SUPREME COURT OF ARIZONA
En Banc
In the Matter of a Non-Member of ) Arizona Supreme Court
the State Bar of Arizona, ) No. SB-06-0121-D
)
CARLY VAN DOX, ) Disciplinary Commission
) No. 04-1846
Respondent. )
__________________________________) O P I N I O N
Review from the Disciplinary Commission
No. 04-1846 (Filed April 12, 2006)
VACATED IN PART; DISCIPLINE IMPOSED
________________________________________________________________
OSBORN MALEDON, P.A. Phoenix
By Mark I. Harrison
Sara S. Greene
And
CLINT BOLICK Phoenix
By Clint Bolick
Attorneys for Carly Van Dox
STATE BAR OF ARIZONA Phoenix
By Robert B. Van Wyck, Chief Bar Counsel
Denise K. Tomaiko, Staff Bar Counsel
Attorneys for State Bar of Arizona
________________________________________________________________
B E R C H, Vice Chief Justice
¶1 We granted review in this disciplinary case to clarify
the standard the Disciplinary Commission must apply when
reviewing a hearing officer’s findings of fact and the
definition of “knowledge,” as that term is used in the American
Bar Association Standards for Imposing Lawyer Sanctions.
Because the Commission failed to properly defer to the Hearing
Officer’s factual findings and misinterpreted the term
“knowledge” in determining the appropriate sanction, we decline
to impose the Commission’s recommended sanction of censure and
instead impose a sanction of informal reprimand.
I. FACTS AND PROCEDURAL BACKGROUND
¶2 Respondent Carly Van Dox is a lawyer who has been
admitted to practice law in both Virginia and Florida. She is
also certified in Florida as a mediator. Since moving to
Arizona in 1997, she has worked as a licensed realtor, but has
not applied for admission to the Arizona Bar.
¶3 In 2004, a co-worker asked Van Dox to represent the
sellers in a real estate transaction in a private mediation.
Van Dox explained to the sellers that she was not licensed to
practice law in Arizona and so could not represent them if the
dispute did not settle during the mediation. Following the
disclosure, the sellers signed a retainer form that Van Dox had
used in her Florida law practice and agreed to pay her $1,000
for her services in the mediation.
¶4 During the mediation, the buyers’ attorney discovered
that Van Dox was not licensed to practice law in Arizona and
informed the mediator of this fact. When the mediator
questioned Van Dox, she readily acknowledged that she was
licensed in Florida, but not Arizona.
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¶5 The mediator then called an Arizona attorney who was
versed in unauthorized practice of law issues. After talking to
that attorney and conducting independent research, the mediator
concluded that Van Dox could ethically proceed with the
mediation. The buyers’ attorney also agreed to proceed. The
mediation ended without resolving the dispute.
¶6 Van Dox believed that her participation in the
mediation was proper because the mediation was not court ordered
and, in Florida, a certified mediator need not be an attorney.
After the mediation, she discussed the issue with a retired
superior court commissioner who advised Van Dox that she could
rely on the mediator’s determination.
¶7 Although the mediation did not resolve the dispute,
the sellers were satisfied with Van Dox’s work and neither
requested return of the $1,000 fee nor filed a complaint against
her. The buyers, however, filed a complaint with the Arizona
State Bar. After Van Dox failed to respond to two inquiries
from the State Bar regarding the matter, the Bar filed a formal
complaint charging her with engaging in the unauthorized
practice of law, in violation of Arizona Supreme Court Rule 31
and Ethical Rule (“ER”) 5.5 of the Arizona Rules of Professional
Conduct; conduct involving dishonesty, fraud, deceit, or
misrepresentation, in violation of ER 8.4(c); and conduct
prejudicial to the administration of justice, in violation of ER
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8.4(d). She was also charged with violating Supreme Court Rule
53 by failing to cooperate with the Bar and respond promptly to
the Bar’s inquiries. See Ariz. R. Sup. Ct. 53(d) (refusal to
cooperate); id. 53(f) (failure to respond promptly).
¶8 A hearing on the charges was held before a State Bar
Hearing Officer who concluded that Van Dox violated ER 5.5 and
Supreme Court Rule 31 by engaging in the unauthorized practice
of law, and Supreme Court Rule 53(f) by failing to promptly
respond to the Bar’s inquiries.1 He recommended diversion as a
sanction because he found that Van Dox’s actions were negligent,
caused little or no injury, and were not motivated by dishonesty
or selfishness. The State Bar appealed to the Disciplinary
Commission, which reversed several of the Hearing Officer’s
findings and conclusions. First, the Commission determined that
Van Dox had knowingly rather than negligently engaged in the
unauthorized practice of law. Second, the Commission found that
Van Dox’s conduct was motivated by dishonesty or selfishness
because she accepted compensation for her work. Finally, the
Commission found that her conduct caused actual or potential
injury. The Commission recommended censure, rather than
1
Both the Hearing Officer’s Report, In re Van Dox, No. 04-
1846 (Nov. 2, 2005), and the Disciplinary Commission’s Report,
In re Van Dox, No. 04-1846 (Apr. 12, 2006), are available at
http://www.supreme.state.az.us/dc/matrix.htm.
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diversion, as the appropriate sanction.
¶9 Van Dox petitioned this Court for review of the
Commission’s recommended sanction, which we granted.2 We have
jurisdiction pursuant to Article 6, Section 5(3) of the Arizona
Constitution and Arizona Supreme Court Rule 59(a).
II. DISCUSSION
¶10 Attorney discipline is designed to protect the public,
the legal profession, and the legal system and to deter other
attorneys from engaging in unprofessional conduct. In re
Scholl, 200 Ariz. 222, 227, ¶ 29, 25 P.3d 710, 715 (2001)
(citing In re Neville, 147 Ariz. 106, 116, 708 P.2d 1297, 1307
(1985), and In re Swartz, 141 Ariz. 266, 277, 686 P.2d 1236,
1247 (1984)). Attorney discipline is not intended to punish the
offending attorney, although the sanctions imposed may have that
incidental effect. Id. at 224, ¶ 8, 25 P.3d at 712 (citing In
re Pappas, 159 Ariz. 516, 526, 768 P.2d 1161, 1171 (1988)).
A. ABA Standards
¶11 Van Dox does not challenge the conclusion that she
engaged in the unauthorized practice of law and failed to
respond to State Bar inquiries. Thus, the only issue before us
2
We originally also granted review on the issue of this
Court’s jurisdiction over a lawyer who is not a member of the
Arizona Bar and engages in the unauthorized practice of law. We
now conclude that review of that question was improvidently
granted and therefore vacate review on that issue.
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is the appropriate sanction. In determining the sanctions for
ethical violations, we are guided by the American Bar
Association Standards for Imposing Lawyer Discipline (1992)
(“ABA Standards”). In re Peasley, 208 Ariz. 27, 33, ¶ 23, 90
P.3d 764, 770 (2004). We consider the following factors
relevant in determining appropriate discipline: (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. Standard 3.0;
Peasley, 208 Ariz. at 32, ¶ 19, 90 P.3d at 769. We address each
factor in turn.
1. Duty violated
¶12 The Hearing Officer and the Commission both found that
Van Dox engaged in the unauthorized practice of law, in
violation of ER 5.5 and Supreme Court Rule 31, and that she
failed to respond promptly to State Bar inquiries, in violation
of Supreme Court Rule 53(f). Standard 7.0 provides that such
conduct violates a duty owed to the profession, although it may
violate duties owed to clients, the public, or the legal system
as well.
2. Mental state
¶13 A lawyer’s mental state affects the sanction for
ethical violations. Intentional or knowing conduct threatens
more harm to the public, the legal system, and the profession
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than does negligent conduct, and is accordingly sanctioned more
severely. See ABA Standards at 9-10. Compare Peasley, 208
Ariz. at 41-42, ¶ 65, 90 P.3d at 778-79 (holding that any
sanction less than disbarment would be inappropriate based on
respondent’s intentional ethical violations), with In re Bemis,
189 Ariz. 119, 122-23, 938 P.2d 1120, 1123-24 (1997) (censuring
respondent for negligent professional misconduct); compare also
Standard 7.2 (stating that suspension is the presumed sanction
for knowing violations of ethical rules), with Standard 7.4
(stating that an admonition is the presumed sanction for
isolated instance of negligent violation of ethical rules). The
Hearing Officer found that Van Dox’s conduct in engaging in the
unauthorized practice of law was merely negligent. The
Commission disagreed, concluding that Van Dox’s conduct was
knowing rather than negligent. In so concluding, the Commission
relied on two facts: Van Dox had the sellers sign the standard
retainer agreement she had used in her Florida law practice,
which contained the designation “Law Offices of Carly R. Van
Dox, P.A.,” and she signed the “Mediation Agreement Rules and
Procedures” form provided by the mediator as “Carly Van Dox,
Atty.” These acts, the Commission found, showed Van Dox’s
awareness that she was engaging in the unauthorized practice of
law.
¶14 State of mind is a fact question. In re Clark, 207
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Ariz. 414, 417, ¶ 14, 87 P.3d 827, 830 (2004). The Hearing
Officer, after observing Van Dox and hearing her testimony,
found that she acted negligently. In disciplinary proceedings,
the Commission must defer to a hearing officer’s factual
findings and “may not reject the hearing officer’s findings of
fact related to discipline unless it determines that the factual
findings are clearly erroneous.” Id. at 418, ¶ 18, 87 P.3d at
831; see Ariz. R. Sup. Ct. 58(b).
¶15 The “clear error” standard requires that the
Commission give “great deference” to a hearing officer’s factual
findings. See Scholl, 200 Ariz. at 226, ¶ 25, 25 P.3d at 714.
This means that, in resolving factual questions, the Commission
may not simply substitute its judgment for that of a hearing
officer. See United Cal. Bank v. Prudential Ins. Co., 140 Ariz.
238, 286, 681 P.2d 390, 438 (App. 1983) (reviewing court “will
not substitute its judgment as to credibility of witnesses or
weight of evidence for that of the [factfinder]”). To be
clearly erroneous, a finding must be unsupported by any
reasonable evidence. Moreno v. Jones, 213 Ariz. 94, 98, ¶ 20,
139 P.3d 612, 616 (2006) (citing O’Hern v. Bowling, 109 Ariz.
90, 92-93, 505 P.2d 550, 552-53 (1973)).3 Deference to a hearing
3
One court explained that, “[t]o be clearly erroneous, a
decision must [be] more than just maybe or probably wrong; it
must . . . strike [the reviewing body] as wrong with the force
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officer’s factual findings is appropriate because, having had
the opportunity to observe and hear the witnesses, the hearing
officer is in a superior position to assess them and judge their
credibility. See In re Piatt, 191 Ariz. 24, 27, 951 P.2d 889,
892 (1997).
¶16 Like the Commission, we also review a hearing
officer’s factual findings for clear error. Ariz. R. Sup. Ct.
59(b); In re Alcorn, 202 Ariz. 62, 64 n.4, 41 P.3d 600, 602 n.4
(2002). We must therefore determine whether the Hearing Officer
clearly erred in finding that Van Dox negligently engaged in the
unauthorized practice of law.
¶17 “Negligence” occurs when a lawyer fails “to heed a
substantial risk that circumstances exist or that a result will
follow, which failure is a deviation from the standard of care
that a reasonable lawyer would exercise in the situation.” ABA
Standards at 12. The evidence adduced at the hearing showed
that Van Dox believed that the private mediation in which she
participated did not involve the unauthorized practice of law
because it was not court ordered. Moreover, Florida, the state
from which she had come, certifies mediators who are not
of a five-week-old, unrefrigerated dead fish.” Parts & Elec.
Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th
Cir. 1988). Although the Arizona courts’ explanations are less
vivid, they adequately express the correct legal standard.
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attorneys. Thus, she reasoned, non-lawyers may participate in
private mediations. She advised her clients at their first
meeting that she was not licensed as an attorney in Arizona.
She further advised them that if the matter progressed beyond
mediation, she would not be able to assist them. She signed in
at the mediation as “Carly Van Dox, Atty.” because she is in
fact an attorney.
¶18 Although Van Dox erred in thinking that her actions
did not constitute the unauthorized practice of law in Arizona,
the Hearing Officer found that her belief was honest and that
she negligently practiced law without authorization when she
agreed to participate in the mediation. Her belief was
supported by the mediator’s consultation with an attorney. The
mediator concluded that the mediation could ethically proceed
with Van Dox’s participation, a result confirmed to Van Dox by a
former superior court commissioner. Although these sources were
consulted after Van Dox began her participation in the
mediation, they demonstrate that her confusion on the issue was
not unreasonable.
¶19 These facts amply support the Hearing Officer’s
finding that Van Dox’s conduct in engaging in the unauthorized
practice of law was not knowing, but negligent. See id.
Because substantial evidence supports the Hearing Officer’s
finding, we defer to it. See Merryweather v. Pendleton, 91
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Ariz. 334, 338, 372 P.2d 335, 338 (1962).
¶20 In support of the Commission’s finding of a “knowing”
violation, the State Bar argues that all that is required to
constitute a “knowing” violation is that the respondent was
aware that she performed actions, and the actions in fact
constituted the unauthorized practice of law; she need not have
been aware when she acted that she was engaging in the
unauthorized practice of law. Therefore, the Bar argues, Van
Dox’s conduct was knowing rather than negligent because she knew
that she provided a retainer agreement from her Florida practice
and that she signed in as an attorney representing the sellers
at the mediation.
¶21 The applicable definition of “knowledge,” however,
refutes the Bar’s argument. The ABA Standards define
“knowledge” as “the conscious awareness of the nature or
attendant circumstances of the conduct.” ABA Standards at 12.
This definition clarifies that merely knowing one performs
particular actions is not the same as consciously intending by
those actions to engage in unethical conduct. The actor must
also know the nature and circumstances of those actions; that
is, a respondent knowingly engages in the unauthorized practice
of law only if she is aware that her conduct constitutes the
unauthorized practice of law. See In re Taylor, 180 Ariz. 290,
292, 883 P.2d 1046, 1048 (1994) (concluding that respondent who
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admittedly “knew that he should not be practicing [law] during
[a period of suspension]” knowingly engaged in the unauthorized
practice of law); see also In re Tocco, 194 Ariz. 453, 457,
¶ 11, 984 P.2d 539, 543 (1999) (holding that “a mere showing
that the attorney reasonably should have known her conduct was
in violation of the rules, without more, is insufficient” to
establish a knowing ethical violation); In re Levine, 174 Ariz.
146, 171, 847 P.2d 1093, 1118 (1993) (indicating that the
knowledge required for setting a higher sanction for
professional misconduct is “knowledge that [respondent] may have
been violating an ethical rule”).
¶22 In this case, the Hearing Officer found that Van Dox
did not know that her actions constituted the unauthorized
practice of law. He concluded that an honest but erroneous
belief that one’s actions do not constitute the unauthorized
practice of law does not constitute a knowing violation.
¶23 We agree with the Hearing Officer’s legal
determination. Adopting the State Bar’s definition of
“knowledge” would have the effect of rendering any act of
unauthorized practice a “knowing” violation of the ethical
rules, unless the respondent acted while asleep or unconscious.
Such an interpretation would negate mental state as a factor in
determining suitable sanctions for unauthorized practice of law
violations, in contravention of this Court’s established
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practice. See Peasley, 208 Ariz. at 32, ¶ 19, 90 P.3d at 769;
Tocco, 194 Ariz. at 457 n.3, 984 P.2d at 543 n.3.
¶24 Applying the proper definition of “knowledge” and
deferring to the Hearing Officer’s findings of fact, we conclude
that Van Dox’s conduct was negligent.
3. Actual or potential injury
¶25 The Court also considers the harm caused by ethical
violations in determining sanctions. The Hearing Officer found
that Van Dox’s conduct caused little or no injury. The
Commission disagreed. Whether a lawyer’s actions caused harm is
a question of fact. See Reed v. Mitchell & Timbanard, P.C., 183
Ariz. 313, 318, 903 P.2d 621, 626 (App. 1995). Thus, we and the
Commission must defer to the Hearing Officer’s finding that Van
Dox’s actions caused little or no injury unless that finding is
clearly erroneous.
¶26 The ABA Standards define “injury” as “harm to a
client, the public, the legal system, or the profession which
results from a lawyer’s misconduct.” ABA Standards at 12. “[A]
reference to ‘injury’ alone indicates any level of injury
greater than ‘little or no’ injury.” Id. The comment to
Standard 7.0 notes that violations of duties owed to the
profession, such as are present in this case, are “generally
. . . less likely to cause injury to a client, the public, or
the administration of justice.”
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¶27 The Hearing Officer found that the sellers were
satisfied with Van Dox’s representation and concluded that they
suffered little or no injury from it, a conclusion the
Commission does not challenge. The Commission decided, however,
that the Hearing Officer failed to consider any possible injury
to the public, the legal system, or the profession. We do not
agree. After considering the harm to the sellers, the Hearing
Officer addressed the lack of injury to the buyers and concluded
that they too suffered little or no injury from Van Dox’s
conduct.4 The Hearing Officer also noted that all involved,
other than the buyers, agreed that the mediation would not have
ended differently if Van Dox had been an Arizona attorney. The
Hearing Officer indirectly touched upon the lack of injury to
the public, the legal system, and the profession when he
concluded that “neither the public nor other lawyers will
benefit from whatever lessons might be gleaned from Respondent’s
conduct in representing the [sellers] in a private mediation.”
¶28 On review of the evidence, we conclude that the
Hearing Officer’s finding that Van Dox’s conduct caused little
or no injury was supported by substantial evidence and was not
clearly erroneous. The Commission therefore erred in not
4
Six months after buying the house that was the subject of
the mediation, the buyers sold it at a substantial profit.
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deferring to the Hearing Officer’s finding.
¶29 Before this Court, the State Bar raises the additional
arguments that Van Dox’s conduct could have injured the sellers
by depriving them of the benefit of the attorney-client
privilege and a potential legal malpractice action had Van Dox’s
representation not been adequate. Because the Bar failed to
raise these claims below, we decline to address them. See Van
Loan v. Van Loan, 116 Ariz. 272, 274, 569 P.2d 214, 216 (1977)
(declining to address issues raised for first time on appeal).
4. Presumptive sanction
¶30 An informal reprimand “is generally [the] appropriate
[sanction] when a lawyer engages in an isolated instance of
negligence that is a violation of a duty owed as a professional,
and causes little or no actual or potential injury to a client,
the public, or the legal system.” Standard 7.4 (defining
admonition, the equivalent of Arizona’s informal reprimand).
Having concluded that Van Dox negligently engaged in the
unauthorized practice of law, a violation of a duty owed as a
professional, and deferring to the Hearing Officer’s finding
that her act constituted an isolated instance of misconduct,5 the
5
On this point, the Hearing Officer compared Van Dox’s
conduct to that of the respondent in In re Winiarski, No. 98-
2052 (Disciplinary Comm’n May 15, 2000), discussed infra ¶¶ 40-
41, whose conduct in twice appearing before an administrative
tribunal was deemed an “isolated instance.”
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presumptive sanction is an informal reprimand.
¶31 The presence of aggravating or mitigating factors may,
however, overcome the presumption. See Peasley, 208 Ariz. at
36, ¶ 36, 90 P.3d at 773. We examine those factors next.
5. Aggravating and mitigating factors
¶32 Standards 9.2 and 9.3 enumerate potential aggravating
and mitigating factors to be considered in determining the
appropriate sanction for professional misconduct. The Hearing
Officer found no aggravating factors, but found the existence of
five mitigating factors: (1) the absence of a prior
disciplinary record, Standard 9.32(a); (2) the absence of a
dishonest or selfish motive, Standard 9.32(b); (3) a cooperative
attitude toward the proceedings following her initial failure to
respond, Standard 9.32(e); (4) good character or reputation,
Standard 9.32(g); and (5) exhibition of remorse, Standard
9.32(m). The Commission agreed that four of the five mitigating
factors were established, but found the evidence insufficient to
support the mitigating factor of “absence of a dishonest or
selfish motive.” The Commission instead concluded that Van Dox
had a “dishonest or selfish motive” because she accepted a fee
of $1,000 for her services.
¶33 The presence or absence of a dishonest or selfish
motive is a fact question. See Clark, 207 Ariz. at 418, ¶ 18,
87 P.3d at 831. The Commission may not make additional findings
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of fact in a disciplinary proceeding, Tocco, 194 Ariz. at 456,
¶ 9, 984 P.2d at 542, or deviate from those found by a hearing
officer unless they are clearly erroneous, Ariz. R. Sup. Ct.
58(b). We therefore must determine whether the Hearing
Officer’s finding that Van Dox lacked a dishonest or selfish
motive was clearly erroneous.
¶34 The Commission appears to have based its finding that
Van Dox had a dishonest or selfish motive solely on the fact
that she accepted payment for her services. Standing alone,
however, the receipt of a fee does not mandate a finding of a
dishonest or selfish motive. See In re Castro, 164 Ariz. 428,
434, 793 P.2d 1095, 1101 (1990).
¶35 The cases in which we have found a dishonest or
selfish motive have involved intentional or knowing ethical
violations. In In re Shannon, for example, to protect his own
interests, an attorney represented a client and another, despite
an obvious conflict in the parties’ interests. 179 Ariz. 52,
69, 876 P.2d 548, 565 (1994); see also In re Spear, 160 Ariz.
545, 555-56, 774 P.2d 1335, 1345-46 (1989) (finding a dishonest
or selfish motive because respondent “intentional[ly] abuse[d]
. . . the lawyer-client relationship” by inducing client to
purchase property to lawyer’s advantage and client’s
disadvantage). In In re Arrick, we found that the respondent
possessed a dishonest or selfish motive, in part, because he
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made “deliberate misrepresentations . . . designed to cover his
negligence.” 180 Ariz. 136, 143, 882 P.2d 943, 950 (1994); see
also In re Hansen, 179 Ariz. 229, 232, 877 P.2d 802, 805 (1994)
(finding a dishonest or selfish motive because respondent “lied
to the court to cover up her error”). We have also found a
dishonest or selfish motive in cases involving conversion of
client funds for an attorney’s own use and knowingly filing
frivolous lawsuits. See, e.g., Levine, 174 Ariz. at 171, 847
P.2d at 1118 (filing frivolous lawsuits); In re Jones, 169 Ariz.
19, 19, 21, 816 P.2d 916, 916, 918 (1991) (converting client
funds); In re Henry, 168 Ariz. 141, 144, 811 P.2d 1078, 1081
(1991) (same). In no case have we found a dishonest or selfish
motive solely from the receipt of reasonable compensation.
¶36 As we have already concluded, Van Dox’s conduct was
negligent rather than intentional or knowing. In the absence of
other facts to indicate a dishonest or selfish motive on Van
Dox’s part, we cannot conclude that the Hearing Officer clearly
erred in finding that Van Dox lacked such a motive.
¶37 We agree with the Hearing Officer’s finding that five
mitigating factors are present: (1) the absence of a
disciplinary record, (2) the absence of a dishonest or selfish
motive, (3) Van Dox’s ultimate cooperation in the proceedings,
(4) her character or reputation, and (5) her remorse. We
further agree that no aggravating factors were proved.
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¶38 We do agree with the Commission, however, that the
Hearing Officer improperly considered the potential effects of
discipline on Van Dox’s livelihood and reciprocal discipline in
Florida and Virginia in determining the sanction. The effects
of sanctions on an attorney’s practice and livelihood are not
mitigating factors that may be considered in determining
sanctions. Shannon, 179 Ariz. at 71, 876 P.2d at 567.
B. Proportionality
¶39 When sanctioning lawyers, in addition to the guidance
provided by the ABA Standards, “we look to other, similar cases
in determining whether the sanction imposed is proportionate to
the misconduct charged.” Alcorn, 202 Ariz. at 76, ¶ 49, 41 P.3d
at 614. In this case, the Hearing Officer found In re
Winiarski, No. 98-2052 (Disciplinary Comm’n May 15, 2000), to be
most similar to this case.
¶40 Winiarski, who was licensed in Maine but not Arizona,
twice appeared on behalf of a construction company at
administrative hearings. Id. at 2-3 (Hr’g Officer’s Rpt. Dec.
2, 1999). Winiarski had been told before the hearings that he
did not need to be an attorney to participate. Id. at 3.
Winiarksi failed to inform the tribunal that he was not licensed
in Arizona and signed in as an attorney at the second hearing.
Id. At both hearings, the tribunal believed that Winiarski was
licensed to practice law in Arizona. Id. Winiarski was charged
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with the unauthorized practice of law. Id. at 1. The
Commission concluded that Winiarski’s conduct was negligent and
caused no actual or potential injury and adopted the Hearing
Officer’s finding that the conduct constituted an isolated
instance of misconduct. Id. at 2-3 (Disciplinary Comm’n May 15,
2000). Four mitigating and no aggravating factors were found.
Id. at 2. Applying Standard 7.4, a sanction of informal
reprimand was imposed. Id. at 3-4.
¶41 Here, as in Winiarski, a non-member of the Arizona bar
negligently participated in a proceeding believing that she did
not need to be an attorney to participate. Little or no actual
or potential harm resulted from the conduct, which constituted
an isolated instance of the unauthorized practice of law.
¶42 The Commission distinguished Winiarski on the grounds
that Van Dox, unlike Winiarski, failed to respond promptly to
Bar inquiries in addition to engaging in the unauthorized
practice of law. Such a failure is serious. See In re Espino,
168 Ariz. 139, 141, 811 P.2d 1076, 1078 (1991). We agree with
the Hearing Officer’s conclusion, however, that “[t]he State Bar
has failed to prove by clear and convincing evidence that
Respondent’s failure to respond to the State Bar’s letter[s] was
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in bad faith or meant to obstruct the disciplinary process.”6
Consequently, we find that this factor does not justify a more
severe sanction. Cf. Standard 9.22(e) (listing “bad faith
obstruction of the disciplinary proceeding” as an aggravating
factor). Moreover, an additional mitigating factor was found to
exist in Van Dox’s case that did not exist in Winiarski’s case.
The Commission’s recommended sanction of censure of Van Dox is
therefore not proportionate to her misconduct.
C. Appropriate Sanction
¶43 Determining the appropriate sanction for an ethical
violation is a question of law that we review de novo. See In
re Walker, 200 Ariz. 155, 160, ¶ 20, 24 P.3d 602, 607 (2001).
Although we consider the recommendation of the Hearing Officer
and the Commission, “the responsibility to decide upon the
appropriate sanction in a disciplinary proceeding is ultimately
ours.” Peasley, 208 Ariz. at 33, ¶ 23, 90 P.3d at 770 (quoting
6
Although failure to respond need not be done in bad faith
or to obstruct the disciplinary process to constitute an ethical
violation, see Ariz. R. Sup. Ct. 53(f), a lawyer’s reason for
the failure may bear on the appropriate sanction for the
violation. Van Dox testified that her failure to respond to the
Bar’s inquiries was initially attributable to diminished memory,
lapses in concentration, and inattention to detail resulting
from a stroke she suffered in 2002, and later to her belief that
the complaint would be dropped. The Hearing Officer found Van
Dox a “compelling witness” and found her explanation “[r]elevant
to her failure to respond.” He thus gave less weight to her
failure to respond. Since receiving the formal complaint from
the Bar, Van Dox has fully cooperated with all proceedings.
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Walker, 200 Ariz. at 160, ¶ 20, 24 P.3d at 607). Considering
the ABA Standards and our proportionality analysis, we conclude
that Standard 7.4 applies here and impose an informal reprimand
for Van Dox’s ethical violations.
¶44 Van Dox urges this Court to find diversion an
appropriate alternative to discipline in this case. The State
Bar counters that diversion is not available to a non-member of
the Arizona Bar. See Ariz. R. Sup. Ct. 46(f)(15) (defining
“non-member”). We do not reach the question whether diversion
is available to non-members because we hold that, in any event,
diversion is not appropriate here.
¶45 The State Bar may recommend diversion in certain cases
in accordance with the State Bar of Arizona Diversion
Guidelines. Ariz. R. Sup. Ct. 55(b). The Diversion Guidelines
provide: “The purpose of the Diversion Program is to protect
the public by improving the professional competency of and
providing educational, remedial and rehabilitative programs to
members of the State Bar of Arizona . . . .” Guidelines/
Regulations for Implementation of the Diversion Program at 1
(2004), available at http://www.myazbar.org/LawyerRegulation/
DiversionGuidelines2004.pdf. A sub-goal is to prevent similar
future violations by the respondent. Id. The Guidelines note
that diversion is not available in cases that “present little
hope that diversion will achieve program goals.” Id.
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¶46 Given the purpose of the diversion program to educate
attorneys, improve competency, and prevent future violations,
even if diversion were theoretically available to a non-member,
it is not appropriate in this case. It makes little sense to
allow diversion for a non-member who has engaged in a single
instance of unauthorized practice of law and is not likely to
re-offend. Indeed, the Hearing Officer acknowledged that
“Respondent’s violations were the result of negligence relating
to a legal issue about which Respondent is now knowledgeable.
There is no risk Respondent will make the same mistake twice.”
¶47 Moreover, this case involves not only the unauthorized
practice of law, but also failure to respond to two inquiries
from the State Bar regarding the matter. Although Van Dox’s
failure to respond was not intended to hinder the disciplinary
process, it nonetheless constitutes a violation of this Court’s
Rules and persuades us that discipline is appropriate in this
case. We thus conclude that an informal reprimand is the
appropriate sanction.
III. CONCLUSION
¶48 For the foregoing reasons, we vacate the Commission’s
factual findings and recommendation related to sanction and
impose on Respondent Van Dox a sanction of informal reprimand
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for her violations of ER 5.5 and Arizona Supreme Court Rules 31
and 53(f).
_______________________________________
Rebecca White Berch, Vice Chief Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
Lawrence F. Winthrop, Judge*
*Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Lawrence F. Winthrop, Judge of the Arizona Court
of Appeals, Division One, was designated to sit in this matter.
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