Rule 58 - Formal Proceedings(a)Complaint. Formal discipline proceedings shall be instituted by bar counsel filing a complaint or agreement for discipline by consent with the disciplinary clerk. The complaint shall be sufficiently clear and specific to inform a respondent of the alleged misconduct. The existence of prior sanctions or a prior course of conduct may be stated in the complaint if the existence of the prior sanction or course of conduct is necessary to prove the conduct alleged in the complaint. 1.Form. The complaint against any respondent and all subsequent pleadings filed before the presiding disciplinary judge should be captioned to identify the type of respondent: member of the State Bar of Arizona, licensed alternative business structure, or legal paraprofessional. 2.Service of Complaint. Bar counsel shall serve the complaint upon the respondent within five (5) days of filing and in the manner set forth in Rule 47(c). Upon receipt of the complaint and notice that bar counsel has served the complaint upon the respondent, the disciplinary clerk shall assign the matter to the presiding disciplinary judge and advise the respondent in writing of respondent's right to retain counsel.(b)Answer. Respondent shall file an answer with the disciplinary clerk and serve copies upon bar counsel of record within twenty (20) days after service of the complaint, unless, upon written request by respondent, the time is extended by the presiding disciplinary judge. The presiding disciplinary judge may grant one extension of time, not to exceed thirty (30) days. Respondent shall provide a current address in his or her answer, and confirm that the address given is the address reported to the state bar pursuant to Rule 32(c)(3). A respondent's answer must comply with Rule 8(c), Ariz. R. Civ. P.(c)Initial Case Management Conference. Within ten (10) days after an answer has been filed, the presiding disciplinary judge shall contact the parties and hold a mandatory case management conference for purposes of establishing the discovery schedule, as well as scheduling the hearing on the merits and all other prehearing conferences, unless a notice of agreement for discipline by consent or an agreement for discipline by consent has been filed. Bar counsel and respondent, and respondent's counsel, if any, shall appear for the initial case management conference. The parties may participate in the conference telephonically or by other appropriate electronic means.(d)Default Procedure; Aggravation/Mitigation Hearing. If respondent fails to answer within the prescribed time, the disciplinary clerk shall, within ten (10) days thereafter, enter that party's default and serve a copy of the notice of default upon respondent and bar counsel. A default entered by the disciplinary clerk shall be effective ten (10) days after service of the notice of default, upon which the allegations in the complaint shall be deemed admitted. A default shall not become effective if the respondent pleads or otherwise defends within ten (10) days from the service of the notice of default. Entry of default shall not be set aside except in cases where such relief would be warranted under Rule 60(b)-(d), Ariz. R. Civ. P. The presiding disciplinary judge shall schedule an aggravation/mitigation hearing before the hearing panel. Not less than fifteen (15) days before the date set for the aggravation/mitigation hearing, the presiding disciplinary judge shall serve notice of the hearing on the parties. The hearing shall be held not earlier than fifteen (15) days nor later than thirty (30) days after the entry of default. The hearing panel shall prepare a report as provided in paragraph (k) of this rule.(e)Initial Disclosure Statements. Bar counsel, within ten (10) days after the answer is filed, and respondent, within thirty (30) days after the answer is filed, shall each serve upon the other an initial disclosure statement. The initial disclosure statement shall include the following: 1. the names, addresses, and telephone numbers of any witnesses whom the disclosing party expects to call at the hearing with a description of each witness' expected testimony;2. the names and addresses of all persons whom the party believes may have knowledge or information relevant to the matter and the nature of the knowledge or information each such individual is believed to possess;3. the names and addresses of all persons who have given statements, whether written or recorded, signed or unsigned, and the custodian of the copies of those statements;4. the name and address of each person whom the disclosing party expects to call as an expert witness at the hearing, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert;5. the existence, location, custodian, and general description of any tangible evidence or relevant documents that the disclosing party plans to use at the hearing, including documentation of prior discipline bar counsel may seek to introduce;6. a list of the documents or, in the case of voluminous documentary information, a list of the categories of documents, known by a party to exist whether or not in the party's possession, custody or control and which that party intends to introduce at the hearing. Unless good cause is stated for not doing so, a copy of each document listed shall be served with the disclosure if not previously provided. If production is not made, the name and address of the custodian of the document will be indicated. A party who produces documents for inspection shall produce them as they are kept in the usual course of business;7. the existence of prior discipline or a prior course of conduct;8. evidence in aggravation or mitigation that may be presented at hearing;9. the factual and legal bases upon which the respondent may rely at hearing to contest the allegations in the complaint. (f) Discovery. 1.Time limits. Unless extended by agreement of the parties or otherwise ordered at the case management conference, all initial discovery requests must be made within thirty (30) days of the date an initial answer is filed, except that additional discovery requests may be filed within thirty (30) days of the date an answer is filed to an amended complaint. Discovery requests based upon an amended complaint shall be limited to new allegations. Discovery shall be governed by Rules 26(a) through (h) and Rules 29 through 36, Ariz. R. Civ. P., to the extent not inconsistent with these rules.2.Response time. Unless extended by agreement of the parties, answers to discovery requests, including interrogatories, requests for admission, and requests for production of documents or things, shall be provided within thirty (30) days of the date of service of the discovery request. Failure of a respondent to comply with discovery requests and disclosure requirements may be construed as failure to cooperate under Rule 54(d).3.Sanctions for failure to make disclosure or discovery. Following a good faith effort to resolve a discovery issue, either party may file a notice of failure to comply with discovery rules, which shall include a statement that an attempt was made to resolve the issue. A hearing, which may be telephonic, shall be held within five (5) days of the date the notice is filed. Evidence of compliance and non-compliance may be produced at the hearing. The presiding disciplinary judge shall enter appropriate orders at the conclusion of the hearing, which are limited to the sanctions set forth in subsections (A) and (B) of this rule. (A) Willful violation of the disclosure or discovery rules. Evidence that is not disclosed as required by these rules shall not be admitted at hearing by the non-compliant party if the presiding disciplinary judge concludes that non-compliance was willful. In making findings of fact about the allegations of misconduct, the presiding disciplinary judge shall conclude that responses to specific interrogatories and requests for admissions and production would have been adverse to the non-compliant party.(B) Other violations of the disclosure or discovery rules. The presiding disciplinary judge may utilize any of the following sanctions for non-willful violations of the disclosure or discovery rules: (i) An order refusing to allow the non-compliant party to support or oppose designated allegations, claims or defenses, or prohibiting that party from introducing designated matters in evidence;(ii) An order striking out pleadings or parts thereof, or staying further proceedings until the disclosure or discovery rules or presiding disciplinary judge order is obeyed, or dismissing designated allegations in the complaint or defenses thereto, or rendering a judgment by default against the non-compliant party.(C) Evasive or incomplete disclosure, answer, or response. An evasive or incomplete disclosure, answer, or response by a respondent may be construed as a violation under Rule 54(d).(g)Settlement Conference. After an answer has been filed and respondent is not otherwise in default, the disciplinary clerk shall assign the matter to a settlement officer, not otherwise assigned to the matter, who shall conduct at least one (1) conference for the purpose of facilitating settlement of the case, unless both parties agree otherwise. The settlement officer shall serve upon bar counsel and the respondent a notice of date and place of the settlement conference. Failure of a respondent to participate in good faith in a duly noticed settlement conference may be construed as a violation under Rule 54(d). 1.Ex Parte Communications/Confidentiality. The settlement officer may engage in ex parte communications. Discussions in the settlement conference shall not be disclosed unless stipulated to by the parties or necessary to implement the agreement of the parties.2.Settlement. In the event an agreement is reached, the settlement officer, upon agreement of the parties, may order the submission of a written agreement within thirty (30) days.(h)Prehearing Conference. At the discretion of the presiding disciplinary judge, or upon request of either party, one or more prehearing conferences may be held before the presiding disciplinary judge for the purpose of determining case status, establishing a hearing schedule, disposing of outstanding procedural matters or otherwise narrowing the issues to be presented at the hearing on the merits. If the presiding disciplinary judge intends to hear oral argument or otherwise rule on substantive motions, the parties shall be so advised in advance of the conference. The parties may participate in the conference telephonically or by other appropriate electronic means.(i)Joint Prehearing Statements. Either party may request an order directing the filing of a joint prehearing statement. The presiding disciplinary judge shall order the parties to file a joint prehearing statement if requested by either party, and may do so sua sponte. A party shall file a unilateral prehearing statement if the opposing party is not cooperating in good faith to prepare a joint prehearing statement.(j)Hearing.1.Time Limits. The hearing panel shall hold and complete the hearing on the merits within one hundred fifty (150) days of the filing of the complaint. The hearing date may be continued sua sponte by the presiding disciplinary judge, or upon request or stipulation of the parties, for good cause shown. Continuances may be granted for no more than thirty (30) days at a time, and may not extend the hearing on the merits beyond one hundred fifty (150) days from the filing of the complaint, except as otherwise provided by the presiding disciplinary judge pursuant to Rule 51(c)(4).2.Venue. The hearing shall be held in the office of the presiding disciplinary judge, unless the respondent requests that it be held in the county in which he or she resides or maintains an office for the practice of law, provided that the principles of forum non conveniens apply.3.Procedure. The state bar shall prove the allegations contained in the complaint by clear and convincing evidence. The respondent may retain counsel to provide representation at the hearing and may cross-examine witnesses and present evidence on respondent's behalf, as permitted by the rules of evidence. Rule 38.1(b), Rule 42(a), Rule 43, Rule 44, Rule 80(a), (c), and (d), Ariz. R. Civ. P., are applicable to these proceedings.4.Telephonic testimony. Telephonic witness testimony should normally be permitted if the offering party provides evidence that the witness is unavailable to testify in-person.5.Evidence of prior sanctions. The existence of prior sanctions, including those that are imposed subsequent to the filing of the complaint, may be presented to the hearing panel during the hearing on the merits of the complaint, to the extent permitted by the Rules of Evidence, or as a factor in aggravation. When determining an appropriate sanction, the hearing panel shall consider in aggravation prior sanctions that were final at the time of hearing.(k)Decision. Within thirty (30) days after completion of the formal hearing proceedings or receipt of the transcript, whichever is later, the hearing panel shall prepare and file with the disciplinary clerk a written decision containing findings of fact, conclusions of law and an order regarding discipline, together with a record of the proceedings. Sanctions imposed against lawyers and legal paraprofessionals shall be determined in accordance with the American Bar Association Standards for Imposing Lawyer Sanctions and, if appropriate, a proportionality analysis. Sanctions imposed against an ABS shall be determined in accordance ACJA § 7-209 and to the extent applicable, with the American Bar Association Standards for Imposing Lawyer Sanctions. The decision shall be signed by each member of the hearing panel. Two members are required to make a decision. A member of the hearing panel who dissents shall also sign the decision and indicate the basis of the dissent in the decision. The disciplinary clerk shall serve a copy of the decision on respondent and on bar counsel of record. The hearing panel shall notify the parties when the decision will be filed outside the time limits of this rule and shall state the reason for the delay. The decision of the hearing panel is final, subject to the parties' appeal rights as set forth in Rule 59.Added June 9, 2003, effective 12/1/2003. Amended Sept. 18, 2006, effective 1/1/2007;9/5/2007, effective 1/1/2008;9/16/2008, effective 1/1/2009;9/29/2008, effective 1/1/2009. Renumbered from Rule 57 and amended June 30, 2010, effective 1/1/2011. Amended Aug. 30, 2012, effective 1/1/2013;9/2/2014, effective 1/1/2015;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:
Revisers' addition.
Laws 1933, Ch. 66, § 40.
Code 1939, §§ 32-340.
A.R.S. former § 32-268.
Rule 23, ARCAP.
ABA Model Rules 11, 14(F), 17(E).
Former Rules 33 to 37.
Former Rule 53.
Former Rule 57, amended Dec. 12, 1991, effective Jan. 1, 1992, was abrogated by order dated June 9, 2003, effective Dec. 1, 2003.