Ariz. R. Sup. Ct. 48

As amended through December 3, 2024

Rule 48 - Rules of Construction

(a)Nature of Proceedings. Discipline and disability proceedings are neither civil nor criminal, but are sui generis.

(b)Rules of Civil Procedure. Only the following Arizona Rules of Civil Procedure are applicable to discipline and disability proceedings before the presiding disciplinary judge or the hearing panel, as specifically set forth in these rules: Rules 4, 4.1, 4.2, 5, 5.1(e), 5.2(b), 5.3, 6(a), 6(c), 7.1(a), 7.1(b), 7.1(h), 8(c)-(f), 10(b)-(c), 11(a)-(c), 12(b), 12(c), 12(d), 12(e), 12(f), 16(a), 16(f)(2)(A-F), (H-I) and, (K), 16(g-h), 16(j), 26(a)(b)(1-4), -(d), and (f)-(i), 29-36, 38.1(b), 42(a), 43-44, 56, 60(b)-(d), 80(a), 80(c), and 80(d).

(c)Rules of Evidence. Except as otherwise provided in these rules, the rules of evidence applicable in the superior court shall be followed as far as practicable.

(d)Standard of Proof.

1.Lawyers and Legal Paraprofessionals. Allegations in a complaint, applications for reinstatement, petitions for transfer to and from disability inactive status and competency determinations shall be established by clear and convincing evidence. In discipline proceedings that include allegations of trust account violations, there shall be a rebuttable presumption that any lawyer or legal paraprofessional who fails to maintain trust account records as required by ER 1.15 or Rule 43, Ariz.R.S.Ct., or who fails to provide trust account records to the state bar upon request or as ordered by the committee, the presiding disciplinary judge, or the court, has failed to properly safeguard client or third-party funds or property, as required by the provisions of ER 1.15 or Rule 43, Ariz.R.S.Ct.

2.Alternative Business Structures. Allegations in a complaint or applications for reinstatement, shall be established by clear and convincing evidence. In discipline proceedings that include allegations of trust account violations, there shall be a rebuttable presumption that any ABS that fails to maintain trust account records as required by ER 1.15 or Rule 43, Ariz. R. S. Ct, or that fails to provide trust account records to the state bar upon request or as ordered by the committee, the presiding disciplinary judge, or the court, has failed to properly safeguard client or third-party funds or property, as required by the provisions of ER 1.15 or Rule 43, Ariz. R. S. Ct.

(e)Burden of Proof. The burden of proof in proceedings seeking discipline is on the state bar. That burden is on the petitioning party in proceedings seeking transfer to disability inactive status. That burden in proceedings seeking reinstatement and transfer from disability inactive status is on respondent or applicant. The burden on an alternative business structure seeking licensure after a period of revocation or suspension is on respondent alternative business structure.

(f)Related Pending Litigation. The processing of a discipline matter shall not be delayed because of substantial similarity to the material allegations of pending criminal or civil litigation, unless the presiding disciplinary judge, in the exercise of discretion, authorizes a stay for good cause shown.

(g)Non-Abatement. Unwillingness, failure of the complainant to cooperate with the state bar, withdrawal of a charge, settlement, compromise between the complainant and the respondent, or restitution by the respondent shall not abate the processing of any charge or complaint.

(h)Effect of Time Limitations. Except as is otherwise provided in these rules, time is directory and not jurisdictional. Failure to observe prescribed time intervals may result in sanctions against the violator, but does not justify abatement of any discipline or disability investigation or proceeding.

(i)Validity of Proceedings. No action taken by the presiding disciplinary judge or a hearing panel on any complaint, or by the committee, the board, or this court, shall be subject to challenge because of defective or insufficient service if, in fact, the respondent had ample notice of the discipline hearing and full opportunity to be heard. No findings or recommendations made in any proceeding shall be invalidated because of an error in pleading, or in procedure, or upon any other ground, unless upon appeal to the court, it appears from the entire record, including the evidence, that error has been committed which has resulted or will result in a miscarriage of justice.

(j)Disqualification. Members of the board, members of the committee, the members of a hearing panel, the presiding disciplinary judge, and settlement officers shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain.

(k)Effect of Dismissal, Diversion and Prior Discipline.

1. A dismissal by the state bar or the committee, or a dismissal without prejudice by the presiding disciplinary judge before a hearing on the merits, shall not bar further action based upon the same facts.

2. A dismissal or the imposition of any sanction by the presiding disciplinary judge pursuant to Rule 57, by a hearing panel that is final pursuant to Rules 58(k) or 60, or by the court on appeal after a discipline hearing, shall bar further discipline proceedings based upon the same facts before the presiding disciplinary judge, any hearing panel or the court. Respondent's acceptance of a decision by the hearing panel will also bar further action based upon the same facts.

3. Prior discipline imposed on respondent, with or without respondent's consent, shall be considered by the committee, the presiding disciplinary judge, the hearing panel, and this court in imposing discipline.

4. Successful completion of diversion under these rules pursuant to an agreement with the state bar or by order of the committee, the presiding disciplinary judge, a hearing panel, or the court, shall bar further proceedings based upon the same facts before the committee, the presiding disciplinary judge, a hearing panel, or the court.

(l)Immunity from Civil Suit. Communications to the court, state bar, committee, presiding disciplinary judge, acting presiding disciplinary judge, hearing panel members, settlement officers, mediators, the client protection fund, the peer review committee, the fee arbitration program, the committee on the Rules of Professional Conduct, participants in an approved member assistance program including those seeking assistance and those seeking to provide assistance, participants or staff of a State Bar law office or practice management assistance programs, state bar staff relating to lawyer misconduct, lack of professionalism or disability, and testimony given in the proceedings shall be absolutely privileged conduct, and no civil action predicated thereon may be instituted against any complainant or witness. Members of the board, members of the committee, the presiding disciplinary judge, hearing panel members , the peer review committee, client protection fund trustees and staff, fee arbitration committee arbitrators and staff, the Committee on the Rules of Professional Conduct, participants in an approved member assistance program, including those seeking assistance and those seeking to provide assistance, or participants or staff in a State Bar law office or practice management assistance program, state bar staff, and court staff shall be immune from suit for any conduct in the the participation in the program.

(m)Immunity from Disciplinary Complaint. Members of the board, the members of the committee, the presiding disciplinary judge, an acting presiding disciplinary judge, hearing panel members, settlement officers, bar counsel or attorneys acting under the direction or authority of such persons or the court are immune from any charge or discipline complaint alleging ethical misconduct that arises out of an administrative act performed in the exercise of discretion under the authority granted under these rules. No charge or disciplinary complaint against such persons may be docketed for filing by bar counsel or be a part of any person's disciplinary history absent a finding by the committee that the charge or complaint alleges one or more violations of the Rules of Professional Conduct. In the event such a finding is made, the matter shall be docketed but may be stayed by order of the presiding disciplinary judge upon application and a showing of good cause.

Ariz. R. Sup. Ct. 48

Added June 9, 2003, effective 12/1/2003. Amended and effective 1/20/2005. Amended Sept. 16, 2008, effective 1/1/2009;9/29/2008, effective 1/1/2009;6/30/2010, effective 1/1/2011;9/2/2014, effective 1/1/2015;9/2/2016, effective 1/1/2017;8/31/2017, effective 7/1/2018;3/30/2018, effective 7/1/2018; amended effective 1/1/2019; amended Aug. 27, 2020, effective 1/1/2021; amended Aug. 30, 2021, effective 1/1/2022.

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. former § 32-269.

ABA Model Rules 12 and 17.

Former Rules 35(a) and (b), 38(b).

Former Rule 54.

Former Rule 48, amended Dec. 12, 1991, effective Jan. 1, 1992; Oct. 30, 1996, effective Dec. 1, 1996, amended Oct. 8, 1999, effective Oct. 5, 1999; May 31, 2000, effective Dec. 1, 2000, was abrogated by order dated June 9, 2003, effective Dec. 1, 2003.