practice of law. A reprimand or
shorter term of suspension would not adequately address these
objectives. For all of these reasons, we conclude that an
appropriate sanction for Abrams’ misconduct is a two-year
suspension from the practice of law.
IV.
¶48 Having accepted the Commission’s recommendation to
approve the Stipulated Resolution between the Commission and
Abrams, we censure him and permanently enjoin him from again
serving as a judicial officer in Arizona. We also suspend
Abrams’ license to practice law in this state for two years,
effective June 1, 2011.
_____________________________________
A. John Pelander, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
W. Scott Bales, Justice
22
_____________________________________
Robert M. Brutinel, Justice
23