12149 N 134th Way
Scottsdale, AZ 85259-3637
To the Honorable Supreme Court: Any idea to make permanent any position in the Arizona State Bar disciplinary system is a terrible idea. The system is already expensive, unfair, and rife with due process problems. One of them is the ADPCC. Making membership on that committee permanent will only make a bad situation much worse. The problems are:
1) Lawyers have no opportunity to be heard in person with their counsel prior to the ADPCC making a decision. A lawyer should be able to appear before this committee before the committee issues an opinion. This is a due process issue that can only be made worse by having a permanent committee of people answerable to nobody, free to make factual findings and legal conclusions that are erroneous. They do not entertain any motion for rehearing, so there is no way to correct the problem after that, except to appeal, at which point your bar charge becomes a public record in the Presiding Disciplinary Judge's court files.
2) Judge O'Neill, who apparently has a permanent position, said in the CLE "A Lawyer's Day In Court," "You do not want to see me." That is quite literally the first time in my 23 year career that I have heard a "neutral and detached magistrate" say something like that. He said many unusual things. He speculated that narcissism might render an attorney unable to appreciate the wrongfulness of his actions, and may, therefore, excuse a lawyer's culpability for stealing from his client. A lawyer who repeatedly committed DUI was no danger to the public. He stated that attorneys are not entitled to proportional punishment, which contradicts what a panel prosecutor said. Apparently the ADPCC follows that same rule. One lawyer can get a year of probation for 10 years of deliberate and egregious misconduct in death penalty cases, while another lawyer can get twice that punishment, after the prosecutor recommended deferral and dismissal, for 16 pages of pleadings in a pro bono case that aren't great but aren't bad enough to warrant public humiliation, which the ADPCC is allowed to rain down on a attorney whether it is fair or not.
3) The entire system is inquisitional. According to "A Lawyer's Day In Court," once the Bar elevates a a charge to the formal investigation level, many lawyers have reviewed the bar charge and you definitely did something wrong. Any attempt to defend yourself, explain yourself, or put things in context is considered a lack of remorse. This includes lying by the complainant or anybody else in the legal case, and egregious judicial errors that impacted your legal judgment in the case. The only acceptable response to a formal bar investigation is "real remorse." As Judge O'Neill said, your first response to the bar charge will be weighed heavily against you; even if the bar charge is hundreds of pages long and you have no idea what you are supposed to have done wrong. The Arizona State Bar has managed to take one ABA mitigating factor, remorse, and elevate it to a procedural requirement for an accused lawyer. So much for a lawyer's due process right to be heard. There is incredible pressure to confess to whatever you have been accused of and otherwise keep your mouth shut. The ADPCC needs to have its members rotated out until someone who understands the minimal due process to which lawyers are entitled makes his/her way onto the ADPCC.
In a book I read while researching the origins of due process for an article about this situation, "The Grand Inquisitor’s Manual," the Spanish Inquisition is described as a process governed by laws and procedures, “Confession was required before the sin of heresy could be forgiven . . . and yet confession alone was never enough. The confession had to be abject, earnest, and complete . . . the will of the victim to resist had to be utterly crushed, his or her sense of self eradicated, and the authority of the interrogator acknowledged as absolute.” “[T]he workings of the Inquisition were subject to canon law and papal oversight,” staffed by “apparatchiks in a fixed bureaucracy.” The alleged purpose of the Inquisition, just like this bar disciplinary process, was to “educate” the accused who had allegedly strayed from the fold.
And so, for centuries, a fixed bureaucracy designed to make accused persons wrong has been a discredited idea. And it is so very easy to make another human being wrong. As I told many clients over the years, just because you should win does not mean you will win. The real question is, will they let you win?
4) Unlike criminals, lawyers are not entitled to specific performance. After spending $20,000 and not even getting to trial in front of a judge who warned "you do not want to see me," I cut a deal I could live with with the bar prosecutor. Judge O'Neill accepted the deal, but then wrote a non-conforming published opinion, in what was supposed to be an unpublished disposition, reinstating the ADPCC's bad opinion. So the word "unpublished" only pertains to the bar journal. Judge O'Neill, even when he does not see you, can publish anything they wants to about you. In my case, I found out my unpublished deal had a non-conforming published opinion attached to it because a national blog that scans Judge O'Neill's site picked it up and wrote about it. So my appeal of the ADPCC's erroneous opinion was pointless; but, after I explained things, the national blog took the blog post down, not wanting to be accused of false light defamation, for which bar disciplinary actors here are immune. In other states, they and the complainant can be sued for defaming attorneys. In my case, there is a public file containing a document accusing me of extortion for all the world to read.
The joke is on me. I could spend another $100,000 trying to straighten all this out, but, given the propensity of Arizona to do the wrong thing where I am concerned, ever since I reported grant fraud and UPL in five years of death penalty cases to the AZ Bar in 2012, I firmly believe that the only possible chance I have for a just result is if lightning strikes and the United States Supreme Court grants a cert petition. I could be 70 years old by then.
My lawyer also strenuously advised me not to appeal further, because all roads lead back to Judge "You Do Not Want To See Me" O'Neill. I could spent another $50,000 and be right back where I was when the ADPCC rendered its first opinion, which was published before the time to appeal had even run.
Arizona ethics attorneys here, an approved list of whom are sent you with your bar charge at the investigation stage for your convenience (you get a free one hour consultation!), are powerless to do much more than butter up their connections and assist accused attorneys in expressing "real remorse." No matter how much you like them personally or how nice they are, they help you prosecute yourself so the Bar, the ADPCC, etc., don't have to work too hard. I have no doubt that I made admissions on the advice of counsel that are not even true. That is an easy was to make $300-500 an hour. I would love a well-paying gig like that, except that I would hate myself for doing it. One ethics defense attorney tried to set up a prosecution ring when he was state bar president in the 1970s. He was not prosecuted or found unethical by the bar, and has since been the recipient of many bar ethics award. You can read that story in a book, "The Arizona Project," by investigative reporters who descended on Phoenix after reporter Don Bolles was murdered in a car bombing. Since the sub rosa set of rules set out in "A Lawyer's Day In Court" are "mysterious" and not written down anywhere, I think a lot of confused and angry attorneys finally break down and hire a lawyer because they have no idea what is going on, except that it is maddening and unfair. You start to feel like a trapped animal. So even your lawyer has a vested interest in seeing that this truly dreadful system never changes, and in never upsetting this apple cart by making any constitutional objections to this system.
I even had a case pending on appeal in the 9th Circuit, for First Amendment Retaliation, against certain judicial employees and one portion of this unified court system, which they did not deem to be a conflict of interest. I objected, and my objection was never addressed. I also objected that I had just testified against the Bar before they decided to elevate this matter to the formal investigation stage. I got a letter from Chief Bar Counsel asking me to waive confidentiality so he could explain the Bar's situation, which he insisted was not political, to the Arizona Senate. He is the same lawyer involved in covering up the UPL and grant fraud I reported to the Bar in 2012; he instructed UPL counsel not to put anything in writing.
I know there are good judges and bar lawyers in this state, but the bad actors in positions of power have the ability to make lawyers' lives a living hell. Lawyers who fear their bar this much are bad for the public, as this situation undoubtedly dampens the rigor and passion with which some lawyers defend their clients.
Everybody from your lawyer to the Arizona Supreme Court has bought into this well-oiled assembly line for punishing attorneys the Bar does not like., whether they are actual bad actors or merely irritants to the Bar. It is hard to believe that anyone could possibly propose any rule changes to make this system any worse, but that is exactly what you have here. Had I known in 2011 what I know about this Bar now, I would never have applied to be a member of the Arizona State Bar. At this moment I am seriously considering turning in my bar card, as I consider my entire bar disciplinary ordeal to be another act of First Amendment Retaliation, for my testimony against the Bar. It took an entire year to resolve a bar charge that was ultimately boiled down to 16 page of pleadings. Judge O'Neill found that I was incompetent to handle a First Amendment case, even though a week earlier I had won an appeal in a First Amendment case in the 9th Circuit, and I have a ton of civil litigation experience in state and federal court in another state. I had a spotless ethics record before moving here, I was well-respected in my field, and I had no quarrel of any kind, ever, with my former state bar.
I was remorseful when my attorney and everybody else convinced me that I had made an egregious error. When, at the 11th hour, I was asked to re-brief the offending pleading myself (I thought one of my inquisitors had done this before), I realized that there was a good faith basis in law and fact for what was pled. Both the ADPCC and Judge O'Neill, who reinstated the erroneous ADPCC ruling, insisted that I had acted in bad faith. Even my sister's breast cancer was not considered a mitigating factor.