In Re King

SUPREME COURT OF ARIZONA
En Banc

In the Matter of the ) Arizona Supreme Court
Application of ) No. SB-03-0152-PR
)
LEE KELLER KING, )
) O P I N I O N
Applicant. )
__________________________________)

APPLICATION DENIED

________________________________________________________________

OSBORN MALEDON P.A. Phoenix
By Mark I. Harrison
Daniel L. Kaplan
Attorneys for Lee Keller King

STATE BAR OF ARIZONA Phoenix
By Robert B. Van Wyck, Chief Bar Counsel
Patricia A. Sallen, Senior Bar Counsel
Attorneys for Amicus Curiae State Bar of Arizona

________________________________________________________________

T I M M E R, Judge

¶1 This court recently denied the application to practice

law submitted by an individual previously convicted of first-

degree murder. In re Hamm, 211 Ariz. 458, 123 P.3d 652 (2005).

In the wake of Hamm, we review the recommendation of this

court’s Committee on Character and Fitness to admit Lee Keller
King, who was previously convicted of attempted murder. Because

King has failed to satisfy his burden to demonstrate his

character and fitness to practice law in Arizona, we reject the

Committee’s recommendation and deny King’s application.

BACKGROUND

¶2 In 1977, twenty-four-year-old Lee Keller King was a

certified peace officer, employed as a reserve deputy constable

in Harris County, Texas. In that capacity, King served civil

court papers, performed patrol duties with full-time officers,

and attended numerous hours of basic training. King was

authorized to carry a handgun while in uniform and, when dressed

in civilian clothes, was permitted to keep the weapon in the

glove compartment of his car.

¶3 On December 30, 1977, King was upset because he had

been “passed over” for a full-time deputy constable position.

While off duty1 and out of uniform, King went to a neighborhood

bar, became highly intoxicated, and argued with two male

acquaintances who King knew to be convicted felons. Although

1
Police reports indicate that King was suspended from his
duties at the time of the shootings. King contends the
Constable’s office altered records to misrepresent this fact.
He cannot recall the reason given for his purported suspension,
and the record does not enlighten us on this point.

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reports about what occurred next conflict somewhat,2 it is

undisputed that King left the bar in the early morning hours of

December 31, and the two men soon followed. King then used his

semi-automatic service weapon to shoot each man several times at

2
Barry O’Brien, a security guard who witnessed the
shootings, told police he drove up to the scene and saw King
outside the bar. When King saw O’Brien, whom he knew as a
fellow reserve officer, King pulled a gun from his belt and
threatened to shoot O’Brien. At that moment, the two victims
left the bar, said something to King, and King shot them. King
then got into his car before O’Brien ran over, ordered him out
at gunpoint, and told King he was under arrest. While still
seated in the car, King attempted to shoot himself, but the gun
chamber was empty so it did not fire, and King threw it from the
car. He next pulled out a knife and inflicted superficial cuts
on his leg and throat before throwing the knife from the car.
King then left the car and was handcuffed.

A bar employee told police that King was upset about a
work-related issue. After one victim told King to stop
bothering him, King left the bar but soon returned and pounded
on the door, which had been locked after his exit. When one
victim and another man looked outside, they reported that King
was at the door with a gun. The victims and possibly another
man then walked outside to take the gun from King, who shot the
victims.

One victim interviewed at the hospital on the morning of
the shootings told police that the incident started with name-
calling, that neither he nor the other victim was armed, and
that the shootings were “unprovoked.”

According to King, he left the bar with the intention of
going home. When the two men soon followed, King felt
threatened, pulled his gun from the glove compartment, and shot
the men in a panic as they approached. Although he does not
recall attempting to shoot himself, he remembers cutting himself
with the knife in an act of self-hatred for his deed. King does
not recall seeing O’Brien before the shootings, does not recall
events as described by O’Brien or the bar employee, and does not

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close range, emptying his fully loaded weapon and firing some

bullets through the bar door. Neither King nor any other

witness reported that King warned the victims to stay back

before shooting them. One man was shot in the upper thigh and

back, with an exit wound through the neck, leaving him in a

critical condition that required surgery. The other man was

shot in the abdomen and upper leg, splintering the bones and

causing serious damage. Both victims were unarmed. Despite

sustaining serious wounds, both victims survived.

¶4 After the State of Texas indicted King on two counts

of attempted murder, King entered a guilty plea to one count of

attempted murder pursuant to a plea agreement. In September

1978, King was sentenced to a seven-year prison term. After an

unsuccessful appeal on bases King cannot recall, he began

serving his sentence in June 1979 before the court suspended his

sentence and placed him on probation four months later.3 During

recall why he argued with the victims or felt threatened by
them.
3
Under Texas law in 1979, a court could suspend execution of
sentence after a qualified defendant had served a short portion
of a prison term. Cross v. Metcalfe, 582 S.W.2d 156, 157 n.1
(Tex. Crim. App. 1979) (Roberts, J., dissenting). The purpose
of such “shock probation” programs was to “stun the probationer
with the harsh realities of imprisonment, then release the
probationer into society with a strong impression of the
consequences of crime.” Shaun B. Spencer, Does Crime Pay – Can
Probation Stop Katherine Ann Power from Selling her Story?, 35
B.C. L. Rev. 1203, 1214 n.123 (1994) (citing Arthur W. Campbell,
Law of Sentencing 100, 112 (2d ed. 1991)).
- 4 -
his term of probation, King underwent mental health counseling

and group therapy. In February 1985, a court set aside King’s

conviction.

¶5 After King left the criminal justice system, his life

took an admirable turn. He graduated from college and law

school and passed the Texas bar examination. The Texas Board of

Law Examiners concluded that King possessed the requisite good

moral character to practice law in Texas, and he was admitted to

practice in 1994. Thereafter, King practiced law in Texas

without incurring any disciplinary charges, he married, adopted

his wife’s child, and the couple had two additional children.

¶6 In 2003, King moved to Arizona to work in his law

firm’s Phoenix-area office. He passed the Arizona bar

examination and submitted his Character and Fitness Report to

the Committee on Character and Fitness4 as required by Arizona

Supreme Court Rule 34(a), 17A Ariz. Rev. Stat.5 After conducting

4
The Committee on Character and Fitness, which consists of
both lawyers and nonlawyers, screens applicants who have passed
the Arizona bar examination to determine whether they possess
the requisite character and fitness to practice law in Arizona.
Ariz. R. Sup. Ct. 33(a), 34, 36. Based on its findings, the
Committee then recommends to this court whether applicants
should be admitted, conditionally admitted, or denied admission.
Id. 36(a)(4).
5
Effective December 1, 2005, the court amended Rules 34
through 37, which delineate the requirements for admission to
- 5 -
an evidentiary hearing on October 14, 2003, the Committee

recommended that this court deny King’s application for

admission, finding that he had failed to prove his good

character and fitness to practice law in Arizona. The Committee

concluded that although King had presented strong evidence of

rehabilitation and positive social contributions since the

shootings, the Committee was unable to overlook the seriousness

of his crime. This court declined King’s subsequently filed

petition for review on April 19, 2004, effectively denying

King’s application.

¶7 King re-applied for admission six months later and

another hearing was held on April 21, 2005. The landscape of

this hearing differed from that of the prior hearing.

Specifically, membership in the Committee had changed, King had

secured legal representation, and King presented more extensive

evidence concerning his character and fitness to practice law.

By a vote of eight to three, the Committee recommended King’s

admission to the bar and notified the court of its decision by

the Arizona bar. Hamm, 211 Ariz. at 461 n.3, ¶ 12, 123 P.3d at
655 n.3. Because King filed his second application for
admission before that date, we evaluate that application under
the version of the Rules in effect before the amendment. Id.
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letter four days later. The Committee offered no explanation

for its decision.6

¶8 Pursuant to Rule 33(a), this court, on its own motion,

continued consideration of King’s application and has since

considered the record of all Committee proceedings as well as

the written and oral arguments presented in this court by King

and the State Bar of Arizona, which appeared as amicus curiae in

opposition to the application. Although we seriously consider

the Committee’s recommendation, we independently decide whether

King possesses the requisite character and fitness to gain

admission to practice law in Arizona. Hamm, 211 Ariz. at 462, ¶

15, 123 P.3d at 656.

ANALYSIS

I.

¶9 King bears the burden of proving by a preponderance of

the evidence that he possesses the requisite character and

fitness qualifying him for admission to the Arizona bar. Rule

6
The Committee is required to make findings of fact only if
it recommends against admission or recommends admission with
conditions. Rule 36(f)(7). If the Committee recommends
admission, it is merely required to place its decision “in
writing,” as it did by letter in this case. Id. Because the
Committee had fully explained its recommendation against
admission in 2003 through findings of fact, however, an
explanation of its reversal of position would have been helpful.

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36(a)(3), (f)(5).7 To satisfy this burden, King must prove,

among other things, that he presently possesses good moral

character. Rule 34(c)(1)(B); Hamm, 211 Ariz. at 462, 463, ¶¶

12, 17, 123 P.3d at 656, 657. As we explained in Hamm, although

an applicant’s conviction for a serious crime does not

constitute a per se disqualification to practice law,8 it adds

weight to the applicant’s burden of proving present good moral

character. 211 Ariz. at 462, 463-64, ¶¶ 16, 21, 123 P.3d at

656, 657-58. Specifically, because past serious misconduct may

indicate flaws in an applicant’s present moral character, the

applicant must initially demonstrate complete rehabilitation

before we consider other evidence of present good moral

character. Id. at 463-64, ¶¶ 17, 21, 123 P.3d at 657-58

(citations omitted).

¶10 In summary, when an applicant convicted of a serious

crime applies to practice law in Arizona, we conduct a

conditional, two-part inquiry. We first consider whether the

7
Rule 36(f)(2)(E) currently requires an applicant to prove
character and fitness by clear and convincing evidence. Order
Amending Rules 32-40, 46, 62, 64 and 65, Rules of the Supreme
Court, Ariz. Sup. Ct. No. R-04-0032 (June 9, 2005).
8
The State Bar argues strenuously for a per se rule of
disqualification for applicants who previously engaged in
serious criminal misconduct. As we stated in Hamm, however, the
court has never imposed such a bright-line rule, and we continue
to adhere to the principle that each case deserves scrutiny on
its own merits. 211 Ariz. at 462, ¶ 16, 123 P.3d at 656.
- 8 -
applicant has satisfied the burden of proving complete

rehabilitation from the character deficits that led to the

commission of the crime. If not, our inquiry ends and we will

deny the application. If the applicant proves complete

rehabilitation, we then decide whether the applicant has

otherwise demonstrated present good moral character. With these

principles in mind, we turn to King’s application.

II.

¶11 The weight of the added burden of demonstrating

complete rehabilitation is determined by the gravity of the past

criminal conduct. Id. at 464, ¶ 22, 123 P.3d at 658. The more

serious the unlawful act, the greater the burden. Id. “[I]n

the case of extremely damning past misconduct,” such as first-

degree murder or, in the circumstances here, attempted murder,

“a showing of rehabilitation may be virtually impossible to

make.” Id. (quoting In re Matthews, 462 A.2d 165, 176 (N.J.

1983)). Undoubtedly, King’s act in shooting two unarmed men at

close range multiple times without apparent verbal warning

constitutes the type of “extremely damning” misconduct that

mandates an extraordinary showing of rehabilitation. Although

neither victim died, King inflicted serious injuries upon them

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while holding a position of public trust as a peace officer.9

See Barlow v. Blackburn, 165 Ariz. 351, 357, 798 P.2d 1360, 1366

(App. 1990) (recognizing society demands much from law

enforcement officers as state “entrusts them with power to

enforce the laws upon which society depends”); Seide v. Comm. of

Bar Exam’rs of the State Bar of Cal., 782 P.2d 602, 604 (Cal.

1989) (finding applicant’s criminal history “all the more

reprehensible [because] committed by a former law enforcement

officer and law school graduate”).

¶12 The extraordinary showing required of King affects the

quantum of evidence required to satisfy the preponderance-of-

the-evidence standard rather than the burden itself. Phrased

differently, King’s misconduct tips the scales against admission

9
Our dissenting colleague takes issue with our
characterization of King’s conduct as the type of “extremely
damning” misconduct that required the applicant in Hamm to make
an extraordinary showing of rehabilitation. The dissent
essentially contends that such a rigorous showing should be
borne exclusively by applicants convicted of first-degree
murder. See infra ¶¶ 43-44. We decline to rigidly tie the
weight of an applicant’s burden to the classification of the
applicant’s crime. Instead, we elect to examine the unique
circumstances of each case to decide the weight of the burden an
applicant must overcome. In this case, the fact that King’s
victims did not die appears the result of good fortune rather
than King’s design. For this reason, and because King committed
his crime while occupying a position of public trust, it is
appropriate to charge him with the same extraordinary burden
borne by the applicant in Hamm.

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at the outset, thereby requiring him to produce an extraordinary

amount or quality of evidence to meet his burden of proof.

¶13 To prove complete rehabilitation, King must establish

that he has both (1) accepted responsibility for his past

criminal conduct, Hamm, 211 Ariz. at 464, ¶ 23, 123 P.3d at 658,

and (2) identified and overcome the weakness that led to the

unlawful conduct, In re Arrota, 208 Ariz. 509, 513, ¶ 17, 96

P.3d 213, 217 (2004). We “weigh those factors tending to show

rehabilitation against those tending to show a lack thereof” to

decide whether King has met his burden. Hamm, 211 Ariz. at 465,

¶ 25, 123 P.3d at 659.

A.

¶14 Evidence in the record both supports and negates

King’s contention that he has accepted responsibility for the

1977 shootings.10 King demonstrated his acceptance by informing

judges, lawyers, law professors, former employers, and a host of

friends, acquaintances, and colleagues of his crime over an

extended period of time, impressing upon many of them heartfelt

10
We decline King’s request to view his purported suicide
attempt and guilty plea as acknowledgments of responsibility for
the shootings. According to O’Brien, King hurt himself only
after he had retreated to his car and O’Brien subsequently
ordered him from it at gunpoint, thereby suggesting that King
was as remorseful about being caught as for shooting the
victims. Additionally, although King pled guilty to one charge
rather than proceed to trial, he admitted to the Committee that
he did so because he feared convictions on both charges.
- 11 -
feelings of remorse.11 And in both hearings before the

Committee, King admitted shooting the victims and expressed

remorse, calling the shootings “a mistake I made that I will

carry with me for the rest of my life.”

¶15 Conversely, in his written applications for admission

to law school and to the Arizona bar, both created years after

his conviction had been set aside, King minimized his personal

responsibility for the shootings. In his application for law

school submitted in the early 1990s, King described the

circumstances of the shooting and explained that in light of

these facts, the lack of any witnesses on his part, his strained

emotional state, and anti-police sentiment of the day, it was in

his best interests to plead guilty to one charge and “throw

[himself] on the mercy of the Court rather than to attempt to

clear [himself] in a jury trial.” Although King appropriately

stated that he was “stricken with remorse” immediately after the

shootings, we are nevertheless left with the impression that

King intended his readers to infer that he had a defense to the

11
It is difficult to determine from the letters of support
whether King informed all writers of the shootings or shared
details of the shootings with others. Some letters do not
allude to the shootings while others minimize the seriousness of
the acts by referring to them, for example, as an “unfortunate
event with the law,” “past transgressions,” and an “infraction
of the law.” Additionally, King’s employer in 2005 answered
“no” when the Committee asked in a mailed form whether the
employer was aware of any unlawful conduct by King.
- 12 -
shootings but chose to plead guilty to one charge after weighing

his chances for success. His suggestion that only circumstances

beyond his control prevented him from mounting a successful

defense is inconsistent with the notion of acceptance of

responsibility.

¶16 In his application to this court, King provided a

shorter account of the shootings, noting his intoxication and

fear of the victims, whom he knew to be convicted felons aware

of his peace-officer status. He explained that he pled guilty

to one charge “rather than attempt to fight [the charges] at

trial at a time of major anti-police sentiment in Houston that

was caused by the then recent death of a prisoner who had been

mistreated by the Houston Police Department.” King expressed no

remorse, and we are left with the sense that King wanted the

Committee and this court to believe he pled guilty only because

of prevailing anti-police sentiment rather than as an

acknowledgement of actual guilt.

¶17 Finally, King’s statements to the Committee suggest he

has not candidly assessed his actions on the morning of the

shootings. Specifically, although he related details of the

crime that support his assertion that he shot the victims in a

drunken panic when they approached him, he repeatedly cited a

failed memory when asked about facts that dispute that version

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of events. For example, because King claimed no memory of these

events, the Committee could not meaningfully question King about

witness statements that he threatened to shoot O’Brien and acted

as the aggressor by returning to the bar door with his gun. The

Committee was also prevented from probing the basis for King’s

fear of the victims because he could not remember why he argued

with them or why he felt threatened by them. King’s memory of

details that only favor his version of the events compels us to

discount his claim that he does not remember salient facts about

the shootings.

¶18 In light of the above-described evidence, King has

failed to make an extraordinary showing that he has accepted

responsibility for the shootings. Id. at 464, ¶ 22, 123 P.3d at

658. Because we weigh all factors tending to show

rehabilitation, however, we must examine other evidence

concerning King’s rehabilitation before deciding whether he has

satisfied his burden of proof. Id. at 465, ¶ 25, 123 P.3d at

659.

B.

¶19 To prove complete rehabilitation, King must also

identify the weakness that caused him to engage in criminal

misconduct and then demonstrate that he has overcome that

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weakness. Arrota, 208 Ariz. at 513, ¶ 17, 96 P.3d at 217.12

King has not proven either factor.

¶20 While before the Committee, King did not explicitly

identify the weakness that caused his criminal misconduct.

Although he stated that at the time of the shootings he was

intoxicated, depressed, and stressed, he never plainly said that

this combination of factors caused him to engage in such extreme

criminal misconduct. Indeed, he expressed that he was “not sure

anything can adequately explain” what occurred the morning of

the shootings.

¶21 At oral argument before this court, King argued that a

mix of stress and alcohol abuse caused the misconduct. The

record before us, however, does not reflect that King identified

the character flaw that led him to fail to appropriately cope

with stress and/or to abuse alcohol.

¶22 King offered no evidence identifying the weakness that

prevented him from appropriately coping with the stress he was

experiencing in late 1977. For example, King did not introduce

12
Arrota involved a disbarred lawyer’s application for
reinstatement, 208 Ariz. at 510, ¶ 1, 96 P.3d at 214, but we do
not discern any reason a new applicant required to demonstrate
rehabilitation should be relieved from showing that he or she
has identified and overcome the weakness leading to the
misconduct. We did not reach this issue in Hamm because the
holding in that case rested on the applicant’s failure to
demonstrate present good moral character, independent of
rehabilitation. 211 Ariz. at 465, ¶ 26, 123 P.3d at 659.
- 15 -
any evidence from a mental health professional identifying

emotional problems King was suffering in 1977 that would explain

his inability to appropriately respond to stress or his resort

to alcohol abuse. See Arrota, 208 Ariz. at 514, ¶ 22, 96 P.3d

at 218 (recognizing that in many instances a counselor can

assist a person to understand reasons for misconduct). And even

though King participated in counseling while on probation, he

cannot recall any diagnoses, although he believes he was

counseled for depression and “probably” low self-esteem. But

many people have low self-esteem, experience employment

disappointments, and suffer financial strain without unleashing

their emotions in the violent manner chosen by King on the

morning of the shootings. King provides no clues as to why

seemingly routine stressors caused him to engage in such extreme

misconduct.

¶23 In short, nothing illuminates why King lacked

appropriate skills to cope with stress or abused alcohol during

the pertinent period of his life. Without such knowledge, we

cannot be assured that King has appropriately addressed and

overcome the weakness leading to his criminal misconduct. See

id. at 513, ¶ 18, 96 P.3d at 217 (applicant for reinstatement

failed to show he understood or even identified cause of

misconduct).

- 16 -
¶24 King has similarly failed to persuade us that he has

overcome the weakness that led to his misconduct. We credit the

fact that King has not engaged in serious misconduct or had an

alcohol-related incident since the 1977 shootings. This

circumstance is particularly significant as King has encountered

many stressors since the shootings, including incarceration,

probation, schooling, practicing law in Texas,13 taking on family

responsibilities, and experiencing financial difficulties that

led to bankruptcy. We disagree with the dissent, however, that

the manner in which King has led his life since the shootings,

however admirable, compels a conclusion that he has overcome the

weakness that led to the shootings. See infra ¶ 52. The mere

13
The dissent contends that we fail to give appropriate
weight to evidence that in 1994 the Texas Board of Law Examiners
determined that King possessed present good moral character to
practice law in that state. See infra ¶¶ 34-35. In fact, we do
not disregard that fact, but we have no need to address it
further as it has no bearing on rehabilitation, which is the
basis for our decision. Assuming Texas’ current admission rule
was substantially in place in 1994, convicted felons were not
required to demonstrate rehabilitation, as we mandate in
Arizona. See Tex. Rules Governing Admission to the Bar, Rule
IV(f) (West, Westlaw through 2006) (requiring such applicants to
prove that (1) the best interest of the public, the legal
profession, and justice would be served by admission, (2) the
applicant is of present good moral character and fitness, and
(3) during the immediately preceding five years the applicant
led an exemplary life). Moreover, King did not provide the
Committee or this court with any information that the Texas
board considered rehabilitation as a component of present good
moral character. Therefore, although the Texas Board’s
determination might have some bearing on the second prong of our
conditional inquiry, it has no bearing on the first.
- 17 -
passage of time without incident is insufficient standing alone

to evidence King’s triumph over the weakness that caused his

misconduct. Arrota, 208 Ariz. at 515, ¶ 29, 96 P.3d at 219

(“Merely showing that [an individual] is now living and doing

those things he . . . should have done throughout life, although

necessary to prove rehabilitation, is not sufficient to meet the

applicant’s burden.”) (citation omitted); Matter of Robbins, 172

Ariz. 255, 256, 836 P.2d 965, 966 (1992) (to same effect).

Rather, to ensure King’s complete rehabilitation before

entrusting him with the responsibility of practicing law in

Arizona, he must persuade us that he has directly addressed and

overcome the weakness that led to the shootings. Arrota, 208

Ariz. at 515, ¶ 29, 96 P.3d at 219.

¶25 We give weight to King’s testimony that he

participated in counseling while in the Texas justice system and

during college and law school. According to King, as part of

his probation, he underwent weekly individual, and eventually

group, counseling sessions, which were designed in part to

address his alcohol abuse. He also attended “some meetings of

Alcoholics Anonymous,” and worked through a twelve-step program

designed to overcome addiction.14 While in college, he again

14
Alcoholics Anonymous provides “a program of total
abstinence” from alcohol achieved through attendance at group
- 18 -
attended individual and group counseling sessions to help him

cope with the stress of being a student. King also attended

weekly meetings of Adult Children of Alcoholics during law

school. Finally, during his last year of law school and for two

years thereafter, he attended weekly counseling sessions with a

“master’s social work psychological counselor.” According to

King, this treatment, along with his religious beliefs,

increased his sense of self-worth, helped him take

responsibility for his actions, and taught him coping mechanisms

to deal with stress that do not involve “going out and getting

drunk and getting in trouble.”

¶26 Other factors discount the positive effects of King’s

treatment. King provided limited detail about the type or focus

of his counseling while on probation and how it assisted him in

gaining coping skills or overcoming alcohol abuse. Similarly,

King stated that he received “counseling or treatment” at

meetings for Adult Children of Alcoholics, but failed to

describe that treatment or whether he completed any programs.

This lack of detail hinders our ability to assess whether King

meetings and by working through twelve suggested steps for
recovery from alcoholism. A.A. at a Glance,
http://www.aa.org/en_information_aa.cfm?PageID=10 (last visited
June 19, 2006).

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has directly addressed and overcome the reasons for his

misconduct.

¶27 King also provided contradictory testimony regarding

his alcohol abuse. Although he reported that he worked through

Alcoholics Anonymous’ twelve-step program to help with

“addiction,” which required him to admit he was powerless over

alcohol,15 he continues to drink alcohol occasionally and denies

that he is or was an alcoholic. King’s continued, albeit

moderate, use of alcohol indicates either he has not overcome

the weakness leading to his alcohol abuse or does not believe

that alcohol abuse caused the emotional turmoil that led to the

shootings. And again, King fails to provide any evidence from a

substance abuse specialist or counselor that would enable us to

assess whether King has an ongoing addiction so that even social

drinking might compromise his ability to practice law. See In

re Beers, 118 P.3d 784, 788, 791 (Or. 2005) (admitting applicant

with criminal record stemming from drug and alcohol abuse based

in part on psychologist’s testimony that applicant did not

suffer addiction). Without this or equivalent evidence, King

has not shown that he has truly conquered the weakness that led

to his misconduct. Consequently, although the lengthy passage

15
See A.A.’s Twelve Steps,
http://www.aa.org/en_information_aa.cfm?PageID=17&SubPage=68
(last visited June 19, 2006).
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of time without incident and King’s participation in counseling

provide some evidence that he has overcome the weakness causing

his misconduct, the impact of this evidence is compromised by

other evidence.

C.

¶28 In weighing all the factors concerning King’s

rehabilitation, we conclude that King’s demonstration falls

short of the “virtually impossible” showing needed to erase the

stain of his serious criminal misconduct. Although significant

and commendable evidence shows rehabilitation, contrary evidence

dilutes its strength. For this reason, we deny King’s

application for admission to the bar. In light of our decision,

we need not consider whether King has otherwise proven his

present good moral character.16 Hamm, 211 Ariz. at 465, ¶ 25,

123 P.3d at 659.

¶29 By our decision today, we do not effectively exclude

all applicants guilty of serious past misconduct from practicing

law in Arizona, as the dissent suggests. See infra ¶ 32. Nor

do we lightly view the choice of applicants such as King to live

16
We acknowledge and appreciate the support from King’s
colleagues, friends, and acquaintances detailing King’s laudable
activities in his church and the community at large. Because
this evidence concerns the second prong of our conditional
inquiry, however, which we do not reach due to King’s failure to
prove complete rehabilitation, we do not consider this evidence
in denying King’s application. See supra ¶ 10.
- 21 -
as good citizens after paying for past misdeeds, as the dissent

implies. Indeed, it is out of respect for and belief in

rehabilitation that this court has refrained from mimicking

other professions by drawing a bright-line rule to disqualify

convicted felons from practicing law in Arizona. See infra ¶

30. Such applicants, however, must overcome the additional

burden born from their past misdeeds as reflected in our two-

part inquiry. King has not done so.

_______________________________________
Ann A. Scott Timmer, Judge*

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

*The Honorable W. Scott Bales recused himself; pursuant to
Article VI, Section 3 of the Arizona Constitution, the court
designated the Honorable Ann A. Scott Timmer, Judge of the
Arizona Court of Appeals, Division One, to sit in this matter.

H U R W I T Z, Justice, dissenting

¶30 The State Bar of Arizona has repeatedly urged us to

disqualify from the practice of law all applicants with records
- 22 -
of serious past misconduct. Such a bright-line rule would

hardly be irrational. Felony convictions disqualify applicants

from participation in a number of other professions, including

law enforcement, Ariz. Rev. Stat. (“A.R.S.”) § 13-904(F) (2001),

certified public accounting, A.R.S. § 32-741(A)(1) (2002),

nursing, A.R.S. § 32-1632(2) (Supp. 2005), private

investigation, A.R.S. § 32-2422(A)(3) (2002), and security,

A.R.S. § 32-2612(A)(3) (2002).

¶31 Our opinions, however, have twice expressly rejected

the Bar’s suggested per se approach.17 In In re Hamm, we stated

that “the rules and standards governing admission to the

practice of law in Arizona include no per se disqualifications”

and that we therefore “consider each case on its own merits.”

211 Ariz. 458, 462 ¶ 16, 123 P.3d 652, 656 (2005). I concurred

in that holding, which is entirely consistent with our

willingness to consider the readmission of attorneys disbarred

after felony convictions upon proof of rehabilitation. See In

re Arrotta, 208 Ariz. 509, 96 P.3d 213 (2004) (involving

reinstatement application of attorney convicted of mail fraud

and bribery). I also concurred in the Court’s conclusion that

17
We also rejected a per se approach in 2005 when we amended
the Rules governing admission. Order Amending Rules 32-40, 46,
62, 64 & 65, Rules of Supreme Ct., Ariz. Sup. Ct. No. R-04-0032
(June 9, 2005).

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despite his admirable post-conviction record, Mr. Hamm had not

discharged his difficult burden of demonstrating current good

moral character. Hamm, 211 Ariz. at 468 ¶ 40, 123 P.3d at 662.

¶32 The majority purports again to reject a per se rule

today, stating that, notwithstanding serious past misconduct, an

applicant can prove the current good moral character required by

Arizona Supreme Court Rule 3618 for admission to the Bar. Op. ¶

9 & n.8. In practice, however, the Court has adopted the very

bright-line rule it purports to abjure. If Mr. King has not

demonstrated rehabilitation and current good moral character, it

is difficult for me to conclude that any applicant previously

convicted of a serious felony ever can.

I.

¶33 The majority accurately recites the background facts

of this case, Op. ¶¶ 2-7, and I need not recount them here. But

several uncontested facts not emphasized in the majority opinion

deserve particular focus.

¶34 Mr. King comes to us with an extraordinary item on his

resume – he is a long-standing member of the Texas Bar. King

graduated from law school, took and passed the Texas Bar

18
This dissent, like the Court’s opinion, refers to the
version of the rules in effect at the time King filed his
application for admission. Rules of the Supreme Court are cited
as “Rule --.”

- 24 -
examination in 1994, and was admitted to practice after a formal

hearing before the Texas Board of Law Examiners. Under Texas

law, his admission necessarily involved a finding that he was

then of good moral character. See Tex. Rules Governing

Admission to the Bar, Rule IV(f)(2) (West, Westlaw through 2006)

(requiring that an applicant with a felony conviction

demonstrate current good moral character as a prerequisite to

admission).

¶35 While we are of course not bound by another state’s

determination that an applicant possesses good moral character,

neither should we simply disregard such a finding.19 More

importantly, the years since 1994 strongly bear out the wisdom

of Texas’s conclusion. Mr. King worked for several firms in

Texas from 1994 to 2003, specializing in personal injury law.

He is in good standing with the Texas Bar and has never been the

subject of a disciplinary grievance or sanction. King belongs

to an Inn of Court, an organization emphasizing professionalism

19
The Court discounts the Texas admission, arguing that it
“has no bearing on rehabilitation,” but rather only on the issue
of King’s good moral character. Op. ¶ 24 n.13. Rule 36(a),
however, makes plain that rehabilitation from past misconduct is
a necessary component of present good moral character. Hamm is
to the same effect, noting that “[r]ehabilitation is a necessary
but not sufficient, ingredient of good moral character.” 211
Ariz. at 465 ¶ 26, 123 P.3d at 659. Thus, whatever the
differences between Texas and Arizona law, the Texas finding of
present good moral character at the very least suggests
rehabilitation from past misconduct.
- 25 -
and ethics among lawyers. He has worked as a paralegal since

coming to Arizona and receives high praise from his employers.

¶36 Nor is there a single blemish on King’s personal

record. King has had no serious difficulties with the law since

1977. Indeed, he appears to have been a model citizen in the

almost thirty years following his crime. He is a devoted family

man, happily married and successfully raising three children.

He is active in his children’s Boy Scout groups and the Chandler

Christian Church, where he is involved with a number of

leadership groups and charitable programs. He was similarly

active in his church in Texas for an extended period of time.

¶37 King’s application is supported by some fifty letters

of recommendation, each of which praises King’s good moral

character and good works. These letters come from peers,

colleagues, supervisors, friends, clients, professors, clergymen

judges, and lawyers.20 The letters of recommendation are

uniformly supportive of King’s application, some in glowing

terms. No one appeared before the Committee or submitted a

letter opposing King’s admission. King also presented

compelling character testimony at the Committee hearings. Peter

20
See Kwasnik v. State Bar, 791 P.2d 319, 323 (Cal. 1990)
(“Traditionally we have accorded significant weight to
testimonials submitted by attorneys and judges regarding an
applicant’s moral fitness, on the assumption that such persons

- 26 -
William Murphy, a professor at the South Texas College of Law,

defense counsel for the International Criminal Tribunal, former

trustee for the American Inns of Court, and former teacher and

moot court coach to King, testified that King’s rehabilitation

from his past crime was like nothing he had ever seen.

Professor Murphy unreservedly recommended King to the practice

of law, explaining that he believed King to possess the

requisite good moral character and fitness.

¶38 Perhaps most telling is that, after considering all of

this evidence at a formal hearing, our Committee on Character

and Fitness (“Committee”) recommended King in April 2005 for

admission to the State Bar. The Committee did so after hearing

from King personally on two occasions; its recommendation is

therefore obviously based on a determination that King was

credible and had established his rehabilitation. “[W]e give

serious consideration to the facts as found by and the

recommendations of the Committee.” Hamm, 211 Ariz. at 462 ¶ 15,

123 P.3d at 656.21

possess a keen sense of responsibility for the integrity of the
legal profession.”).
21
The Committee had recommended denial of a previous
application by King in 2003. The Court correctly does not rely
on this previous denial today. King represented himself before
the Committee on that prior occasion, and presented far less
evidence than he did in 2005. Even on that lesser showing, the
Committee seems to have concluded in 2003 that King had
discharged his burden of demonstrating rehabilitation, finding
- 27 -
 II.

¶39 Notwithstanding this compelling and extraordinary

record, the Court nonetheless concludes that Mr. King is not fit

to practice law in Arizona. It does so not because it concludes

that he currently lacks good moral character, but rather because

it believes that King has not sufficiently demonstrated

rehabilitation from his 1977 crime. I respectfully disagree.

A.

¶40 The majority denies Mr. King admission to the Bar

because he has fallen “short of the ‘virtually impossible’

showing needed to erase the stain of his serious criminal

conduct.” Op. ¶ 28. By making the required showing of

rehabilitation “virtually impossible,” the majority pre-ordains

the result. I do not believe, however, that our rules and case

law support the application of the “virtually impossible”

standard in this case.

¶41 We have long held that an applicant has the burden of

establishing his qualifications to practice law. See, e.g., In

re Greenberg, 126 Ariz. 290, 292, 614 P.2d 832, 834 (1980).

Rule 36(a)(2)(A) provides that prior unlawful misconduct is

relevant to the issue of the applicant’s current good moral

“strong evidence of the Applicant’s rehabilitation.” Rather,
the 2003 denial seems to have been based on the “seriousness of

- 28 -
character. Rule 36(a)(3) provides that in determining that

character, various factors relating to prior misconduct,

including its “recency,” “seriousness,” and “evidence of

rehabilitation,” should be taken into account. Our rule is thus

properly read as requiring more convincing proof of

rehabilitation the more serious the prior misconduct: “The

added burden becomes greater as past unlawful conduct becomes

more serious.” Hamm, 211 Ariz. at 464 ¶ 22, 123 P.3d at 658.

But nothing in the language of the rule suggests that such a

showing is, as the Court holds today, “virtually impossible” for

all serious prior misconduct.

¶42 The “virtually impossible” language appears for the

first time in our case law in Hamm. We correctly noted there

that an applicant “who is attempting to overcome the negative

implications of a serious felony on his current moral character

. . . must overcome a greater burden for more serious crimes.”

Id. We then agreed with a statement made by the New Jersey

Supreme Court that “in the case of extremely damning past

misconduct, a showing of rehabilitation may be virtually

impossible to make.” Id. (quoting In re Matthews, 462 A.2d 165,

176 (N.J. 1983)).

the crimes” committed by King, an approach that is at odds with
this Court’s rejection of a per se exclusionary rule in Hamm.
- 29 -
¶43 It is important, however, to note that the applicant

in Hamm had been convicted of the most serious crime recognized

under Arizona law – first degree murder – the paradigm of

“extremely damning past misconduct.” Because Hamm’s crime was

the most serious our law recognizes, his burden of establishing

good moral character was appropriately very difficult. Mr.

King, however, was not convicted of first degree murder, but

rather of attempted murder. Mr. Hamm killed two people; Mr.

King injured two.22 Our legislature has expressly recognized

that attempted murder, while a serious offense, is much less

“damning” misconduct than first degree murder. See A.R.S. § 13-

1105(D) (Supp. 2005) (classifying first degree murder as a class

one felony punishable by death or life imprisonment); A.R.S. §

13-1001(C)(1) (2001) (classifying attempted murder as a class

two felony); A.R.S. § 13-702(A) (Supp. 2005) (punishing a class

two felony with four to ten years imprisonment). The laws of

Texas, under which King was convicted, are similar. Conviction

for the Texas equivalent of first degree murder results in

either a death sentence or life imprisonment, Tex. Penal Code

Ann. § 12.31(a) (West, Westlaw though 2005); attempted murder is

normally punished by at least two years imprisonment, Tex. Penal

22
When questioned by police, one of the victims said he was
unsure if he wanted to press charges. The victim’s views do not

- 30 -
Code Ann. § 12.33(a) (West, Westlaw through 2005), but can lead,

as it did in Mr. King’s case, to probation after a brief period

of shock incarceration, Tex. Code Crim. Proc. Ann. art. 42.12, §

3(a) (West, Westlaw through 2005).

¶44 The majority ignores these substantial distinctions

between Mr. Hamm’s and Mr. King’s past misconduct, simply

equating first degree murder with attempted murder as “extremely

damning prior misconduct.” Op. ¶ 11. I do not believe that the

“virtually impossible” test, which is in practice outcome-

determinative, should be applied to all prior serious

misconduct. Indeed, were that the case, we would not have

considered the application for reinstatement in Arrotta from an

applicant who had committed mail fraud and bribery. See 208

Ariz. at 512 ¶ 12, 96 P.3d at 216. Rather, I believe, as I

thought the Court held in Hamm, that the quality of proof of

rehabilitation should increase as the seriousness of prior

misconduct increases. In Mr. King’s case, the appropriate

burden, in light of his serious crimes, is not “virtual

impossibility” but rather “an extraordinary showing of

rehabilitation and present good moral character.” Hamm, 211

Ariz. at 468 ¶ 40, 123 P.3d at 662.

B.

excuse King’s criminal conduct, but do suggest that his offense
- 31 -
¶45 Although Mr. King faced a difficult burden in

establishing rehabilitation and good moral character, I conclude

that he has discharged it. Rehabilitation, like good moral

character, is not a concept susceptible to easy objective

measurement. But surely the most compelling evidence of

rehabilitation is the way that King has led his life since his

criminal conduct and the first-hand observations of those with

whom he has interacted during that period. Over the course of

almost three decades, Mr. King has lived his life in an

exemplary fashion on both a personal and professional level, and

this is attested to by scores of those with detailed knowledge

of his actions. The record contains no evidence to the

contrary.

1.

¶46 In concluding that Mr. King has failed to demonstrate

rehabilitation, the Court first suggests that he has failed to

take responsibility for his misconduct. I find no such evidence

in this record. As the majority acknowledges, in the Committee

hearings, “King admitted shooting the victims and expressed

remorse, calling the shootings ‘a mistake I made that I will

carry with me for the rest of my life.’” Op. ¶ 14. The

was less serious than first degree murder.
- 32 -
Committee, which had the opportunity to observe and question Mr.

King, obviously believed the sincerity of that statement.

¶47 The majority, however, discounts the Committee’s

conclusion on several grounds, none of which I find persuasive.

First, the majority suggests that in explaining, in a law school

application in the early 1990’s1990s, why he pleaded guilty to

one count of attempted murder, Mr. King somehow attempted to

minimize his culpability for the crimes. Op. ¶ 15. Read in

context, however, the statement in the application was simply a

factual explication of the factors that went into a guilty plea

– the lack of witnesses, his impaired memory of the event, the

likely hostility of jurors to his actions, and the fact that the

plea involved dismissal of one count of attempted murder. The

application did not call for expressions of remorse, and I would

not penalize Mr. King for not gratuitously offering them.

Nothing in his explanation in the application, nor in subsequent

descriptions Mr. King has given about his actions and the

subsequent criminal justice proceedings, suggests to me that Mr.

King is denying responsibility for his actions. He began to do

so by admitting his guilt to the Texas court,23 and has continued

23
Indeed, the record suggests that Mr. King understood his
responsibility for what he had done, at least in a fundamental
manner, well before court proceedings began. After the
shooting, King retreated to his car and tried to kill himself by
- 33 -
to do so repeatedly throughout his career since, most recently

in his appearance before the Committee. Rather than parse a

section of a law school application filed fifteen years ago for

evidence of lack of remorse, I would rely on the Committee’s

first-hand observations of the applicant within the last year.

¶48 Nor can I conclude that Mr. King’s impaired memory of

the events of the fateful evening demonstrate either lack of

candor or failure to accept responsibility. The arrest report

makes clear that when apprehended, Mr. King was intoxicated to

the point of incapacitation; he was so incoherent that the

police officers were unable to read King his Miranda rights.

Under these circumstances, his failure to recall every detail of

the events is more a demonstration of honesty than evasion. The

majority’s suggestion that Mr. King has “selective memory” is

again in stark contrast to the conclusions of the Committee

members who had the face-to-face opportunity to consider his

credibility.

2.

¶49 The Court also concludes that Mr. King has failed to

identify the weaknesses that caused his misconduct or address

those weaknesses. Again, I am unable to agree.

putting the gun to his chin. After the gun failed to discharge,
King took out a knife and proceeded to cut himself.
- 34 -
¶50 Mr. King has consistently recognized that his

misconduct was caused by a combination of alcohol abuse and job-

related stress. The majority acknowledges this, but speculates

that there was also a deeper “character flaw that led [King] to

fail to appropriately cope with stress and/or to abuse alcohol”

to which King has failed to admit. Op. ¶ 21. The majority

condemns King for not submitting evidence from a mental health

expert diagnosing this supposed character flaw and attesting to

King’s triumph over it. Op. ¶ 22.

¶51 The record, however, indicates that King has undergone

counseling, during both his probation and in the years since his

absolute discharge, including personal, psychological and

alcohol-related sessions. He has never been diagnosed as an

alcoholic or as having a mental health condition requiring

further treatment. I therefore find no warrant for concluding

that Mr. King has hidden some character flaw or disease from us

or the Committee.

¶52 More importantly, Mr. King’s life since 1977 has

conclusively demonstrated that he has triumphed over whatever

demons led him to commit his crime. What better evidence can

there be to prove an applicant has overcome a weakness than

twenty-nine years of consistent, incident-free conduct in

stressful situations? If Mr. King had a continuing problem with

- 35 -
alcohol, surely there would have been some indication of this in

the almost thirty years since his crime. If Mr. King had a

continuing problem dealing with stress, surely there would have

been some indication of this in his more than ten years of

practicing personal injury law, a pursuit hardly free from

stress.

III.

¶53 Our goal in ensuring that members of the Bar possess

good moral character is to protect the public. See Matter of

Shannon, 179 Ariz. 52, 77, 876 P.2d 548, 573 (1994). In this

case, King’s spotless record as a practicing attorney, together

with the glowing recommendations of his clients, colleagues,

adversaries and judges before whom he has appeared, adequately

assures us that the citizens of Arizona would be safe with King

practicing law.

¶54 I therefore respectfully dissent from today’s opinion.

I would accept the Committee’s recommendation and admit King to

the practice of law. Although the Court today suggests that

some hypothetical future candidate with a record of serious past

misconduct might someday qualify for admission to the Bar, Op. ¶

29, I wonder whether the public and future applicants would be

better served by adopting the per se approach the majority

- 36 -
opinion purportedly rejects. If Mr. King’s application cannot

meet our “non per se” standards, I doubt that any ever will.

_______________________________________
Andrew D. Hurwitz, Justice

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