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REFERENCE TITLE: attorney discipline; due process; juries |
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State of Arizona Senate Fifty-fourth Legislature Second Regular Session 2020
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SB 1426 |
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Introduced by Senator Farnsworth D
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AN ACT
amending title 32, Arizona Revised Statutes, by adding chapter 2; relating to attorneys.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 32, Arizona Revised Statutes, is amended by adding chapter 2, to read:
CHAPTER 2
ATTORNEYS
ARTICLE 1. GENERAL PROVISIONS
32-201. Attorneys; complaints; discipline; right to jury hearings; prohibitions; perjury
A. The supreme court may process complaints against and discipline attorneys. In disciplinary proceedings, the supreme court shall provide due process, including disclosing complaint responses to the complainant.
B. In addition to following the existing Arizona rules of professional conduct, attorneys must:
1. Swear an oath to the United States Constitution and the Arizona Constitution to defend the rights of their clients pursuant to article VI, clause 3, United States Constitution. Any other oath swearing allegiance to the court or any entity other than the constitution is void and prohibited.
2. Defend the rights of their clients, including article II, section 23, Constitution of Arizona, effectuated by amendment X of the United States Constitution.
C. Membership in the inns of court or any similar organization that is subversive to the United States Constitution and the Arizona Constitution is prohibited and subject to discipline under the Arizona rules of professional conduct.
D. If an attorney who is being investigated or disciplined believes that fines or discipline are excessive or unjust or that justice is not served by a decision of the state bar of Arizona in a disciplinary proceeding, the attorney may ask for and shall be provided a new hearing at which the evidence is examined and a final decision is made by a jury in a proceeding in superior court. The jury shall examine the evidence and make a final decision.
E. The jury shall consist of ten citizens chosen at random from the jury pool and may enter a verdict to disbar an attorney only by unanimous verdict using evidence that reaches the standard of beyond a reasonable doubt. If the evidence does not reach this standard, the attorney shall remain licensed to practice law or have imposed sanctions reduced as determined by the jury.
F. Jury instructions shall include a copy of the text of this section.
G. Committing perjury, providing false evidence, providing manufactured evidence or withholding exculpatory evidence is prohibited and is punishable under title 13, chapter 27, up to a class 4 felony, and shall be enforced in criminal court. Any person may refer such charges to the county attorney or the attorney general. Prosecutorial discretion resides exclusively with the grand jury.
H. A person who is involved in the disciplinary activities of an attorney may not have immunity except the judge who presides over the jury trial, if that proceeding becomes necessary, shall only have judicial immunity.
I. Total fees for a subsequent hearing that is heard and decided by a jury may not exceed $500.
J. Mediation, including discussions and negotiations between the parties, is the preferred method of settling disputes relating to an attorney. Records of mediation or the fact that there has been no mediation shall be placed on the record for the jury to review.
K. If a decision rendered by the state bar of Arizona from and after the effective date of this section is challenged because the attorney does not believe that justice is served, the attorney may request a hearing as described in subsection D of this section within forty‑five days after the state bar of Arizona renders the decision. The hearing as described in subsection D of this section shall take place within forty‑five days after the date of the request.
L. If the state bar of Arizona renders a decision in a disciplinary proceeding before the effective date of this SECTION and the decision is challenged, mediation shall be attempted and documented. If deemed necessary by the attorney, a hearing may be requested and shall be furnished by the court to settle the matter in the manner prescribed by subsection D of this section.
M. To discourage abuse of process, in a hearing pursuant to this section, a jury may sanction any party, including the state bar of Arizona, up to $2,000 to be paid to any party to the hearing.
N. From and after the effective date of this section, for all new complaints to the state bar of Arizona, attorneys shall be verifiably notified of the option to have a jury make the final decision for sanctions up to and including disbarment. Failure to notify shall render decisions made by the state bar of Arizona void and unenforceable.
O. The right to a hearing decided by a jury cannot be violated and therefore no one has the discretion to violate this right. The right to have a jury make the final decision on attorney licensure and discipline is a fundamental liberty interest and is therefore inviolate.
P. The executive and legislative branches rely on sound, independent and competent legal advice with no conflict of interest with the judicial branch. Any attorneys who are employed by the executive branch or the legislative branch must immediately cure any such conflicts or tender their resignation or be discharged. Such conflicts of interest may be violations of Article III, Constitution of Arizona, relating to distribution of powers and thus the Arizona rules of professional conduct.
Q. An independent judiciary is essential. Judges may not exert undue influence in the form of coercive control over the legal profession. This chapter is intended to dispel the public perception that attorneys and judges may have formed an illegal monopoly and thus to reaffirm the integrity of both the judicial branch and the legal profession.