1. The referenced statistics are
drawn from the April 30,
2013, and April 30, 2014,
Annual Reports of the
Attorney Regulation Advisory
Committee to the Arizona
Supreme Court. The referenced averages are for 2011–
2013—the only years for which
statistics are available since the
Supreme Court’s overhaul of
the disciplinary system effective
January 1, 2011.
2. In re Shannon, 876 P.2d 548,
566 (Ariz. 1994) (quoting In
re Kastensmith, 419 P.2d 75,
78 (Ariz. 1966)); see also In re
Alexander, 300 P.2d 536, 550
(Ariz. 2013) (“[T]he primary
objectives of lawyer discipline
are ‘( 1) to protect the public
and the courts and ( 2) to deter
the [disciplined] attorney and
others from engaging in the
same or similar misconduct.’”
(quoting In re Zawada, 92
P.3d 862, 866 (Ariz. 2004)).
3. Shannon, 876 P.2d at 566.
4. ARIZ.R.S.CT. 53(a).
5. See, e.g., ARIZ.R.S.CT. 70(a)
(generally, rendering confidential information gathered in bar
investigations before dismissal or
disposition by bar counsel or the
Attorney Discipline Probable
Cause Committee); see generally
ARIZ.R.S.CT. 53(b) (identifying
information the Bar must provide the complainant).
6. Cf. ARIZ.R.S.CT. 49(b)( 1)
(commanding bar counsel to
“exercise discretion in initiating
investigations when allegations,
if true, would be grounds for
49(b)( 3) (authorizing bar counsel “[i]n appropriate cases”
to “negotiate dispositions of
pending matters as authorized
in Rule 57(a) [discipline by
consent] or 58 [formal
7. Arizona Rules of Professional
Conduct, Preamble ¶ [ 20].
8. In re Curtis, 908 P.2d 472, 477
9. ARIZ.R.S.CT. 48(d).
10. See In re Levine, 847 P.2d 1093,
1102-03 (Ariz. 1993).
11. See Arizona Attorney Diversion
Guidelines, available at
tive%2001-01-11.pdf, at 3.
12. ABA Standards for Imposing
Lawyer Sanctions (1992), at 26.
13. See, e.g., ARIZ.R.EVID. 403.
Conversely, the court may not
consider or admit evidence of a
bar charge’s dismissal either. But
the risk of a dismissal’s consideration or admission appears to be
at least as high as, and perhaps
higher than, the corresponding
risk of consideration or admission of an order imposing
14. See ER 4. 4(a), ABA Formal
Ethics Op. 94-383; see generally
DOUGLAS R. RICHMOND ET AL.,
IN LITIGATION 447 (2011).
15. ER 3. 1; see also Lawyer’s Creed
of Professionalism of the State
Bar of Arizona: “I will not
utilize litigation or any other
course of conduct to harass
the opposing party”
ARIZ.R.S.CT. 31(a)( 2)(E)
conduct” as “substantial or
repeated violations of the
Oath of Admission to the
Bar or the Lawyer’s Creed
of Professionalism of the
State Bar of Arizona”);
ARIZ.R.S.CT. 41(g) (pro-
16. Indeed, lawyers should
remain mindful of the ethical obligation to report certain kinds of misconduct to
the State Bar under ER
8. 3(a). The issue of mandatory reporting, including
the limitations on that mandate imposed by ER 8. 3(c)
as well as the related issue
of ER 1. 6’s scope, can be
and fourth are unique to the disciplinary
setting. Even if a bar charge ultimately
results in discipline, in short, the imposition of that discipline may not have much
utility in the civil suit against the respondent. Indeed, even if by chance the disciplinary matter proceeds to conclusion
sufficiently quickly, given the differences
between attorney discipline and civil liability, the court in the civil suit may refuse to
consider, let alone allow into evidence, the
fact of discipline. 12
Filing a bar complaint
is not risk-free to the
It is true that “Communications to the …
state bar … [are] absolutely privileged conduct, and [that] no civil action predicated
thereon may be instituted against any complainant or witness.” ARIZ.R.S.CT. 48(l).
On the other hand, it is unethical not only
to threaten a bar complaint for tactical rea-
sons, 14 but also to file one “unless there is
a good faith basis in law and fact for doing
so that is not frivolous.” 15 Sometimes, as a
practical matter, like begets like: The com-
plainant, if a lawyer, finds himself or herself
charged in response. Nothing in the appli-
cable rules insulates a complainant lawyer
from being charged with a disciplinary
violation, which the Bar must then review
and, potentially, investigate and prosecute.
The lawyer disciplinary system and disciplinary proceedings are critically important to
protect the public and instill public confidence in lawyers and the judicial system.
Nothing herein should be read to discourage the filing of meritorious bar charges. 16
And if a lawyer is subject to discipline, the
mere fact that the bar complaint was tactically motivated will not change that reality.
I hope, however, that this piece has
shed light on some of the factors counsel
should consider when deciding, or helping
a client decide, whether to file a bar charge
motivated by civil litigation objectives.
ings against an opponent have far less utility than one initially might think.
Disciplinary sanctions turn
on matters far afield of
most civil litigation.
Under the ABA standards that guide the
Bar in seeking and recommending discipli-
nary sanctions, 11 the basic factors to be
considered in imposing discipline are:
( 1) the ethical duty violated,
( 2) the lawyer’s mental state,
( 3) the extent of actual or potential
injury caused by the lawyer’s
( 4) the existence of aggravating or
mitigating circumstances. 12
Though the third factor, and perhaps the
second, may have some overlap with the
elements of proof in a civil case, the first