Monday, April 29, 2013

Arizona Supreme Court Rules that Lawyer Seeking Reinstatement Need Not Identify “Root Cause” of Weakness that Led to Suspension

On April 17, 2013, J. Scott Rhodes, a partner at Jennings, Strouss & Salmon, secured a favorable opinion from the Arizona Supreme Court on behalf of his client in In re Johnson, Ariz., No. SB-12-0040-R. The client, a suspended lawyer seeking reinstatement, had received an adverse recommendation from the State Bar of Arizona’s disciplinary hearing panel, which claimed that there was insufficient proof that he had rectified the ethical problems that led to his suspension.

Although the hearing panel acknowledged that the lawyer had identified the weaknesses that produced the misconduct, and that he took the necessary steps to overcome those weaknesses, it required him to identify the deeper “root cause” of those weaknesses or the “character flaw that caused the decision to engage in unethical misconduct.”

The Supreme Court rejected the hearing panel’s recommendation and ordered that Mr. Rhodes’ client be reinstated to the active practice of law. In so doing, the Court adopted Mr. Rhodes’ argument that the lawyer seeking reinstatement must only prove rehabilitation by identifying the weakness that led to his misconduct and how he has overcome it, but he "need not establish what was or might have been the underlying cause of the identified weakness."

In the opinion, Justice John Pelander states, "A reinstatement hearing...does not necessarily require the peeling back of multiple layers of causation or psychoanalysis. Instead, the applicant must clearly and convincingly prove rehabilitation by specifically identifying the causal weakness leading to each count and explaining how the weakness has been overcome." Justice Pelander affirmed that Mr. Rhodes’ client had met that burden.

The opinion was reported in the ABA/BNA Lawyers' Manual on Professional Conduct™, a publication highly regarded as an authoritative source for news and guidance on attorney conduct and legal ethics. The manual is published by the American Bar Association and the Bloomberg BNA.

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