Rule-change petitions that warrant your attention
Have you ever thought about how many sets of court rules we Arizona lawyers live by and with? That number is 35, according to the Arizona Supreme Court’s website. Yep, nearly three dozen, ranging from what I consider to be the mother of all rules – the Arizona Rules of Supreme Court – to more specialized sets of rules, like the Arizona Rules of Procedure in Traffic Cases and Boating Cases.
Sidebar: “Mother of all rules” reminds me of “mother of vinegar” (yeast and bacteria added to wine or cider to produce vinegar) and “mother sauce” (any one of the five foundational French sauces). You may think of “mother of all battles,” as Saddam Hussein referred to the 1991 Gulf War. “Mother of all ___” is an idiom for “an extreme example or very large specimen of something,” with synonyms like “whopper” and “doozy.” The Arizona Rules of the Supreme Court are, in my view, one (big) whopper. We all must comply with these rules. They are the foundation, the mother sauce. Unless we comply with them, none of the other specialized rules even come into play. (If the Supreme Court rules are the “mother of all rules,” does that make the Supreme Court itself the mothership?) Now, back to rule-change petitions.
Every year, lawyers, judges and non-lawyers file petitions asking the Supreme Court to make rule changes big and small. Of the many petitions that have been filed and are being circulated for comment this year, a hefty handful deal with the legal profession and lawyers’ obligations.
I think every practicing Arizona lawyer needs to know about and pay particular attention to the following rule-change petitions. I’ve sorted them into categories, but within the categories they are presented in numerical order.
Practice of law in general
R-16-0004: Would amend Rule 32(c), Ariz. R. Sup. Ct., to allow retired judges who are on the judicial call-back list (to provide judicial services to the court) and who do not practice law to retain judicial status with the State Bar and pay the (discounted) judicial rate for bar dues. IMHO important because: Any change to who pays what amount of licensing fees is important. And is sometimes a slippery slope. Particularly this year. [See R-16-0013 below]
R-16-0012: Would amend Rule 32, Ariz. R. Sup. Ct., and adopt new Rule 44, Ariz. R. Sup. Ct., to provide for Supreme Court supervision of the Board of Legal Specialization process by requiring the Court (not the State Bar president, as happens currently) to appoint BLS members; to approve BLS rules (which is currently handled by the State Bar Board of Governors); and to provide an attorney aggrieved by a decision of BLS with the opportunity for judicial review. The Supreme Court’s Task Force on the Review of the Role and Governance Structure of the State Bar of Arizona generated this petition. IMHO important because: This proposes the Supreme Court oversee a function now handled entirely by the State Bar.
R-16-0013: That same Supreme Court task force generated this petition. In general, the petition “restyles” Rule 32, which deals with the State Bar; clarifies the State Bar’s mission statement in Rule 32(a); and reconfigures the State Bar’s governance structure. Among the proposals: adopting uniform three-year election and appointment cycle for board members; allowing out-of-state but active-status bar members to vote in board elections; imposing term limits on board members; requiring that attorney board members have no record of disciplinary sanctions for five years preceding board service; providing a mechanism for removing a board member for good cause; reducing the number of officers to three (president, president-elect and secretary-treasurer) from the current five (those three plus two vice presidents). The petition also presents two alternatives for how many members should be on the board and how they get there. IMHO important because: While the task force did not propose making the State Bar voluntary, the issue of whether we should have a mandatory bar association is still alive and we have a new Supreme Court justice whose previous job was with an entity that is suing the State Bar of North Dakota to, in part, eliminate mandatory membership in that organization.
R-16-0029: Submitted by the State Bar, this proposes changes to the Oath of Admission to the Bar and A Lawyer’s Creed of Professionalism of the State Bar of Arizona. Proposed changes include that a lawyer should not threaten punitive sanctions unless the lawyer has good cause to believe that the opposing lawyer or party has engaged in or is expected to engage in bad-faith conduct, and that professionalism requires that lawyers not only be candid with tribunals, but also must be respectful to tribunals. IMHO important because: Lawyers can be disciplined for unprofessional conduct, which Rule 31(a)(2)(E) defines as “substantial or repeated violations” of the oath or creed.
Admission to practice
R-16-0014: Would seal “medical records and professional medical evaluations” in admissions cases in which a petition for review is filed. IMHO important because: This protects the privacy of anyone who files an application for admission and has a related medical issue.
R-16-0015: Would allow members of the Supreme Court’s Character and Fitness Committee who sit on inquiry panels to participate in person or by telephone. Rule changes effective in January 2015 require that members of an inquiry panel attend in person. IMHO important because: This affects anyone who files an application for admission and whose file has potential complications.
Discipline
R-15-0041: Proposes that Rules 46(c) and (d), Ariz. R. Sup. Ct., be amended to clarify that: (1) the State Bar of Arizona and Commission on Judicial Conduct have concurrent jurisdiction over judges for alleged misconduct as lawyers before becoming judges; (2) the State Bar has jurisdiction over former judges who return to the practice of law who engaged in conduct while serving as a judge that would constitute grounds for lawyer discipline; and (3) the State Bar has the discretion to pursue lawyer discipline against a former judge who has been removed, resigns or retires as a result of judicial discipline proceedings when the underlying conduct also constitute grounds for lawyer discipline. (Disclosure: Filed by the Attorney Regulation Advisory Committee, of which I am a member.) IMHO important because: Jurisdiction over former judges is complicated and has been problematic. Former Ariz. Supreme Court Justice – and current U.S. Ninth Circuit Judge – Andrew Hurwitz discusses one Arizona case in his wonderful Arizona Law Review essay, “When Judges Err: Is Confession Good for the Soul?” 56 Ariz. L. Rev. 343 (2014). This essay is worth reading (download it here) even if you don’t care about disciplinary jurisdiction over judges.
R-16-0023: Would allow the presiding disciplinary judge to stay a matter for good cause; a respondent lawyer and the State Bar to consent to transfer the lawyer to disability inactive status; if a lawyer has been administratively suspended but the application for reinstatement hasn’t been filed within two years, the applicant would not have to prove rehabilitation; the decision of a disciplinary hearing panel on a reinstatement application to be final, subject to subject to the parties’ appeal rights. (Disclosure: Filed by the Attorney Regulation Advisory Committee, of which I am a member.) IMHO important because: This proposal smooths out some roadblocks in the discipline system.
Ethical rules
R-16-0011: Would amend ER 1.6 to allow licensed adoption service providers to disclose pertinent information about a birthmother in certain circumstances to other licensed adoption service providers. IMHO important because: All lawyers should pay attention to any proposed changes to the Ethical Rules.
R-16-0027: Would amend ER 1.2(d) to address Arizona lawyers’ ability to counsel and assist clients in legal matters expressly permissible under state law, despite the fact that the same conduct may violate applicable federal criminal law. (Disclosure: I filed this petition. Read it here.) IMHO important because: All lawyers should pay attention to any proposed changes to the Ethical Rules, and this resolves a current ethical conundrum for many lawyers.
Criminal procedure
R-15-0038: Would amend Rule 16.4, Ariz. R. Crim. P., to add subsection (d) requiring the court to “ensure that the prosecutor has searched its files, the investigating police agency’s files, and any other appropriate files, to determine whether information favorable to the defense exists and has been disclosed.” IMHO important because: Anything to do with Brady obligations and disclosure is important.
Civil procedure
R-15-0043: Last year, the State Bar submitted a rule-change petition (R-15-0004) that proposed revising Rule 11, Ariz. R. Civ. P. Among other changes, the petition proposed amending Rule 11, Ariz. R. Civ. P., to require that before any motion for sanctions be filed, the parties had to meet and confer and the movant-to-be provide the supposed offender with written grounds of the motion. It also proposed changing the rule so that the trial court had to impose sanctions for Rule 11 violations. The Pima County Bar Association filed a comment supporting the State Bar’s position except for the required sanctions. The Supreme Court continued action on the State Bar’s petition. Now, the PCBA has submitted a petition reiterating its position on the State Bar’s petition. IMHO important because: See next rule-change petition.
R-16-0010: This is a complete restyling of and substantive changes to the Arizona Rules of Civil Procedure, by a Supreme Court task force charged with updating, clarifying, simplifying the rules as well as “avoid[ing] unintended variation from language in counterpart federal rules.” Among the specific rules addressed is Rule 11. The proposed amendments incorporate the substance of the State Bar’s petition R-15-0004, including the requirement that the trial court “must” impose sanctions for Rule 11 violations. IMHO important because: THE MERE SCOPE OF THIS RULE-CHANGE PETITION MAKES IT A BIG DEAL.
R-16-0017: Submitted by Maricopa County Attorney William G. Montgomery, this proposes allowing law firms (regardless whether private or public) to substitute or associate on a matter an attorney who is a member of same firm without obtaining a formal written order. The proposed addition to Rule 5.1(a)(2), Ariz. R. Civ. P., allows the substitution or association by simply filing a notice. IMHO important because: Theoretically this solution makes swapping out assigned lawyers in a government law firm more efficient, but I have reservations about how this would work in private firms.
You may be familiar with the rules filings and disagree with what I’ve included or excluded. If so, let me know.
The Supreme Court is circulating all of these petitions for comment. If you’re interested in a particular petition, visit the court’s “rules forum” and look for the particular set of rules, then the petition within that file. You can download a petition and find out the deadlines the court has set for submitting comments. If you want to follow a particular petition, you can sign up to be notified about submissions on it.