SUPREME COURT OF ARIZONA
En Banc
In the Matter of the Application ) Arizona Supreme Court
of ) No. SB-09-0053-M
)
ALEJANDRO LAZCANO, )
) O P I N I O N
)
Applicant. )
_________________________________ )
APPLICATION DENIED
________________________________________________________________
Alejandro Lazcano El Paso, TX
In Propria Persona
STATE BAR OF ARIZONA
By Raymond A. Hanna, President Prescott
Patricia A. Sallen Phoenix
John A. Furlong, General Counsel
Attorneys for Amicus Curiae State Bar of Arizona
________________________________________________________________
B E R C H, Chief Justice
¶1 This case addresses whether an applicant on Texas
felony deferred adjudication may be admitted to practice law in
Arizona. We conclude that the pending charge prevents the
applicant from showing the good moral character necessary for
admission to the Arizona Bar.
I. BACKGROUND
¶2 In 2002, while an undergraduate student in Texas,
Alejandro Lazcano was arrested and indicted for burglary and
sexual assault. Under a plea agreement, he pled no contest to a
reduced charge of attempted sexual assault. The Texas court
deferred adjudication while Lazcano completed a ten-year term of
probation.
¶3 Lazcano later graduated from law school. He passed the
July 2008 Arizona bar examination and applied for admission to
the Arizona Bar. Following a formal hearing, the Arizona
Committee on Character and Fitness, by a divided vote,
recommended admission. On review, we asked the parties to brief
the effect of a “deferred adjudication” on an applicant’s
fitness to practice law.
II. DISCUSSION
¶4 We have previously described the requirements and
process for admission to the Bar. See In re King, 212 Ariz.
559, 563 ¶¶ 9-10, 136 P.3d 878, 882 (2006); In re Hamm, 211
Ariz. 458, 461-62 ¶ 12, 123 P.3d 652, 655-56 (2005). Generally,
applicants for admission to the Arizona Bar must demonstrate
that they possess good moral character. Ariz. R. Sup. Ct. 34;
Hamm, 211 Ariz. at 462 ¶ 12, 123 P.3d at 656. We examine past
misconduct to see what it reveals about an applicant’s present
moral character. Hamm, 211 Ariz. at 463 ¶ 17, 123 P.3d at 657.
Among other factors, we consider the seriousness of the conduct,
the lapse of time since the conduct, and evidence of
rehabilitation. Ariz. R. Sup. Ct. 36(b)(4). The Committee on
Character and Fitness makes recommendations to this Court on
- 2 -
admission, but we independently determine whether the applicant
has satisfactorily demonstrated good moral character. Hamm, 211
Ariz. at 462 ¶ 12, 123 P.3d at 656. The central component of
our assessment is, at all times, protection of the public. In
re Arrotta, 208 Ariz. 509, 512 ¶¶ 11-12, 96 P.3d 213, 216
(2004).
A.
¶5 In lieu of trial on charges of sexual assault and
burglary, Lazcano pled no contest to attempted sexual assault.
The court deferred adjudication and placed him on community
supervision for the maximum term of ten years, subject to
conditions that include 240 hours of community service and sex
offender registration. See Tex. Code Crim. P. Ann. art. 42.12
§ 5(a) (Vernon 2006) (providing for deferred adjudication). If
Lazcano successfully complies with the conditions, a judge may
dismiss the charge at the expiration of the supervision period.
Id. § 5(c). But if Lazcano does not, he may be sent to prison
without a trial on the underlying charge. Id. §§ 5(b), 21(b).
¶6 Arizona’s rule regulating admission to the Bar creates
a presumption that an applicant convicted of a felony or a
misdemeanor involving a serious crime should be denied
admission. Ariz. R. Sup. Ct. 36(b)(2). To rebut the
presumption, a convicted felon must provide clear and convincing
evidence of rehabilitation. See id.
- 3 -
¶7 Our Committee on Character and Fitness correctly
treated the deferred adjudication as a conviction for purposes
of Rule 36(b)(2). Arizona law defines a conviction as a
determination of guilt by verdict, finding, or the acceptance of
a guilty or no contest plea; formal entry of judgment is not
required. State v. Walden, 183 Ariz. 595, 615-16, 905 P.2d 974,
994-95 (1995), overruled on other grounds by State v. Ives, 187
Ariz. 102, 927 P.2d 762 (1996). Lazcano’s no contest plea
qualifies as a conviction because “[l]ike a guilty plea, a plea
of no contest ‘is an admission of guilt for the purposes of the
case.’” State v. Stewart, 131 Ariz. 251, 254, 640 P.2d 182, 185
(1982) (quoting Hudson v. United States, 272 U.S. 451, 455
(1926)). Arizona law on this point comports with Texas law, see
Tex. Code Crim. P. Ann. art. 42.12 § 5(c), which requires a
defendant to plead guilty or no contest to qualify for deferred
adjudication — that is, to “accept responsibility for a crime.”
John Bradley, Deferred Adjudication, 69 Tex. B.J. 296, 296
(2006); see Tex. R. Govern. Bar Adm’n IV(d)(1) (treating
deferred adjudication as conclusive evidence of guilt for lawyer
admission purposes).
B.
¶8 To establish rehabilitation, Lazcano must show “that he
has both (1) accepted responsibility for his past criminal
conduct,” and “(2) identified and overcome the weakness that led
- 4 -
to the unlawful conduct.” King, 212 Ariz. at 564 ¶ 13, 136 P.3d
at 883 (citing Hamm, 211 Ariz. at 464 ¶ 23, 123 P.3d at 658, and
Arrotta, 208 Ariz. at 513 ¶ 17, 96 P.3d at 217).
¶9 The Committee’s evaluation of Lazcano’s application
turned not on his acceptance of responsibility for his acts and
his efforts to overcome the weaknesses that led to his past
misconduct, see Ariz. R. Sup. Ct. 36(b)(4), but focused instead
on the credibility of the witnesses in the Texas case. Despite
Lazcano’s no contest plea, the Committee found that “the initial
report of non-consensual sexual relations may not be reliable.”
Relying on Lazcano’s statements and the police report, a
majority of the Committee appears to have questioned whether
Lazcano engaged in any criminal conduct stemming from the 2002
incident.
¶10 The Committee serves an important function in
evaluating the moral character of applicants to the State Bar.
We caution, however, that the Committee should not re-try or
second-guess an applicant’s criminal conviction, guilty plea, or
other acknowledgement of criminal responsibility. The Committee
does not have at its disposal all of the evidence, including the
evidence that supported the guilty verdict or plea, and
experience shows that applicants are apt to present a version of
the facts that minimizes their responsibility. The Committee
should instead accept that the defendant has been found guilty
- 5 -
beyond a reasonable doubt, either by verdict or plea. Thus for
admissions purposes, Lazcano pled no contest to the felony of
attempted sexual assault and remains on deferred adjudication as
a registered sex offender.
C.
¶11 We turn to whether an applicant serving deferred
adjudication for a felony offense is eligible for admission to
the Bar.1 Cases from across the country uniformly require
individuals convicted of crimes to complete their court-ordered
supervision before applying for admission or reinstatement.
See, e.g., In re Culpepper, 770 F. Supp. 366, 373 (E.D. Mich.
1991) (reinstatement); Seide v. Comm. of Bar Exam’rs, 782 P.2d
602, 607 (Cal. 1989) (admission); In re Dortch, 860 A.2d 346,
362-63 (D.C. 2004) (admission); In re Pahules, 382 So. 2d 650,
651 (Fla. 1980) (reinstatement); In re Thompson, 365 N.W.2d 262,
265 (Minn. 1985) (reinstatement); In re Walgren, 708 P.2d 380,
388 (Wash. 1985) (reinstatement). These courts reason that
because probationers typically behave well while on probation,
admissions authorities cannot adequately evaluate rehabilitation
until the applicant has successfully completed probation;
application before completion of a probationary term is deemed
1
An individual on deferred adjudication is treated as though
the charge is still pending. See Tex. Code Crim. P. Ann. art.
42.12 § 5(a); United States v. Bishop, 264 F.3d 535, 556 (5th
Cir. 2001).
- 6 -
premature. See, e.g., Seide, 782 P.2d at 607. Most also
require significant time to elapse following the end of
probation so that the applicant can demonstrate sustained
rehabilitation. E.g., id. at 605 (“It is not enough that
petitioner kept out of trouble while being watched on probation;
he must affirmatively demonstrate over a prolonged period his
sincere regret and rehabilitation.”); see also In re Polin, 596
A.2d 50, 53-54 (D.C. 1991). These requirements comport with
Arizona’s requirement that an applicant with a felony conviction
must show by clear and convincing evidence that he has been
rehabilitated. Cf. Arrotta, 208 Ariz. at 512 ¶ 12, 96 P.3d at
216 (requiring clear and convincing evidence of rehabilitation).
¶12 Lazcano would not be permitted to apply for membership
in the State Bar of Texas, his home state. Tex. R. Govern. Bar
Adm’n IV(d)(2). A person “guilty of a felony” in Texas is
“conclusively deemed not to have present good moral character
and fitness” and cannot apply for admission to the bar until
five years after completing the probationary term. Id. Thus
Lazcano cannot apply for membership in the Texas Bar until 2018.
¶13 Significantly, had Lazcano been a member of the Arizona
Bar when he pled no contest to the charge, he likely would have
been suspended from practice. See Ariz. R. Sup. Ct. 53(h)
(requiring discipline for a lawyer convicted of a “misdemeanor
involving a serious crime or of any felony”; cf. id. R. 42, ER
- 7 -
8.4(b) (declaring that it is “professional misconduct for a
lawyer to commit a criminal act that reflects adversely on the
lawyer’s . . . fitness”).
¶14 The same result would have occurred in Texas. Texas
law requires suspension of a lawyer “who has been given
probation” for a felony involving moral turpitude. See Tex.
Gov’t Code Ann. § 81.078(b) (Vernon 2005). Sexual assault
satisfies that requirement. See, e.g., Hernandez v. State Bar,
812 S.W.2d 75, 77-78 (Tex. App. 1991) (suspending lawyer placed
on deferred adjudication for indecency with a child); accord
People v. Martin, 897 P.2d 802, 804 (Colo. 1995) (finding sexual
assault a crime involving moral turpitude). The American Bar
Association’s Standards for Imposing Lawyer Sanctions § 5.12
similarly recommends suspension for lawyers who engage in
criminal conduct that “seriously adversely reflects on the
lawyer’s fitness to practice.” ABA Standards for Imposing
Lawyer Sanctions 21 (2005).
D.
¶15 In regulating attorney admissions, our primary
responsibility is to protect the public. Arrotta, 208 Ariz. at
512 ¶¶ 11-12, 96 P.3d at 216. We must determine whether an
applicant for admission possesses the necessary qualifications
to fulfill his or her responsibilities to the court and the
Arizona public. See In re Shannon, 179 Ariz. 52, 77, 876 P.2d
- 8 -
548, 573 (1994). The good moral character required for
admission to the Bar “is something more than an absence of bad
character”; it requires that the applicant has acted as a person
“of upright character ordinarily would, should, or does.” In re
Walker, 112 Ariz. 134, 138, 539 P.2d 891, 895 (1975) (quoting In
re Farmer, 131 S.E. 661, 663 (N.C. 1926)). Because law is a
self-regulating profession, we require attorneys to demonstrate
exemplary moral character.
¶16 It would “ero[de] . . . public confidence in the legal
profession and the administration of justice were we to admit an
applicant who is still on parole for crimes as serious as those
committed by [the applicant].” Dortch, 860 A.2d at 348. We
therefore conclude that admitting a felon currently serving
deferred adjudication for a serious offense does not serve the
interests of the public and legal community.
¶17 This Court does not automatically “exclude all
applicants guilty of serious past misconduct from practicing law
in Arizona.” King, 212 Ariz. at 567 ¶ 29, 136 P.3d at 886. We
have previously refrained from announcing per se
disqualifications to State Bar admission. See Hamm, 211 Ariz.
at 462 ¶ 16, 123 P.3d at 656. Today, though, we hold that an
applicant currently on a felony deferred adjudication who
remains under court supervision may not be admitted to practice
law until the period of supervision has ended. Only after
- 9 -
successfully fulfilling the conditions of a felony deferred
adjudication may an applicant make the necessary showing of
complete rehabilitation necessary for admission to the State
Bar.
III. CONCLUSION
¶18 Individuals currently on Texas deferred adjudication
are not eligible for admission to the Arizona State Bar until
they have completed their probationary term and can demonstrate
complete rehabilitation. Because Lazcano does not complete his
probation until November 2013, he cannot meet his burden of
proving his rehabilitation and good moral character. We
accordingly deny his application for admission to the State Bar
of Arizona.
_____________________________________
Rebecca White Berch, Chief Justice
CONCURRING:
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
Michael D. Ryan, Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
- 10 -