SUPREME COURT OF ARIZONA
En Banc
In the Matter of a Disbarred ) Arizona Supreme Court
Member of the State Bar of ) No. SB-04-0015-R
Arizona )
) Disciplinary Commission
RICHARD B. ARROTTA, ) No. 03-6005
Attorney No. 003992 )
)
Applicant. ) O P I N I O N
__________________________________)
DISCIPLINARY ACTION
Remanded to Hearing Officer
________________________________________________________________
Thomas A. Zlaket Tucson
Attorney for Richard B. Arrotta
State Bar of Arizona Phoenix
by Robert B. Van Wyck, Chief Bar Counsel
and Denise M. Quinterri, Staff Bar Counsel
Attorneys for State Bar of Arizona
________________________________________________________________
M c G R E G O R, Vice Chief Justice
¶1 The issue in this case is whether Richard B. Arrotta,
who was disbarred in 1995, has established that he should be
readmitted to the Arizona State Bar. We conclude that he has
not established that he has been rehabilitated and deny his
application for reinstatement. We review this matter pursuant
to Arizona Rule of the Supreme Court 65(b)(5).
I.
¶2 Arrotta was admitted to practice in Arizona in 1974.
Over the next twenty years, he worked for the United States Army
as a Judge Advocate General, for the Pima County Attorney’s
Office as a deputy county attorney, and as a sole practitioner
in private practice.
¶3 In 1990, Arrotta began representing clients in claims
under the National Childhood Vaccine Act, 42 U.S.C. §§ 300aa-1
to 300aa-34 (1986) (Vaccine Act). The Vaccine Act established an
administrative procedure for compensating children injured as a
result of a required vaccination and provided reimbursement to
attorneys for reasonable fees and costs incurred in representing
a victim. See 42 U.S.C. § 300aa-15. The statute, however,
expressly barred attorneys in Vaccine Act cases from charging
clients any additional fees for services rendered. 42 U.S.C. §
300aa-15(e)(3).
¶4 The Valenzuelas, whose child had died as the result of
a vaccination, retained Arrotta to bring an action under the
Vaccine Act. Although Arrotta received approximately $39,000.00
in fees from the government for representing the Valenzuelas, he
also withheld a one-third contingency fee from the family. In
January 1993, when the State Bar inquired about Arrotta’s fee
practice in Vaccine Act cases, Arrotta falsely stated that he
had never charged a contingency fee, or any other fee, to any of
his thirty-five Vaccine Act clients.
¶5 Also in 1993, unrelated to his misconduct involving
the Vaccine Act cases, Arrotta met Philip N. DePalma, a claims
2
adjuster in Arizona’s risk management section. DePalma asked
Arrotta to represent his brother in a case involving his
brother’s termination from his job. Arrotta agreed. Shortly
thereafter, DePalma asked Arrotta if he would represent a
claimant whom DePalma believed had a significant medical
malpractice claim against the state. Arrotta consented, and
DePalma subsequently informed Arrotta of other claimants and
facilitated Arrotta’s solicitation of those cases. While
DePalma initially made no mention of payments due him, months
later DePalma asked Arrotta to give him referral fees for the
cases he had sent to Arrotta. Arrotta agreed and proceeded to
make secret payments, which eventually exceeded $400,000.00, to
DePalma as DePalma continued to provide him confidential
information concerning claims against the State of Arizona.
This information revealed the identities of persons with
potential liability claims against the state, as well as
confidential information related to the claims. Relying on this
information, Arrotta solicited potential claimants as clients
and ultimately received legal fees in excess of $1.1 million for
those cases. At no time did Arrotta or DePalma disclose these
payments to the state. Arrotta has always maintained that all
of the cases were meritorious and involved clear and provable
negligence by the state.
3
¶6 When a federal investigation into these matters began,
Arrotta almost immediately gave a full confession to the
Assistant United States Attorney, without seeking any
concessions in return. Shortly thereafter, in September 1995,
Arrotta pled guilty in the United States District Court for the
District of Arizona to two counts of mail fraud in violation of
18 U.S.C. § 1341, Class D felonies. Arrotta also pled guilty to
bribery, a Class 4 felony, fraudulent schemes and practices, a
Class 5 felony, and disclosure of confidential information, a
Class 6 felony, in the Superior Court of Arizona for Maricopa
County. After entering his guilty pleas, Arrotta consented to
disbarment on September 21, 1995.
¶7 As a result of his criminal convictions, Arrotta
served one year in a federal prison. Since his release from
prison, Arrotta has worked as a paralegal/legal assistant for
several attorneys in Tucson and Phoenix and currently works
full-time as a legal assistant for the Hollingsworth Law Firm,
P.C. in Tucson. Although Arizona Rule of the Supreme Court
64(b) permits a disbarred lawyer to apply for reinstatement
after five years,1 Arrotta waited almost eight years to submit
his application.
1
Rule 64(b) provides:
A lawyer who has been disbarred may apply for
reinstatement, as set forth in Rule 65, not sooner
4
¶8 In his application, Arrotta presented dozens of
letters in support of his reinstatement from lawyers, employers,
family members, judges, clergy, and members of his church. In
addition, during his reinstatement hearing, Arrotta offered
testimony from the attorney responsible for prosecuting him in
federal court, the former pastor of his church, a lawyer and
former employer, and Arrotta’s current employer, Louis
Hollingsworth. Arrotta also testified.
¶9 At the outset of the hearing, the State Bar indicated
that it would reserve its opinion as to whether Arrotta should
be reinstated until the close of evidence. At the close of the
hearing, the State Bar recommended reinstatement. Based on the
evidence presented and the position of the State Bar, the
Hearing Officer found that Arrotta has been rehabilitated and
recommended that Arrotta be reinstated to the practice of law in
Arizona; that he be placed on probation for one year, subject to
various terms; and that he pay the costs and expenses incurred
in connection with his application for reinstatement. Pursuant
to Arizona Rule of the Supreme Court 65, the Disciplinary
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than ninety (90) days prior to the fifth anniversary
of the effective date of the disbarment, but may not
be reinstated until after the fifth anniversary of the
effective date of the disbarment.
Ariz. R. Sup. Ct. 64(b).
5
Commission reviewed the Hearing Officer’s Report2 and accepted
the Hearing Officer’s recommendation of reinstatement, one year
of probation, and costs of the proceedings.
¶10 Two members of the Disciplinary Commission dissented,
finding Arrotta unworthy of reinstatement. The dissent took
particular note of the fact that, during oral argument,
Arrotta’s counsel opined that an individual applying for initial
admission to the Arizona State Bar probably would not be
admitted with a criminal record similar to that of Arrotta. The
dissent found it troubling that “the bar apparently is set lower
for readmission than for initial admission. . . . [I]t would
seem that the bar for readmission should be if anything higher.”
Moreover, because Arrotta made no reference in his application
to any kind of “rehabilitation, counseling, therapy or any other
modality to try to understand why he would commit such dishonest
acts,” the dissent concluded that Arrotta had not shown
rehabilitation.
2
Rule 65(b)(4) provides:
The commission shall promptly review the report of the
hearing officer and the record, and will file with the
court its own report containing findings of fact and
recommendation concerning reinstatement, together with
the record. The commission shall serve a copy of the
report on the parties.
Ariz. R. Sup. Ct. 65(b)(4).
6
II.
¶11 Arizona Rules of the Supreme Court 64 and 65 impose
two basic requirements upon a disbarred lawyer who seeks
reinstatement. First, like initial applicants for admission,
the disbarred applicant must establish that he “possesses the
moral qualifications and knowledge of the law required for
admission to practice law in this state.” Ariz. R. Sup. Ct.
64(a). But the disbarred applicant must do more; he must
additionally demonstrate “rehabilitation.” Ariz. R. Sup. Ct.
64(e). The reason for requiring more of an applicant for
reinstatement than of an applicant seeking his initial admission
to the bar should be evident: Knowing that we do not lightly
disbar lawyers, we also know that the disbarred lawyer has
already seriously violated the trust placed in him as an officer
of the court and has revealed that, at least in some
circumstances, he poses a threat to members of the public. We
must “‘endeavor to make certain that [we do] not again put into
the hands of an unworthy petitioner that almost unlimited
opportunity to inflict wrongs upon society possessed by a
practicing lawyer.’” In re Pier, 561 N.W.2d 297, 300 (S.D.
1997) (quoting In re Morrison, 186 N.W. 556, 557 (1922)).
¶12 The burden of establishing rehabilitation falls on the
applicant: “The lawyer requesting reinstatement shall have the
burden of demonstrating by clear and convincing evidence the
7
lawyer’s rehabilitation, compliance with all applicable
discipline orders and rules, fitness to practice, and
competence.” Ariz. R. Sup. Ct. 65(b)(2). Moreover, the more
serious the misconduct that led to disbarment, the more
difficult is the applicant’s task in showing rehabilitation. In
re Robbins, 172 Ariz. 255, 256, 836 P.2d 965, 966 (1992). On
the other hand, the severity of a lawyer’s misconduct in itself
does not preclude reinstatement if the lawyer can establish that
he has rehabilitated himself. In re Peterson, 108 Ariz. 255,
256-57, 495 P.2d 851, 852-53 (1972) (“Disbarment is not imposed
as punishment, but rather to protect the public and the other
members of the bar, and to deter other lawyers from the
temptation to violate their ethics.”). Nevertheless, “neither
the fact that Applicant has been sufficiently sanctioned, nor
the mere passage of time, is enough to warrant reinstatement.
Applicant’s burden is to show, by clear and convincing evidence,
that he has been rehabilitated, that he is competent, and that
he poses no further threat to members of the public.” Robbins,
172 Ariz. at 256, 836 P.2d at 966. As we balance these factors,
our primary responsibility remains at all times the protection
of the public.
¶13 In evaluating an application for reinstatement, we
consider four factors: “‘the applicant’s character and standing
prior to the disbarment, the nature and character of the charge
8
for which he was disbarred, his conduct subsequent to the
disbarment, and the time that has elapsed between the disbarment
and the application for reinstatement.’” Id. (quoting In re
Spriggs, 90 Ariz. 387, 388 n.1, 368 P.2d 456, 457 n.1 (1962)).3
¶14 We do not apply these factors mechanically. Rather,
they help us determine whether the applicant has made the
required showing. As we stated in Robbins, “the bottom line
must always be whether the applicant has ‘affirmatively shown
that he has overcome those weaknesses that produced his earlier
misconduct,’ i.e., whether he has been rehabilitated.” Id.
(emphasis added)(quoting In re Krogh, 610 P.2d 1319, 1321 (Wash.
1980)); see also In re King, 177 Ariz. 358, 361, 868 P.2d 941,
944 (1994) (reinstating an attorney following a two-year
suspension for misappropriating client funds, based on the
hearing committee’s finding that “the likelihood of Applicant
again misappropriating funds is remote”).
¶15 Courts in other jurisdictions similarly have stressed
the fundamental importance of gauging whether an applicant has
demonstrated that he has corrected whatever weaknesses led to
his misconduct. See, e.g., In re Wiederholt, 24 P.3d 1219, 1224
(Alaska 2001) (“The major consideration in reinstatement
3
Our approach is consistent with that taken in other
jurisdictions. See, e.g., In re Wiederholt, 24 P.3d 1219, 1224-
25 (Alaska 2001) (defining criteria to consider); In re Stroh,
9
proceedings is whether the disbarred attorney has shown that
those weaknesses that produced the earlier misconduct have been
corrected.”); In re Nash, 855 P.2d 1112, 1116 (Or. 1993) (“We
are entitled to have a reasonable assurance that the misconduct
which brought the petitioner before this court once before will
not reoccur.” (quoting In re Koken, 329 P.2d 894, 895 (1958)));
In re Stroh, 739 P.2d 690, 693 (Wash. 1987) (“The major
consideration in reinstatement proceedings is whether the
disbarred attorney has shown that those weaknesses which
produced the earlier misconduct have been corrected.”); Comm. on
Legal Ethics v. Pence, 297 S.E.2d 843, 846 (W. Va. 1982)
(“Rehabilitation is demonstrated by a course of conduct that
enables the court to conclude there is little likelihood that
after such rehabilitation is completed and the applicant is
readmitted to the practice of law he will engage in
unprofessional conduct.” (citation omitted)); In re Brown, 273
S.E.2d 567, 571 (W. Va. 1980) (“The concept of rehabilitation
cannot be framed around a set of specific principles but will
vary depending on the particular facts of a given case.
Rehabilitation, ultimately, is demonstrated by a course of
conduct that enables the Court to conclude there is little
likelihood that after such rehabilitation is completed and the
____________
739 P.2d 690, 693 (Wash. 1987) (same); In re Barton, 329 A.2d
102, 104 (Md. 1974) (same).
10
applicant is readmitted to the practice of law he will engage in
unprofessional conduct.”).
¶16 We must retain a focus on whether an applicant has
clearly and convincingly shown his rehabilitation, for we cannot
fulfill our duty to protect the public unless, before granting
reinstatement, we are confident that a lawyer will avoid the
pitfalls that caused his earlier serious misconduct.
III.
¶17 To show rehabilitation, an applicant must first
establish by clear and convincing evidence that he has
identified just what weaknesses caused the misconduct and then
demonstrate that he has overcome those weaknesses. Arrotta has
failed to make either of these showings.
A.
¶18 We find nothing in the record that demonstrates by
clear and convincing evidence that Arrotta understands or even
has identified the cause of his misconduct. That failure sets
him apart from applicants such as Robbins, whose
misappropriation of client funds resulted from serious bouts of
depression, Robbins, 172 Ariz. at 255, 836 P.2d at 965, and
King, who misappropriated client funds because of his
“precarious financial situation,” King, 177 Ariz. at 360, 868
P.2d at 943.
11
¶19 Unlike those applicants, who recognized and then
overcame their earlier weaknesses, Arrotta has stated that he
does not understand why he acted as he did. In a letter Arrotta
wrote to the Honorable William D. Browning of the United States
District Court in Tucson prior to his criminal sentencing, he
said: “I have asked myself repeatedly why I did the things to
which I have now plead [sic] guilty. I have no good, or valid,
answer that can provide any justification.” More than eight
years later, Arrotta’s counsel stated to the Disciplinary
Commission:
I am not sure he knows why he did what he did back
then. I think there were a lot of pressures on him
that were economic. There were a lot of social
pressures on him, and there was a lot of weakness
involved. And the combination of all three caused him
to do what he did.
¶20 The only suggested explanation for Arrotta’s
misconduct involved his desire to attain material possessions.
The attorney for the State Bar reasoned: “I think that to put
it bluntly, greed was the motive. I can’t think of any other
motive for the conduct—the underlying conduct other than greed.”
Similarly, in a letter written to a friend from prison, Arrotta
stated he believed that “putting the goal of financial brass
rings and personal desires as primary” was the root of most of
his mistakes and failures. But Arrotta’s desire for material
possessions scarcely distinguishes him from many other lawyers
12
who, despite such desires, fulfill their obligations to their
profession, their clients, and the public. Moreover, if simple
greed caused Arrotta’s misconduct, then he must present clear
and convincing evidence that he has overcome that weakness; the
record contains no such evidence.4
¶21 Nothing else in the record explains Arrotta’s
misconduct. The statements made by Arrotta’s supporters in
letters, both those made before his sentencing hearing and those
made in support of his application for reinstatement, reflect
that same lack of understanding as to Arrotta’s reasons for
acting as he did. Indeed, both sets of letters express
disbelief that Arrotta allowed himself to commit such serious
acts of misconduct. While these letters support Arrotta’s
application, they also illuminate its shortcomings. The
writers’ shock at Arrotta’s behavior reflects the fact that they
apparently did not perceive whatever weaknesses led to Arrotta’s
misconduct. Because they did not understand the reasons for the
misconduct, none offered a basis for concluding that those
reasons no longer exist. Lacking any understanding of the
reasons Arrotta deviated from the course of conduct the writers
4
To the extent that the record speaks at all to the issue of
Arrotta’s desire for material possessions, it does not support a
conclusion that his desire for such possessions has changed.
For instance, although Louis Hollingsworth testified that
Arrotta is one of the nation’s highest paid paralegals, Arrotta
13
expected, presumably these supporters would be equally surprised
today if Arrotta committed further acts of misconduct.
¶22 Moreover, Arrotta offered no testimony from a mental
health professional explaining his misconduct. Although we do
not require professional treatment and testimony to gain
readmission, we recognize that, in many instances, a counselor
can assist an individual in understanding the reasons for his
ethical violations and can help the person acquire tools needed
to prevent future misconduct. An applicant who fails to present
evidence that he has obtained such assistance must carry his
burden by presenting some other basis to justify a finding of
rehabilitation. When misconduct is as serious as that committed
by Arrotta, persuasive evidence that a lawyer has identified and
overcome prior weaknesses becomes even more essential.
¶23 Arrotta’s approach to the issue of needing or
obtaining professional assistance has not been consistent.
Before the Disciplinary Commission and at oral argument, Arrotta
argued that he did not need any medical or clinical counseling.
Furthermore, as the State Bar investigator reported, Arrotta
“did not attend any professional counseling with either a
psychologist or psychiatrist [prior to his incarceration]
because he felt it was unwarranted.”
____________
and his wife jointly contributed less than one percent of their
joint income in 2002 to charity.
14
¶24 In his brief to this court, however, Arrotta suggested
that he in fact did receive counseling about the reasons for his
misconduct. He claims first that “Mr. Aker has counseled [him]
continuously since 1995, and even made trips to Nevada for that
express purpose while [he] was serving his sentence of
confinement.” The record makes clear, however, that Aker
provided emotional and spiritual support but did not counsel
Arrotta about his crimes. Arrotta further states that he
counseled with Randy Reynolds, Director of Renewal Counseling.
The record reveals that, after his incarceration, Arrotta did
visit with Randy Reynolds eight times over a six-month period.
These sessions, however, pertained to Arrotta’s marital problems
with his second wife, rather than to his criminal conduct.5
¶25 Arrotta’s failure to identify the cause of his
misconduct leaves the court unconvinced that the problems that
led to his previous behavior have been identified and rectified—
that is, that Arrotta has been rehabilitated. Absent such a
showing, the Hearing Officer’s finding that Arrotta has been
rehabilitated lacks support and, therefore, is clearly
erroneous. See Ariz. R. Sup. Ct. 59(b).
5
Although Reynolds told the State Bar investigator that he did
not counsel Arrotta concerning his criminal conduct, he also
stated that he felt that Arrotta was unlikely to be recidivist
and that he had been rehabilitated.
15
B.
¶26 Because the record does not establish that Arrotta has
identified the weaknesses that caused him to violate the trust
of his clients and of the public, it necessarily follows that
the record does not affirmatively show that Arrotta has overcome
those weaknesses. But even if we assume arguendo that, as
Arrotta’s counsel suggests, simple greed caused Arrotta’s
misconduct and that he now recognizes as much, the record before
us does not demonstrate by clear and convincing evidence that he
has overcome that weakness.
¶27 Arrotta primarily relies upon two arguments to
establish his rehabilitation. First, he accurately points out
that he accepted full responsibility for his misconduct. While
admitting that he did not initially respond honestly to the
State Bar’s questions about his practices, he stresses that he
approached law enforcement officials almost immediately after he
learned that a federal investigation of his actions had begun.
Against the advice of his attorneys, Arrotta gave a full
statement to law enforcement officials, accepted full
responsibility for his actions, and did so without requesting or
expecting consideration in exchange for his cooperation.
Indeed, the lawyer responsible for prosecuting Arrotta in
federal court wrote a letter in support of Arrotta’s
reinstatement, emphasizing that Arrotta’s candor with respect to
16
the federal investigation was unusual, and testified before the
Hearing Officer that Arrotta began the rehabilitation process
immediately.
¶28 Second, Arrotta points to the letters and testimony
supporting his application for readmission, which attest both to
his character and standing before disbarment and to his
exemplary conduct subsequent to disbarment. A number of those
witnesses expressed their opinion that Arrotta has been
rehabilitated. For example, Louis Hollingsworth, Arrotta’s
current employer, wrote that Arrotta “began the rehabilitation
process immediately upon being charged with the offense.”
Similarly, Dr. John B. Aker, former Pastor of Christ Church of
Tucson, where Arrotta was an Elder, stated in his letter to the
State Bar that Arrotta underwent “instantaneous” rehabilitation.
Based on his character and standing prior to and subsequent to
his disbarment, the speed with which he confessed his
transgressions, and the assertions of other individuals that he
“immediately” began rehabilitation or “instantaneously” became
rehabilitated, Arrotta argues that he meets the requirements of
Rule 64(e).
¶29 We do not discount the relevance of Arrotta’s
evidence. Accepting responsibility for past misdeeds
constitutes an important element of rehabilitation. Similarly,
we will carefully consider the opinions of those in the
17
community in determining whether rehabilitation has occurred,
but neither of these factors can conclusively establish what our
cases identify as the showing: clear and convincing evidence
that the applicant has overcome the weaknesses that led to his
misconduct. When a disbarred lawyer seeks readmission to the
bar, particularly when disbarment resulted from conduct as
egregious as Arrotta’s, he must demonstrate more than that he
has led a blameless and law-abiding life while disbarred.
“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. In re J.J.T., 761 So. 2d 1094, 1096
(Fla. 2000)(citation omitted). In addition, he must bring forth
clear and convincing evidence showing the positive actions he
has taken to overcome the weaknesses that led to his disbarment.
¶30 The required demonstration may come from any number of
showings. For example, testimony from a mental health
professional, while not always necessary, can often play a role
in establishing that the lawyer should gain readmission. The
Washington Supreme Court considered such a situation in In re
Rosellini, 739 P.2d 658, 659 (Wash. 1987), in which the court
granted reinstatement in a case factually similar to the current
action. In Rosellini, the applicant had been disbarred for
misuse of his client trust account and funds. Id. Like
18
Arrotta, Rosellini took steps following his disbarment to
establish rehabilitation: he secured employment; demonstrated
financial responsibility with regard to personal obligations
since his disbarment, including making restitution; participated
in community activities; and became involved in his church. Id.
at 659, 661, 662. In addition, however, Rosellini sought
professional psychiatric help to overcome the weaknesses that
led to his disbarment and, at the time of his reapplication, was
continuing to receive therapy. Id. at 659. Upon receiving his
petition for reinstatement, the state bar appointed a special
investigator who deposed Rosellini’s psychiatrist, who could
assure the court that it was unlikely Rosellini would repeat the
conduct leading to his disbarment. Id. at 660.
¶32 In appropriate cases, the required “positive action”
can be demonstrated by participation in community or charitable
organizations, specialized instruction or education, counseling,
or other similar evidence. But the burden is on the applicant
to show more than that he has successfully lived by the rules of
society after his misconduct. This record does not contain such
a demonstration by clear and convincing evidence.
IV.
¶33 For the foregoing reasons, we deny Arrotta’s
application for reinstatement. Our denial of the application
normally would prevent Arrotta from filing another application
19
for reinstatement for one year. Ariz. R. Sup. Ct. 65(a)(4). In
this instance, however, Arrotta’s failure to present evidence
sufficient to establish rehabilitation may have resulted from
the failure of the State Bar to insist upon such evidence.
Therefore, we suspend Rule 65(a)(4) and remand this matter to
the Hearing Officer to take additional evidence, if such is or
becomes available, that demonstrates both the cause of Arrotta’s
earlier misconduct and that he has taken adequate affirmative
steps to overcome the weaknesses that led to his misconduct.
____________________________________
Ruth V. McGregor, Vice Chief Justice
CONCURRING:
__________________________________
Charles E. Jones, Chief Justice
__________________________________
Rebecca White Berch, Justice
__________________________________
Michael D. Ryan, Justice
__________________________________
Andrew D. Hurwitz, Justice
20