Riley, Matter of, SB-289

• Decision Date: 28 November 1984
• Docket Number: No. SB-289,SB-289
• Parties: In the Matter of a Member of the State Bar of Arizona James Lawrence RILEY, Respondent.
• Court: Arizona Supreme Court

Page 695

691 P.2d 695

142 Ariz. 604

In the Matter of a Member of the State Bar of Arizona James Lawrence RILEY, Respondent.

No. SB-289.

Supreme Court of Arizona,

In Banc.

Nov. 28, 1984.

Michael M. Sophy, Martha McConnell Bush, Phoenix, State Bar counsel

Bilby & Shoenhair, P.C. by William H. Tinney, Tucson, for respondent.

CAMERON, Justice.

Respondent, James L. Riley, was charged with eight counts of unethical conduct by the State Bar of Arizona. Although respondent is currently a Cochise County superior court judge, all conduct in question related to events which occurred while he was a deputy county attorney. The Local Administrative Committee found the respondent guilty of unethical conduct concerning four of the eight counts and recommended a thirty-day suspension. The Disciplinary Board agreed with the findings and conclusions of the Local Administrative Committee, and the respondent timely objected. We have jurisdiction pursuant to Rules 36(d) and 37, Rules of the Supreme Court, 17A A.R.S. We must address the following issues:

I. Did the State Bar Attorney Disciplinary Board have jurisdiction to determine whether a judge was guilty of unethical conduct which occurred before he became a judge?

II. Did the Local Administrative Committee err in amending its complaint to include two additional counts after the respondent had testified?

III. Was the respondent guilty of unethical conduct in that:

1. he made ex parte communications to the judge in a criminal matter;

2. he made false denials as to said ex parte communications;

3. while a candidate for judicial office he made derogatory public comments against his incumbent opponent; and

4. he made unfair comments on a decision made by the judge.

IV. Is a thirty-day suspension appropriate under the facts of this case?

V. May respondent be required to pay costs incurred by the Disciplinary Board while investigating all eight counts, even though respondent was found guilty of ethical violations concerning only four of those counts?

I JURISDICTION

Pursuant to Art. 6.1 of the Arizona Constitution, the Commission on Judicial Qualifications has exclusive jurisdiction to investigate the conduct of a judge while he remains a judge. This is the law in most jurisdictions, In re Investigation, 93 So.2d 601 (Fla.1957), and the rule recommended by the American Bar Association. See Rule 3.1, Standards Relating to Judicial Discipline and Disability Retirement, Professional Discipline for Lawyers and Judges (1979), National Center for Professional Responsibility and The American Bar Association.

The lawyer disciplinary agency has jurisdiction over a lawyer for conduct which occurred while a lawyer, as well as jurisdiction over a lawyer who is no longer a judge for conduct that occurred during and prior to the time the lawyer became a judge. See Rule 3.2, Judicial Standards, supra; Florida Bar v. McCain, 330 So.2d 712 (Fla.1976).

As to jurisdiction over an incumbent judge for conduct which occurred prior to becoming a judge, the courts are not in agreement. The Standards for Lawyer Discipline and Disability Proceedings recommend that incumbent judges should not be subject to the jurisdiction of the lawyer discipline agencies, Rule 4.4, Lawyer Standards, supra, and some states follow this rule. See State ex rel. Turner v. Earle, 295 So.2d 609 (Fla.1974); In re Proposed Disciplinary Action by the Florida Bar Against a Circuit Judge, 103 So.2d 632 (Fla.1958).

We believe, however, the better and more workable practice is that jurisdiction in disciplinary actions should be based upon the position the individual held at the time of the alleged misconduct:

[h]ere, we are presented with an action to discipline a person, now serving as a judge, for misconduct committed while he was a lawyer and before he became a judge. Does his position on the bench render him immune to discipline for violation of the Code of Professional Responsibility applicable to all persons licensed to practice law in this state? Respondent argues that since he may not practice law while a judge, he may not be disciplined while a judge for misconduct committed while a lawyer. Although he may not practice law while a judge, he still holds a license to practice law (a qualification he must have to hold the office of judge), he is still a lawyer, and if he has violated the Code of Professional Responsibility he is, as an officer of this court, amenable to discipline * * *. He may not take refuge in a judicial office from discipline for prior misconduct, the effect of which would be removal of one of his qualifications for occupying the refuge. To permit the use of a judicial office as such a sanctuary would be a travesty upon justice.

In re Mills, 539 S.W.2d 447, 449-50 (Mo.1976); see also In re Spriggs, 36 Ariz. 262, 284 P. 521 (1930). We believe that the State Bar Disciplinary Board and its local disciplinary committees have jurisdiction to consider a lawyer's alleged unethical conduct even though the lawyer is now an incumbent judge. It should be noted in this regard that the Supreme Court of Arizona has the exclusive jurisdiction to regulate the admission to the practice of the law and the discipline of those admitted. In the

instant case, while we are dealing with the power of the State Bar Disciplinary Board, we are actually talking about our own authority because the Bar Disciplinary Board and its committees are mere arms of this court and can have no greater jurisdiction or authority than this court. See Florida Bar v. McCain, supra, at 714. We conclude that respondent was subject to the jurisdiction of the State Bar of Arizona Disciplinary Board for conduct which occurred before he became a judge.

II AMENDMENT OF COMPLAINT

During the hearings before the local disciplinary committee the respondent testified as to a matter in which he had been jailed for eight hours and fined $150 by Judge Richard Riley for contempt. After this testimony, the State Bar added the allegations of unethical conduct found in Counts Seven and Eight. The amended complaint was served on the respondent and he was granted an opportunity to respond. By stipulation respondent's counsel and Bar counsel agreed to waive further hearings upon Counts Seven and Eight, the additional charges. Respondent now alleges that his right to procedural due process, United States Constitution, Amend. V, and Ariz. Const. Art. 2, § 4, was violated, citing Matter of Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). E.g., Committee on Professional Ethics and Grievances of the Virgin Islands Bar Association v. Johnson, 447 F.2d 169, 173 (3rd Cir.1971); Bar Association v. Cockrell, 274 Md. 279, 286, 334 A.2d 85, 88 (1975). We do not agree.

In Ruffalo, supra, the United States Supreme Court held that an attorney charged with unethical conduct is entitled to due process. The court stated that the attorney in that case had been denied procedural due process because his own testimony in defense of the charges was made the basis of charges added to the complaint after the hearing. The United States Supreme Court stated:

These are adversary proceedings of a quasi-criminal nature. The charge must be known before the proceedings commence. They become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused. He can then be given no opportunity to expunge the earlier statements and start afresh.

Ruffalo, supra, 390 U.S. at 551, 88 S.Ct. at 1226, 20 L.Ed.2d at 122 (citations omitted). We believe that respondent's interpretation of Ruffalo is overbroad and would lead to absurd results. As the Maryland Court of Appeals has stated:

In reviewing this recommendation, we note initially that if Ruffalo is strictly applied as it literally reads, then its broad holding would have a crippling effect on the primary purpose of disciplinary proceedings, which, as we have held, is "not for punishment but rather [is] a catharsis for the profession and a prophylactic for the public." For example, if Ruffalo means in all cases what its words seem to indicate, once an attorney is brought before a disciplinary tribunal for some minor offense he can take the stand and make known every other professional indiscretion (perhaps even those of a more serious nature) he ever perpetrated and, in this way, immunize himself from any potential professional censorship for them because, under Ruffalo, "due process" would prevent an amendment of the initial allegations.

Bar Association v. Cockrell, supra, 274 Md. at 286, 334 A.2d at 88-89 (1975) (citations omitted, footnote omitted).

Our rule states:

Amendment. The committee at any time prior to the conclusion of the disciplinary hearing may allow amendments to the formal complaint or the answer. The formal complaint may be amended to conform to the proof or to include further charges, whether occurring before or after the commencement of the disciplinary hearing. If an amendment to the formal complaint is made, respondent Rule 34(c), Rules of the Supreme Court, 17A A.R.S. We believe our rule is constitutional so long as care is taken to assure that the respondent has a reasonable time and an appropriate opportunity to respond to the additional charges, Matter of Swartz, 129 Ariz. 288, 630 P.2d 1020 (1981), which is consistent with this reasoning. To hold otherwise would allow an attorney to immunize himself by testifying as to additional items of misconduct, see also Bar Association, supra. In the instant case, it appears that respondent had ample time and opportunity to respond. We find no error.

shall be given reasonable time to answer the amendment, to produce evidence and to respond to the charges.

III WAS THE RESPONDENT GUILTY OF UNETHICAL CONDUCT?

The Committee considered some eight allegations of misconduct by the respondent and found that he had violated the Code of Professional Responsibility in four instances. Because we agree with the Committee in their...