Karen Clark 0000-00-00 00:00:00
CRIME AND PUNISHMENT: A TALE OF TWO SANCTIONS With the 2011 changes to the lawyer discipline system, the way lawyers who commit crimes are treated by the disciplinary authorities has changed dramatically. As before, a lawyer who is convicted of a felony or a misdemeanor involving a “serious crime” is subject to discipline. Serious crimes are defined by Rule 54(g), Ariz.R.S.Ct. as any crime “a necessary element of which, as determined by the statutory or common law definition of such crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, willful extortion, misappropriation, theft, or moral turpitude.” What has changed is the way the discipline system handles such convictions. Now, receipt by the State Bar of a certified copy of the conviction triggers an investigation to determine what sort of sanction should be imposed. During the pendency of that investigation, the lawyer is subject to immediate interim suspension. The lawyer has the opportunity to file a verified motion showing good cause why interim suspension should not be ordered. In the absence of such a showing, a lawyer convicted of a felony “shall” be suspended for up to five years - regardless of whether a post conviction motion or appeal is pending. A lawyer convictdtion. As before there is a presumption, rebuttable by clear and convincing evidence presented at a reinstatement hearing, that a lawyer who has been convicted of a felony or misdemeanor involving a serious crime and who has therefore been suspended shall be disqualified for reinstatement. Arizona courts generally hold that a presumption serves to shift the burden of producing evidence, unless the substantive common law or legislative enactment giving rise to the presumption compels a conclusion that the presumption shifts the burden of persuasion to the party opposing the presumed fact. See Golonka v. General Motors Corp., 65 P.3d 956, 204 Ariz. 575 (Ariz.App. Div. 1 2003). Supreme Court rules also require a lawyer to self report when they are convicted of a felony or misdemeanor involving a serious crime, so knowledge of what kinds of crimes fall within this requirement becomes very important. Any lawyer facing serious criminal charges is well advised to consult with competent discipline defense counsel, if they want to avoid being subject to a serious disciplinary sanction, as well as possible interim suspension, following a criminal conviction.
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