Errol H. Shifman
16751 E. Last Trail Dr.
Fountain Hills, AZ 85268
[email protected] Please consider a substantive amendment to Rule 71 as long as the rules are being amended. Rule 71 deals with "Expungement" however no expungement is really accomplished because the taint of an inquiry or frivolous complaint still lingers. A brief scenario will show the reason for my comment:
An "inquiry" is lodged with the Bar (the Bar termed it an "inquiry" and not a complaint) regarding the act of an attorney drafting proposed statutes. This "inquiry" was summarily dismissed by the Bar without investigation and the Bar further explained that even had it been investigated it could never have risen to an ethical infraction.
As Rule 71 stands now, the matter has been "expunged" per the Bar definition but the attorney for the rest of their life on any job application or other inquiry has to say that they were the subject of a Bar complaint. This is extremely unfair and unfortunately the taint of a complaint lingers and the bell cannot be unrung.
The dictionary definition of expunge is:
1 : to strike out, obliterate, or mark for deletion
2 : to efface completely : destroy
3 : to eliminate (as a memory) from one's consciousness
If the bar feels a matter is worthy of expungement then let's really expunge it and efface it completely. In the above scenario this frivolous "inquiry" should not taint this attorney for the rest of their career and they should not have to mention it. The current explanation that an attorney must give, that their complaint has been expunged by the Bar and no adverse inference shall be drawn from it, leaves a bad taste and does not satisfy the protection of expungement.
Perhaps for complaints that would have or could have amounted to an ethical violation expungement is not appropriate. Perhaps there are catagories of inquiries or complaints that require different treatment but to paint them all with the same broad brush, as the current rule does, unfairly stigmatizes ethical attorneys and lumps them in with the those that have had possible ethical violations.
My proposal is to amend section (d) of Rule 71 to read:
(d) Effect of Expungement. After a file has been expunged, any response by the committee or state bar to an inquiry requiring a reference to the matter shall state THAT NO SUCH MATTER EXISTS. The respondent may answer any inquiry requiring a reference to the matter BY SAYING THAT NO COMPLAINT EXISTS.