In the Matter of Rachel R. Alexander

SUPREME COURT OF ARIZONA
En Banc
In the Matter of a Member of the ) Arizona Supreme Court
State Bar of Arizona ) No. SB-12-0039-AP
)
RACHEL R. ALEXANDER, ) Office of the Presiding
Attorney No. 20092 ) Disciplinary Judge
) No. PDJ20119002
Respondent. )
)
) O P I N I O N
)
__________________________________)
Appeal of Hearing Panel Opinion and Disciplinary Order from the
Office of the Presiding Disciplinary Judge
SUSPENSION ORDERED
________________________________________________________________
Rachel Alexander Phoenix
In Propria Persona
John S. Gleason Denver, CO
Alan C. Obye
James S. Sudler
Independent Bar Counsel
Attorney for State Bar of Arizona
________________________________________________________________
T I M M E R, Justice
¶1 This case presents our first opportunity to issue an
opinion on the propriety of findings made and discipline imposed
by a hearing panel under our new attorney-discipline procedures.
We accept the panel’s determination that Rachel R. Alexander
violated Arizona Rules of Professional Conduct (“ERs”) 1.1,
1.7(a)(1), 3.1, and 8.4(d) and former Arizona Supreme Court Rule
53(d) and (f).1 We disagree she violated ERs 1.7(a)(2), 3.4(c),
and 4.4(a). We reduce her suspension to six months and, as a
condition for reinstatement, require her to take ten hours of
classes focusing on the ethical responsibilities of Arizona
lawyers.
BACKGROUND
¶2 Alexander was admitted to the State Bar of Arizona in
2000. She met Andrew Thomas in 2004 while he was campaigning
for the office of Maricopa County Attorney. After Thomas was
elected, Alexander became a deputy county attorney and his
special assistant. Alexander did not directly handle cases but
assisted trial lawyers with “behind-the-scenes work” and
performed non-legal tasks like disseminating information to the
public through websites, social media, and speeches.
¶3 Starting in 2006, the Maricopa County Attorney’s
Office (“MCAO”) became embroiled in well-publicized disputes,
lawsuits, investigations, and criminal prosecutions variously
1
Effective January 1, 2011, Rule 53 was renumbered and
amended as Rule 54. Throughout this opinion, we refer to the
former version of the rules as “former Rule ____” and the
current version as “Rule ____.” Unless otherwise indicated, we
cite to the current version of the Rules.
2
involving members of the Maricopa County Board of Supervisors
(the “Board”), judges serving in the Maricopa County Superior
Court, and others. These disciplinary proceedings primarily
concern Alexander’s role in a federal civil racketeering
(“RICO”) lawsuit filed by Thomas and Maricopa County Sheriff
Joseph Arpaio in 2009 against the Board, its members, four
superior court judges, and others.
¶4 MCAO and the Sheriff’s Office initially considered
filing a civil RICO lawsuit against the Board in fall 2009 but
seemingly abandoned the idea after several attorneys, including
Deputy County Attorney Peter Spaw, MCAO’s designated RICO
expert, advised against it due to a lack of supporting evidence.
Thomas reconsidered without consulting his senior advisors,
however, and directed Deputy County Attorney Lisa Aubuchon to
pursue the lawsuit.
¶5 On December 1, 2009, Aubuchon filed the RICO lawsuit
on behalf of Thomas and Arpaio in their official capacities.
She alleged that the defendants committed acts of bribery and
extortion as part of a conspiracy to hinder the investigation
and prosecution of elected officials, county employees, and
their attorneys concerning the funding and construction of a
court tower in Maricopa County.
¶6 Days after the lawsuit was filed, Thomas assigned
Alexander to the case because Aubuchon had a potential conflict
3
of interest. Alexander had no prior trial experience and only
minimal knowledge of RICO. According to Mark Faull, her
supervisor for deputy county attorney duties, Alexander
incompetently handled routine court matters, and he warned that
appointing Alexander as lead counsel in the RICO lawsuit would
be “inviting malpractice” as she lacked sufficient experience
and training.
¶7 Thomas transferred Alexander to work under Spaw’s
supervision. MCAO also retained the law firm of Ogletree,
Deakins, Nash, Smoak & Stewart (“Ogletree Deakins”) to provide
“advice, research and review of pleadings” in the RICO lawsuit,
but terminated the engagement two weeks later. Deputy County
Attorney Jeffrey Duvendack was also initially assigned to assist
Alexander but never did so. Although Spaw communicated with
opposing counsel and Thomas about the lawsuit and otherwise
worked on the matter, only Alexander appeared as counsel of
record in the lawsuit after Aubuchon withdrew.
¶8 The RICO defendants filed motions to dismiss the
complaint, and Alexander and Spaw drafted and filed responses.
While the motions were pending, Alexander and Spaw, with input
from Thomas, drafted and filed a first-amended complaint, which
added two counts. The court rejected the pleading, concluding
MCAO was not entitled to amend the complaint without leave of
the court. Alexander moved the court to either reconsider its
4
order or grant plaintiffs leave to file the amended complaint.
The court never ruled on this motion or the motions to dismiss.
In early March 2010, the court granted the Sheriff’s motion to
substitute out-of-state counsel for MCAO. One week later,
Alexander and the Sheriff’s new attorneys filed a notice
voluntarily dismissing the complaint.
¶9 Also in March 2010, at the request of the Executive
Director of the State Bar of Arizona, Chief Justice Rebecca
White Berch appointed independent bar counsel to investigate
and, as appropriate, prosecute allegations of ethical misconduct
against Thomas and other MCAO lawyers. Pursuant to former Rule
54(b)(4), bar counsel submitted a report of the investigation to
a probable cause panelist, who subsequently found probable cause
for counsel to file a formal complaint against Thomas, Aubuchon,
and Alexander. Bar counsel filed a complaint in February 2011
alleging Alexander violated six ERs during her involvement in
the RICO lawsuit and violated former Rule 53(d) and (f) by
failing to cooperate and furnish information during the
disciplinary screening investigation.2
¶10 Because bar counsel filed the complaint after the
effective date of the new rules governing disciplinary
2
The complaint also alleged thirty-three charges against
Thomas and twenty-eight charges against Aubuchon, which resulted
in an order by the hearing panel disbarring them. The panel’s
findings regarding Thomas and Aubuchon and the discipline
imposed are not part of this appeal.
5
complaints, a three-person hearing panel composed of a presiding
disciplinary judge, a lawyer volunteer, and a non-lawyer
volunteer conducted the disciplinary hearing. Ariz. R. Sup. Ct.
52. After a lengthy evidentiary hearing, the panel issued its
report finding that bar counsel had proven all charges against
Alexander. It then suspended her from the practice of law for
six months and one day. Alexander timely appealed, and
enforcement of the panel’s suspension order was stayed pending
appeal. We have jurisdiction pursuant to Article 3 and Article
6, Sections 1, 5(3), and 5(4) of the Arizona Constitution and
Supreme Court Rule 59(a).
DISCUSSION
I. Professional Misconduct
¶11 Alexander argues bar counsel failed to prove the
alleged misconduct by clear and convincing evidence. Ariz. R.
Sup. Ct. 58(j)(3). Bar counsel satisfied this burden if he
showed it was highly probable that the allegations against
Alexander were true. In re Curtis, 184 Ariz. 256, 261, 908 P.2d
472, 477 (1995). We accept the panel’s factual findings unless
they are clearly erroneous. Ariz. R. Sup. Ct. 59(l). Findings
are clearly erroneous if they are not supported by reasonable
evidence. In re Van Dox, 214 Ariz. 300, 304 ¶ 15, 152 P.3d
1183, 1187 (2007).
6
A. ER 3.1: Meritorious Claims and Contentions
¶12 ER 3.1 prohibits a lawyer from bringing or defending a
proceeding or asserting issues therein “unless there is a good
faith basis in law and fact for doing so that is not frivolous,
which may include a good faith and nonfrivolous argument for an
extension, modification or reversal of existing law.” The
hearing panel found that Alexander violated ER 3.1 by
maintaining the RICO lawsuit because both the complaint and the
proposed amended complaint were legally and factually deficient,
and she failed to sufficiently investigate the validity of the
RICO allegations.
¶13 We apply an objective standard to assess whether a
legal proceeding is frivolous, but we use a subjective standard
to determine whether the lawyer acted in good faith. In re
Levine, 174 Ariz. 146, 153, 847 P.2d 1093, 1100 (1993). To
warrant suspension, the evidence must demonstrate that the
lawyer knowingly violated ER 3.1. Id. at 153-54, 847 P.2d at
1100-01. A lawyer’s motives and knowledge can be inferred from
the frivolousness of a claim. Id. at 154, 847 P.2d at 1101(“[A]n objective standard assumes that a genuinely frivolous
claim will be known to be frivolous by most lawyers.” (quoting
Geoffrey C. Hazard, Jr., & W. William Hodes, The Law of
Lawyering: A Handbook on the Model Rules of Professional Conduct
331 (student ed. 1986))).
7
¶14 Alexander does not dispute the panel’s finding that
the RICO lawsuit was frivolous. Instead, Alexander argues she
was unaware the lawsuit was frivolous and acted in good faith by
relying on representations of more experienced MCAO lawyers
while she conducted a reasonable inquiry regarding the merits of
the RICO allegations. Alexander contends she did not know that
Spaw and other lawyers had previously advised against filing a
RICO lawsuit, she was not involved in filing the initial
complaint, she had no reason to doubt representations that MCAO
lawyers and detectives had properly investigated the allegations
underlying the RICO lawsuit, and she worked under Spaw’s
supervision.
¶15 The involvement of other lawyers in filing the RICO
complaint did not relieve Alexander of her ethical obligation to
ensure the RICO lawsuit was supported in law and fact. “What is
required of lawyers . . . is that they inform themselves about
the facts of their clients’ cases and the applicable law and
determine that they can make good faith and nonfrivolous
arguments in support of their clients’ positions.” ER 3.1 cmt.
2. Alexander relies on Unioil, Inc. v. E.F. Hutton & Co., which
held that reliance on co-counsel “may in certain circumstances
satisfy an attorney’s duty of reasonable inquiry” imposed by
Federal Rule of Civil Procedure 11. 809 F.2d 548, 558 (9th Cir.
1986), overruled in part on other grounds, Townsend v. Holman
8
Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1990), as
recognized by In re Keegan Mgmt. Co., 78 F.3d 431, 434-35 (9th
Cir. 1996). But Alexander ignores Unioil’s warning that when
relying on another lawyer, “counsel must ‘acquire[] knowledge of
facts sufficient to enable him to certify that the paper is
well-grounded in fact,’” and therefore, “[a]n attorney who signs
the pleading cannot simply delegate to forwarding co-counsel his
duty of reasonable inquiry.” Id. (citation omitted).
¶16 That Alexander worked under Spaw’s supervision
similarly did not reduce her responsibilities under ER 3.1. A
lawyer remains bound by the Rules of Professional Conduct even
when working at another lawyer’s direction. ER 5.2(a). We will
not find professional misconduct by the subordinate lawyer,
however, “if that lawyer acts in accordance with a supervisory
lawyer’s reasonable resolution of an arguable question of
professional duty.” ER 5.2(b).
¶17 We accept that when Alexander was first assigned to
the RICO lawsuit she reasonably assumed Aubuchon had properly
investigated the RICO allegations before filing the complaint.
Alexander’s compliance with ER 3.1 instead turns on whether she
sufficiently informed herself about the applicable facts and law
to make good faith and nonfrivolous arguments in maintaining the
lawsuit.
¶18 The evidence adduced at the disciplinary hearing
9
supports the panel’s finding that Alexander knowingly failed to
establish that factual and legal bases existed to continue the
RICO lawsuit. Alexander was well aware when she substituted for
Aubuchon that the complaint was deficient. Two days before
Alexander filed her notice of substitution of counsel, Spaw,
whom she relied on as “the senior RICO attorney,” sent her an e-
mail relating his “deep and profound concern about the viability
of [the RICO] action” and advising her that the complaint
appeared “legally deficient at every issue” making it “dead-on-
arrival.” Spaw advised her to draft an entirely new complaint
rather than attempt to salvage the existing one. Days later,
Spaw told Alexander she needed to “find the investigative file,”
emphasizing that “without access to the detailed facts
supporting this suit,” all efforts to “‘research’ a way out of a
dismissal with prejudice” would be “tantamount to simply
rearranging the deck chairs on the Titanic.” Contemporaneously,
a lawyer from Ogletree Deakins told Alexander, Spaw, and
Duvendack that the complaint was “weak,” particularly as it
concerned the judge defendants, and it “would have a real
problem even standing up to an initial challenge.” Alexander’s
own research confirmed she needed to “beef up” the complaint
with “more details and facts and allegations” in order to avoid
dismissal. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007) (holding complaint must state a claim “plausible on its
10
face” to avoid dismissal).
¶19 Despite the warnings from other more experienced
lawyers and the results of her research, Alexander failed to
confirm the existence of any meaningful evidence to support
plausible RICO claims. Alexander testified at the disciplinary
hearing that she maintained the RICO lawsuit in good faith by
reviewing “hundreds of documents” collected by the MCAO
executive division and hearing from “everyone [she] talked to in
the office” that judges were trying to stop prosecutions of
Board members. But this review did not enable Alexander to
correct the deficiencies in the complaint by alleging specific
facts supporting the claims of racketeering activity. For
example, in the proposed amended complaint, Alexander repeated
Aubuchon’s allegation that defendants conspired to “commit
bribery and/or extortion” but did not identify or state any
facts plausibly supporting this allegation. When asked to
identify the factual bases for these allegations and others at
the disciplinary hearing, Alexander was unable to do so, with
one exception,3 and instead either vaguely repeated that the
3
As evidence of defendants’ alleged common plan to hinder
prosecution, Alexander cited anticipated testimony from lawyer
Jack LaSota that Board member Don Stapley had told Maricopa
County Superior Court Presiding Judge Barbara Mundell “that if
she hired [lawyer] Tom Irvine to represent them, then she would
get the Court Tower.” But LaSota testified he did not recall
speaking to anyone at MCAO about this statement. Had he been
interviewed, LaSota would have related he had no direct
11
“hundreds of documents” and other prosecutors’ “statements”
supported the allegations or stated she could not recall the
bases. Similarly, when asked what facts substantiated the
statement in her response to the motions to dismiss that “[t]he
defendants have been able to obstruct Maricopa County law
enforcement officers and retaliate against their agencies,”
Alexander answered she did not recall, despite the seriousness
of the allegation and the fact she had authored it less than two
years before the hearing. The panel was justified in not
accepting Alexander’s testimony and finding she never identified
plausible evidence to support the RICO claims.
¶20 The evidence also supports a finding that Alexander
knew her factual inquiry was inexcusably deficient. Alexander
never obtained Aubuchon’s investigative file. As late as one
week before plaintiffs voluntarily dismissed the RICO lawsuit,
Aubuchon refused to produce the file because the investigative
material purportedly related to an ongoing investigation. And
Alexander never enlisted the investigative services of either
the Sheriff’s Office or MCAO’s investigation division, never saw
a police report concerning allegations of criminal activity,
and, despite the then-recent nature of events, could not recall
knowledge of such a conversation but had heard it as a “rumor”
and “gossip.” Alexander’s belief about LaSota’s anticipated
testimony did not show she had identified a factual basis for
her allegation of a common plan.
12
at the disciplinary hearing whether she ever located anyone
familiar with an investigation of the RICO allegations.
¶21 Although Alexander could not identify any facts to
plausibly support the RICO lawsuit and knew the complaint was,
in Spaw’s words, “dead on arrival,” she nevertheless filed an
opposition to its dismissal. And because Alexander knew the
lawsuit was frivolous, she cannot escape responsibility for her
misconduct by blaming Spaw. ER 5.2 cmt. 1 (“[I]f a subordinate
filed a frivolous pleading at the direction of a supervisor, the
subordinate would not be guilty of a professional violation
unless the subordinate knew of the document’s frivolous
character.”); see also id. cmt. 2 (“When lawyers in a
supervisor-subordinate relationship encounter a matter involving
professional judgment as to ethical duty, the supervisor may
assume responsibility for making the judgment. . . . [But] [i]f
the question can reasonably be answered only one way, the duty
of both lawyers is clear and they are equally responsible for
fulfilling it.”). For all these reasons, the panel was
justified in finding that Alexander knowingly maintained a
frivolous lawsuit in violation of ER 3.1.
B. ER 4.4(a): Respect for Rights of Others
¶22 The hearing panel found that Alexander violated ER
4.4(a), which prohibits lawyers in the course of representing
clients from “us[ing] means that have no substantial purpose
13
other than to embarrass, delay, or burden any other person.”
Specifically, the panel concluded that Alexander’s failure to
specify evidence of racketeering, bribery, or any other crime in
the proposed amended complaint demonstrated she pursued the
lawsuit as “political payback” for Thomas.
¶23 To determine whether Alexander’s means in representing
Thomas and Arpaio had a substantial purpose other than
embarrassing, delaying, or burdening the RICO defendants, we
examine her motives. In re Levine, 174 Ariz. at 154, 847 P.2d
at 1101. In doing so, we consider Alexander’s subjective
perspective, but we ultimately apply an objective standard to
determine whether she violated ER 4.4(a). Id. As the Kansas
Supreme Court reasoned in addressing Kansas’ counterpart to ER
4.4(a), “[a] lawyer cannot escape responsibility for a violation
based on his or her naked assertion that, in fact, the
‘substantial purpose’ of conduct was not to ‘embarrass, delay,
or burden’ when an objective evaluation of the conduct would
lead a reasonable person to conclude otherwise.” In re Comfort,
159 P.3d 1011, 1020 (Kan. 2007).
¶24 Bar counsel argues that he proved the violation by
showing the lack of any legal or factual basis for the RICO
lawsuit and that Alexander was “adamant” the suit continue. It
does not necessarily follow from these facts, however, that
Alexander was motivated to pursue the RICO lawsuit as a means of
14
“political payback.” Whatever Thomas’s and Aubuchon’s motives
for pursuing the RICO lawsuit may have been, they cannot be
attributed to Alexander without evidence she shared them. But
no evidence showed Alexander had any involvement in the disputes
between MCAO and the RICO defendants or that she was personally
affected by any defendant’s alleged misdeeds.4 She did not serve
as one of Thomas’s senior advisors, she was not involved in the
decision to initiate the lawsuit, and she did not ask to be
assigned to the case. At most, the evidence showed Alexander
was motivated to pursue the RICO lawsuit in order to please
Thomas, thereby furthering her career at MCAO. For these
reasons, we reject the panel’s finding that Alexander violated
ER 4.4(a).
C. ER 1.1: Competence
¶25 The hearing panel found that Alexander violated ER
1.1, which requires a lawyer to “provide competent
representation to a client” by employing “legal knowledge,
skill, thoroughness and preparation reasonably necessary for the
representation.” The panel relied on expert testimony that the
4
In 2007, at Thomas’s request, Alexander compiled a list of
“comments by judges critical of [Thomas] and [MCAO] office
policies.” Although this task undoubtedly informed Alexander of
Thomas’s concern about what judges communicated about him, it
did not involve her in any such disputes or provide a basis to
infer that she bore any grudges. Consequently, we reject bar
counsel’s contention that Alexander’s performance of this
assignment evidenced a motive two years later to burden or
embarrass some of the listed judges in the RICO lawsuit.
15
RICO complaint and proposed amended complaint did not meet
minimal standards and the fact that Alexander, in responding to
motions to dismiss, asked the district court to act outside its
adjudicative role by advising how RICO law could be changed to
prospectively avoid dismissals of similar lawsuits. Alexander
does not contest that the complaint and proposed amended
complaint were deficient but argues she nevertheless provided
ethically competent representation by educating herself about
RICO issues while working at the direction of Spaw and other
more experienced lawyers. Bar counsel counters that she
violated ER 1.1 because she maintained a fatally defective
lawsuit.
¶26 A lawyer’s negligence in handling a matter does not
necessarily constitute a violation of ER 1.1. In re Curtis, 184
Ariz. at 261, 908 P.2d at 477. A lawyer crosses the line
between negligence and unethical incompetence by failing to
possess or acquire the legal knowledge and skill necessary for
the representation or by neglecting to investigate the facts and
law as required to represent the client’s interests. See id. at
262, 908 P.2d at 478; see also ER 1.1 cmts. 1-2, 4-5. In
deciding whether a lawyer violated ER 1.1, “[t]he focus is not
on whether a lawyer may have neglected a particular task, but
rather whether his or her representation in the ‘broader context
of the representation’ reflects the knowledge, skill,
16
thoroughness, and preparation that the rule requires.” In re
Obert, 282 P.3d 825, 837-38 (Or. 2012) (quoting In re Magar, 66
P.3d 1014, 1022 (Or. 2003)). We employ an objective standard to
assess competent representation. Id. at 837.
¶27 The evidence supports the panel’s finding that
Alexander violated ER 1.1. First, Alexander lacked the legal
knowledge and skill to represent Thomas and Arpaio in the RICO
lawsuit. When she substituted as counsel for Aubuchon,
Alexander had minimal litigation experience and had never tried
a case. ER 1.1 cmt. 1 (noting that factors used to determine
requisite knowledge and skill “include the relative complexity
and specialized nature of the matter” and “the lawyers’ general
experience”). In the years preceding her representation in the
RICO lawsuit, Alexander’s duties primarily involved non-
litigation-related tasks such as serving on a MCAO grant
committee, acting as MCAO’s social media liaison, and making
community presentations. And according to Faull, Alexander’s
performance of basic court coverage duties was deficient. In
sum, Alexander was not sufficiently skilled to represent Thomas
and Arpaio in a civil RICO lawsuit, which, according to an
expert witness, typically involves “amazingly complex” issues
that challenge even seasoned lawyers.
¶28 Alexander correctly contends that a lawyer can
acquire competence through study and association with more
17
experienced lawyers. See id. cmt. 2 (“A lawyer can provide
adequate representation in a wholly novel field through
necessary study. Competent representation can also be provided
through the association of a lawyer of established competence in
the field in question.”), cmt. 4 (“A lawyer may accept
representation where the requisite level of competence can be
achieved by reasonable preparation.”). But the record belies
Alexander’s contention that she attained competence in this
manner. When Alexander substituted as counsel, one defendant
had already moved to dismiss the complaint and other defendants
quickly followed. Alexander had insufficient time to educate
herself about RICO to enable her to competently assess the
viability of the complaint, draft an amended complaint, and
respond to the motions. And although Alexander initially
thought she would receive assistance from experienced RICO
counsel, that expectation quickly vanished. Spaw immediately
informed her that he had little experience with federal RICO
lawsuits and she likely had a better sense of the relevant facts
and law than he did. Ogletree Deakins’ services were terminated
after two weeks, and Duvendack never assisted Alexander. The
best evidence of Alexander’s lack of legal skill and knowledge
and her inability to sufficiently attain competency through
study and association with other lawyers is her defense of the
legally deficient complaint and her proposed amended complaint,
18
which was likewise legally deficient.
¶29 Second, for the reasons previously explained, see
supra ¶¶ 18-21, Alexander violated ER 1.1 by failing to
sufficiently investigate the factual and legal bases for the
RICO lawsuit. See ER 1.1 cmt. 5 (“Competent handling of a
particular matter includes inquiry into and analysis of the
factual and legal elements of the problem, and use of methods
and procedures meeting the standards of competent practitioners.
It also includes adequate preparation.”).
¶30 We reaffirm that a lawyer’s negligence does not
necessarily constitute a violation of ER 1.1. In re Curtis, 184
Ariz. at 261, 908 P.2d at 477. But considering Alexander’s
responsibilities in a complex RICO lawsuit relative to her
limited legal experience and insufficient preparation, we agree
with the panel she violated ER 1.1. Although we can appreciate
Alexander’s apparent desire to fulfill Thomas’s assignment, she
was ethically required to assess her legal skill level and
refuse the assignment as beyond her capabilities.
D. ER 1.7: Conflict of Interest: Current Clients
¶31 ER 1.7(a)(1) prohibits a lawyer from representing one
client directly adverse to another client. The panel found that
Alexander violated ER 1.7(a)(1) by suing the Board while her
office simultaneously served as the Board’s lawyer. Alexander
argues this finding is erroneous because the Board had fired
19
MCAO as its lawyer before the RICO lawsuit was filed.
¶32 In December 2008, the Board declared that MCAO had a
conflict of interest representing the Board due to ongoing
disputes. Consequently, the Board retained private counsel to
advise it, created its own “General Litigation Department,” and
refused to send new civil litigation matters, except tax cases,
to MCAO’s civil division. MCAO disputed the legality of the
Board’s action and filed an action seeking declaratory relief.
Because the Board-declared conflict was pending when Alexander
maintained the RICO lawsuit, she argues she did not
simultaneously act as the Board’s lawyer and therefore did not
violate ER 1.7(a)(1).
¶33 Unquestionably, the lawyer-client relationship between
MCAO and the Board continued during the life of the RICO
lawsuit. First, A.R.S. § 11-532(A)(9) required MCAO to act as
the Board’s legal advisor and represent it in civil disputes.5
Cf. Bd. of Supervisors of Maricopa Cnty. v. Woodall, 120 Ariz.
379, 382, 586 P.2d 628, 631 (1978) (holding that a board of
supervisors lacks ability to retain outside counsel to perform a
county attorney’s duties unless the county attorney refuses to
5
Our court of appeals, relying on A.R.S. § 11-532(A)(9) and
Board of Supervisors of Maricopa County v. Woodall, 120 Ariz.
379, 586 P.2d 628 (1978), ultimately held that the Board lacked
authority to retain non-MCAO lawyers to advise and represent the
Board except under certain circumstances and on a case-by-case
basis. Romley v. Daughton, 225 Ariz. 521, 527 ¶¶ 28-29, 241
P.3d 518, 524 (App. 2010).
20
act, is incapable of doing so, or is unavailable). Alexander
effectively acknowledged the continuing lawyer-client
relationship by alleging in the proposed amended complaint that
the Board had “unlawfully usurped plaintiff Thomas’s authority
to serve as legal counsel to the Board and to defend Maricopa
County in civil actions.” Second, even if the Board’s actions
were lawful, MCAO continued to represent the Board on tax
matters and the Board only referred new civil cases to its
General Litigation Department, presumably leaving pending cases
with MCAO. In sum, MCAO and the Board had an existing lawyer-
client relationship during the RICO lawsuit, and Alexander
violated ER 1.7(a)(1) by perpetuating the RICO lawsuit against
the Board.
¶34 The panel also found that Alexander violated ER
1.7(a)(2), which prohibits a lawyer from representing a client
if “there is a significant risk that the representation . . .
will be materially limited . . . by a personal interest of the
lawyer.” The panel determined that Alexander violated this rule
because her judgment was limited by “self-interest and personal
animosity.” For the reasons previously explained, see supra ¶
24, the evidence does not reflect that Alexander pursued the
RICO lawsuit for reasons of personal animus or self-interest.
¶35 Bar counsel nevertheless argues that the panel
properly imputed Thomas’s personal interests to Alexander
21
pursuant to ER 1.10(a), which prohibits a lawyer from
representing a client when another lawyer in the firm would be
prohibited from doing so due to a conflict of interest. A
conflict of interest based on the prohibited lawyer’s personal
interests, however, will not be imputed unless a significant
risk exists that the associated lawyer’s representation would be
materially limited. ER 1.10(a). The lawyer’s representation is
“materially limited” if the prohibited lawyer’s personal
interests would adversely affect the associated lawyer’s loyalty
to the client or threaten the confidentiality of information.
Id. cmt. 3 (“The rule in paragraph (a) does not prohibit
representation where neither questions of client loyalty nor
protection of confidential information are presented.”). Bar
counsel does not explain how Thomas’s animosity towards the RICO
defendants threatened either Alexander’s loyalty to Thomas and
Arpaio or confidential information, and the record does not
reveal such a threat. We therefore reject the panel’s finding
that Alexander violated ER 1.7(a)(2).
E. ER 3.4(c): Fairness to Opposing Party and Counsel
¶36 The panel found that Alexander violated ER 3.4(c) by
basing the RICO lawsuit in part on allegations that some
defendants had initiated bar complaints against Thomas and other
MCAO lawyers, even though Rule 48(l) prohibits civil lawsuits
against bar complainants. ER 3.4(c) prohibits a lawyer from
22
“knowingly disobey[ing] an obligation under the rules of a
tribunal except for an open refusal based on an assertion that
no valid obligation exists.” Although Alexander raises multiple
challenges to the panel’s finding, the dispositive issue is
whether she “knowingly” violated Rule 48(l).
¶37 Alexander “knowingly” violated Rule 48(l) only if she
had actual knowledge of the rule when she maintained the RICO
lawsuit. ER 1.0(f) (defining “knowingly” as “actual knowledge
of the fact in question”). A showing that Alexander should have
known her conduct violated Rule 48(l) is insufficient to prove a
violation of ER 3.4(c). In re Tocco, 194 Ariz. 453, 457 ¶ 11,
984 P.2d 539, 543 (1999).
¶38 The record does not contain clear and convincing
evidence that Alexander knowingly violated Rule 48(l).
Alexander was not asked at the hearing about her awareness of
Rule 48(l), and she testified she could not recall researching
“the nature of immunity provided to complainants in Bar
proceedings” before filing the proposed amended complaint. The
motions to dismiss the complaint argued that defendants were
immune from civil liability for initiating bar complaints, but
none cited Rule 48(l) or cases relying on that rule. Although
Alexander may have been negligent by maintaining the RICO
lawsuit in ignorance of Rule 48(l), no evidence establishes she
actually knew of her violation. We therefore reject the panel’s
23
finding that Alexander violated ER 3.4(c).
F. ER 8.4(d): Misconduct
¶39 ER 8.4(d) provides “[i]t is professional misconduct
for a lawyer to . . . engage in conduct that is prejudicial to
the administration of justice.” The panel found that Alexander
violated this ER by maintaining the RICO lawsuit against the
judges, who were absolutely immune from civil damages lawsuits.
According to the panel, Alexander, along with Thomas and
Aubuchon, “pursued the RICO action to retaliate against the
named judges and to intimidate the judges of the Superior
Court,” thereby prejudicing the administration of justice.
¶40 Alexander argues the panel erred because no evidence
suggests she intended to retaliate against or intimidate judges.
But ER 8.4(d) does not require a mental state other than
negligence. In re Clark, 207 Ariz. 414, 418 ¶ 16, 87 P.3d 827,
831 (2004). Consequently, for purposes of assessing a violation
of ER 8.4(d), Alexander’s motives in maintaining the RICO
lawsuit are immaterial.
¶41 Alexander also contends the panel erred because it was
debatable whether the defendant judges were immune from civil
liability. We disagree. Judges are absolutely immune from
civil damages lawsuits based on judicial acts taken within their
subject matter jurisdiction, “even when the judge is accused of
acting maliciously and corruptly.” Piersen v. Ray, 386 U.S.
24547, 554 (1967); accord Stump v. Sparkman, 435 U.S. 349, 356
(1978); Acevedo v. Pima Cnty. Adult Prob. Dep’t, 142 Ariz. 319,
321, 690 P.2d 38, 40 (1984).6 A judge loses that immunity only
when acting in a non-judicial capacity or in “complete absence
of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12
(1991); see also Acevedo, 142 Ariz. at 321, 690 P.2d at 40(“[Judges] are not liable in a civil action for damages for
their judicial acts, even when such acts are in excess of their
jurisdiction or are alleged to have been done maliciously or
corruptly.”).
¶42 Alexander unquestionably maintained the RICO lawsuit
against the judges for judicial acts taken in criminal cases
over which the judges had subject matter jurisdiction. For
example, the complaint and proposed amended complaint alleged as
racketeering acts that one judge ignored state law in quashing a
grand jury subpoena and in disqualifying MCAO from investigating
court tower project expenditures, and another judge wrongly
failed to recuse himself from presiding over a criminal case and
then issued an improper ruling. Alexander’s response to the
6
Alexander argues she presented authority in her response to
the motions to dismiss that the judges were not immune from the
RICO lawsuit. The cases cited by Alexander did not support her
position because they either involved a claim for injunctive
relief rather than civil damages, Pulliam v. Allen, 466 U.S.
522, 524 (1984), or concerned criminal RICO charges, United
States v. Maloney, 71 F.3d 645, 649 (7th Cir. 1995); United
States v. Grubb, 11 F.3d 426, 430 (4th Cir. 1993).
25
motions to dismiss the complaint highlighted that the RICO
claims against the judges stemmed from their rulings:
“Defendant judges willfully acted unlawfully by ignoring the law
and issuing rulings shielding themselves and other defendants
from investigation and prosecution.” The judges’ rulings
constituted judicial acts, as they were acts typically performed
by judges and involved cases. See Ashelman v. Pope, 793 F.2d
1072, 1075-76 (9th Cir. 1986) (listing factors relevant in
deciding whether an act is judicial, including whether it is a
function normally performed by a judge and relates to a case).
Consequently, the defendant judges were immune from the claims
alleged in the RICO lawsuit.
¶43 Alexander finally argues that because the judges only
testified they were adversely affected by the filing of the RICO
lawsuit, maintaining the lawsuit did not prejudice the
administration of justice. We readily reject this argument. A
violation of ER 8.4(d) turns on whether a lawyer’s conduct
prejudiced the administration of justice rather than the
particular persons affected. Judicial immunity from civil
damages lawsuits exists to assure that judges will perform
judicial functions independently and without fear of personal
consequences, thereby facilitating the proper administration of
justice. See Stump, 435 U.S. at 355-56 (“As early as 1872, the
Court recognized that it was ‘a general principle of the highest
26
importance to the proper administration of justice that a
judicial officer, in exercising the authority vested in him,
[should] be free to act upon his own convictions, without
apprehension of personal consequences to himself.’” (alteration
in original) (quoting Bradley v. Fisher, 80 U.S. 335, 347
(1871)). Alexander impeded the administration of justice by
demonstrating to all judges in Maricopa County that they risked
having to defend against a civil damages lawsuit if they made
rulings that displeased MCAO. We agree with the panel that
Alexander violated ER 8.4(d) by maintaining the RICO lawsuit
against the defendant judges.
G. Former Rule 53: Failure to Cooperate
¶44 The panel found that Alexander failed to promptly
respond to bar counsel’s screening investigation letter and
instead filed numerous “meritless, frivolous and dilatory
motions, replies, and special actions” with the probable cause
panelist and this Court in an effort to “delay, obstruct and
burden” the screening investigation. According to the panel,
Alexander’s conduct justified application of former Rule 53,
which authorized discipline against any lawyer who failed to
either cooperate with state bar officials and staff performing
their duties, or promptly furnish a full and complete response
27
to bar counsel’s inquiry. Ariz. R. Sup. Ct. 53(d), (f) (2010).7
Alexander does not contest that her filings were “meritless,
frivolous and dilatory” and designed to “delay, obstruct and
burden” the investigation; we therefore accept those findings.
Instead, she argues that because she justifiably relied on her
lawyers to properly respond to the screening investigation
letter, she cannot be disciplined under former Rule 53 for their
actions. She alternately contends that discipline under this
rule is not warranted because her lawyers ultimately provided a
comprehensive response to the screening investigation letter.
¶45 Alexander did not insulate herself from application of
former Rule 53 by retaining lawyers to represent her in the
investigation process. We agree with the holding of the Kansas
Supreme Court, which addressed application of Kansas’ equivalent
to former Rule 53 in a similar situation:
A respondent who retains an attorney to represent him
or her in a disciplinary proceeding is not relieved of
the responsibilities . . . to cooperate with and
provide information to the Disciplinary Administrator.
. . . Retained counsel must comply with those duties
just as thoroughly as if respondent is communicating
directly with the Disciplinary Administrator’s office.
. . . [R]ules violations by a retained attorney may be
imputed to the respondent unless the respondent
demonstrates he or she could not reasonably know that
retained counsel was obstructing the investigation.
In re Doudin, 249 P.3d 1190, 1198-99 (Kan. 2011).
7
The substance of former Rule 53(d) and (f) is now set forth
in Rule 54(d).
28
¶46 Alexander knew her lawyers were obstructing the
investigation. Bar counsel sent Alexander’s lawyers a screening
investigation letter on April 13, 2010, advising of the
misconduct allegations against Alexander, requesting a written
response within twenty days, and unequivocally reminding them of
Alexander’s ethical obligation to cooperate in the
investigation. Rather than comply with this request, the
lawyers filed five motions with the probable cause panelist over
the course of the next month, all seeking to stop, delay, or
otherwise burden the investigation. After the probable cause
panelist denied the motions, Alexander’s lawyers challenged the
ruling by filing three special action petitions with this Court,
which we declined to consider. Alexander expressly permitted
her lawyers to file all these documents. The panel did not err,
therefore, by holding her responsible for her lawyers’ efforts
to burden the investigation.
¶47 We also reject Alexander’s assertion that she complied
with former Rule 53 by ultimately providing a comprehensive
written response to bar counsel’s screening investigation
letter. The response was not “prompt,” as Alexander’s lawyers
sent it more than two months after the date requested by bar
counsel. See Ariz. R. Sup. Ct. 53(f) (2010). Consequently,
regardless of the comprehensive nature of Alexander’s response
to the screening letter, it came too late to satisfy her
29
obligation to “promptly” respond. We agree with the panel that
discipline was warranted under former Rule 53.
II. Sanction Imposed
¶48 Alexander alternately argues the panel erred by
suspending her from the practice of law for six months and one
day. She contends that reprimand or censure is the appropriate
sanction. We review the imposed sanction de novo as a question
of law. In re Phillips, 226 Ariz. 112, 117 ¶ 27, 244 P.3d 549,
554 (2010). Although we consider the panel’s view, we do not
defer to it because we are ultimately responsible for deciding
the appropriate sanction. Id.¶49 We determine suitable disciplinary sanctions in
conjunction with the American Bar Association’s Standards for
Imposing Lawyer Sanctions (“Standards”) and, when appropriate, a
proportionality analysis. Ariz. R. Sup. Ct. 58(k). The
sanction imposed, however, is tailored to the unique
circumstances of the case. In re Wolfram, 174 Ariz. 49, 59, 847
P.2d 94, 104 (1993). Standard 3.0 lists four factors for courts
to examine in deciding an appropriate sanction: “(a) the duty
violated; (b) the lawyer’s mental state; (c) the potential or
actual injury caused by the lawyer’s misconduct; and (d) the
existence of aggravating or mitigating factors.” Alexander’s
challenge on appeal focuses on factors (b)-(d).
¶50 The Standards provide presumptive sanctions for
30
misconduct that depend on the lawyer’s mental state when
violating a particular duty and the resulting injury or
potential injury. After the presumptive sanction is identified,
the Court considers any aggravating and mitigating factors to
determine the appropriate sanction. Standards, Preface, § I(B).
The Standards do not account for multiple findings of misconduct
but suggest that, at a minimum, the imposed sanction align with
the sanction for the most serious finding. Standards,
Theoretical Framework, § II.
A. Duty
¶51 Alexander’s most serious misconduct was maintaining
the RICO lawsuit while knowing it lacked legal and factual
merit, thereby violating duties she owed the public and the
legal system. See Standards 5.0, 6.0. We recognize that
Alexander’s most important ethical duty was the one owed her
clients. See Standards, Theoretical Framework, § II (“In
determining the nature of the ethical duty violated, the
standards assume that the most important ethical duties are
those obligations which a lawyer owes to clients.”). Although
she maintained the lawsuit against the Board knowing MCAO was
statutorily required to represent the Board in civil matters,
see supra ¶ 33, her maintenance of the unfounded RICO lawsuit
was the more serious misconduct because it resulted in more
injury and potential injury to the public and the legal system
31
than the Board suffered as a result of being sued by its own
lawyers. Consequently, Standard 5.2, applicable to cases
involving public officials who prejudice the administration of
justice, and Standard 6.2, applicable to cases involving non-
meritorious claims, guide our analysis.
B. Mental State
¶52 Alexander’s mental state when she violated her duties
to the public and the legal system affects the presumptive
sanction. In re Phillips, 226 Ariz. at 117-18 ¶ 31, 244 P.3d at
554-55. Not surprisingly, the Standards recommend more severe
sanctions for intentional or knowing misconduct than negligent
misconduct, which threatens less harm. Id. at 118 ¶ 31, 244
P.3d at 555.
¶53 The hearing panel found that Alexander acted knowingly
by maintaining the RICO lawsuit without a factual or legal
basis. Alexander disputes the panel’s finding, arguing she
acted negligently, at most, because she relied on the expertise
of supervising and senior lawyers at MCAO in concluding that the
RICO lawsuit was well founded. For the reasons previously
explained in discussing Alexander’s violation of ER 3.1, see
supra ¶¶ 12-21, we reject her argument. The panel properly
found that Alexander maintained the RICO lawsuit while knowing
it lacked a legal or factual basis.
32
C. Potential or Actual Injury
¶54 Standards 5.22 and 6.22 each provide that suspension
is presumptively warranted if the lawyer’s knowing misconduct
injures or potentially injures a party. Standard 5.22
additionally states that suspension is warranted if the
misconduct injures or potentially injures “the integrity of the
legal process.” The panel determined that Alexander’s
maintenance of the RICO lawsuit caused serious injury to both
the RICO defendants and the legal process.
¶55 Alexander again asserts that because the RICO
defendants testified they were harmed by the filing of the
lawsuit rather than its maintenance, she did not injure them.
Alexander splits too fine a hair. No RICO defendant testified
he or she suffered injury solely from Aubuchon’s act of filing
the lawsuit. And common sense tells us that as the RICO lawsuit
lingered with attendant public scrutiny, the defendants
experienced increased levels of distress. All the RICO
defendants testified about the emotional upheaval and anxiety
caused by the lawsuit. One lawyer defendant, for example,
described the harm to his business relationships, reputation,
and family as a result of being accused of bribing a judge and
added that his law firm spent approximately $300,000 to defend
the RICO lawsuit. A judge defendant testified he was impacted
emotionally by both the RICO lawsuit and companion criminal
33
charges, became “severely depressed,” and had to “battle through
it” with the support of family and colleagues. Had Alexander
voluntarily dismissed the RICO lawsuit instead of defending it,
defendants’ injuries could have been minimized.
¶56 Alexander briefly argues the panel erred because the
evidence did not demonstrate how her misconduct caused injury or
potential injury to the integrity of the legal process. As
previously explained, see supra ¶ 43, Alexander’s misconduct
prejudiced the administration of justice by improperly
threatening civil damages against judges for their judicial
acts. Indeed, one judge defendant testified that the lawsuit
caused her to retire to avoid the possibility that her continued
role on the bench would “smear[] [her] colleagues, the
institution, where the public must have trust and confidence in
order for courts to operate appropriately.” Ample evidence
supports the panel’s finding that Alexander’s misconduct injured
the legal process.
D. Aggravating and Mitigating Factors
¶57 Because Alexander engaged in knowing misconduct that
injured the RICO defendants and the legal process, the
presumptive sanction in this case is suspension. See Standards
5.22, 6.22. The sanction to be imposed, however, requires
consideration of any pertinent aggravating and mitigating
factors. See Standard 9.1.
34
¶58 Referring to aggravating factors listed in ABA
Standard 9.0, and without elaboration, the panel found the
existence of four factors: (1) “pattern of misconduct”
(9.22(c)); (2) “multiple offenses” (9.22(d)); (3) “bad faith
obstruction of the disciplinary proceeding by intentionally
failing to comply with rules or orders of the disciplinary
agency” (9.22(e)); and (4) “refusal to acknowledge wrongful
nature of conduct” (9.22(g)). It found one mitigating factor:
“absence of a prior disciplinary record” (9.32(a)). Alexander
challenges the findings of all aggravating factors. Aggravating
factors need only be supported by reasonable evidence. In re
Abrams, 227 Ariz. 248, 252 ¶ 27, 257 P.3d 167, 171 (2011).
¶59 Alexander disputes she committed multiple offenses or
obstructed the disciplinary process but offers no arguments not
previously rejected. The panel correctly found those
aggravating factors.
¶60 Alexander also asserts she acknowledged the wrongful
nature of her conduct by testifying that she might have
proceeded differently had she been aware of all pertinent
information. This lukewarm speculation is a far cry from a
sincere expression of remorse. Other testimony from Alexander
is more revealing:
Q. Now, in your deposition, I asked you if you had
any remorse for your conduct in the racketeering case.
Do you recall that question?
35
A. Vaguely.
Q. Do you recall – and I’m going to paraphrase –
your answer was, “only that you are in this proceeding
was your only remorse.” Do you recall that answer?
A. That doesn’t sound completely, but it’s something
like that.
And while the disciplinary hearing was ongoing, Alexander posted
to her personal website and published on her Twitter account
another person’s column describing the disciplinary proceedings
as “nothing but a trumped-up, meritless witch hunt” that
unfairly targeted Alexander for her conservative views.
Reasonable evidence supports the panel’s finding that Alexander
is not remorseful.
¶61 We agree with Alexander, however, that reasonable
evidence does not support the panel’s finding that she had a
pattern of misconduct. Commission of multiple offenses does not
necessarily equate to a “pattern of misconduct.” This Court has
found patterns when a lawyer had a prior disciplinary record
concerning similar misconduct, and a lawyer engaged in
misconduct involving multiple parties in different matters that
often occurred over an extended period of time. See, e.g., id.
¶¶ 25, 28 (judge pursued sexual relationships with lawyers
appearing before him over significant period of time); In re
Zawada, 208 Ariz. 232, 238 ¶ 20 & n.3, 92 P.3d 862, 868 & n.3
(2004) (prosecutor committed same type of misconduct in two
36
cases separated by years); In re Hirschfeld, 192 Ariz. 40, 41 ¶
2, 44 ¶ 18, 960 P.2d 640, 641, 644 (1998) (lawyer had past
history of discipline and committed misconduct involving
multiple clients in multiple cases); see also In re Levine, 174
Ariz. at 171-72, 847 P.2d at 1118-19 (collecting cases). These
cases demonstrate that the “pattern of misconduct” aggravator
applies to lawyers who repeatedly engage in ethical misconduct
in different contexts. Here, except for her actions in the
disciplinary process, Alexander’s misconduct arose from her
actions in a single matter, involved the same people, and
spanned approximately ninety days. And she has no prior
disciplinary record. Under these circumstances, Alexander did
not engage in a pattern of misconduct.
E. Proportionality Review
¶62 The panel did not perform a proportionality analysis,
and neither Alexander nor bar counsel presents us with other
disciplinary cases for purposes of comparison. The unique
circumstance of a deputy county attorney pursuing judges,
elected officials, a client, and others for civil racketeering
damages in a high-profile case makes it difficult to make
comparisons to ensure Alexander’s sanction fits her misconduct.
Cf. In re Phillips, 226 Ariz. at 118-19 ¶ 37, 244 P.3d at 555-56(finding that proportionality review “provide[d] little
guidance”). We are not aware of any comparable cases.
37
Consequently, the sanction imposed on Alexander must be tailored
to the unique circumstances of this case. See In re Levine, 174
Ariz. at 175, 847 P.2d at 1122 (“We have found no case with
misconduct of the unusual nature of this case, so we must tailor
the discipline to these unique facts, rather than base the
sanction on any comparison of how we have disciplined similar
misconduct.”).
F. Appropriate Sanction
¶63 In setting the appropriate sanction, we bear in mind
that the 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.” In re Zawada, 208 Ariz. at 236 ¶ 12, 92
P.3d at 866. Fulfilling these objectives promotes confidence in
the integrity of the disciplinary process. Id. The sanction is
not intended to punish the disciplined lawyer, In re Alcorn, 202
Ariz. 62, 74 ¶ 41, 41 P.3d 600, 612 (2002), although it may have
that effect.
¶64 After considering the aggravating and mitigating
factors, we conclude that the presumptive sanction of suspension
is warranted. We are not convinced, however, that Alexander
should be suspended for six months and one day. The consequence
of the additional day is that Alexander must complete a more
onerous reinstatement process and demonstrate her rehabilitation
38
before reinstatement to the active practice of law, which may
significantly extend the effective length of her suspension.8
Ariz. R. Sup. Ct. 64(e)(1); see also In re Phillips, 226 Ariz.
at 119-20 ¶ 40, 244 P.3d at 556-57. If Alexander is suspended
for six months or less, she can apply for reinstatement in a
less time-consuming process that does not require a
demonstration of rehabilitation. Ariz. R. Sup. Ct. 64(e)(2)(A).
¶65 Requiring Alexander to complete the more rigorous
application-for-reinstatement process is not necessary to
achieve the objectives of lawyer discipline.9 A suspension of
six months or less, with its attendant loss of income and
professional standing, would protect the public by deterring
Alexander and others from engaging in similar misconduct.
Alexander has no prior disciplinary record, and, although her
misconduct caused significant injury to the RICO defendants, the
public, and our system of justice, we do not discern any
evidence that her misconduct requires her to affirmatively
8
An applicant for reinstatement must provide, among other
things, financial information, describe rehabilitation efforts,
and demonstrate at a hearing that the applicant has
rehabilitated, complied with all applicable orders and rules,
and is fit and competent to practice law. Ariz. R. Sup. Ct.
65(a)(1), (b)(2). After issuance of the hearing panel’s
recommendation, this Court determines the applicant’s fitness
for reinstatement. Ariz. R. Sup. Ct. 65(b)(4).
9
Notably, bar counsel proposed a three-month suspension for
Alexander in his proposed report and order submitted to the
panel.
39
demonstrate rehabilitation before reinstatement. For example,
no evidence suggests she acted dishonestly, continued a pattern
of misconduct, abandoned a client, proceeded under the influence
of illness or chemical dependency, or was motivated by malice,
greed, or other morally deficient reason. Cf. In re Zawada, 208
Ariz. at 235 ¶ 6, 238 ¶ 20, 241 ¶ 38, 92 P.3d at 865, 868, 871(increasing suspension from six months to six months and one day
for prosecutor who intentionally deprived defendants of fair
trials in two cases); In re Moak, 205 Ariz. 351, 355-56 ¶¶ 25-
26, 359 ¶ 46, 71 P.3d 343, 347-48, 351 (2003) (altering
suspension from six months to greater than six months for lawyer
who withheld evidence in civil case and knowingly misled jury);
In re Riches, 179 Ariz. 212, 215, 877 P.2d 785, 788 (1994)
(determining three-year suspension appropriate for mentally
impaired lawyer who stole money from law firm); In re Kobashi,
177 Ariz. 584, 585-86, 870 P.2d 402, 403-04 (1994) (imposing
suspension greater than six months for lawyer who failed to file
lawsuit for injured client before expiration of statute of
limitations and then failed to communicate with or return
personal documents to client, and failed to appear in
disciplinary proceedings). If the State Bar questions whether
Alexander should be allowed to resume practice after her
suspension, it may object to her application for reinstatement,
thereby submitting the matter to the presiding disciplinary
40
judge, and potentially this Court, for review. Ariz. R. Sup.
Ct. 64(e)(2)(B).
¶66 A six-month suspension is the appropriate sanction
here. Standard 2.3 advises that a suspension term should be at
least six months. In light of the harm inflicted by Alexander’s
misconduct, we are not inclined to deviate from the Standard.
Cf. In re Alcorn, 202 Ariz. at 71 ¶¶ 32-33, 76 ¶ 51, 41 P.3d at
609, 614 (ordering six months’ suspension for lawyer who failed
to reveal a secret agreement to court that resulted in a “sham”
trial); In re Levine, 174 Ariz. at 149, 176, 847 P.2d at 1096,
1123 (imposing six months’ suspension on lawyer who filed
numerous frivolous lawsuits against former law partner and
others with no purpose but to embarrass, delay, or burden
others).
CONCLUSION
¶67 Alexander committed professional misconduct by
violating ERs 1.1, 1.7(a)(1), 3.1, and 8.4(d) and former Rule
53(d) and (f). We reject the panel’s determination that she
also violated ERs 1.7(a)(2), 3.4(c) and 4.4(a). We reduce her
suspension of six months and one day to six months, effective
thirty days from the filing date of this opinion. See Ariz. R.
Sup. Ct. 72(d). We further require Alexander to attend, during
her suspension, at least ten hours of education classes focusing
on the ethical responsibilities of Arizona lawyers. She must
41
submit proof of attendance and her notes from the classes with
any affidavit for reinstatement to the practice of law.
Alexander must attend these classes in addition to her annual
continuing legal education obligation.
_____________________________________
Ann A. Scott Timmer, Justice
CONCURRING:
_____________________________________
Scott Bales, Vice Chief Justice
_____________________________________
John Pelander, Justice
_____________________________________
Robert M. Brutinel, Justice
_____________________________________
Lawrence F. Winthrop, Judge*
*Chief Justice Rebecca White Berch has recused herself from
this case. Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Lawrence F. Winthrop, Chief Judge of
the Arizona Court of Appeals, Division One, was designated to
sit in this matter.
42