In re Johnson

• Decision Date: 17 April 2013
• Docket Number: No. SB–12–0040–R.,SB–12–0040–R.
• Citation: 298 P.3d 904,231 Ariz. 556
• Parties: In the Matter of an Application for Reinstatement of a Suspended Member of the State Bar of Arizona, Richard B. JOHNSON, Attorney No. 2118, Applicant.
• Court: Arizona Supreme Court

231 Ariz. 556

298 P.3d 904

In the Matter of an Application for Reinstatement of a Suspended Member of the State Bar of Arizona, Richard B. JOHNSON, Attorney No. 2118, Applicant.

No. SB–12–0040–R.

Supreme Court of Arizona,

En Banc.

April 17, 2013.

Jennings Strouss & Salmon PLC By J. Scott Rhodes, Phoenix, Attorney for Richard B. Johnson.

State Bar of Arizona By Hunter F. Perlmeter, Phoenix, Attorney for State Bar of Arizona.

OPINION

PELANDER, Justice.

[231 Ariz. 557]¶ 1 Under Arizona Rule of the Supreme Court 65(b)(4), this Court automatically reviews the disciplinary hearing panel's report in attorney reinstatement cases. We granted applicant Richard B. Johnson's request to respond to the hearing panel's report, which recommended denial of his application for reinstatement to the active practice of law. Johnson challenged the hearing panel's recommendation and asked us to clarify the legal standard for reinstatement. We review questions of law de novo, but review factual findings applying a clearly erroneous standard. Ariz. R. Sup.Ct. 59( l ); see also In re Arrotta, 208 Ariz. 509, 514 ¶ 25, 96 P.3d 213, 218 (2004).

¶ 2 On January 10, 2013, we issued an order reinstating Johnson to the active practice of law. This opinion explains our reasoning.

I.

¶ 3 Johnson was admitted to practice in Arizona in 1968. He had a small law firm and focused his practice on trusts, estates, and probate matters. In 2008, Johnson was suspended from the practice of law for six months and one day, pursuant to an agreement for discipline by consent. His suspension resulted from two counts of misconduct that occurred in 2006: submitting a will that falsely purported to be the original to the court for admission to probate after he lost the original (count one), and improperly purchasing a house from a client estate without advising his client to seek independent counsel (count two).

¶ 4 Although Johnson became eligible for reinstatement in 2009, seeAriz. R. Sup.Ct. 64(e)(1), he did not apply until 2012. A three-member hearing panel, chaired by the Presiding Disciplinary Judge, held a hearing at which Johnson and several others testified. SeeAriz. R. Sup.Ct. 52, 65(b)(1)(A). The State Bar stipulated, and the hearing panel agreed, that Johnson had met his burden of proving “compliance with all applicable discipline orders and rules, fitness to practice, and competence.” Ariz. R. Sup.Ct. 65(b)(2); see alsoAriz. R. Sup.Ct. 48(e) (applicant seeking reinstatement has burden of proof). The hearing panel therefore focused on the issues of rehabilitation and moral qualifications. SeeAriz. R. Sup.Ct. 64(a), 65(b)(2).

¶ 5 Johnson acknowledged his prior ethics violations. Regarding count one, Johnson testified that he had rationalized his preparing and filing a fabricated will because he was embarrassed about misplacing the original will, was extremely busy at the time, wanted to help the client, and believed nobody would be harmed. The house-purchase misconduct in count two, Johnson explained, resulted because he became too casual in his professional dealings with a client, to the detriment of a beneficiary of the estate whom Johnson did not like.

¶ 6 Johnson attributed his misconduct to two weaknesses: his “moral compass failed him” and he deviated from his core beliefs. During his extended time away from the profession, Johnson reexamined his core values, recommitted himself to his religious beliefs and church activities, and invested substantial time in community service. Five people testified on Johnson's behalf in support of his reinstatement. No evidence directly refuted Johnson's evidence of rehabilitation.

¶ 7 After considering all evidence, the hearing panel found insufficient proof “that the ethical problems that led to [Johnson's] sanctioned behavior have been rectified.” The panel likewise concluded that Johnson had failed to establish his rehabilitation by clear and convincing evidence and recommended that his application for reinstatement be denied.

II.

¶ 8 The requirements for reinstatement are similar to the requirements for initial admission to the Arizona bar. CompareAriz. R. Sup.Ct. 34(b)(1)(B), (C), 34(c), 36(b), withAriz. R. Sup.Ct. 64, 65. An applicant for reinstatement must demonstrate that he or she “possesses the moral qualifications and knowledge of the law required for admission to practice law in this state in the first instance.” Ariz. R. Sup.Ct. 64(a). In addition, an applicant for reinstatement “must show by clear and convincing evidence that [he or she] has been rehabilitated and/or overcome his or her disability.” Id.; see alsoAriz. R. Sup.Ct. 65(b)(2); In re (Lee K.) King, 212 Ariz. 559, 563 ¶ 10, 136 P.3d 878, 882 (2006).

¶ 9 This additional requirement is not meant as further punishment. In re Peterson, 108 Ariz. 255, 256–57, 495 P.2d 851, 852–53 (1972). Rather, we require evidence of rehabilitation to protect the public. Id.; see also In re Arrotta, 208 Ariz. at 512 ¶ 12, 96 P.3d at 216 (“[O]ur primary responsibility remains at all times the protection of the public.”). Because a lawyer seeking reinstatement has already “violated the trust placed in him as an officer of the court,” we “ ‘endeavor to make certain that [we do] not again put into the hands of an unworthy petitioner that almost unlimited opportunity to inflict wrongs upon society possessed by a practicing lawyer.’ ” In re Arrotta, 208 Ariz. at 512 ¶ 11, 96 P.3d at 216 (alteration in original) (quoting In re Pier, 561 N.W.2d 297, 300 (S.D.1997)).

¶ 10 Proving rehabilitation is a two-step process. First, the applicant must identifythe weakness or weaknesses that caused the misconduct. Id. at 513 ¶ 17, 96 P.3d at 217. Second, the applicant must “demonstrate that he [or she] has overcome those weaknesses.” Id. In determining whether the applicant has proven rehabilitation by clear and convincing evidence, we also consider the nature and extent of the underlying misconduct because “the more serious the misconduct that led to disbarment, the more difficult is the applicant's task in showing rehabilitation.” Id. at 512 ¶ 12, 96 P.3d at 216 (citing In re Robbins, 172 Ariz. 255, 256, 836 P.2d 965, 966 (1992)). But “the severity of a lawyer's misconduct in itself does not preclude reinstatement if the lawyer can establish that he has rehabilitated himself.” Id.

¶ 11 In Arrotta, for example, we denied a disbarred lawyer's application for reinstatement because he failed to identify the cause of his misconduct, id. at 513 ¶ 18, 96 P.3d at 217, and “[n]othing else in the record explain [ed]” it, id. at 514 ¶ 21, 96 P.3d at 218. Arrotta simply did not “understand why he acted as he did” and, in connection with the criminal proceedings against him, wrote that he had “no good, or valid, answer that can provide any justification” for his misconduct. Id. at 513 ¶ 19, 96 P.3d at 217. In contrast, we found that the applicant in Robbins had identified a “severe episode of depression” as the cause of his misconduct, 172 Ariz. at 255, 836 P.2d at 965, and in In re (Reed W.) King the applicant identified his “precarious financial situation” as the cause of his misconduct, 177 Ariz. 358, 360, 868 P.2d 941, 943 (1994). In both those cases, we ordered reinstatement.

¶ 12 Here, the hearing panel found that Johnson “personally, through introspection and reflection, identified the weaknesses that produced the misconduct and took the necessary steps to overcome those weaknesses with self-regulated discipline.” This is all that Arrotta requires, yet the panel demanded more, stating that Johnson's identification of the weaknesses that produced the misconduct “tells us little of the cause of that weakness.” The hearing panel required Johnson to identify not only the weaknesses that caused the underlying misconduct and the steps taken to overcome them, which Johnson did, but also the deeper “root cause” of those weaknesses or the “character flaw that caused the decision to engage in unethical misconduct.”

¶ 13 A reinstatement hearing, however, does not necessarily require the peeling back of multiple layers of causation or psychoanalysis. Instead, the applicant must clearly and convincingly prove rehabilitation by specifically identifying the causal weakness leading to each count and explaining how the weakness has been overcome. Based on the record here, we conclude that Johnson met that burden.

¶ 14 “[W]e recognize that, in many instances, a counselor can assist an individual in understanding the reasons for his ethical violations and can help the person acquire tools needed to prevent future misconduct.” In re Arrotta, 208 Ariz. at 514 ¶ 22, 96 P.3d at 218. But, as the hearing panel correctly observed, neither mental health treatment nor expert testimony is required to establish rehabilitation for readmission purposes. Id. Rather, an applicant's identification of his or her weaknesses may suffice. See In re Robbins, 172 Ariz. at 255, 836 P.2d at 965;In re (Reed W.) King, 177 Ariz. at 360, 868 P.2d at 943.

¶ 15 The hearing panel found, as do we, that Johnson identified the weaknesses underlying both counts of his prior misconduct. The evidence on that point was sufficient to satisfy the first prerequisite for rehabilitation under In re Arrotta, 208 Ariz. at 513 ¶ 17, 96 P.3d at 217.

¶ 16 The next issue, then, is whether Johnson convincingly demonstrated that he has overcome his weaknesses. Id. The applicant must show by clear and convincing evidence “the positive actions he has taken to overcome the weaknesses that led to his [sanction].” Id. at 515 ¶ 29, 96 P.3d at 219. “The required demonstration may come from any number of showings.” Id. ¶ 30. For example, the applicant may present evidence of “participation in community or charitable organizations, specialized instruction or education, counseling, or other similar [activities].” Id. at 516 ¶ 31, 96 P.3d at 220. The applicant may also present testimony from character witnesses, whose well founded opinions “...