Demitri Yegolas Downing
1336 East Kleindale Road
Tucson, Arizona 85719
First, let me thank the Honorable Justices for bringing their attention and focus on this ongoing problem/dilemma for the legal practice and also reveal my personal bias. I am an unfortunate product of the lack of procedural due process, lack of guidance as to what “acts” should be taken into account when determining proper “character and fitness” and essentially a result of the existing "Minority Report" style process that has existed for many years in Arizona attorney admissions.
I attended almost every meeting of the admissions subcommittee during the 2013 year. While the committee, specifically the Honorable John Tuchi deserves credit for listening, acknowledging, and attempting to improve the admissions process by recommending some improvements. What will remain, even after the Court accepts his recommendations, is a system that is highly flawed, ineffective, and unjust at it’s core. Even if the Court accepts the recommendations of the subcommittee, what the Arizona public is left with, is something that still resembles a star chamber when determining who has the proper character to become a lawyer.
First the good: In recommending or moving closer to actual notice for applicants, a neutral magistrate decision maker, removing repetitive members of prior proceedings appearing at higher levels as an individual’s case is escalated up the chain; the committee removes some of the more obvious short comings of the existing process. However, the committee has failed to deal with some more fundamental questions which are more complicated but nevertheless still exist. I witnessed first-hand, as the hearings left the committee members pondering the meaning of, but not finding any answers to, some of the more fundamental issues at hand; How do you predict human behavior? How is one act in a particular subject area correlated with another? What acts are relevant? What are the long term consequences of these committee/Court “judgments” on the individual? I ask, wouldn’t a profession whose credibility relies on the tenants of due process and truth want to set meaningful guidelines for admission that might actually be on point or relevant to the negative “acts” we are concerned with from practicing lawyers?
To this end, I am requesting the opportunity to brief the Supreme Court Justices on these issues directly. This is the rule making process for the citizens of Arizona, to not have the opportunity to speak directly to those who make the final decisions for these Rules that govern this/our branch of government, would be the equivalent of a citizen only being allowed to speak through an intermediary at the State legislature to the legislators.
One of the main goals of improving the admissions process was to improve the "perception" that the process is fair. This process is the entry point and highly correlated, with the professions capacity and right to self-govern. Yet their remains many issues that are unresolved and this process has expose many others. After watching the “sausage” being made, I am starting to see that this process, the process, as too who may practice in Arizona Courts has become so institutionalized that change may have to come from outside the Judicial Branch, should the Court not address the problem in a more comprehensive manner.
Some of the topics or questions that remains unaddressed:
1. Why should a sitting member of the bar who has sworn an oath to the Court and the people of Arizona be entitled to more due process than a potential applicant? See disciplinary process vs. admission process. An applicant, who might have made mistakes in their past, but has never sworn an oath to the Court should be entitled to the same level of protection, IF not more? Shouldn’t the sworn officer be held to a higher standard?This is not the case now nor proposed as a change.
2. What is relevant conduct? Should a divorce be an automatic indicator of a risky person to have admitted? Did this person not break a vow? To this end, I would PASSIONATELY argue to the Court that the committee and more specifically the admission divisions be given SPECIFIC instruction, that only conduct related to the practice of law or previous practice of law, is relevant to predict future behavior. I.e someone might lie or cheat on a wife, but never in a million years dishonor the practice of law by lying to an opposing counsel, a client or the Court. Which vow is more significant, which form of lying predicts future behavior? The application is filled with hundreds of questions about a person’s private life, their employment, roommates, education etc., none of which is arguably relevant to their actual legal practice behavior. Many things happen over the course of a lifetime but they are not necessarily indicative of how one will behave in the practice of law. Furthermore, what behavior in practicing lawyers subjects them to 5 year plus disbarment?
3. Why should anything not related to the actual practice of law be considered relevant anyway? I would argue that ALL individuals should be admitted conditionally, at worst, IF there is no evidence of violating the tenants of the practice of law in our or another jurisdictions. The committee needs to be given specific guidance on this.
4. Conditional admission? Probation? When is it appropriate? What are the possible results post recommendations of denial? Denial means 5 plus years DISBARMENT, should there not be some correlation between admissions and disciplinary actions? With a five year wait to reapply it also means taking the Bar exam again, which is no small activity.
5. Alternative Proposal for Court to Consider: Why does the admissions division, whose job it is to red flag "issues" not just serve as the prosecutor? This makes great sense, since they are the ones who in practice determine the relevant issues ahead of time for the committee member investigating/assigned the case. The Court does not have an independent character and fitness committee. Committee members are provided the predetermined "red flags" by staff. Hence staff is the one deciding the relevant “acts.” If the Court wishes to streamline the process, a system in which the admission division staff,( or additional staff,) serve as prosecutors make more sense. This would be closer to the disciplinary process with the admission staff trying to keep people out and the PDJ and/or committee members serving as decision makers. This method would be much more efficient and save many peoples time. This is what is happening anyways in practice.
6. What is the relationship between admitting someone to the U of A or ASU College of law and admissions? Are we admitting people and educating people who have no hope of practicing law? How does this relate to funding of both schools?
7. Why does Arizona not allow people to go through the 6-12 month committee on character and fitness process prior to passing a bar exam? Cost of process could be passed on to applicant with ease. Taking the Bar exam, then speculating if one’s previous “acts” are going to keep him or her out of the practice, is an excessive burden on applicants. A process that in practice could take 2 years. (California allows for character and fitness screening prior to taking bar exam)
8. Necessity and knowledge of the committee members? The presiding disciplinary Judge is more familiar with the disciplinary reports of actual bar members and thus better able than anyone else to apply the proper standard. A standard that correlates much more directly to disciplinary issues the State Bar might be concerned about.
9. Why is the burden of proof on the applicant? The Bar has the burden of proving discipline cases by clear and convincing evidence why is less of a right afforded to applicants who have never sworn an oath to uphold the tenants of the practice of law? This question must be addressed because this is the kind of privilege that leads citizens to conclude that favoritism and exclusivity is at play.
10. What happens when Court violates rules or a member of the committee or staff violates Court rules in the process? These are Supreme Court Rules and violation should have consequences! I will provide specific examples upon request but the issue needs to be addressed in the rules.
11. Duty of Court to review entire file, should be mandatory, in new model or old model, it is the only independent review of case file.
12. Limited liability for committee and admission members? What happens when a mistake is made or someone acts maliciously?
13. The Supreme Court as ultimate arbitrator of this process is caught in a substantial conflict of interest because the admission division, who initiates the process “red flagging” an application works directly for the Court. I am surprised this has not been addressed in the past legislatively. The end result is that any case reaching the level of the Court, will inherently have the perception of bias, as the clerks and staff for each entity share the same building and boss. This issue is much more elaborate than a short explanation here.
14. Complaint against applicant form. This form was created around 2000. It needs to be mandatory for any member of public to file a complaint against Bar applicant. If complaint comes in Bar staff MUST follow up and ask compliant to elaborate. Right to face accuser? No anonymous accusations!
15. Bar applicant should have right to review entire file in a timely manner upon request, including notes made by staff, notes that become part of the record, part of the record reviewed by committee members. This also relates to memos in file from staff and others? Are they subject to review by committee? If not then why keep them, why make them? Examples can be provided as well. Shouldn’t they be disclosed? They are passed on to Committee members and MAY impact the committee members opinion of the applicant. Are they “red flagged?”
16. On a side note and not necessarily addressable and like almost all aspects of the legal system, this admission process favors the wealthy. Justice has become in many cases, you get what you paid for. Certainly the unrepresented party is almost always at a disadvantage in most proceedings. Why should this be the case in the admission process? The system is so unpredictable, mysterious and uncertain that applicants are encouraged to higher lawyers to represent them lest be at a disadvantage. Thus if you cannot afford proper Counsel who can guide you through the admissions maze you are automatically at this disadvantage.
I have sat through many committee meetings at the State Capitol and watched as the Citizens of our State confronted and conveyed to their legislators, with proper emotion, the impact of the laws/rules on themselves. Those who would create rules or laws should be subject to direct address from the citizens impacted by them. The judicial branch belongs to the people too and needs to hear from those impacted directly as well. Not just a committee who met for three hours every month and was not inclined to make the structural changes necessary to refine an imperfect process.
Under Rule 28 (E) I am requesting the opportunity for myself and others to speak publicly before the Court and to have the Court hold a public hearing on this matter. I think the admission process for the practice of law rises to such a level of importance that the Court needs to hear from members of the public. I would also suggest that this be done at the public session that is held at either Law school annually. I think it would make for a great discussion and would be at a location far more appropriate than the Supreme Court building.
Thank you for your time and I will continue to pursue the refinement of the admission system until we have something the people of Arizona can be proud of.