Hoover, Matter of, SB-88-0029-D

Decision Date28 July 1989
Docket NumberNo. SB-88-0029-D,SB-88-0029-D
PartiesIn the Matter of a Member of the State Bar of Arizona, Charles R. HOOVER, Respondent.
CourtArizona Supreme Court

Beer & Toone, P.C. by Paul Beer and Warner, Angle, Roper & Hallam by Jerry L. Angle, Phoenix, for respondent.

Harriet L. Turney, Chief Counsel, Phoenix, State Bar of Arizona.

FELDMAN, Vice Chief Justice.

This case comes before us for final disposition following a previous hearing and remand to the Disciplinary Commission. See In re Hoover, 155 Ariz. 192, 745 P.2d 939 (1987) (Hoover I ). Our jurisdiction over bar discipline is based on provisions of the Arizona Constitution, inherent authority, and procedural rules. 1

FACTS

Hoover I sets forth the facts in detail. Respondent, a respected and successful attorney, suffers from bipolar manic depressive psychosis, which presently is in remission. While under pressure and working On review, the Disciplinary Commission (Commission) (see generally Rule 47) disagreed with the Committee's recommendation that the matter be converted from a disciplinary proceeding to a disability proceeding, apparently disagreed with the Committee's conclusion that M'Naghten insanity was a defense to professional discipline, and remanded the matter for a hearing before a new committee. Pursuant to Rule 55(i), respondent petitioned this court to review the Commission's order. We held that we had jurisdiction to grant review, and on so doing, further held that:

                [161 Ariz. 531] on a large real estate transaction, respondent misappropriated substantial sums from his client and fraudulently billed for personal expenses.  The psychiatrists concluded with essential unanimity that, at the time of his misconduct, respondent suffered from the psychosis and his misconduct was a product of that disease.  They believed he was M'Naghten insane at the time, so that he either did not know right from wrong, the nature and quality of his acts, or both.  Hoover I, 155 Ariz. at 194, 745 P.2d at 941.   The Local Hearing Committee (Committee) (see generally Rule 48, Ariz.R.Sup.Ct., 17A A.R.S.) 2  adopted this testimony.  See Findings of Fact, Conclusions of Law, and Recommendations (hereafter Committee Report), filed May 29, 1986, Findings of Fact, Nos. 8 and 9.  The Committee recommended no discipline, but recommended certain rehabilitative measures under Rule 59 while maintaining respondent's active status
                

1. The Commission's remand for a de novo hearing before a new committee was improper and violated both the scope of the Commission's powers and respondent's right to procedural due process. Hoover I, 155 Ariz. at 197, 745 P.2d at 944.

2. The Committee has authority under the governing rules to "convert" a disciplinary proceeding into a disability proceeding and to combine the procedures provided by these two methods of addressing attorney misconduct. Id.

3. Disciplinary and disability proceedings could commence simultaneously, thus making both remedy regimens available. Id. at 197, 199, 745 P.2d at 944, 946.

4. On these facts, M'Naghten insanity was a matter that must be considered in mitigation of bar discipline but was not a complete defense to the imposition of disciplinary sanctions for attorney misconduct. Id. at 198-99, 745 P.2d at 945-46.

We vacated the Commission's order for a de novo hearing and remanded the case to the Commission for further proceedings. Those proceedings having been completed, the Commission has filed its report and recommendations with this court. The Commission unanimously adopted the Committee's significant factual findings. 3 It then recommended by a vote of five-to-three that despite the Committee's finding of M'Naghten insanity, respondent should be disciplined by suspension for a period of six months and one day and should not be reinstated except on certain terms and conditions. The Commission also recommends that respondent be placed on "probation" during the period of suspension. Respondent filed a timely notice of appeal from the report of the Commission (see generally Rule 53(e)), and the matter is now before us for final disposition.

THE M'NAGHTEN ISSUE

Citing the fact that respondent's mental condition would constitute a complete defense had he been charged with a crime, 4 respondent argues that the imposition In our view, bar discipline is not foreclosed merely because the ethical impropriety was the product of a mental illness. On the other hand, although insanity does not foreclose discipline, it must be considered in determining whether and what kind of discipline is to be imposed and what procedures are to be followed to protect the public.

[161 Ariz. 532] of bar discipline would violate his right to equal protection of the law. We disagree. In Hoover I, we stated the following with respect to this question:

We reach this conclusion for two interrelated reasons. First, the M'Naghten standard is not a medical diagnosis, but a legal fiction developed for courtroom use ... as a test for the intent necessary to hold a defendant criminally responsible.... Its use today, almost 150 years after M'Naghten's Case was decided, has been severely and aptly criticized. We see no need to engraft such a test onto bar discipline proceedings which are not intended to punish.

155 Ariz. at 198-99, 745 P.2d at 945-46 (citations omitted).

We reaffirm these views. A finding of M'Naghten insanity is a complete defense to crime. See A.R.S. § 13-502. In criminal cases, history ties us to the concepts announced 146 years ago in M'Naghten's Case, 10 Clark & Fin. 200, 8 Eng.Rep. 718 (1843), even though those standards have little if any meaning in the modern medical world. The medical profession does not recognize M'Naghten insanity as a condition or illness. See generally American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3d ed. rev. 1987). It is only when psychiatrists and psychologists communicate with lawyers that they recite the M'Naghten incantation.

Although our history may compel us for now to employ M'Naghten as the test for the propriety of imposing punishment for crime, it does not require us to do so when considering whether to sanction an attorney for violation of lawyers' ethical precepts. Indeed, the vast majority of cases considering this issue hold that bar discipline may be imposed on lawyers with various degrees of mental illness and disturbance. See Annotation, Mental or Emotional Disturbance as Defense to or Mitigation of Charges Against Attorney in Disciplinary Proceeding, 26 A.L.R. 4th 995 (1983). Mental disease or illness, even when psychiatrists can be found to characterize it as "M'Naghten insanity," is not a per se bar to imposing sanctions on a lawyer for ethical violations. 5

Nor do we believe imposing bar discipline on a lawyer when he was not or could not have been convicted of a criminal offense for the same conduct implicates, let alone violates, the equal protection clause. Bar and judicial discipline proceedings are neither penal in objective nor criminal in nature, and discipline may be imposed in manners that would be constitutionally impermissible in a criminal case. See In re Marquardt, 161 Ariz. 206, 214 - 215, 778 P.2d 241, 249-250 (1989); Gary v. State Bar of California, 44 Cal.3d 820, 826, 749 P.2d 1336, 1340, 244 Cal.Rptr. 482, 485-86 (1988) (upholding application of enhanced disciplinary sanctions to attorney's conduct occurring after the promulgation of the standards, even though ex post facto principles would have prohibited such application in a criminal case); In re Barclay, 82 Utah 288, 24 P.2d 302, 303-04 (1933) (upholding "prosecution" of attorney for misconduct committed prior to state bar's organized existence); In re Brown, 157 W.Va. 1, 7, 197 S.E.2d 814, 818 (1973) (upholding imposition of interim sanction for attorney misconduct even though that sanction was first adopted subsequent to the conduct giving rise to the disciplinary proceedings).

We do not hold that constitutional concepts such as due process and equal protection Moreover, application of equal protection principles does not invalidate imposition of bar discipline here. State discrimination between different classes of individuals is permissible as long as the classification serves a legitimate interest and the classification rationally furthers that interest. Kenyon v. Hammer, 142 Ariz. 69, 78, 688 P.2d 961, 970 (1984). A classification rationally furthers the interest unless it " 'rests on grounds wholly irrelevant' " to the legitimate interest. Id. (quoting McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961)). 6 Here, the legitimate interest is to protect the public from harm at the hands of dishonest or disabled lawyers, to foster professional integrity, and to maintain the public's confidence in the organized bar as a whole. Disallowing M'Naghten insanity as a complete defense in discipline-disability proceedings is quite relevant to these ends.

                [161 Ariz. 533] are inapplicable to bar proceedings.  Hoover I recognizes the contrary.  155 Ariz. at 196-97, 745 P.2d at 943-44.   We hold simply that respondent is not deprived of equal protection of the law simply because he, as with other attorneys, is subject to bar discipline for conduct that could not have formed the basis for criminal prosecution.  Given the difference in objectives between bar discipline and criminal prosecution, the application of different standards of mens rea in the two proceedings violates neither equal protection nor due process principles
                
SUFFICIENCY OF THE EVIDENCE

The state bar argued in Hoover I that the evidence before the Committee did not support a finding of M'Naghten insanity. We did not review the evidence at that time. See 155 Ariz. at 198, 745 P.2d at 945. Three mental health experts testified at the Committee hearing. All agreed that respondent was psychotic and...

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