In the Matter of ALEJANDRO LAZCANO

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SUPREME COURT OF ARIZONA En Banc In the Matter of the Application of ) ) ) ALEJANDRO LAZCANO, ) ) ) Applicant. ) _________________________________ ) Arizona Supreme Court No. SB-09-0053-M O P I N I O N APPLICATION DENIED ________________________________________________________________ Alejandro Lazcano In Propria Persona El Paso, TX STATE BAR OF ARIZONA By Raymond A. Hanna, President Prescott Patricia A. Sallen Phoenix John A. Furlong, General Counsel Attorneys for Amicus Curiae State Bar of Arizona ________________________________________________________________ B E R C H, Chief Justice ¶1 This case addresses whether an applicant on Texas felony deferred adjudication may be admitted to practice law in Arizona. We conclude that the pending charge prevents the applicant from showing the good moral character necessary for admission to the Arizona Bar. I. ¶2 In 2002, while an BACKGROUND undergraduate student in Texas, Alejandro Lazcano was arrested and indicted for burglary and sexual assault. Under a plea agreement, he pled no contest to a reduced charge of attempted sexual assault. The Texas court deferred adjudication while Lazcano completed a ten-year term of probation. ¶3 Lazcano later graduated from law school. He passed the July 2008 Arizona bar examination and applied for admission to the Arizona Committee Bar. on Following Character recommended admission. the effect of a and a formal Fitness, hearing, by a the Arizona divided vote, On review, we asked the parties to brief deferred adjudication on an applicant s fitness to practice law. II. ¶4 We have previously DISCUSSION described process for admission to the Bar. the requirements and See In re King, 212 Ariz. 559, 563 ¶¶ 9-10, 136 P.3d 878, 882 (2006); In re Hamm, 211 Ariz. 458, 461-62 ¶ 12, 123 P.3d 652, 655-56 (2005). Generally, applicants for admission to the Arizona Bar must demonstrate that they possess good moral character. Ariz. R. Sup. Ct. 34; Hamm, 211 Ariz. at 462 ¶ 12, 123 P.3d at 656. We examine past misconduct to see what it reveals about an applicant s present moral character. Hamm, 211 Ariz. at 463 ¶ 17, 123 P.3d at 657. Among other factors, we consider the seriousness of the conduct, the lapse of rehabilitation. time since the conduct, Ariz. R. Sup. Ct. 36(b)(4). and evidence of The Committee on Character and Fitness makes recommendations to this Court on - 2 - admission, but we independently determine whether the applicant has satisfactorily demonstrated good moral character. Ariz. at 462 ¶ 12, 123 P.3d at 656. Hamm, 211 The central component of our assessment is, at all times, protection of the public. re Arrotta, 208 Ariz. 509, 512 ¶¶ 11-12, 96 P.3d In 213, 216 assault and (2004). A. ¶5 In lieu of trial on charges of sexual burglary, Lazcano pled no contest to attempted sexual assault. The court deferred supervision for adjudication the maximum and term placed him ten years, of on community subject to conditions that include 240 hours of community service and sex offender registration. See Tex. Code Crim. P. Ann. art. 42.12 § 5(a) (Vernon 2006) (providing for deferred adjudication). If Lazcano successfully complies with the conditions, a judge may dismiss the charge at the expiration of the supervision period. Id. § 5(c). But if Lazcano does not, he may be sent to prison without a trial on the underlying charge. ¶6 a Id. §§ 5(b), 21(b). Arizona s rule regulating admission to the Bar creates presumption misdemeanor admission. that an involving Ariz. R. applicant a convicted serious Sup. Ct. crime of a felony should 36(b)(2). To be or a denied rebut the presumption, a convicted felon must provide clear and convincing evidence of rehabilitation. See id. - 3 - ¶7 Our Committee on Character and Fitness correctly treated the deferred adjudication as a conviction for purposes of Rule 36(b)(2). Arizona law defines a conviction as a determination of guilt by verdict, finding, or the acceptance of a guilty or no contest plea; formal entry of judgment is not required. State v. Walden, 183 Ariz. 595, 615-16, 905 P.2d 974, 994-95 (1995), overruled on other grounds by State v. Ives, 187 Ariz. 102, 927 P.2d 762 (1996). Lazcano s no contest plea qualifies as a conviction because [l]ike a guilty plea, a plea of no contest is an admission of guilt for the purposes of the case. (1982) State v. Stewart, 131 Ariz. 251, 254, 640 P.2d 182, 185 (quoting (1926)). Hudson v. United States, 272 U.S. 451, 455 Arizona law on this point comports with Texas law, see Tex. Code Crim. P. Ann. art. 42.12 § 5(c), which requires a defendant to plead guilty or no contest to qualify for deferred adjudication that is, to accept responsibility for a crime. John Bradley, (2006); see Deferred Tex. R. Adjudication, Govern. Bar 69 Adm n Tex. B.J. IV(d)(1) 296, 296 (treating deferred adjudication as conclusive evidence of guilt for lawyer admission purposes). B. ¶8 has To establish rehabilitation, Lazcano must show that he both (1) accepted responsibility for his past criminal conduct, and (2) identified and overcome the weakness that led - 4 - to the unlawful conduct. King, 212 Ariz. at 564 ¶ 13, 136 P.3d at 883 (citing Hamm, 211 Ariz. at 464 ¶ 23, 123 P.3d at 658, and Arrotta, 208 Ariz. at 513 ¶ 17, 96 P.3d at 217). ¶9 The Committee s evaluation of Lazcano s application turned not on his acceptance of responsibility for his acts and his efforts to overcome the weaknesses that led to his past misconduct, see Ariz. R. Sup. Ct. 36(b)(4), but focused instead on the credibility of the witnesses in the Texas case. Despite Lazcano s no contest plea, the Committee found that the initial report of non-consensual sexual relations may not be reliable. Relying on Lazcano s statements and the police report, a majority of the Committee appears to have questioned whether Lazcano engaged in any criminal conduct stemming from the 2002 incident. ¶10 The Committee serves an important function in evaluating the moral character of applicants to the State Bar. We caution, however, that the Committee should not re-try or second-guess an applicant s criminal conviction, guilty plea, or other acknowledgement of criminal responsibility. The Committee does not have at its disposal all of the evidence, including the evidence that supported the guilty verdict or plea, and experience shows that applicants are apt to present a version of the facts that minimizes their responsibility. The Committee should instead accept that the defendant has been found guilty - 5 - beyond a reasonable doubt, either by verdict or plea. Thus for admissions purposes, Lazcano pled no contest to the felony of attempted sexual assault and remains on deferred adjudication as a registered sex offender. C. ¶11 We turn to whether an applicant serving deferred adjudication for a felony offense is eligible for admission to the Bar.1 Cases from across the country uniformly require individuals convicted of crimes to complete their court-ordered supervision before applying for admission or reinstatement. See, e.g., In re Culpepper, 770 F. Supp. 366, 373 (E.D. Mich. 1991) (reinstatement); Seide v. Comm. of Bar Exam rs, 782 P.2d 602, 607 (Cal. 1989) (admission); In re Dortch, 860 A.2d 346, 362-63 (D.C. 2004) (admission); In re Pahules, 382 So. 2d 650, 651 (Fla. 1980) (reinstatement); In re Thompson, 365 N.W.2d 262, 265 (Minn. 1985) (reinstatement); In re Walgren, 708 P.2d 380, 388 (Wash. 1985) (reinstatement). These courts reason that because probationers typically behave well while on probation, admissions authorities cannot adequately evaluate rehabilitation until the applicant has successfully completed probation; application before completion of a probationary term is deemed 1 An individual on deferred adjudication is treated as though the charge is still pending. See Tex. Code Crim. P. Ann. art. 42.12 § 5(a); United States v. Bishop, 264 F.3d 535, 556 (5th Cir. 2001). - 6 - premature. require probation See, e.g., significant so that rehabilitation. Seide, time the E.g., to 782 elapse applicant id. at P.2d 605 at 607. following can Most the demonstrate ( It is not also end of sustained enough that petitioner kept out of trouble while being watched on probation; he must affirmatively demonstrate over a prolonged period his sincere regret and rehabilitation. ); see also In re Polin, 596 A.2d 50, 53-54 (D.C. 1991). These requirements comport with Arizona s requirement that an applicant with a felony conviction must show by clear and convincing evidence that he has been rehabilitated. Cf. Arrotta, 208 Ariz. at 512 ¶ 12, 96 P.3d at 216 (requiring clear and convincing evidence of rehabilitation). ¶12 Lazcano would not be permitted to apply for membership in the State Bar of Texas, his home state. Adm n IV(d)(2). Tex. R. Govern. Bar A person guilty of a felony in Texas is conclusively deemed not to have present good moral character and fitness and cannot apply for admission to the bar until five years after completing the probationary term. Id. Thus Lazcano cannot apply for membership in the Texas Bar until 2018. ¶13 Significantly, had Lazcano been a member of the Arizona Bar when he pled no contest to the charge, he likely would have been suspended from practice. See Ariz. R. Sup. Ct. 53(h) (requiring discipline for a lawyer convicted of a misdemeanor involving a serious crime or of any felony ; cf. id. R. 42, ER - 7 - 8.4(b) (declaring that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer s . . . fitness ). ¶14 law The same result would have occurred in Texas. requires suspension of a lawyer who has been probation for a felony involving moral turpitude. Gov t Code Ann. § 81.078(b) satisfies that requirement. (Vernon 2005). Texas given See Tex. Sexual assault See, e.g., Hernandez v. State Bar, 812 S.W.2d 75, 77-78 (Tex. App. 1991) (suspending lawyer placed on deferred adjudication for indecency with a child); accord People v. Martin, 897 P.2d 802, 804 (Colo. 1995) (finding sexual assault a crime involving moral turpitude). The American Bar Association s Sanctions similarly Standards recommends for Imposing suspension criminal conduct that lawyer s fitness to Lawyer for seriously lawyers adversely practice. ABA who engage reflects Standards § on 5.12 in the for Imposing our primary Lawyer Sanctions 21 (2005). D. ¶15 In regulating attorney admissions, responsibility is to protect the public. 512 ¶¶ 11-12, 96 P.3d at 216. Arrotta, 208 Ariz. at We must determine whether an applicant for admission possesses the necessary qualifications to fulfill his or her responsibilities to the court and the Arizona public. See In re Shannon, 179 Ariz. 52, 77, 876 P.2d - 8 - 548, 573 (1994). The good moral character required for admission to the Bar is something more than an absence of bad character ; it requires that the applicant has acted as a person of upright character ordinarily would, should, or does. In re Walker, 112 Ariz. 134, 138, 539 P.2d 891, 895 (1975) (quoting In re Farmer, 131 S.E. 661, 663 (N.C. 1926)). Because law is a self-regulating profession, we require attorneys to demonstrate exemplary moral character. ¶16 It would ero[de] . . . public confidence in the legal profession and the administration of justice were we to admit an applicant who is still on parole for crimes as serious as those committed by [the applicant]. therefore conclude that Dortch, 860 A.2d at 348. admitting a felon currently We serving deferred adjudication for a serious offense does not serve the interests of the public and legal community. ¶17 This Court does not automatically exclude all applicants guilty of serious past misconduct from practicing law in Arizona. have King, 212 Ariz. at 567 ¶ 29, 136 P.3d at 886. previously refrained from announcing disqualifications to State Bar admission. at 462 ¶ 16, 123 P.3d at 656. applicant currently on a per We se See Hamm, 211 Ariz. Today, though, we hold that an felony deferred adjudication who remains under court supervision may not be admitted to practice law until the period of supervision - 9 - has ended. Only after successfully fulfilling adjudication may complete an the conditions applicant rehabilitation make necessary of the for a felony necessary admission to deferred showing the of State Bar. III. ¶18 CONCLUSION Individuals currently on Texas deferred adjudication are not eligible for admission to the Arizona State Bar until they have completed their probationary term and can demonstrate complete rehabilitation. Because Lazcano does not complete his probation until November 2013, he cannot meet his burden of proving his rehabilitation and good moral character. We accordingly deny his application for admission to the State Bar of Arizona. _____________________________________ Rebecca White Berch, Chief Justice CONCURRING: _____________________________________ Andrew D. Hurwitz, Vice Chief Justice _____________________________________ Michael D. Ryan, Justice _____________________________________ W. Scott Bales, Justice _____________________________________ A. John Pelander, Justice - 10 -

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