Rule 36 - [Effective until 1/1/2025] Procedure Before the Committee on Character and Fitness(a)General Provisions1.Nature of Proceedings. Proceedings before the Committee on Character and Fitness are neither civil nor criminal, but are sui generis. Proceedings shall be styled as follows: BEFORE THE COMMITTEE ON CHARACTER AND FITNESS OF THE SUPREME COURT OF ARIZONA
In the Matter of the Application of | ) |
| ________________________________________ | ) |
To be Admitted to the Practice of | ) |
Law | ) |
2.Representation by Counsel; Duties of Bar Counsel. A. Representation of the Applicant. The applicant may be represented by counsel of the applicant's choosing in any proceedings before the Committee or panels acting on its behalf.B. Representation of the Committee. In the event the Committee, by vote of a majority of its members, finds that a proposed proceeding will be complex, or for other reasons deemed sufficient, the Committee may certify to this Court that in its opinion a special investigator should be appointed from active members of the State Bar of Arizona to further investigate and present the evidence regarding the applicant's qualifications to be admitted to the practice of law in Arizona. The chief justice of this Court may appoint such a special investigator to further investigate said matter and to present all available evidence at any proceeding.C. Duties of Bar Counsel.i. Court review. Upon the Committee Chair's request, bar counsel must represent the Committee before the Court in any matter in which the applicant has petitioned for review of the Committee's decision after a hearing. In such cases, the Committee will be deemed bar counsel's client.ii. Conditional admissions. Bar counsel will monitor and supervise attorneys who have been admitted with conditions pursuant to paragraph (g) of this rule.3.Depositions and Subpoenas. All of the rules of civil procedure authorizing, relating to and governing depositions in civil proceedings within and outside the state are applicable to depositions in connection with investigations and hearings. The Committee's representative and the applicant will be entitled to have subpoenas (including duces tecum) issued by the Chair of the Committee for discovery purposes, or to require the attendance of witnesses at a deposition, hearing, and any continuance thereof. The party seeking a subpoena must file the application with the Chair of the Committee with a brief statement of the reasons for the subpoena. Subpoenas will not be issued for informal inquiries.4.Dispositional Alternatives. The Committee's investigation, informal inquiry, or hearings may result in the following range of dispositional alternatives: A. recommendation for admission;C. denial of admission, accompanied by a suggestion of re-application in the future upon the occurrence of specified circumstances, which circumstances may include the requirement the applicant obtain assistance or treatment for a specified period in the case of current substance abuse or mental or emotional instability and provide appropriate evidence of the applicant's ability to engage in the practice of law;D. recommendation for conditional admission as provided in paragraph (g). (b)Determination of Character and Fitness; Burden of Proof; Relevant Factors and Evaluation. The applicant has the burden of proving good moral character by clear and convincing evidence. The Committee must, in determining the character and fitness of an applicant to be admitted to the state bar, review, consider, and evaluate the traits, characteristics, criminal history, and conduct set forth below. 1.Relevant Traits and Characteristics. An applicant shall demonstrate current and past possession of the following traits and characteristics; a significant deficiency in one or more of these traits and characteristics in an applicant may constitute a basis for denial of admission: E. respect for law and legal institutions, and ethical codes governing attorneys.2.Conviction of a Crime and other Conduct. A. There is a presumption, rebuttable by clear and convincing evidence presented at a proceeding, that an applicant who has been convicted of a misdemeanor involving a serious crime or of any felony must be denied admission. "Serious crime" includes 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, including a conspiracy, a solicitation of another, or any attempt to commit such a serious crime.B. The Committee, acting through one of its panels, must transmit to the clerk of the Court prior to admission any recommendation for admission of an applicant who has (i) been convicted of a misdemeanor involving a serious crime, (ii) been convicted of any felony, (iii) committed conduct resulting in a felony conviction that was subsequently expunged or set aside, or (iv) been denied of professional licensure or certification in any jurisdiction.3.Other Relevant Conduct. The revelation or discovery of any of the following should be treated as cause for further detailed investigation by the Committee on Character and Fitness prior to its determination whether the applicant exhibits current and past possession of the traits and characteristics evidencing the requisite character and fitness to practice law: A. unlawful conduct not resulting in conviction of a crime as set forth in paragraph (b)(2) of this rule;C. making a false statement, including omissions;D. misconduct in employment;E. acts involving dishonesty, fraud, deceit or misrepresentation;F. abuse of legal process;G. neglect of financial responsibilities;H. neglect or disregard of ethical or professional obligations;I. violation of an order of court;J. evidence of conduct indicating mental or emotional instability impairing the ability of an applicant to perform the functions of an attorney;K. evidence of conduct indicating substance abuse impairing the ability of an applicant to perform the functions of an attorney;L. denial of admission to the practice of law in another jurisdiction on character and fitness grounds; and/orM. disciplinary complaints or disciplinary action by an attorney disciplinary agency or other professional disciplinary agency of any jurisdiction.4.Evaluation of Criminal History and Other Relevant Conduct. The Committee on Character and Fitness shall determine whether the character and fitness of an applicant qualifies the applicant for admission. In making this determination, the following factors shall be considered in assigning weight and significance to an applicant's prior conduct:A. the applicant's age, experience and general level of sophistication at the time of the conduct;B. the recency of the conduct;C. the reliability of the information concerning the conduct;D. the seriousness of the conduct;E. consideration given by the applicant to relevant laws, rules and responsibilities at the time of the conduct;F. the factors underlying the conduct;G. the cumulative effect of the conduct;H. the evidence of rehabilitation;I. the applicant's positive social contributions since the conduct;J. the applicant's candor in the admissions process; and/orK. the materiality of any omissions or misrepresentations by the applicant.(c)Recommendation for Admission Based on Preliminary Review.1. The Manager of Attorney Admissions or that person's designee will conduct a complete preliminary review of the applications based on the categories of criminal convictions and other relevant conduct listed in paragraphs (b)(2) and (3).2.Direct Recommendation. The Manager of Attorney Admissions or that person's designee will review all applications for information about the ethical or moral fitness of each applicant. The Manager or designee must inform the Committee and certify to the Court the names of those applicants who, without further investigation, appear to be qualified for admission. Those applicants not certified by the Manager will be referred to the Committee for further review.3.Additional Recommendations. The Manager of Attorney Admissions or that person's designee may recommend that a matter proceed to an informal inquiry pursuant to paragraph (e) or a hearing pursuant to paragraph (f). The Chair has discretion to order that the matter proceed accordingly.(d)Further Investigation.1. Upon completion of the preliminary review, if it is determined that there is conduct that falls within one or more of the categories listed in paragraphs (b)(2) and (3), a committee member (the "investigating member") will be designated to investigate as appropriate and evaluate whether, and to what extent, the applicant's prior criminal conviction(s) or other conduct should prevent the applicant's admission.2. In the event the investigating member requires additional information or documentation to facilitate making a determination of the applicant's character and fitness, the member may make an inquiry, either orally or in writing, to the applicant or any other person, for additional information or documentation, and may utilize the subpoena and deposition powers as set forth in paragraph (a)(3).3. After the necessary investigation, the investigating member must either (i) terminate the investigation and recommend the applicant for admission; (ii) call for an informal inquiry pursuant to paragraph (e); or (iii) request that the Chair call for a hearing pursuant to paragraph (f), which request the Chair may grant or deny.4. Notwithstanding the above provisions, an applicant must not be recommended for admission without at least an informal inquiry pursuant to paragraph (e) in any cases in which the investigation reveals and the investigating member determines that there are allegations of serious misconduct by the applicant, whether or not such conduct resulted in a criminal conviction, that involve: A. commission of a violent crime;B. fraud, deceit or dishonesty on the part of the applicant that has resulted in damage to others;C. neglect of financial responsibilities due to circumstances within the control of the applicant; D. disregard of ethical or professional obligations; orE. denial of professional licensure or certification in any jurisdiction.(e)Informal Inquiries. Informal inquiries must be held in cases involving allegations of serious misconduct specified in paragraph (d)(4) above and may also be held in other cases as determined by the investigating member. 1.Notice. Oral or written notice must be provided to the applicant, which notice must advise the applicant generally of the subject, or subjects, of the informal inquiry and the time and place thereof.2.Informal Inquiry Panel. An informal inquiry panel must consist of three members of the Committee, including at least one attorney member and one public member, assigned by Committee staff on a rotating basis. The three members may attend the informal inquiry either in person or virtually via electronic means. An informal inquiry panel will act for and on behalf of the Committee for all actions and decisions related to informal inquiries. The investigating member may participate in discussion with and questioning of the applicant during the informal inquiry but must not be part of the three-person panel and must not deliberate or vote at the conclusion.3.Consideration of Documents or Information. Documents or other information provided to the investigating member in confidence will remain confidential and may be referenced, shared or considered at the informal inquiry only if the providing party agrees. Absent such agreement, confidential information must not be referenced, shared or considered at the informal inquiry or otherwise considered by the panel in determining the applicant's character and fitness for admission to practice law. Because the objective of the informal inquiry is to informally resolve the investigating member's concerns efficiently, there is no formal introduction of exhibits or other evidence into a record at an informal inquiry. Neither the panel nor the applicant may subpoena the appearance of witnesses at an informal inquiry.4.Concurrence of Panel Members. A recommendation of admission requires the concurrence of all members of the inquiry panel. If this requirement is not met, a hearing must be held pursuant to paragraph (f).5.Decision. The inquiry panel's decision must be in writing. A. Recommendation to admit. The inquiry panel's recommendation to admit an applicant will be deemed final action by the Committee and transmitted to the Court, subject to the issuance of the certification by the clerk of this Court.B. Recommendation not to admit; hearing required. If the inquiry panel's decision is not to recommend admission, a hearing must be held pursuant to paragraph (f).C. Recommendation for conditional admission; review by the Court. The inquiry panel's recommendation for conditional admission must conform to the requirements in paragraph (g). The panel may consult with bar counsel to determine the terms of conditional admission. The decision recommending conditional admission must be transmitted to the Court for review in accordance with paragraph (h)(2).D. Notice to applicant. In all cases, the panel's decision must be mailed to the applicant at the applicant's last known address, and a copy must be mailed to the applicant's attorney of record, if applicable.(f)Hearings. The Committee will hold a hearing, as may be reasonably required and as required pursuant to this rule, to enable the Committee to determine the applicant's qualifications for admission.1.Notice. Written notice of such hearing must be given to the applicant, specifying: A. the time, place and nature of the hearing;B. the legal authority and jurisdiction under which the hearing is held;C. a reference to the particular sections of the statutes and rules involved, if applicable;D. a short plain statement as to the subject, or subjects, and purpose, of the hearing;E. that the applicant may be represented by an attorney at the hearing, that the applicant shall be afforded an opportunity to respond and present evidence of all issues involved, and that the applicant shall have the right of cross-examination; andF. that the applicant shall have the burden of proving, by clear and convincing evidence, the requisite character and fitness qualifying the applicant for admission to the practice of law in Arizona.2.Conduct of Hearings. A. Hearing Panel. The hearing panel must consist of five members, including the Chair of the Committee or his or her designee, at least two attorney members of the Committee, and at least one public member of the Committee. The members will be assigned by Committee staff on a rotating basis, none of whom shall have participated as members of the informal inquiry panel in the matter, if such informal inquiry was held. The Chair, or his or her designee, will preside over the hearing.B. The applicant or the applicant's attorney may present evidence on behalf of the applicant at the hearing. The investigating member, or an appointed special investigator, will present evidence on behalf of the Committee. The investigating member must not participate in the deliberations or vote with the hearing panel on a disposition.C. The hearing will be recorded and may be conducted without adherence to the Arizona Rules of Evidence. Neither the manner of conducting the hearing nor the failure to adhere to the Rules of Evidence will be grounds for reversing any decision by the panel provided the evidence supporting such decision is substantial, reliable and probative. Irrelevant, immaterial or unduly repetitious evidence must be excluded. The applicant has a right to be represented by counsel, to submit evidence, and to cross- examine witnesses.D. Copies of documentary evidence may be received at the discretion of the Chair or his or her designee. Upon request, any panel member, the investigating member, an appointed special investigator, the applicant, or applicant's counsel must be given an opportunity to compare the copy with the original.E. Notice may be taken of judicially cognizable facts.F. The applicant will have the burden of proving, by clear and convincing evidence, the requisite character and fitness qualifying the applicant for admission to the practice of law.3.Permissible Evidence. Documents or other information provided to the Committee in confidence will remain confidential and may be used at the hearing only if the providing party agrees. Absent such agreement, confidential information must not be presented at the hearing or otherwise considered by the panel in determining the applicant's character and fitness for admission to practice law.4.Disclosure; Discovery. Twenty (20) days before the hearing, or otherwise as agreed by the parties, the Committee and the applicant will simultaneously disclose documents and other information to be used at the hearing. The Committee need not provide to the applicant copies of documents the applicant has submitted during the application process, and applicant need not provide to the Committee copies of documents submitted with the application. Confidential information will be subject to disclosure or discovery only if the providing party has agreed to its use at the hearing as set forth in paragraph (f)(3). The Chair may permit untimely disclosed information to be admitted at hearing, for good cause shown.5.Decision. The hearing panel's recommendation requires the concurrence of a majority of the panel members. The panel's final decision must be in writing. A. Recommendation against admission. If the hearing panel recommends against admission, it must make separate findings of fact.B. Recommendation for conditional admission. If the hearing panel recommends conditional admission, the panel may consult with bar counsel to determine the terms of the conditional admission. The panel's decision recommending conditional admission must conform to the requirements of paragraph (g) and must be transmitted to the Court for review in accordance with paragraph (h)(2).C. Recommendation to admit. A decision recommending admission of an applicant whose conduct was considered under paragraph (d)(4) must be accompanied by written findings and recommendations to the Court. Written findings are not required for other decisions recommending non-conditional admissions.6.Notice to Applicant. The hearing panel's final decision must be mailed to the applicant at the applicant's last known address, and a copy must be mailed to the applicant's attorney of record, if applicable.7.Denial of Admission as Final Decision. The decision of the Committee to deny admission is final, absent the filing of a petition for review by the applicant pursuant to paragraph (h)(1) of this rule.(g)Conditional Admission1.Eligibility for Conditional Admission. An applicant who has engaged in conduct that could have previously rendered him or her unfit to practice law may be conditionally admitted if the applicant shows meaningful and sustained rehabilitation and otherwise satisfies the eligibility requirements for admission, including fitness requirements and good moral character. Applicants for admission on motion are not eligible for conditional admission.2.Conditional status. An applicant's admission to the practice of law pursuant to this paragraph is conditioned on his or her compliance with the terms of the conditional admission order. At the end of the period of conditional admission, the conditional admittee will achieve regular admission only after he or she demonstrates compliance with the terms of the conditional admission order.3.Terms of Conditional Admission. The Committee, through the assigned panel, may recommend to the Court that an applicant's admission be conditioned on the applicant's complying with conditions that are designed to detect behavior that could render the applicant unfit to practice law and to protect clients and the public. The terms of conditional admission must be attached to the Committee's decision recommending conditional admission. The terms of conditional admission will always include the length of the conditional admission and a prohibition against the violation of any criminal laws and the Arizona Rules of Professional Conduct.4.Review by Court. The recommendation for conditional admission and the terms of conditional admission will be transmitted to the Court for review as provided in paragraph (h)(2). If the Court declines review or otherwise approves the recommendation, the panel will issue an Order of Conditional Admission. The Order of Conditional Admission must include the terms of conditional admission.5.Compliance with Order of Conditional Admission. Bar counsel will monitor and supervise the conditional admittee during the period of conditional admission. The conditional admittee will be responsible for the direct costs of monitoring and supervision. At least quarterly, bar counsel must provide the Committee and staff with a status report on each conditional admittee regarding the admittee's compliance with the terms. Bar counsel must promptly report any violations to staff and solicit their input as to whether a violation is material. If bar counsel determines that the conditional admittee has materially violated the terms of the Order of Conditional Admission, bar counsel will initiate proceedings with the Committee pursuant to paragraph (g)(6).6.Violation of Order of Conditional Admission. Upon determining that the conditional admittee has materially violated the terms of the conditional admission, bar counsel must file a notice of violation with the Committee and serve a copy on the conditional admittee. The filing of a notice of violation will automatically extend the conditional admission until the matter is resolved by the Committee. As soon as practicable, the Committee must hold a hearing to determine if the order has been violated. The Committee chair, by order, shall establish the procedures associated with such hearing. The hearing panel for the violation hearing will consist of at least a majority of the current members of the Committee. The Chair or his or her designee will preside over the hearing. Bar counsel must prove a material violation by a preponderance of the evidence. The Committee's decision will require a concurrence of a majority of the panel members. If the Committee determines that a material violation has been proved, the Committee may revoke, extend, or modify the Order of Conditional Admission. The Committee's decision is final subject to the filing of a petition for review pursuant to paragraph (h). If the Committee determines that there was a material violation of the terms based on a violation of the ethical rules but did not revoke the Order of Conditional Admission, the Committee may refer the matter to the State Bar for discipline proceedings pursuant to Rule 55.
7.Conversion to Regular Admission. It is the conditional admittee's responsibility to demonstrate compliance with the Order of Conditional Admission in order to convert to regular admission. No sooner than sixty (60) days prior to the conclusion of the term of conditional admission, the conditional admittee must file with the Committee a Notice of Compliance with Order of Conditional Admission and serve a copy on bar counsel. The conditional admittee must demonstrate compliance by a preponderance of the evidence. Within twenty (20) days after service of the notice of compliance, bar counsel must file a response. If bar counsel agrees that the conditional admittee has demonstrated compliance and should achieve regular admission, the matter can be submitted to the Committee for consideration. If bar counsel or staff does not agree that regular admission is appropriate, the matter must be set for hearing before the Committee, as provided in paragraph (g)(6). Bar counsel's or staff's objection to regular admission will automatically extend the conditional admission until the matter is resolved by the Committee. Failure of the conditional admittee to fulfill the terms of the Order of Conditional Admission may result in a modification of the order which may include extension of the period of conditional admission, suspension or revocation of the conditional admission, or such other action as the Committee deems appropriate. If the conditional admittee fails to file the notice of compliance, the Order of Conditional Admission will be revoked at the end of the period of conditional admission. In all cases, the Committee will issue an appropriate order. The Committee's decision is final subject to the filing of a petition for review pursuant to paragraph (h).8.Effect of Revocation on Time for Reapplication. If the conditional admission is revoked, an applicant may not reapply for admission for a period of five years from the date of the revocation, unless the Committee or Court orders otherwise.(h)Review by the Court.1.Petition for Review. A. An applicant aggrieved by any decision of the Committee on Character and Fitness may, within twenty (20) days after such decision, file a verified petition for review with this Court. The petition must succinctly state the facts that form the basis for the petition, and applicant's reasons for believing this Court should review the decision of the Committee.B. A copy of the petition must be promptly served upon the Committee. The Committee will have thirty (30) days after service to transmit the applicant's file, including all findings and reports prepared by or for the Committee, and a response to the petition fully advising this Court as to the Committee's reason for its decision and admitting or contesting any assertions made by the applicant in the petition. Thereupon this Court will consider the papers so filed, together with the petition and response, and make such order, hold such hearings and give such directions as it may in its discretion deem best adapted to a prompt and fair decision as to the rights and obligations of applicant judged in the light of the Committee's and this Court's obligation to the public to see that only qualified applicants are admitted to practice as attorneys at law. No reply in support of the petition may be filed unless ordered by the Supreme Court sua sponte.2.Review on Court's Own Motion. All recommendations for conditional admission are subject to de novo review by the Court. The Committee on Character and Fitness, through the assigned panel, must file with the clerk its written decision recommending conditional admission and the terms of conditional admission. The Court may decline review, or it may grant review on its own motion. If the Court declines review, the panel's recommendation for conditional admission will be final and the panel will issue the Order of Conditional Admission. If the Court grants review, the Court may issue such orders as may be appropriate for its review, including remanding the matter to the Committee for further action, ordering transmittal of the applicant's file, ordering additional briefing and/or setting the matter for oral argument. After receiving all the appropriate pleadings and record, the matter will be deemed submitted to the Court for its decision.3.Sealing the Record. Any document filed under Rule 36(h) will be considered open to the public except that, upon request by any party or the panel, the clerk of Court will seal medical or psychological reports and records. A party or the panel may request that the Court seal a portion of any other materials submitted.Amended Jan. 8, 1990, effective 1/15/1990. Amended and effective 3/9/1990. Amended (temporary basis) Jan. 21, 1993, emergency effective 2/1/1993, adopted in final form6/24/1993;6/1/1995, effective 12/1/1995. Amended and effective 10/10/2000. Amended Oct. 15, 2001, effective 12/1/2001;5/31/2002, effective 6/1/2002;6/8/2004, effective 12/1/2004;6/9/2005, effective 12/1/2005;9/2/2010, effective 1/1/2011;9/1/2011, effective 1/1/2012;8/30/2012, effective 1/1/2013;10/14/2014, effective 1/1/2015;8/27/2015, effective 1/1/2016;9/2/2016, effective 1/1/2017; amended Aug. 27, 2020, effective 1/1/2021; amended Aug. 29, 2022, effective 1/1/2023.[ORIGINAL] COMMENT
The investigation conducted by the Committee on Character and Fitness should be thorough in every respect and should be concluded expeditiously. It should be recognized that information may be developed in the course of the investigation that is not germane to the question of licensure and should be disregarded by the committee.
Conduct of an applicant that is merely socially unacceptable or the exercise of constitutionally protected rights is not to be considered relevant to an applicant's character and fitness to practice law.
HISTORICAL NOTES
Source:
Former Rule 28(c)(XII).