SUPREME COURT OF ARIZONA
En Banc
In the Matter of ) Arizona Supreme Court
) No. SB-04-0079-M
JAMES JOSEPH HAMM, )
) O P I N I O N
___________________ Applicant.)
APPLICATION DENIED
_________________________________________________________________
JAMES JOSEPH HAMM Tempe
In Propria Persona
MONROE & McDONOUGH, P.C. Tucson
By Lawrence McDonough
And
JUAN PEREZ-MEDRANO, Chair Phoenix
Attorneys for the Committee on Character & Fitness
CHARLES W. WIRKEN, President Phoenix
HELEN PERRY GRIMWOOD, President-elect Phoenix
JIM D. SMITH, First Vice President Phoenix
DANIEL J. McAULIFFE, Second Vice President Phoenix
EDWARD F. NOVAK, Secretary-Treasurer Phoenix
ROBERT B. VAN WYCK, Chief Bar Counsel Phoenix
Attorneys for Amicus Curiae
State Bar of Arizona
MICHAEL D. KIMERER Phoenix
MARTY LIEBERMAN Phoenix
AMY L. NGUYEN Phoenix
CARLA RYAN Tucson
ANDREW SILVERMAN Tucson
Attorneys for Amicus Curiae
Arizona Attorneys for Criminal Justice
ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Andrew P. Thomas
Attorney for Amicus Curiae Maricopa County Attorney’s Office
_________________________________________________________________
M c G R E G O R, Chief Justice
¶1 James Hamm petitioned this Court, pursuant to Arizona
Supreme Court Rule 36(g), 17A A.R.S.,1 to review the
recommendation of the Committee on Character and Fitness (the
Committee) that his application for admission to the State Bar
of Arizona (the Bar) be denied. Having reviewed the record and
the Committee’s report, we conclude that James Hamm has failed
to establish the good moral character necessary to be admitted
to the practice of law in Arizona and deny his application.
I.
¶2 In September 1974, James Hamm was twenty-six years old
and living on the streets of Tucson. Although he previously had
attended divinity school and worked as a part-time pastor, Hamm
describes his life in 1974 as reflecting a series of personal and
social failures. In 1973, he had separated from his wife, with
whom he had a son. Although he had no criminal record, he
supported himself by selling small quantities of marijuana and,
again according to Hamm, he used marijuana and other drugs and
abused alcohol.
¶3 On September 6, 1974, Hamm met two young men who
identified themselves as college students from Missouri. The
two, Willard Morley and Zane Staples, came to Tucson to buy
twenty pounds of marijuana. Hamm agreed to sell it to them, but
apparently was unable to acquire that quantity of marijuana.
1
References in this opinion to “Rule ___” are to the Rules
of the Arizona Supreme Court.
2
Rather than call off the transaction, Hamm and two accomplices,
Garland Wells and Bill Reeser, agreed to rob Staples and Morley
of the money intended for the purchase. On September 7, Wells
gave Hamm a gun to use during the robbery. Later that day, Wells
and Hamm directed Morley and Staples to drive to the outskirts of
Tucson, purportedly to complete the drug transaction; Reeser
followed in another vehicle. Both Wells and Hamm carried guns;
Morley and Staples were unarmed. Hamm sat behind Morley, the
driver, and Wells sat behind Staples. At some point, Hamm
detected that Staples was becoming suspicious. As Morley stopped
the car, and without making any demand on the victims for money,
Hamm shot Morley in the back of the head, killing him. At the
same time, Wells shot Staples. Hamm then shot Staples in the
back as he tried to escape and shot Morley once again. Wells
also shot Morley, then pursued Staples, whom he ultimately killed
outside of the car. Hamm and Wells took $1400.00 from the glove
compartment, fled the scene in the van driven by Reeser, and left
the bodies of Morley and Staples lying in the desert.
¶4 Hamm took his share of the money and visited his sister
in California. At the hearing held to consider his application
to the Bar, he told the Committee that he “was compelled to come
back to Tucson,” despite knowing he probably would be caught.
Police officers arrested Hamm shortly after his return. While in
custody, he told the police that Morley and Staples were killed
3
in a gun battle during the drug deal. Initially charged with two
counts of first-degree murder and two counts of armed robbery,
Hamm pled guilty to one count of first-degree murder and was
sentenced to life in prison, with no possibility of parole for
twenty-five years.
¶5 Once in prison, Hamm began taking steps toward
rehabilitation and became a model prisoner. After spending one
year in maximum security, he applied for and received a job in a
computer training program that allowed him to be transferred to
medium security. Once in medium security, Hamm apparently took
advantage of any and every educational opportunity the prison
system had to offer. He completed certificates in yoga and
meditation and, on his own, studied Jungian psychology. He
helped fellow inmates learn to read and write and to take
responsibility for their actions. He obtained a bachelor’s
degree in applied sociology, summa cum laude, from Northern
Arizona University through a prison study program.
¶6 After Hamm completed six years in medium security,
prison officials transferred him to minimum security, where he
worked on paint and construction crews. He received a
significant degree of freedom, which allowed him to live in a
dormitory rather than in a cell and occasionally to drive
unaccompanied to nearby towns. He testified that he was the only
inmate permitted to head a work crew. Hamm reported to the
4
Committee that he played an instrumental role on various prison
committees, particularly the committee that developed a new
grievance procedure within the Department of Corrections. In
addition, he wrote grant proposals for libraries, for handicapped
prisoners, and for obtaining greater legal assistance for
prisoners.
¶7 While in prison, he met and married Donna Leone. She
and Hamm founded Middle Ground Prison Reform (Middle Ground), a
prisoner and prisoner family advocacy organization involved in
lobbying for laws related to the criminal justice system and
prisons. Middle Ground also provides public education about
those topics.
¶8 In 1989, the Governor, acting on the recommendation of
the Arizona Board of Pardons and Parole (the Board), commuted
Hamm’s sentence. When he had served nearly seventeen years, in
July 1992, the Board released Hamm on parole, conditioned upon no
use of alcohol or drugs, drug and alcohol testing, and fifteen
hours of community service each month. In December 2001, the
Arizona Board of Executive Clemency2 granted Hamm’s third
application for absolute discharge.
¶9 Between his release in August 1992 and his absolute
discharge in December 2001, Hamm performed thousands of hours of
2
The Board of Pardons and Paroles is now the Arizona Board
of Executive Clemency. 1993 Ariz. Sess. Laws, ch. 255, § 64.
5
community service. He advocated for prisoners’ rights in various
forums by writing position papers, appearing on radio programs,
testifying in legislative hearings, and speaking at churches,
schools, and civic organizations. He also appeared in a public
service video encouraging children not to do drugs or join gangs.
Hamm now works as the Director of Advocacy Services at Middle
Ground Prison Reform.
¶10 While on parole, Hamm graduated from the Arizona State
University College of Law. In July 1999, Hamm passed the Arizona
bar examination and, in 2004, filed his Character and Fitness
Report with the Committee.
II.
¶11 The Rules of the Supreme Court of Arizona establish the
process through which the Committee and this Court evaluate
applications for admission to the Bar, and prior case law
clarifies the burden an applicant must satisfy to establish good
moral character. We begin with a review of the rules.
A.
¶12 Rules 34 through 37 define the requirements for
admission to the Bar.3 The Committee may recommend an applicant
for admission only if that applicant, in addition to meeting
3
Amendments to Rules 32 through 40 became effective December
1, 2005. Order Amending Rules 32-40, 46, 62, 64 & 65, Rules of
Supreme Ct., Ariz. Sup. Ct. No. R-04-0032 (June 9, 2005). In
6
other requirements, satisfies the Committee that he or she is of
good moral character. Rule 34(a). The applicant bears the
burden of establishing his or her good moral character. In re
Greenberg, 126 Ariz. 290, 292, 614 P.2d 832, 834 (1980) (citing
In re Levine, 97 Ariz. 88, 397 P.2d 205 (1964)). In determining
whether an applicant’s prior conduct indicates a lack of good
moral character, the Committee must consider the following non-
exhaustive list of factors:
A. The applicant’s age, experience and general
level of sophistication at the time of the
conduct
B. The recency of the conduct
C. The reliability of the information concerning
the conduct
D. The seriousness of the conduct
E. Consideration given by the applicant to relevant
laws, rules and responsibilities at the time of
the conduct
F. The factors underlying the conduct
G. The cumulative effect of the conduct
H. The evidence of rehabilitation
I. The applicant’s positive social contributions
since the conduct
J. The applicant’s candor in the admissions process
K. The materiality of any omissions or
misrepresentations by the applicant.
Rule 36(a)3.
¶13 When prior conduct involves the commission of a violent
crime, the Committee must, at a minimum, hold an informal
hearing. Rule 36(a)4.E. If three or more Committee members who
attended the hearing or who have read the entire record do not
________________________
this opinion, we refer to the Rules effective when Hamm filed his
7
recommend admission of an applicant, the Committee must hold a
formal hearing to consider whether to recommend the applicant for
admission to the Bar. Id.
¶14 If the applicant fails to convince the Committee of his
or her good moral character, the Committee has a duty not to
recommend that person to this Court. In re Klahr, 102 Ariz. 529,
531, 433 P.2d 977, 979 (1967); Levine, 97 Ariz. at 91, 397 P.2d
at 207 (“If the proof of good moral character falls short of
convincing the Committee on Examinations and Admissions, it is
its duty not to recommend admission.”); In re Courtney, 83 Ariz.
231, 233, 319 P.2d 991, 993 (1957) (“In this it has no
discretion; if the members entertain any reservations whatsoever
as to the applicant’s good moral character, it should not make a
favorable recommendation to this court.”). After the Committee
submits its report, an aggrieved applicant may petition this
Court for review. Rule 36(g).
B.
¶15 This Court then independently determines whether the
applicant possesses good moral character and, based upon that
determination, grants or denies the candidate’s application.
Although we give serious consideration to the facts as found by
and the recommendation of the Committee, “[t]he ultimate decision
in this difficult matter rests with the Supreme Court.” In re
________________________
application for admission to the practice of law.
8
Kiser, 107 Ariz. 326, 327, 487 P.2d 393, 394 (1971) (holding
applicant possessed good moral character); see also Levine, 97
Ariz. at 92, 397 P.2d at 207 (holding the Court must, “using our
independent judgment, de novo determine whether the necessary
qualifications have been shown”). We do not limit our
independent review to matters of law; we have “the ultimate
responsibility for determination of fact and law.” In re Ronwin,
139 Ariz. 576, 579, 680 P.2d 107, 110 (1983); see also In re
Walker, 112 Ariz. 134, 137, 539 P.2d 891, 894 (1975) (making a
finding regarding the credibility of testimony, although in
agreement with the Committee).
¶16 The ultimate question in cases such as this is whether
the applicant has established good moral character, a concept
with which we have wrestled as we have attempted to define its
boundaries. Greenberg, 126 Ariz. at 292, 614 P.2d at 834. As
Hamm asserts, the rules and standards governing admission to the
practice of law in Arizona include no per se disqualifications.
Instead, we consider each case on its own merits. Id. In
Walker, we described the principles on which we rely as follows:
‘Upright character’ * * * is something more than an
absence of bad character. * * * It means that he [an
applicant for admission] must have conducted himself as
a man of upright character ordinarily would, should, or
does. Such character expresses itself not in negatives
nor in following the line of least resistance, but
quite often in the will to do the unpleasant thing if
it is right, and the resolve not to do the pleasant
thing if it is wrong.
9
112 Ariz. at 138, 539 P.2d at 895 (alteration in original)
(quoting In re Farmer, 131 S.E. 661, 663 (N.C. 1926)).
¶17 We also agree with Hamm that, under the Rule applicable
to Hamm’s application, our concern must be with the applicant’s
present moral character. In Greenberg, we explained that “it is
[the applicant’s] moral character as of now with which we are
concerned.” 126 Ariz. at 292, 614 P.2d at 834; see also Rule
36(a)3. Past misconduct, however, is not irrelevant. Rather,
this Court must determine what past bad acts reveal about an
applicant’s current character.
III.
¶18 In compliance with Rule 36(a)4.E, the Committee
conducted a formal hearing to consider Hamm’s application. The
Committee heard testimony on May 20 and June 2, 2004. Hamm,
representing himself, and his wife presented extensive testimony.
In addition, the Committee heard from three licensed attorneys
who had worked with Hamm and who recommended his admission and
also considered letters from those opposed to and in support of
Hamm’s application. In detailed findings, the Committee
specifically considered the various factors set out in Rule 36(a)
to determine Hamm’s character and fitness to be admitted to the
Bar. In its report, the Committee stated that, in reaching its
conclusions, it considered the following:
10
1) Hamm’s unlawful conduct, which included the
commission of two violent “execution style”
murders and his testimony as to the facts
surrounding the murders.
2) Hamm’s omissions on his Application and his
testimony in explaining his failure to disclose
all required information.
3) Hamm’s neglect of his financial responsibilities
and/or violation of a longstanding child support
court order and his testimony as to his failure
to comply with the court order.
4) Hamm’s mental or emotional instability impairing
his ability to perform the functions of an
attorney including his testimony as to any
diagnosis and treatment.4
¶19 After reviewing all these factors, the Committee
concluded that Hamm had not met his burden of establishing that
he possesses the requisite character and fitness for admission to
the Bar and accordingly recommended that his application be
denied. We now consider the Committee’s findings, together with
pertinent facts.
A.
¶20 The serious nature of Hamm’s past criminal conduct is
beyond dispute. Hamm acknowledges that no more serious criminal
conduct exists than committing first-degree murder. Our society
reserves its harshest punishment for those convicted of such
conduct. See Tucson Rapid Transit Co. v. Rubiaz, 21 Ariz. 221,
231, 187 P. 568, 572 (1920) (describing murder as “the most
4
The Committee was divided as to the significance of
complaints made concerning Hamm’s alleged unauthorized practice
of law. This Court’s decision does not rely upon those
allegations.
11
serious crime known to the law”).
¶21 Hamm’s past criminal conduct and the serious nature of
that conduct affect the burden he must meet to establish good
moral character. He must first establish rehabilitation from
prior criminal conduct, a requirement that adds to his burden of
showing current good moral character. See In re Adams, 540
S.E.2d 609, 610 (Ga. 2001) (“Where an applicant for admission to
the bar has a criminal record, his or her burden of establishing
present good moral character takes on the added weight of proving
full and complete rehabilitation subsequent to
conviction . . . .”); In re Allan S., 387 A.2d 271, 275 (Md.
1978) (“Although a prior conviction is not conclusive of a lack
of present good moral character, . . . it adds to his burden of
establishing present good character by requiring convincing proof
of his full and complete rehabilitation.”).
¶22 The added burden becomes greater as past unlawful
conduct becomes more serious. In In re Arrotta, we considered an
application for reinstatement from an attorney who, eight years
earlier, pled guilty to mail fraud and bribery. 208 Ariz. 509,
96 P.3d 213 (2004). We noted there that “the more serious the
misconduct that led to disbarment, the more difficult is the
applicant’s task in showing rehabilitation.” Id. at 512 ¶ 12, 96
P.3d at 216. An applicant for initial admission to the Bar who
is attempting to overcome the negative implications of a serious
12
felony on his current moral character likewise must overcome a
greater burden for more serious crimes. We agree with the New
Jersey Supreme Court, which recognized that “in the case of
extremely damning past misconduct, a showing of rehabilitation
may be virtually impossible to make.” In re Matthews, 462 A.2d
165, 176 (N.J. 1983). Indeed, we are aware of no instance in
which a person convicted of first-degree murder has been admitted
to the practice of law.
¶23 To show rehabilitation, Hamm must show that he has
accepted responsibility for his criminal conduct. Hamm fully
recognizes his need to make this showing. Indeed, he states that
his rehabilitation could not have proceeded absent such
acceptance. We recognize the Committee’s concern that Hamm has
not yet fully accepted responsibility for the two murders. Hamm
says he has done so, repeatedly and strongly, but some of his
other statements indicate to the contrary. The inconsistencies
among his various statements related to accepting responsibility
are most evident when he discusses Staples’ murder. Although he
told the Committee that he accepts responsibility for Staples’
murder, in fact he consistently assigns that responsibility to
his accomplice. His testimony revealed almost no attention to
the commission or aftermath of Staples’ murder. Hamm concedes
that he has focused on his role in Morley’s murder rather than on
his role in Staples’ murder. The difference in approach, he
13
explains, resulted from one postcard written to him by Morley’s
grandmother and his decision to use his connection to Morley to
provide motivation to overcome difficulties. We have no reason
to doubt that Hamm’s focus on Morley’s murder aided him, using
his words, in “accomplishing things that people have been telling
me I can’t do and we’re [Hamm and Morley] still doing it today.”
That fact, however, does nothing to assure us that Hamm has taken
responsibility for Staples’ murder, as he must if he is to
establish rehabilitation.
¶24 We also give serious consideration to the Committee’s
finding that Hamm was not completely forthright in his testimony
about the murders.5 Hamm has insisted in his filings with this
Court that he did not intend to kill, but only to rob, his
victims. The agreed facts, however, lead directly to the
inference that Hamm intended to kill. He conspired with his
accomplices to rob the victims; he accepted the gun provided by
Wells and took it with him in the car with the victims; he
testified that, although he did not intend to kill the victims,
he was “afraid” they would be killed when he got in the car; he
shot Morley without ever attempting a robbery and shot him a
second time to make certain he was dead; and he also shot Staples
5
Hamm’s lack of candor on this question also impacts our
analysis of whether he met his burden of showing present good
moral character. See Section III, subsections B through E,
infra.
14
to prevent his escape. The Committee observed Hamm testify and
was able to judge the credibility of his testimony in light of
uncontested facts. We agree that the record shows that Hamm,
despite his current protestations to the contrary, intended to
kill the victims. His failure to confront the fact that these
murders were intentional undermines his statements that he fully
accepts responsibility for his actions.
¶25 As did the Committee, we give substantial weight to
Hamm’s attempts at rehabilitation. In Section I, supra, we
described in some detail the activities Hamm has undertaken, both
while in and since his release from prison. We are impressed
with the sincerity and fervor of those who testified or submitted
letters on Hamm’s behalf. Were rehabilitation the only showing
Hamm must make to establish good moral character, we would weigh
those factors tending to show rehabilitation against those
tending to show a lack thereof. Under the facts of this case,
however, we need not decide whether the facts of record establish
rehabilitation.
¶26 When an applicant has committed first-degree murder, a
crime that demonstrates an extreme lack of good moral character,
that applicant must make an extraordinary showing of present good
moral character to establish that he or she is qualified to be
admitted to the practice of law. Even assuming that Hamm has
established rehabilitation, showing rehabilitation from criminal
15
conduct does not, in itself, establish good moral character.
Rehabilitation is a necessary, but not sufficient, ingredient of
good moral character. An applicant must establish his current
good moral character, independent of and in addition to, evidence
of rehabilitation. We conclude that Hamm failed to make that
showing.
B.
¶27 We share the Committee’s deep concern about Hamm’s
longstanding failure to fulfill, or even address, his child
support obligation to his son, born in 1969, four years before
Hamm and his first wife separated. Not until he prepared his
application for admission to the Bar in 2004 did Hamm make any
effort to meet his responsibility to provide support for his son.
During the Committee hearing, Hamm advanced several explanations
for his failure to do so. Like the Committee, we find none of
his explanations credible.
¶28 Although Hamm attempts to excuse his failure to pay
child support by pointing out that he never received a copy of a
final divorce decree, Hamm scarcely can claim that he lacked
awareness of his obligation. A few months after he and his wife
separated in 1973, Hamm was arrested on a misdemeanor charge of
failing to pay child support. On May 6, 1974, James and Karen
Hamm’s divorce decree set Hamm’s child support payments at $75.00
a month. Hamm made no effort to learn the extent of his
16
financial obligation to his son from 1974, when Hamm was twenty-
six years old, until 2004, when he was fifty-five. During those
nearly thirty years, he gained sophistication and attended law
school. He must have known, and certainly should have known,
that he had long avoided a basic parental obligation.6
¶29 Hamm also attempted to excuse his inattention to his
obligation by explaining that he learned, first from a private
investigator hired by his wife in 1988, and later from his son,
that his former wife’s new husband had adopted his son. His
reliance on the private investigator’s 1988 report to excuse his
failure is surprising, given the fact that his son was only
months from the age of majority when Hamm learned of the report;
he provides no explanation for his lack of concern prior to that
date.
¶30 Hamm further explained that only when he applied for
admission to the Bar in 2004 did he discover that his son had not
been adopted and then “calculated the child support payment [due]
over the years.” Hamm determined that he owed $10,000.00 and,
even though the statute of limitations barred an action to
6
Hamm also cannot attribute his failure to pay child support
to the absence of funds. Even while in prison, Hamm earned
“somewhere around a hundred dollars a month probably,” but used
no portion of those earnings to discharge his obligation.
17
recover past amounts due,7 contacted his son and set up a
repayment schedule.
¶31 “Behavior of such long duration cannot be considered as
a temporary aberration . . . .” Walker, 112 Ariz. at 138, 539
P.2d at 895; see also Office of Disciplinary Counsel v. Lewis,
426 A.2d 1138 (Pa. 1981) (holding that even when an attorney made
belated restitution for funds taken from clients, because “[s]uch
actions cannot be said to be consistent with high ethical
standards of the profession, with a lawyer's fiduciary
responsibility to his client, with a character that is beyond
reproach, or with truth, candor and honesty,” the attorney could
7
When asked if he had taken steps to formalize his agreement
with his son to pay back child support, Hamm replied, “No. No.
I simply acknowledged the debt regardless whether it is a legal
debt or not and whether it’s an enforceable debt or not.” In its
findings, the Committee noted that Hamm “has since taken it upon
himself to attempt to comply with his child support obligations,”
but expressed concern that he made no admission of a legal
obligation to pay. Whether an action to enforce Hamm’s
obligation to his son is in fact time-barred is unclear. In Huff
v. Huff, the Texas Supreme Court held that a ten-year statute of
limitations under Tex. Rev. Civ. Stat. Ann. art. 5532, since
repealed by Acts 1985, 69th Leg., ch. 959, § 9(1), eff. Sept. 1,
1985, applied to violations of child support orders. 648 S.W.2d
286, 287–88 (Tex. 1983) (allowing a claim based on a 1973 divorce
decree). Because Hamm’s son turned eighteen in 1987, the ten-
year statute of limitations expired in 1997. In 2002, however,
the Texas Supreme Court held that an administrative writ, created
by constitutional amendment in 1997, could be used to enforce a
divorce decree issued in 1974, for which no order was obtained,
because the administrative writ is a “new and improved
enforcement mechanism.” In re A.D., 73 S.W.3d 244, 248 (Tex.
2002). We need not resolve this question of Texas law, but share
the Committee’s concern over Hamm’s failure to formally
investigate his legal obligations to his son.
18
not continue to practice law). Hamm’s failure to meet his
parental obligation for nearly thirty years makes it more
difficult for him to make the required extraordinary showing that
he “has conducted himself as a man ordinarily would, should, or
does.” Walker, 112 Ariz. at 138, 539 P.2d at 895.
¶32 We also agree with the Committee that Hamm did not
display honesty and candor in discussing his failure to pay child
support with the Committee. Hamm testified both that his son
told him personally that he had been adopted and that his son
“adamantly refused” to accept interest payments on the unpaid
child support.
¶33 Hamm’s son testified, however, that he had never been
adopted, that prior to his contact with Hamm he had changed his
name himself, and that he had not told Hamm he had been adopted.
Hamm’s son also did not report adamantly refusing interest
payments. In response to a question from the Committee about
interest payments, he said:
Discussions about interest? Seems like whenever we
were talking about it, you know, he said it was a large
amount, and it seems like the subject of interest did
come up. I can’t remember exactly, you know, what we
said about it. But, you know, I didn’t push the issue
or anything, say, well, you know, you’re going to pay
me interest for this or what, or is there any interest.
It wasn’t really an issue or important to me.
¶34 We discern no reason that Hamm’s son would have been
other than forthright about these matters, while Hamm had every
19
reason to present himself in the best possible light.8 Like the
Committee, we find the testimony of his son to be more credible.
C.
¶35 We further conclude that Hamm did not adequately
explain his failure to disclose an incident involving him and his
current wife, Donna, when he submitted his application to the
Committee.
¶36 In 1996, Hamm and Donna engaged in a physical
altercation outside a convenience store. Donna “yelled the word
‘kidnap’ out of the window” of the vehicle Hamm was driving,
causing him to pull over and leave the vehicle. During their
tussle, Donna tore Hamm’s shirt. Both called the police, who
arrested neither Hamm nor Donna. The incident and what Donna
describes as her “embellishments” caused such great concern to
the Hamms, particularly because Hamm was on parole, that Donna
submitted to a polygraph administered by a private company to
demonstrate that Hamm had not kidnapped her. The two also
underwent marital counseling.
¶37 Nonetheless, when filling out his Character and Fitness
8
Rather than acknowledge any inconsistencies between his
testimony and that of his son, Hamm lashed out at the Committee’s
refusal to agree with Hamm’s argument, which the Committee could
accept only if it accepted Hamm’s testimony on this issue as
credible. Hamm accused the Committee of “totally ignor[ing] the
content of [Hamm’s Petition] to which it supposedly was
responding.”
20
Report, Hamm failed to disclose the incident to the Committee.
Question 25 on the report asks specifically whether the
applicant, among other things, has been “questioned” concerning
any felony or misdemeanor.9 Hamm told the Committee that, in
reading the application, he missed the word “questioned” in the
list of encounters with law enforcement that Question 25 directs
an applicant to report.
¶38 Hamm’s explanation strains credulity. In Walker, this
Court inferred that the son of an Army officer would understand
the requirement to register for the draft. 112 Ariz. at 138, 539
P.2d at 895. Likewise, we infer from Hamm’s knowledge of the law
and his efforts in 1996 to document a defense for the domestic
incident that he fully understood its importance and must have
known that the incident would be of interest to the Committee.
His failure to include it in his initial application further
affects his ability to make the needed extraordinary showing of
good moral character.
9
Question 25 asks:
Have you either as an adult or a juvenile, ever been
served with a criminal summons, questioned, arrested,
taken into custody, indicted, charged with, tried for,
pleaded guilty to or been convicted of, or ever been
the subject of an investigation concerning the
violation of, any felony or misdemeanor? (In answering
this question, include all incidents, no matter how
trivial or minor the infraction or whether guilty or
not, whether expunged or not, whether you believe or
21
D.
¶39 Hamm’s actions during these proceedings also raise
questions about his fitness to practice law. The introduction to
Hamm’s petition before this Court begins:
The consequences of this case for Petitioner take it
out of the ordinary realm of civil cases. If the
Committee’s recommendation is followed, it will prevent
him from earning a living through practicing law. This
deprivation has consequences of the greatest import for
Petitioner, who has invested years of study and a great
deal of financial resources in preparing to be a lawyer
. . . .
This language repeats nearly verbatim the language of the United
States Supreme Court in Konigsberg v. State Bar, 353 U.S. 252
(1957), in which the Court wrote:
While this is not a criminal case, its consequences for
Konigsberg take it out of the ordinary run of civil
cases. The Committee's action prevents him from earning
a living by practicing law. This deprivation has grave
consequences for a man who has spent years of study and
a great deal of money in preparing to be a lawyer.
Id. at 257–58. If an attorney submits work to a court that is
not his own, his actions may violate the rules of professional
conduct. Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v.
Lane, 642 N.W.2d 296, 299 (Iowa 2002) (“[P]lagiarism
constitute[s], among other things, a misrepresentation to the
court. An attorney may not engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.”); see also Rule
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were advised that you need not disclose any such
instance.)
22
42, ER 8.4(c) (defining professional misconduct as including
“engag[ing] in conduct involving dishonesty, fraud, deceit or
misrepresentation”). We are concerned about Hamm’s decision to
quote from the Supreme Court’s opinion without attribution and
are equally troubled by his failure to acknowledge his error.
When the Committee’s response pointed to Hamm’s failure to
attribute this language to Konigsberg, he avoided the serious
questions raised and refused to confront or apologize for his
improper actions, asserting instead: “From Petitioner’s
perspective, any eloquence that might be found in the Petition
does not derive from any prior case decided in any jurisdiction,
but rather from the gradual development of his own potential
through study, reflection, and devotion to the duty created by
his commission of murder.” Hamm apparently either does not
regard his actions as improper or simply refuses to take
responsibility. In either case, his actions here do not assist
him in making the requisite showing of good moral character.10
10
In addition to the matters discussed above, only four years
have passed since James Hamm was absolutely discharged. The fact
that Hamm has been free of supervision for this relatively short
time weighs against his admission to the practice of law.
Greenberg, 126 Ariz. at 293, 614 P.2d at 835 (noting that
“[r]ehabilitation is seldom accomplished in an instantaneous
fashion” and holding that Greenberg had “not convinced [the
Court] that he as yet evidences the requisite good moral
character”)(emphasis added); see also In re Dortch, 860 A.2d 346,
348 (D.C. 2004) (finding it “would be erosive of public
confidence in the legal profession and the administration of
justice were we to admit an applicant who is still on parole for
23
E.
¶40 When Hamm committed first-degree murder in 1974, he
demonstrated his extreme lack of good moral character. Although
this Court has not adopted a per se rule excluding an applicant
whose past includes such serious criminal misconduct, we agree
with those jurisdictions that have held that an applicant with
such a background must make an extraordinary showing of
rehabilitation and present good moral character to be admitted to
the practice of law. Perhaps such a showing is, in practical
terms, a near impossibility. We need not decide that question
today, however, because Hamm’s lack of candor before the
Committee and this Court, his failure to accept full
responsibility for his serious criminal misconduct, and his
failure to accept or fulfill, on a timely basis, his parental
obligation of support for his son, all show that Hamm has not met
the stringent standard that applies to an applicant in his
position who seeks to show his present good moral character.
IV.
¶41 Hamm asserts that he was denied due process of law
because two members of the Committee may have prejudged the
merits of his application. Both members, however, left the
Committee proceedings when their potential bias came to light,
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crimes as serious as those committed by Dortch”). Because Hamm
otherwise failed to establish good moral character, however, we
24
and neither played any role in the Committee’s findings and
recommendation.
¶42 Hamm, like all applicants for membership in the Bar, is
entitled to receive due process of law. “The fundamental
requirement of due process is the opportunity to be heard ‘at a
meaningful time and in a meaningful manner.’” Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo,
380 U.S. 545, 552 (1965)). Also, “due process requires that a
party be given a ‘fair trial in a fair tribunal.’” United States
v. Superior Court, 144 Ariz. 265, 280, 697 P.2d 658, 673 (1985)
(quoting In re Murchison, 349 U.S. 133, 136 (1955)). Both the
Committee and this Court have provided Hamm ample opportunity to
be heard through hearings and written arguments. Moreover, this
Court, and not the Committee, made the ultimate decision on
Hamm’s application. Hamm received a full opportunity to be heard
before a fair tribunal.
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reached our decision without considering this factor.
25
V.
¶43 Because James Hamm has failed to meet his burden of
proving that he is of good moral character, we deny his
application for admission to the State Bar of Arizona.
__________________________________
Ruth V. McGregor, Chief Justice
CONCURRING:
_________________________________
Michael D. Ryan, Justice
_________________________________
Andrew D. Hurwitz, Justice
_________________________________
W. Scott Bales, Justice
_________________________________
Jefferson L. Lankford, Judge*
* The Honorable Rebecca White Berch recused herself; pursuant
to Article VI, Section 3 of the Arizona Constitution, the
Honorable Jefferson L. Lankford, Judge of the Court of Appeals,
Division One was designated to sit in her stead.
26