In the Matter of Richard B. Johnson

SUPREME COURT OF ARIZONA
En Banc
In the Matter of an Application ) Arizona Supreme Court
for Reinstatement of a Suspended ) No. SB-12-0040-R
Member of the State Bar of )
Arizona ) Office of the Presiding
) Disciplinary Judge
RICHARD B. JOHNSON, ) No. PDJ20129029
Attorney No. 2118 )
)
)
Applicant. ) O P I N I O N
__________________________________)
Review of Report and Recommendation on
Application for Reinstatement from
the Office of the Presiding Disciplinary Judge
REINSTATED
________________________________________________________________
JENNINGS STROUSS & SALMON PLC Phoenix
By J. Scott Rhodes
Attorney for Richard B. Johnson
STATE BAR OF ARIZONA Phoenix
By Hunter F. Perlmeter
Attorney for State Bar of Arizona
________________________________________________________________
P E L A N D E R, Justice
¶1 Under Arizona Rule of the Supreme Court 65(b)(4), this
Court automatically reviews the disciplinary hearing panel’s
report in attorney reinstatement cases. We granted applicant
Richard B. Johnson’s request to respond to the hearing panel’s
report, which recommended denial of his application for
reinstatement to the active practice of law. Johnson challenged
the hearing panel’s recommendation and asked us to clarify the
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legal standard for reinstatement. We review questions of law de
novo, but review factual findings applying a clearly erroneous
standard. Ariz. R. Sup. Ct. 59(l); see also In re Arrotta, 208
Ariz. 509, 514 ¶ 25, 96 P.3d 213, 218 (2004).
¶2 On January 10, 2013, we issued an order reinstating
Johnson to the active practice of law. This opinion explains
our reasoning.
I.
¶3 Johnson was admitted to practice in Arizona in 1968.
He had a small law firm and focused his practice on trusts,
estates, and probate matters. In 2008, Johnson was suspended
from the practice of law for six months and one day, pursuant to
an agreement for discipline by consent. His suspension resulted
from two counts of misconduct that occurred in 2006: submitting
a will that falsely purported to be the original to the court
for admission to probate after he lost the original (count one),
and improperly purchasing a house from a client estate without
advising his client to seek independent counsel (count two).
¶4 Although Johnson became eligible for reinstatement in
2009, see Ariz. R. Sup. Ct. 64(e)(1), he did not apply until
2012. A three-member hearing panel, chaired by the Presiding
Disciplinary Judge, held a hearing at which Johnson and several
others testified. See Ariz. R. Sup. Ct. 52, 65(b)(1)(A). The
State Bar stipulated, and the hearing panel agreed, that Johnson
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had met his burden of proving “compliance with all applicable
discipline orders and rules, fitness to practice, and
competence.” Ariz. R. Sup. Ct. 65(b)(2); see also Ariz. R. Sup.
Ct. 48(e) (applicant seeking reinstatement has burden of proof).
The hearing panel therefore focused on the issues of
rehabilitation and moral qualifications. See Ariz. R. Sup. Ct.
64(a), 65(b)(2).
¶5 Johnson acknowledged his prior ethics violations.
Regarding count one, Johnson testified that he had rationalized
his preparing and filing a fabricated will because he was
embarrassed about misplacing the original will, was extremely
busy at the time, wanted to help the client, and believed nobody
would be harmed. The house-purchase misconduct in count two,
Johnson explained, resulted because he became too casual in his
professional dealings with a client, to the detriment of a
beneficiary of the estate whom Johnson did not like.
¶6 Johnson attributed his misconduct to two weaknesses:
his “moral compass failed him” and he deviated from his core
beliefs. During his extended time away from the profession,
Johnson reexamined his core values, recommitted himself to his
religious beliefs and church activities, and invested
substantial time in community service. Five people testified on
Johnson’s behalf in support of his reinstatement. No evidence
directly refuted Johnson’s evidence of rehabilitation.
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¶7 After considering all evidence, the hearing panel
found insufficient proof “that the ethical problems that led to
[Johnson’s] sanctioned behavior have been rectified.” The panel
likewise concluded that Johnson had failed to establish his
rehabilitation by clear and convincing evidence and recommended
that his application for reinstatement be denied.
II.
¶8 The requirements for reinstatement are similar to the
requirements for initial admission to the Arizona bar. Compare
Ariz. R. Sup. Ct. 34(b)(1)(B), (C), 34(c), 36(b), with Ariz. R.
Sup. Ct. 64, 65. An applicant for reinstatement must
demonstrate that he or she “possesses the moral qualifications
and knowledge of the law required for admission to practice law
in this state in the first instance.” Ariz. R. Sup. Ct. 64(a).
In addition, an applicant for reinstatement “must show by clear
and convincing evidence that [he or she] has been rehabilitated
and/or overcome his or her disability.” Id.; see also Ariz. R.
Sup. Ct. 65(b)(2); In re (Lee K.) King, 212 Ariz. 559, 563 ¶ 10,
136 P.3d 878, 882 (2006).
¶9 This additional requirement is not meant as further
punishment. In re Peterson, 108 Ariz. 255, 256-57, 495 P.2d
851, 852-53 (1972). Rather, we require evidence of
rehabilitation to protect the public. Id.; see also In re
Arrotta, 208 Ariz. at 512 ¶ 12, 96 P.3d at 216 (“[O]ur primary
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responsibility remains at all times the protection of the
public.”). Because a lawyer seeking reinstatement has already
“violated the trust placed in him as an officer of the court,”
we “‘endeavor to make certain that [we do] not again put into
the hands of an unworthy petitioner that almost unlimited
opportunity to inflict wrongs upon society possessed by a
practicing lawyer.’” In re Arrotta, 208 Ariz. at 512 ¶ 11, 96
P.3d at 216 (alteration in original) (quoting In re Pier, 561
N.W.2d 297, 300 (S.D. 1997)).
¶10 Proving rehabilitation is a two-step process. First,
the applicant must identify the weakness or weaknesses that
caused the misconduct. Id. at 513 ¶ 17, 96 P.3d at 217.
Second, the applicant must “demonstrate that he [or she] has
overcome those weaknesses.” Id. In determining whether the
applicant has proven rehabilitation by clear and convincing
evidence, we also consider the nature and extent of the
underlying misconduct because “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 (citing In re Robbins, 172 Ariz. 255, 256, 836 P.2d 965, 966
(1992)). But “the severity of a lawyer’s misconduct in itself
does not preclude reinstatement if the lawyer can establish that
he has rehabilitated himself.” Id.
¶11 In Arrotta, for example, we denied a disbarred
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lawyer’s application for reinstatement because he failed to
identify the cause of his misconduct, id. at 513 ¶ 18, 96 P.3d
at 217, and “[n]othing else in the record explain[ed]” it, id.
at 514 ¶ 21, 96 P.3d at 218. Arrotta simply did not “understand
why he acted as he did” and, in connection with the criminal
proceedings against him, wrote that he had “no good, or valid,
answer that can provide any justification” for his misconduct.
Id. at 513 ¶ 19, 96 P.3d at 217. In contrast, we found that the
applicant in Robbins had identified a “severe episode of
depression” as the cause of his misconduct, 172 Ariz. at 255,
836 P.2d at 965, and in In re (Reed W.) King the applicant
identified his “precarious financial situation” as the cause of
his misconduct, 177 Ariz. 358, 360, 868 P.2d 941, 943 (1994).
In both those cases, we ordered reinstatement.
¶12 Here, the hearing panel found that Johnson
“personally, through introspection and reflection, identified
the weaknesses that produced the misconduct and took the
necessary steps to overcome those weaknesses with self-regulated
discipline.” This is all that Arrotta requires, yet the panel
demanded more, stating that Johnson’s identification of the
weaknesses that produced the misconduct “tells us little of the
cause of that weakness.” The hearing panel required Johnson to
identify not only the weaknesses that caused the underlying
misconduct and the steps taken to overcome them, which Johnson
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did, but also the deeper “root cause” of those weaknesses or the
“character flaw that caused the decision to engage in unethical
misconduct.”
¶13 A reinstatement hearing, however, 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. Based on the record here, we
conclude that Johnson met that burden.
¶14 “[W]e recognize that, in many instances, a counselor
can assist an individual in understanding the reasons for his
ethical violations and can help the person acquire tools needed
to prevent future misconduct.” In re Arrotta, 208 Ariz. at 514
¶ 22, 96 P.3d at 218. But, as the hearing panel correctly
observed, neither mental health treatment nor expert testimony
is required to establish rehabilitation for readmission
purposes. Id. Rather, an applicant’s identification of his or
her weaknesses may suffice. See In re Robbins, 172 Ariz. at
255, 836 P.2d at 965; In re (Reed W.) King, 177 Ariz. at 360,
868 P.2d at 943.
¶15 The hearing panel found, as do we, that Johnson
identified the weaknesses underlying both counts of his prior
misconduct. The evidence on that point was sufficient to
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satisfy the first prerequisite for rehabilitation under In re
Arrotta, 208 Ariz. at 513 ¶ 17, 96 P.3d at 217.
¶16 The next issue, then, is whether Johnson convincingly
demonstrated that he has overcome his weaknesses. Id. The
applicant must show by clear and convincing evidence “the
positive actions he has taken to overcome the weaknesses that
led to his [sanction].” Id. at 515 ¶ 29, 96 P.3d at 219. “The
required demonstration may come from any number of showings.”
Id. ¶ 30. For example, the applicant may present evidence of
“participation in community or charitable organizations,
specialized instruction or education, counseling, or other
similar [activities].” Id. at 516 ¶ 31, 96 P.3d at 220. The
applicant may also present testimony from character witnesses,
whose well founded opinions “we will carefully consider.” Id.
at 515 ¶¶ 28-29, 96 P.3d at 219. In addition, an applicant’s
“[a]ccepting responsibility for past misdeeds constitutes an
important element of rehabilitation.” Id. ¶ 29. These
categories of evidence are neither exhaustive nor conclusive,
and no single piece of evidence is necessary or sufficient to
prove rehabilitation. Id. at 512 ¶¶ 13-14, 96 P.3d at 216
(stating that in evaluating an application for reinstatement, we
do not mechanically apply the pertinent factors that bear on
rehabilitation).
¶17 The hearing panel’s report refers to the abundant
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evidence Johnson presented of his efforts to rehabilitate
himself. First, Johnson acknowledged his misconduct. Second,
he engaged in extensive charitable activities and was strongly
committed to his community. Indeed, the panel noted that
Johnson’s community service during his suspension period was
undertaken “for the best of reasons” and “demonstrate[d] his
good character.” Third, the panel considered the testimony of
five individuals, each of whom strongly supported Johnson’s
reinstatement, as “aid[ing] his application.” Finally, the
panel considered Johnson’s own testimony “that core values and
character must be achieved through self discipline, adherence to
a strong moral creed, and charitable service,” principles that
governed his actions and decisions after his suspension.
¶18 Like the hearing panel, we do not view Johnson’s
positive actions in a vacuum. Rather, our analysis must
determine whether his actions show that he in fact has overcome
the identified weaknesses. See id. at 515 ¶ 29, 96 P.3d at 219.
Here, Johnson’s charitable activities, community involvement,
and recommitment to his faith are specific actions he took to
overcome his prior shortcomings.
¶19 Community service, religious commitment, and
meditative reflection are not a panacea for applicants seeking
reinstatement. But in this case, Johnson’s actions served to
advance his rehabilitation. Those actions were designed to
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realign Johnson’s moral compass and recalibrate his approach to
developing personal and professional relationships, thereby
addressing the weaknesses that led to his misconduct. We also
find significant that Johnson engaged in the various
rehabilitative activities throughout his extended time away from
the practice of law.
¶20 In concluding that Johnson had not met his burden of
showing rehabilitation, the hearing panel relied in part on In
re Lazcano, 223 Ariz. 280, 222 P.3d 896 (2010), In re (Lee K.)
King, 212 Ariz. 559, 136 P.3d 878 (2006), and In re Hamm, 211
Ariz. 458, 123 P.3d 652 (2005). These cases correctly recognize
that the applicant’s burden of proving rehabilitation increases
with the severity of the underlying conduct. But the
circumstances of those cases differ materially from those
present here. They all involved applicants who had committed
serious felonies — attempted sexual assault, attempted murder,
and first degree murder. Johnson, on the other hand, was not
charged with any crime, has no other disciplinary offenses, and
was found in the prior disciplinary proceedings in this case to
have had “no selfish or dishonest motive.” Nor did Johnson’s
misconduct involve any attempt to gain financially. We do not
take lightly the severity of the misconduct that led to
Johnson’s suspension, but the burden imposed in cases like
Arrotta on applicants who are convicted felons is not warranted
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here.
¶21 Johnson presented clear and convincing evidence of
rehabilitation, through both his own, uncontroverted testimony
and that of the several witnesses. Nothing in the hearing
panel’s report suggests that it found Johnson’s testimony not
credible or otherwise suspect. On the contrary, the panel
praised Johnson’s “laudable efforts” and accorded them
“substantial weight.”
III.
¶22 In cases such as this, “the bottom line must always be
whether the applicant has affirmatively shown that he has
overcome those weaknesses that produced his earlier misconduct,
i.e., whether he has been rehabilitated.” In re Arrotta, 208
Ariz. at 512 ¶ 14, 96 P.3d at 216 (quoting In re Robbins, 172
Ariz. at 256, 836 P.2d at 966) (internal quotation marks
omitted). We hold, however, that to prove rehabilitation an
applicant for reinstatement need not establish what was or might
have been the underlying cause of the identified weakness that
led to the misconduct. Because the hearing panel seemingly
required such a showing, and because we find no other basis for
denying Johnson’s application for reinstatement to the active
practice of law, we grant the application.
__________________________________
John Pelander, Justice
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CONCURRING:
__________________________________
Rebecca White Berch, Chief Justice
__________________________________
Scott Bales, Vice Chief Justice
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Robert M. Brutinel, Justice
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Ann A. Scott Timmer, Justice
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