In the Matter of CARLY VAN DOX

Annotate this Case

Download PDF

SUPREME COURT OF ARIZONA En Banc In the Matter of a Non-Member of the State Bar of Arizona, ) ) ) CARLY VAN DOX, ) ) Respondent. ) __________________________________) Arizona Supreme Court No. SB-06-0121-D Disciplinary Commission No. 04-1846 O P I N I O N Review from the Disciplinary Commission No. 04-1846 (Filed April 12, 2006) VACATED IN PART; DISCIPLINE IMPOSED ________________________________________________________________ OSBORN MALEDON, P.A. By Mark I. Harrison Sara S. Greene Phoenix And CLINT BOLICK By Clint Bolick Attorneys for Carly Van Dox Phoenix STATE BAR OF ARIZONA Phoenix By Robert B. Van Wyck, Chief Bar Counsel Denise K. Tomaiko, Staff Bar Counsel Attorneys for State Bar of Arizona ________________________________________________________________ B E R C H, Vice Chief Justice ¶1 the We granted review in this disciplinary case to clarify standard reviewing a the Disciplinary hearing officer s Commission findings must of apply fact and when the definition of knowledge, as that term is used in the American Bar Association Standards for Imposing Lawyer Sanctions. Because the Commission failed to properly defer to the Hearing Officer s factual findings and misinterpreted the term knowledge in determining the appropriate sanction, we decline to impose the Commission s recommended sanction of censure and instead impose a sanction of informal reprimand. I. ¶2 FACTS AND PROCEDURAL BACKGROUND Respondent Carly Van Dox is a lawyer who has been admitted to practice law in both Virginia and Florida. also certified in Florida as a mediator. Since She is moving to Arizona in 1997, she has worked as a licensed realtor, but has not applied for admission to the Arizona Bar. ¶3 In 2004, a co-worker asked Van Dox to represent the sellers in a real estate transaction in a private mediation. Van Dox explained to the sellers that she was not licensed to practice law in Arizona and so could not represent them if the dispute did not settle during the mediation. Following the disclosure, the sellers signed a retainer form that Van Dox had used in her Florida law practice and agreed to pay her $1,000 for her services in the mediation. ¶4 During the mediation, the buyers attorney discovered that Van Dox was not licensed to practice law in Arizona and informed questioned the Van mediator Dox, of she this fact. readily licensed in Florida, but not Arizona. - 2 - When acknowledged the that mediator she was ¶5 The mediator then called an Arizona attorney who was versed in unauthorized practice of law issues. After talking to that attorney and conducting independent research, the mediator concluded that with the The buyers attorney also agreed to proceed. mediation. Van Dox could ethically proceed The mediation ended without resolving the dispute. ¶6 Van Dox believed that her participation in the mediation was proper because the mediation was not court ordered and, in Florida, a certified mediator need not be an attorney. After the mediation, she discussed the issue with a retired superior court commissioner who advised Van Dox that she could rely on the mediator s determination. ¶7 the Although the mediation did not resolve the dispute, sellers were satisfied with Van Dox s work and neither requested return of the $1,000 fee nor filed a complaint against her. The buyers, however, filed a complaint with the Arizona State Bar. After Van Dox failed to respond to two inquiries from the State Bar regarding the matter, the Bar filed a formal complaint charging her with engaging in the unauthorized practice of law, in violation of Arizona Supreme Court Rule 31 and Ethical Rule ( ER ) 5.5 of the Arizona Rules of Professional Conduct; conduct misrepresentation, involving in dishonesty, violation of ER fraud, 8.4(c); deceit, and or conduct prejudicial to the administration of justice, in violation of ER - 3 - 8.4(d). She was also charged with violating Supreme Court Rule 53 by failing to cooperate with the Bar and respond promptly to the Bar s inquiries. See Ariz. R. Sup. Ct. 53(d) (refusal to cooperate); id. 53(f) (failure to respond promptly). ¶8 A hearing on the charges was held before a State Bar Hearing Officer who concluded that Van Dox violated ER 5.5 and Supreme Court Rule 31 by engaging in the unauthorized practice of law, and Supreme Court Rule 53(f) by failing to promptly respond to the Bar s inquiries.1 He recommended diversion as a sanction because he found that Van Dox s actions were negligent, caused little or no injury, and were not motivated by dishonesty or selfishness. Commission, The State Bar appealed to the Disciplinary which reversed findings and conclusions. several of the Hearing Officer s First, the Commission determined that Van Dox had knowingly rather than negligently engaged in the unauthorized practice of law. Second, the Commission found that Van Dox s conduct was motivated by dishonesty or selfishness because she accepted compensation for her work. Finally, the Commission found that her conduct caused actual or potential injury. The Commission recommended 1 censure, rather than Both the Hearing Officer s Report, In re Van Dox, No. 041846 (Nov. 2, 2005), and the Disciplinary Commission s Report, In re Van Dox, No. 04-1846 (Apr. 12, 2006), are available at http://www.supreme.state.az.us/dc/matrix.htm. - 4 - diversion, as the appropriate sanction. ¶9 Van Dox petitioned this Court for review Commission s recommended sanction, which we granted.2 of the We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and Arizona Supreme Court Rule 59(a). II. ¶10 DISCUSSION Attorney discipline is designed to protect the public, the legal profession, and the legal system and to deter other attorneys Scholl, from 200 engaging Ariz. 222, in 227, unprofessional ¶ 29, 25 conduct. P.3d 710, In 715 re (2001) (citing In re Neville, 147 Ariz. 106, 116, 708 P.2d 1297, 1307 (1985), and In re Swartz, 141 Ariz. 266, 277, 686 P.2d 1236, 1247 (1984)). Attorney discipline is not intended to punish the offending attorney, although the sanctions imposed may have that incidental effect. Id. at 224, ¶ 8, 25 P.3d at 712 (citing In re Pappas, 159 Ariz. 516, 526, 768 P.2d 1161, 1171 (1988)). A. ABA Standards ¶11 engaged Van Dox does not challenge the conclusion that she in the unauthorized practice respond to State Bar inquiries. of law and failed to Thus, the only issue before us 2 We originally also granted review on the issue of this Court s jurisdiction over a lawyer who is not a member of the Arizona Bar and engages in the unauthorized practice of law. We now conclude that review of that question was improvidently granted and therefore vacate review on that issue. - 5 - is the appropriate sanction. ethical violations, Association Standards ( ABA Standards ). P.3d 764, we 770 for In determining the sanctions for are guided Imposing by Lawyer the American Discipline Bar (1992) In re Peasley, 208 Ariz. 27, 33, ¶ 23, 90 (2004). We consider the following relevant in determining appropriate discipline: factors (1) the duty violated, (2) the lawyer s mental state, (3) the potential or actual injury caused by the lawyer s conduct, existence of aggravating or mitigating factors. Peasley, 208 Ariz. at 32, ¶ 19, 90 P.3d at 769. and (4) the Standard 3.0; We address each factor in turn. 1. ¶12 Van Duty violated The Hearing Officer and the Commission both found that Dox engaged in the unauthorized practice of law, in violation of ER 5.5 and Supreme Court Rule 31, and that she failed to respond promptly to State Bar inquiries, in violation of Supreme Court Rule 53(f). Standard 7.0 provides that such conduct violates a duty owed to the profession, although it may violate duties owed to clients, the public, or the legal system as well. 2. ¶13 Mental state A lawyer s ethical violations. mental state affects the sanction for Intentional or knowing conduct threatens more harm to the public, the legal system, and the profession - 6 - than does negligent conduct, and is accordingly sanctioned more severely. Ariz. See ABA Standards at 9-10. at 41-42, ¶ 65, 90 P.3d at Compare Peasley, 208 778-79 (holding that any sanction less than disbarment would be inappropriate based on respondent s intentional ethical violations), with In re Bemis, 189 Ariz. 119, 122-23, 938 P.2d 1120, 1123-24 (1997) (censuring respondent for negligent professional misconduct); compare also Standard 7.2 (stating that suspension is the presumed sanction for knowing Standard 7.4 sanction for isolated instance of negligent violation of ethical rules). The (stating violations that an of ethical admonition is rules), the with presumed Hearing Officer found that Van Dox s conduct in engaging in the unauthorized Commission practice disagreed, of law concluding knowing rather than negligent. relied on two facts: was merely that Van negligent. Dox s The conduct was In so concluding, the Commission Van Dox had the sellers sign the standard retainer agreement she had used in her Florida law practice, which contained the designation Law Offices of Carly R. Van Dox, P.A., and she signed the Mediation Agreement Rules and Procedures form provided by the mediator as Carly Van Dox, Atty. These acts, the Commission found, showed Van Dox s awareness that she was engaging in the unauthorized practice of law. ¶14 State of mind is a fact question. - 7 - In re Clark, 207 Ariz. 414, 417, ¶ 14, 87 P.3d 827, 830 (2004). Officer, after observing Van Dox and found that she acted negligently. the Commission must defer hearing her The Hearing testimony, to In disciplinary proceedings, a hearing officer s factual findings and may not reject the hearing officer s findings of fact related to discipline unless it determines that the factual findings are clearly erroneous. Id. at 418, ¶ 18, 87 P.3d at 831; see Ariz. R. Sup. Ct. 58(b). ¶15 The clear error standard requires that the Commission give great deference to a hearing officer s factual findings. See Scholl, 200 Ariz. at 226, ¶ 25, 25 P.3d at 714. This means that, in resolving factual questions, the Commission may not simply substitute its judgment for that of a hearing officer. See United Cal. Bank v. Prudential Ins. Co., 140 Ariz. 238, 286, 681 P.2d 390, 438 (App. 1983) (reviewing court will not substitute its judgment as to credibility of witnesses or weight clearly of evidence erroneous, reasonable evidence. for a that of finding the must [factfinder] ). be unsupported To by be any Moreno v. Jones, 213 Ariz. 94, 98, ¶ 20, 139 P.3d 612, 616 (2006) (citing O Hern v. Bowling, 109 Ariz. 90, 92-93, 505 P.2d 550, 552-53 (1973)).3 3 Deference to a hearing One court explained that, [t]o be clearly erroneous, a decision must [be] more than just maybe or probably wrong; it must . . . strike [the reviewing body] as wrong with the force - 8 - officer s factual findings is appropriate because, having had the opportunity to observe and hear the witnesses, the hearing officer is in a superior position to assess them and judge their credibility. See In re Piatt, 191 Ariz. 24, 27, 951 P.2d 889, 892 (1997). ¶16 Like the Commission, we also officer s factual findings for clear error. review a hearing Ariz. R. Sup. Ct. 59(b); In re Alcorn, 202 Ariz. 62, 64 n.4, 41 P.3d 600, 602 n.4 (2002). We must therefore determine whether the Hearing Officer clearly erred in finding that Van Dox negligently engaged in the unauthorized practice of law. ¶17 Negligence occurs when a lawyer fails to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation. Standards at 12. ABA The evidence adduced at the hearing showed that Van Dox believed that the private mediation in which she participated did not involve the unauthorized practice of law because it was not court ordered. from which she had come, Moreover, Florida, the state certifies mediators who are not of a five-week-old, unrefrigerated dead fish. Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988). Although the Arizona courts explanations are less vivid, they adequately express the correct legal standard. - 9 - attorneys. Thus, she reasoned, non-lawyers may participate in private mediations. She advised her clients at their first meeting that she was not licensed as an attorney in Arizona. She further advised them that if the matter progressed beyond mediation, she would not be able to assist them. She signed in at the mediation as Carly Van Dox, Atty. because she is in fact an attorney. ¶18 Although Van Dox erred in thinking that her actions did not constitute the unauthorized practice of law in Arizona, the Hearing Officer found that her belief was honest and that she negligently when she belief was supported by the mediator s consultation with an attorney. The agreed to practiced participate in law without the authorization mediation. Her mediator concluded that the mediation could ethically proceed with Van Dox s participation, a result confirmed to Van Dox by a former superior court commissioner. consulted after Van Dox began Although these sources were her participation in the mediation, they demonstrate that her confusion on the issue was not unreasonable. ¶19 These facts amply support the Hearing Officer s finding that Van Dox s conduct in engaging in the unauthorized practice Because of law was substantial not knowing, evidence finding, we defer to it. but supports negligent. the Hearing See id. Officer s See Merryweather v. Pendleton, 91 - 10 - Ariz. 334, 338, 372 P.2d 335, 338 (1962). ¶20 In support of the Commission s finding of a knowing violation, the State Bar argues that all that is required to constitute aware a that knowing she violation performed is actions, that and the the respondent actions in was fact constituted the unauthorized practice of law; she need not have been aware when she acted that unauthorized practice of law. she was engaging in the Therefore, the Bar argues, Van Dox s conduct was knowing rather than negligent because she knew that she provided a retainer agreement from her Florida practice and that she signed in as an attorney representing the sellers at the mediation. ¶21 The applicable refutes the Bar s knowledge as the definition argument. of The conscious definition clarifies that ABA awareness attendant circumstances of the conduct. This knowledge, merely Standards of the however, define nature or ABA Standards at 12. knowing one performs particular actions is not the same as consciously intending by those actions to engage in unethical conduct. The actor must also know the nature and circumstances of those actions; that is, a respondent knowingly engages in the unauthorized practice of law only if she is aware that her conduct constitutes the unauthorized practice of law. See In re Taylor, 180 Ariz. 290, 292, 883 P.2d 1046, 1048 (1994) (concluding that respondent who - 11 - admittedly knew that he should not be practicing [law] during [a period of suspension] knowingly engaged in the unauthorized practice of law); see also In re Tocco, 194 Ariz. 453, 457, ¶ 11, 984 P.2d 539, 543 (1999) (holding that a mere showing that the attorney reasonably should have known her conduct was in violation of the rules, without more, is insufficient to establish a knowing ethical violation); In re Levine, 174 Ariz. 146, 171, 847 knowledge P.2d 1093, required for 1118 (1993) setting a (indicating higher that sanction the for professional misconduct is knowledge that [respondent] may have been violating an ethical rule ). ¶22 did In this case, the Hearing Officer found that Van Dox not know that her practice of law. actions constituted the unauthorized He concluded that an honest but erroneous belief that one s actions do not constitute the unauthorized practice of law does not constitute a knowing violation. ¶23 We agree determination. knowledge unauthorized would with Adopting have practice the a the the Hearing State effect knowing of Officer s Bar s definition rendering violation legal of of any act of the ethical rules, unless the respondent acted while asleep or unconscious. Such an interpretation would negate mental state as a factor in determining suitable sanctions for unauthorized practice of law violations, in contravention of - 12 - this Court s established practice. See Peasley, 208 Ariz. at 32, ¶ 19, 90 P.3d at 769; Tocco, 194 Ariz. at 457 n.3, 984 P.2d at 543 n.3. ¶24 Applying the proper definition of knowledge and deferring to the Hearing Officer s findings of fact, we conclude that Van Dox s conduct was negligent. 3. Actual or potential injury ¶25 The Court also considers the harm caused by ethical violations in determining sanctions. that Van Dox s conduct Commission disagreed. a question of fact. caused The Hearing Officer found little or no injury. The Whether a lawyer s actions caused harm is See Reed v. Mitchell & Timbanard, P.C., 183 Ariz. 313, 318, 903 P.2d 621, 626 (App. 1995). Thus, we and the Commission must defer to the Hearing Officer s finding that Van Dox s actions caused little or no injury unless that finding is clearly erroneous. ¶26 The ABA Standards define injury as harm to a client, the public, the legal system, or the profession which results from a lawyer s misconduct. reference greater Standard to than 7.0 injury alone little or notes that ABA Standards at 12. indicates level injury. no any Id. The violations of duties of [A] injury comment owed to to the profession, such as are present in this case, are generally . . . less likely to cause injury to a client, the public, or the administration of justice. - 13 - ¶27 The Hearing Officer found that the sellers were satisfied with Van Dox s representation and concluded that they suffered little or no injury Commission does not challenge. from it, a conclusion the The Commission decided, however, that the Hearing Officer failed to consider any possible injury to the public, the legal system, or the profession. agree. We do not After considering the harm to the sellers, the Hearing Officer addressed the lack of injury to the buyers and concluded that they conduct.4 too suffered little or no injury from Van Dox s The Hearing Officer also noted that all involved, other than the buyers, agreed that the mediation would not have ended differently if Van Dox had been an Arizona attorney. The Hearing Officer indirectly touched upon the lack of injury to the public, concluded the that legal neither system, the and the profession public nor other when lawyers he will benefit from whatever lessons might be gleaned from Respondent s conduct in representing the [sellers] in a private mediation. ¶28 On review of the evidence, we conclude that the Hearing Officer s finding that Van Dox s conduct caused little or no injury was supported by substantial evidence and was not clearly erroneous. The Commission 4 therefore erred in not Six months after buying the house that was the subject of the mediation, the buyers sold it at a substantial profit. - 14 - deferring to the Hearing Officer s finding. ¶29 Before this Court, the State Bar raises the additional arguments that Van Dox s conduct could have injured the sellers by depriving them of the benefit of the attorney-client privilege and a potential legal malpractice action had Van Dox s representation not been adequate. Because the Bar failed to raise these claims below, we decline to address them. See Van Loan v. Van Loan, 116 Ariz. 272, 274, 569 P.2d 214, 216 (1977) (declining to address issues raised for first time on appeal). 4. ¶30 Presumptive sanction An informal reprimand is generally [the] appropriate [sanction] when a lawyer engages in an isolated instance of negligence that is a violation of a duty owed as a professional, and causes little or no actual or potential injury to a client, the public, admonition, Having or the the legal equivalent concluded that Van system. of Standard Arizona s Dox 7.4 informal negligently (defining reprimand). engaged in the unauthorized practice of law, a violation of a duty owed as a professional, and deferring to the Hearing Officer s finding that her act constituted an isolated instance of misconduct,5 the 5 On this point, the Hearing Officer compared Van Dox s conduct to that of the respondent in In re Winiarski, No. 982052 (Disciplinary Comm n May 15, 2000), discussed infra ¶¶ 4041, whose conduct in twice appearing before an administrative tribunal was deemed an isolated instance. - 15 - presumptive sanction is an informal reprimand. ¶31 The presence of aggravating or mitigating factors may, however, overcome the presumption. 36, ¶ 36, 90 P.3d at 773. 5. ¶32 and See Peasley, 208 Ariz. at We examine those factors next. Aggravating and mitigating factors Standards 9.2 and 9.3 enumerate potential aggravating mitigating factors to be considered in determining appropriate sanction for professional misconduct. the The Hearing Officer found no aggravating factors, but found the existence of five mitigating disciplinary factors: record, (1) Standard the absence 9.32(a); (2) the of a prior absence of a dishonest or selfish motive, Standard 9.32(b); (3) a cooperative attitude toward the proceedings following her initial failure to respond, Standard 9.32(e); Standard 9.32(g); 9.32(m). The Commission agreed that four of the five mitigating and (4) (5) good character exhibition of or reputation, remorse, Standard factors were established, but found the evidence insufficient to support the mitigating factor of absence of a dishonest or selfish motive. The Commission instead concluded that Van Dox had a dishonest or selfish motive because she accepted a fee of $1,000 for her services. ¶33 The presence or motive is a fact question. 87 P.3d at 831. absence of a dishonest or selfish See Clark, 207 Ariz. at 418, ¶ 18, The Commission may not make additional findings - 16 - of fact in a disciplinary proceeding, Tocco, 194 Ariz. at 456, ¶ 9, 984 P.2d at 542, or deviate from those found by a hearing officer unless they are clearly erroneous, Ariz. R. Sup. Ct. 58(b). We therefore must determine whether the Hearing Officer s finding that Van Dox lacked a dishonest or selfish motive was clearly erroneous. ¶34 The Commission appears to have based its finding that Van Dox had a dishonest or selfish motive solely on the fact that she accepted payment for her services. Standing alone, however, the receipt of a fee does not mandate a finding of a dishonest or selfish motive. See In re Castro, 164 Ariz. 428, 434, 793 P.2d 1095, 1101 (1990). ¶35 The selfish cases motive violations. have in which involved we have found intentional or a dishonest knowing or ethical In In re Shannon, for example, to protect his own interests, an attorney represented a client and another, despite an obvious conflict in the parties interests. 179 Ariz. 52, 69, 876 P.2d 548, 565 (1994); see also In re Spear, 160 Ariz. 545, 555-56, 774 P.2d 1335, 1345-46 (1989) (finding a dishonest or selfish motive because respondent intentional[ly] abuse[d] . . . the purchase lawyer-client property disadvantage). to relationship lawyer s by inducing advantage and client to client s In In re Arrick, we found that the respondent possessed a dishonest or selfish motive, in part, because he - 17 - made deliberate misrepresentations . . . designed to cover his negligence. 180 Ariz. 136, 143, 882 P.2d 943, 950 (1994); see also In re Hansen, 179 Ariz. 229, 232, 877 P.2d 802, 805 (1994) (finding a dishonest or selfish motive because respondent lied to the court to cover up her error ). We have also found a dishonest or selfish motive in cases involving conversion of client funds for an attorney s own use and knowingly filing frivolous lawsuits. See, e.g., Levine, 174 Ariz. at 171, 847 P.2d at 1118 (filing frivolous lawsuits); In re Jones, 169 Ariz. 19, 19, 21, 816 P.2d 916, 916, 918 (1991) (converting client funds); In re Henry, 168 Ariz. 141, 144, 811 P.2d 1078, 1081 (1991) (same). In no case have we found a dishonest or selfish motive solely from the receipt of reasonable compensation. ¶36 As we have already concluded, Van Dox s conduct was negligent rather than intentional or knowing. In the absence of other facts to indicate a dishonest or selfish motive on Van Dox s part, we cannot conclude that the Hearing Officer clearly erred in finding that Van Dox lacked such a motive. ¶37 We agree with the Hearing Officer s finding that five mitigating factors are present: (1) the absence of a disciplinary record, (2) the absence of a dishonest or selfish motive, (3) Van Dox s ultimate cooperation in the proceedings, (4) her character or reputation, and (5) her remorse. further agree that no aggravating factors were proved. - 18 - We ¶38 We do agree with the Commission, however, that the Hearing Officer improperly considered the potential effects of discipline on Van Dox s livelihood and reciprocal discipline in Florida and Virginia in determining the sanction. The effects of sanctions on an attorney s practice and livelihood are not mitigating factors sanctions. Shannon, 179 Ariz. at 71, 876 P.2d at 567. B. that may be considered in determining Proportionality ¶39 When sanctioning lawyers, in addition to the guidance provided by the ABA Standards, we look to other, similar cases in determining whether the sanction imposed is proportionate to the misconduct charged. at 614. In this Alcorn, 202 Ariz. at 76, ¶ 49, 41 P.3d case, the Hearing Officer found In re Winiarski, No. 98-2052 (Disciplinary Comm n May 15, 2000), to be most similar to this case. ¶40 twice Winiarski, who was licensed in Maine but not Arizona, appeared on behalf administrative hearings. 2, 1999). of a construction company at Id. at 2-3 (Hr g Officer s Rpt. Dec. Winiarski had been told before the hearings that he did not need to be an attorney to participate. Id. at 3. Winiarksi failed to inform the tribunal that he was not licensed in Arizona and signed in as an attorney at the second hearing. Id. At both hearings, the tribunal believed that Winiarski was licensed to practice law in Arizona. - 19 - Id. Winiarski was charged with the unauthorized practice of law. Id. at 1. The Commission concluded that Winiarski s conduct was negligent and caused no actual or potential injury and adopted the Hearing Officer s finding that instance of misconduct. the conduct constituted an isolated Id. at 2-3 (Disciplinary Comm n May 15, 2000). Four mitigating and no aggravating factors were found. Id. 2. at Applying reprimand was imposed. ¶41 Standard 7.4, a sanction of informal Id. at 3-4. Here, as in Winiarski, a non-member of the Arizona bar negligently participated in a proceeding believing that she did not need to be an attorney to participate. Little or no actual or potential harm resulted from the conduct, which constituted an isolated instance of the unauthorized practice of law. ¶42 The Commission distinguished Winiarski on the grounds that Van Dox, unlike Winiarski, failed to respond promptly to Bar inquiries in practice of law. addition to engaging in Such a failure is serious. the unauthorized See In re Espino, 168 Ariz. 139, 141, 811 P.2d 1076, 1078 (1991). We agree with the Hearing Officer s conclusion, however, that [t]he State Bar has failed to prove by clear and convincing evidence that Respondent s failure to respond to the State Bar s letter[s] was - 20 - in bad faith or meant to obstruct the disciplinary process. 6 Consequently, we find that this factor does not justify a more severe sanction. Cf. Standard 9.22(e) (listing bad faith obstruction of the disciplinary proceeding as an aggravating factor). Moreover, an additional mitigating factor was found to exist in Van Dox s case that did not exist in Winiarski s case. The Commission s recommended sanction of censure of Van Dox is therefore not proportionate to her misconduct. C. Appropriate Sanction ¶43 Determining the appropriate sanction for an ethical violation is a question of law that we review de novo. See In re Walker, 200 Ariz. 155, 160, ¶ 20, 24 P.3d 602, 607 (2001). Although we consider the recommendation of the Hearing Officer and the Commission, the responsibility to decide upon the appropriate sanction in a disciplinary proceeding is ultimately ours. Peasley, 208 Ariz. at 33, ¶ 23, 90 P.3d at 770 (quoting 6 Although failure to respond need not be done in bad faith or to obstruct the disciplinary process to constitute an ethical violation, see Ariz. R. Sup. Ct. 53(f), a lawyer s reason for the failure may bear on the appropriate sanction for the violation. Van Dox testified that her failure to respond to the Bar s inquiries was initially attributable to diminished memory, lapses in concentration, and inattention to detail resulting from a stroke she suffered in 2002, and later to her belief that the complaint would be dropped. The Hearing Officer found Van Dox a compelling witness and found her explanation [r]elevant to her failure to respond. He thus gave less weight to her failure to respond. Since receiving the formal complaint from the Bar, Van Dox has fully cooperated with all proceedings. - 21 - Walker, 200 Ariz. at 160, ¶ 20, 24 P.3d at 607). Considering the ABA Standards and our proportionality analysis, we conclude that Standard 7.4 applies here and impose an informal reprimand for Van Dox s ethical violations. ¶44 Van Dox urges this Court to find diversion appropriate alternative to discipline in this case. an The State Bar counters that diversion is not available to a non-member of the Arizona Bar. non-member ). See Ariz. R. Sup. Ct. 46(f)(15) (defining We do not reach the question whether diversion is available to non-members because we hold that, in any event, diversion is not appropriate here. ¶45 in The State Bar may recommend diversion in certain cases accordance Guidelines. provide: the with the State Bar Ariz. R. Sup. Ct. 55(b). of Arizona Diversion The Diversion Guidelines The purpose of the Diversion Program is to protect public by improving the professional competency of and providing educational, remedial and rehabilitative programs to members of the State Bar of Arizona . . . . Guidelines/ Regulations for Implementation of the Diversion Program at 1 (2004), available at http://www.myazbar.org/LawyerRegulation/ DiversionGuidelines2004.pdf. A sub-goal is to prevent similar future violations by the respondent. Id. The Guidelines note that diversion is not available in cases that present little hope that diversion will achieve program goals. - 22 - Id. ¶46 Given the purpose of the diversion program to educate attorneys, improve competency, and prevent future violations, even if diversion were theoretically available to a non-member, it is not appropriate in this case. It makes little sense to allow diversion for a non-member who has engaged in a single instance of unauthorized practice of law and is not likely to re-offend. Indeed, the Hearing Officer acknowledged that Respondent s violations were the result of negligence relating to a legal issue about which Respondent is now knowledgeable. There is no risk Respondent will make the same mistake twice. ¶47 Moreover, this case involves not only the unauthorized practice of law, but also failure to respond to two inquiries from the State Bar regarding the matter. Although Van Dox s failure to respond was not intended to hinder the disciplinary process, it nonetheless constitutes a violation of this Court s Rules and persuades us that discipline is appropriate in this case. We thus conclude that an informal reprimand is the appropriate sanction. III. ¶48 factual CONCLUSION For the foregoing reasons, we vacate the Commission s findings and recommendation related to sanction and impose on Respondent Van Dox a sanction of informal reprimand - 23 - for her violations of ER 5.5 and Arizona Supreme Court Rules 31 and 53(f). _______________________________________ Rebecca White Berch, Vice Chief Justice CONCURRING: _______________________________________ Ruth V. McGregor, Chief Justice _______________________________________ Michael D. Ryan, Justice _______________________________________ Andrew D. Hurwitz, Justice _______________________________________ Lawrence F. Winthrop, Judge* *Pursuant to Article 6, Section 3 of the Arizona Constitution, the Honorable Lawrence F. Winthrop, Judge of the Arizona Court of Appeals, Division One, was designated to sit in this matter. - 24 -

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.