Ariz. R. Sup. Ct. 47

As amended through December 3, 2024

Rule 47 - General Procedural Matters

(a)Pleadings. There may be a complaint, an answer, an amended complaint, and an answer to an amended complaint. No other pleadings may be filed unless as permitted by these rules or otherwise permitted by the presiding disciplinary judge, the hearing panel, or the court.

1.General Rules of Pleading. Pleadings filed shall conform to the requirements of Rule 8(c), (e), and (f), Ariz. R. Civ. P., as may be applicable to these proceedings.

2.Form and Signing of Pleading. In addition to the requirements of these rules, pleadings filed shall also conform to the requirements of Rule 5.2(b), Rule 10(b) and (c) and Rule 11, Ariz. R. Civ. P., as may be applicable to these proceedings.

(b)Amendment of Pleadings.

1.To Conform To Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, but failure so to amend does not affect the result of the hearing on these issues. If evidence is objected to at the hearing on the ground that it is not within the issues made by the pleadings, the hearing panel may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to satisfy the hearing panel that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The hearing panel may grant a continuance to enable the objecting party to meet such evidence.

2.Pre-Hearing Amendments. Bar counsel may file an amended complaint, without leave of the presiding disciplinary judge, any time prior to the time an answer is filed. Prior to the commencement of a hearing on the merits, the complaint may be amended with leave of the presiding disciplinary judge, who may permit the inclusion of additional charges. The respondent shall file a response within the time remaining for response to the original pleading or within ten (10) days after service of the amended pleading, whichever period is longer. In the discretion of the presiding disciplinary judge, the hearing date may be continued to provide the respondent with adequate time to meet the factual allegations and alleged ethical violations first presented in the amended pleading.

(c)Service. Service of the complaint, pleadings and subpoenas shall be effectuated as provided in the Rules of Civil Procedure, except as otherwise provided herein. Personal service of complaints and subpoenas may be made by staff examiners employed by the state bar.

1.Service of Complaint.

(A)Individual Respondents. Service of the complaint in any discipline or disability proceeding may be made on respondent or respondent's counsel, if any, by certified mail/delivery restricted to addressee in addition to regular first class mail, sent to the last address provided by counsel or respondent to the state bar's membership records department pursuant to Rule 32(c)(4)(iii). When service of the complaint is made by mail, bar counsel shall file a notice of service with the disciplinary clerk, indicating the date and manner of mailing, and service shall be deemed complete five (5) days after the date of mailing.

(B)ABS Respondents. Service of the complaint in any discipline proceeding against an ABS or its members may be made on the designated agent for service pursuant to ACJA § 7-209 or the respondent's counsel, if any, by certified mail/delivery restricted to addressee in addition to regular first class mail, sent to the last address provided by respondent, respondent's counsel, or the designated agent for service pursuant to ACJA § 7-209. When service of the complaint is made by mail, bar counsel shall file a notice of service with the disciplinary clerk, indicating the date and manner of mailing, and service shall be deemed complete five (5) days after the date of mailing.

2.Service of Subpoena. Subpoenas shall be personally served on the parties and the person under subpoena. In the case of a respondent under subpoena, if personal service proves impracticable, service may be accomplished in such manner as the presiding disciplinary judge, upon motion and without notice, may direct, including by certified mail/delivery restricted to addressee in addition to regular first class mail, sent to the last address provided by respondent to the state bar's membership records department pursuant to Rule 32(c)(3). Whenever the presiding disciplinary judge allows an alternate form of service pursuant to this paragraph, reasonable efforts shall be undertaken by the party making service to assure that the respondent receives actual notice. If the subpoena commands the production of documents, electronically stored information, or tangible things, or the inspection of premises before trial, a notice and a copy of the subpoena must be served on each party at least 2 days before it is served on the person to whom it is directed.

(d)Motions. Procedural or substantive motions may be filed and must comply with the requirements of Rule 7.1(a), Rule 12(b), (c), (d), (e) and (f), and Rule 56, Ariz. R. Civ. P., as may be applicable to these proceedings. Motions for sanctions are governed by Rule 58(f)(3) of these rules. All motion practice shall be subject to the provisions of Rule 7.1(b), Ariz. R. Civ. P.

(e)Discovery. Discovery shall be governed as set forth in Rule 58(e) and (f).

(f)Administration of Oaths. Oaths and affirmations in discipline, disability and reinstatement proceedings shall be administered by the presiding disciplinary judge, or certified reporter.

(g)Transcript of Hearings. The disciplinary clerk shall cause a verbatim record to be made of all evidentiary hearings and oral arguments, or of other proceedings upon request of the presiding disciplinary judge or a party. Testimony recorded by electronic means is admissible for the same purposes as transcripts provided by certified reporters. Any party may request a certified reporter at that party's own expense. Upon request of the presiding disciplinary judge or the hearing panel, the disciplinary clerk shall obtain and file a copy of the written transcript of the hearing and serve a copy on the state bar and respondent. A party requesting a transcript shall arrange for transcription at the party's expense. If the record was not made by a certified reporter, the disciplinary clerk shall provide a copy of the verbatim recording to the party. If transcribed, the party shall file a copy of the transcript with the disciplinary clerk and serve a copy on the opposing party. Transcripts shall be prepared in accordance with Rule 30. The costs of the services of a certified reporter and transcripts may be included in the costs of adjudication that are assessed against the respondent pursuant to Rule 60(b).

(h)Subpoena Power. Except as otherwise provided,the disciplinary clerk shall have the power to issue subpoenas. Service of subpoenas shall be as set forth in paragraph (c)(2) of this rule.

1.Investigative Subpoenas. During the course of an investigation and prior to the filing of a complaint, the state bar may obtain issuance of a subpoena by filing a written request with the chief bar counsel or the chair or vice-chair of the committee, containing a statement of facts to support the requested subpoena. A copy of the request and subpoena shall be provided to respondent or respondent's counsel, if represented. If chief bar counsel or the chair or vice-chair of the committee approves the request, chief bar counsel or the chair or vice-chair of the committee shall issue the subpoena. The subpoena may compel a respondent to provide a written response to the allegations, as required in Rule 55(b)(1), the attendance of witnesses and the production of pertinent books, papers and documents, and answers to written interrogatories. If a deposition upon subpoena is required as result of a respondent's failure to comply with bar counsel's request for information, the deposition may be conducted at any place within the State of Arizona and the respondent shall be liable for the costs of the deposition.

2.Prehearing and Hearing Subpoenas. After filing of a complaint, the parties may prepare subpoenas as needed in the form set forth in paragraph (i) of this rule and file the subpoenas with the disciplinary clerk .

3.Objection to Issuance of Subpoena or Motion to Quash. A party, a nonparty, or a person or entity having an interest in the subject matter who has been subpoenaed may, within five (5) days of service or such other time as the committee or presiding disciplinary judge may order, file a written objection or motion to quash with the committee in the case of a request for an investigative subpoena, or with the presiding disciplinary judge in the case of a hearing subpoena. The chair of the committee or presiding disciplinary judge, as appropriate, may rule on the objection or motion to quash without oral argument.

4.Contempt. When a person subpoenaed to provide a written response to a request for information, to appear and give testimony, or to produce books, papers or documents as required by the subpoena, refuses to provide a written response, to appear or testify, or to answer any relevant or proper questions, the person may be subject to civil contempt proceedings.

A.Request for Order to Show Cause. A party may file with the presiding disciplinary judge a verified notice and request for order to show cause alleging that a person under subpoena has failed to comply with the subpoena. The presiding disciplinary judge may enter an order to show cause directing the person alleged to be in contempt to appear before the judge at a specified time and place and then and there show cause why he or she should not be held in contempt. In the case of a respondent alleged to have failed to comply with a subpoena, the order shall indicate that a finding of contempt could result in a sanction of summary suspension of his or her license to practice law.

B.Findings and Possible Sanctions. If it appears to the presiding disciplinary judge that the subpoena was regularly issued and no good cause is shown for the failure to comply with a subpoena, the presiding disciplinary judge may issue an order holding the person in contempt and impose reasonable sanctions to ensure compliance with the subpoena. In the case of a respondent found to be in contempt under these proceedings, the presiding disciplinary judge may, among other possible sanctions, summarily suspend the respondent from the practice of law until the respondent complies with the subpoena or order. An order of summary suspension issued pursuant to this rule shall have the same effect as an order of interim suspension issued by the court, as set forth in Rule 61(d). Upon verification of compliance, the presiding disciplinary judge shall enter an order of reinstatement. Nothing in this rule shall be construed to preclude allegations or findings of a violation of ER 8.1, Rule 54 of these rules, or any other applicable rule regardless of whether contempt is sought or found.

5.Deposition in Foreign Jurisdiction. Depositions may be taken outside the State of Arizona, and a copy of the order of the presiding disciplinary judge, certified by the disciplinary clerk, shall be sufficient authority to authorize the taking of a deposition. If the deponent will not voluntarily appear, the subpoena may be enforced to the full extent and in the manner provided by the law of the jurisdiction where the deposition is to be taken.

6.Subpoena upon Interrogatories. A subpoena may require a person to submit written answers to written interrogatories. The answers shall be made under oath, signed by the witness, and served within the time and at the place stated in the subpoena.

(i)Subpoenas; Form.

1. Subpoenas for the attendance of witnesses and the production of books and records shall be in substantially the following form:

BEFORE THE PRESIDING DISCIPLINARY JUDGE (THE ATTORNEY DISCIPLINE PROBABLE CAUSE COMMITTEE; CHIEF BAR COUNSEL)
In the Matter of a Member	)	Bar No. ___
of the State Bar of Arizona	)	SUBPOENA
	)	or SUBPOENA DUCES
	)	TECUM
	)

STATE OF ARIZONA

TO: (Name of Witness)

You are hereby directed to appear and attend before (Bar Counsel of the State Bar of Arizona) (Respondent and/or Respondent's Counsel) (the Attorney Discipline Probable Cause Committee) (Presiding Disciplinary Judge) of the Supreme Court of Arizona, at (address), in (city), __________ County on (day),__________ (date) __________, 20 ___, at the hour of ___ o'clock __________. m., then and there to testify in the above entitled matter.

(If the production of books, etc., is desired, add "and to bring with you the following:" and describe same).

BE WARNED THAT for failure to appear and attend as herein required, you will be deemed to be in contempt and answerable in court as provided by these rules.

By order of (the chair of the Attorney Discipline Probable Cause Committee) (the Presiding Disciplinary Judge) of the Supreme Court of Arizona.

Issued on __________, 20 ___ at __________, Arizona.

(Name)

(Presiding Disciplinary Judge)

(Chair, Attorney Discipline Probable Cause Committee)

(Chief Bar Counsel)

(Disciplinary Clerk)

Whose Address is

__________, Arizona

YOUR DUTIES IN RESPONDING TO THIS SUBPOENA

If this subpoena asks you to produce and permit inspection and copying of designated books, papers, documents, tangible things, or the inspection of premises, you need not appear to produce the items unless the subpoena states that you must appear for a deposition, hearing or trial. See Rule 45(c)(3) of the Arizona Rules of Civil Procedure.

You have the duty to produce the documents requested as they are kept by you in the usual course of business, or you may organize the documents and label them to correspond with the categories set forth in this subpoena. See Rule 45(c)(4) of the Arizona Rules of Civil Procedure.

YOUR RIGHT TO OBJECT

The party or attorney serving the subpoena has a duty to take reasonable steps to avoid imposing an undue burden or expense on you. The presiding disciplinary judge enforces this duty and may impose sanctions upon the party or attorney serving the subpoena if this duty is breached.

You may object to this subpoena if you feel that you should not be required to respond to the request(s) made. Any objection to this subpoena must be made within five (5) days after it is served upon you, or before the time specified for compliance, by filing a written objection with the Attorney Discipline Probable Cause Committee or the presiding disciplinary judge, as appropriate.

If you object because you claim the information requested is privileged or subject to protection as trial preparation material, you must express the objection clearly, and support each objection with a description of the nature of the documents, communication or item not produced so that the demanding party can contest the claim. See Rule 45(c)(5) of the Arizona Rules of Civil Procedure.

If you object to the subpoena in writing you do not need to comply with the subpoena until you are ordered to do so.

If you are not a party to the litigation, or an officer of a party, the presiding disciplinary judge may issue an order to protect you from any significant expense resulting from the inspection and copying commanded.

You may also file a motion with the presiding disciplinary judge to quash or modify the subpoena if the subpoena:

(i) does not provide a reasonable time for compliance;

(ii) requires a non-party or officer of a party to travel to a county different from the county where the person resides or does business in person; or to travel to a county different from where the subpoena was served; or to travel to a place farther than 40 miles from the place of service; or to travel to a place different from any other convenient place fixed by an order of the presiding disciplinary judge, except that a subpoena for you to appear and testify at trial can command you to travel from any place within the state;

(iii) requires the disclosure of privileged or protected information and no waiver or exception applies;

(iv) subjects you to an undue burden. See Rules 45(c)(6)(B)(iii) and 45(e) of the Arizona Rules of Civil Procedure.

If this subpoena:

(i) requires disclosure of a trade secret or other confidential research, development, or commercial trade information; or

(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party; or

(iii) requires a person who is not a party or an officer of a party to incur substantial travel expense;

the presiding disciplinary judge may either quash or modify the subpoena, or order you to appear or produce documents only upon specified conditions, if the party who served the subpoena shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that your will be reasonably compensated. See Rule 45(e) of the Arizona Rules of Civil Procedure.

2. The subpoena may, in the alternative, require a respondent to provide to bar counsel a written response to any request for information by a date certain. The subpoena may also require the person to whom it is directed to make written answer to written interrogatories to be attached thereto. The answers shall be made under oath, signed by the witness, and filed within the time and at the place therein set forth. Such subpoena shall be in substantially the following form:

BEFORE THE PRESIDING DISCIPLINARY JUDGE

(THE ATTORNEY DISCIPLINE PROBABLE CAUSE COMMITTEE)

(CHIEF BAR COUNSEL)

In the Matter of a Member	)	Bar No.
of the State Bar of Arizona	)	SUBPOENA
	)	(FOR WRITTEN RESPONSE TO
	)	REQUEST FOR INFORMATION)
	)	(UPON WRITTEN
________________________	)	INTERROGATORIES)

STATE OF ARIZONA

TO: (Name of Witness)

(FOR SUBPOENA UPON WRITTEN RESPONSE TO ALLEGATIONS)

You are hereby directed to make a written response to the allegations and serve such response on bar counsel at (address) in the City of Phoenix, Arizona 850 ___, on or before ___ 20 ___.

(FOR SUBPOENA UPON WRITTEN INTERROGATORIES)

You are hereby directed to make written answers under oath, signed by you, to the written interrogatories (questions) attached hereto, and to file such answers with the Disciplinary Clerk at (address), in the city of Phoenix, Arizona 850 ___, on or before __________, 20 ___.

(The remainder of this subpoena shall be the same as a regular subpoena.)

(j)Power to Enter, Amend or Vacate. Unless prohibited elsewhere in these rules, for good cause shown and in the interest of justice any order or judgment may be entered, or may be amended or vacated, by the officer or body that entered it or by a superior body.

(k)Computation of Time. Unless otherwise provided, Rules 6(a), and 6(c), Ariz. R. Civ. P., shall apply in all proceedings brought pursuant to these rules.

(l)Appearances of Counsel; Withdrawal of Counsel.

1.Prior to Filing of Formal Complaint. A respondent may elect to be represented by counsel at any stage of a discipline, disability or reinstatement matter. An attorney who wishes to file or submit papers, or otherwise appear on behalf of a respondent in any discipline, disability or reinstatement matter prior to the filing of a formal complaint shall notify the bar counsel assigned to the matter in writing of the representation. Counsel shall also notify bar counsel in writing upon termination of representation prior to the filing of a formal complaint.

2.After Filing of Formal Complaint. No attorney shall appear in any discipline, disability or reinstatement proceeding, or file anything in any such proceeding, without first appearing as counsel of record. Bar counsel who files a formal complaint shall be deemed counsel of record for the state bar, and a notice of appearance is not required. An attorney who files an answer on behalf of a respondent shall be deemed counsel of record for the respondent and no notice of appearance shall be required. An attorney who wishes to appear or file anything on behalf of the state bar after a complaint is filed, or on behalf of a respondent after an answer is filed, must file a formal notice of appearance with the disciplinary clerk, and serve a copy on the other party. An attorney who is not counsel of record may not appear or file anything unless there has been a motion for substitution, or notice of association of counsel, approved by the presiding disciplinary judge or the court.

3.On Appeal to the Supreme Court. Counsel who files an opening or answering brief on appeal shall be deemed counsel of record, and a notice of appearance is not required. Any attorney other than counsel of record who wishes to appear or file anything on behalf of either party shall file a formal notice of appearance with the clerk of the court and serve copies of the notice on the disciplinary clerk and the other party.

4.Withdrawals and Substitutions of Counsel. After the filing of a formal complaint, no attorney shall be permitted to withdraw, or be substituted, as attorney of record in any discipline, disability or reinstatement proceeding until a motion for withdrawal or substitution of counsel has been filed and approved by the presiding disciplinary judge or the court.

Ariz. R. Sup. Ct. 47

Added June 9, 2003, effective 12/1/2003. Amended Sept. 18, 2006, effective 1/1/2007;9/16/2008, effective 1/1/2009;9/29/2008, effective 1/1/2009;6/30/2010, effective 1/1/2011;8/30/2012, effective 1/1/2013;9/2/2016, effective 1/1/2017;8/31/2017, effective 7/1/2018; amended effective 1/1/2019; amended Aug. 27, 2020, effective 1/1/2021.

APPLICATION

For applicability of amending Order No. R-17-0010, effective July 1, 2018, see the Application note at the beginning of the Arizona Rules of Civil Procedure.

HISTORICAL NOTES

Source:

Laws 1933, Ch. 66, § 37.

Code 1939, § 32-337.

A.R.S. Rules Civ.Proc., Rules 4.2, 7(a).

A.R.S. former §§ 32-269, 32-270.

ABA Model Rules 12, 13, 17(B).

Former Rule 32(a).

Former Rule 34 (c to e).

Former Rule 35(b).

Revisers' addition.

Former Rule 55.

Former Rule 47, amended Oct. 7, 1991, effective Oct. 10, 1991; Dec. 12, 1991, effective Jan. 1, 1992, adopted in final form Feb. 18, 1992, amended Oct. 30, 1996, effective Dec. 1, 1996; Nov. 22, 1996, effective June 1, 1997, amended Jan. 12, 1998, effective June 1, 1998, amended and effective April 14, 1999, amended May 31, 2000, effective Dec. 1, 2000, was abrogated by order dated June 9, 2003, effective Dec. 1, 2003.