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Rule 78. Initial Proceedings

Arizona Revised Statutes AnnotatedRules of the Supreme Court of Arizona

Arizona Revised Statutes Annotated
Rules of the Supreme Court of Arizona (Refs & Annos)
VI. Unauthorized Practice of Law (Refs & Annos)
A.R.S. Sup.Ct.Rules, Rule 78
Rule 78. Initial Proceedings
(a) Commencement. An unauthorized practice of law proceeding commences upon receipt by the state bar of a charge against a respondent. An unauthorized practice of law proceeding shall be disposed of by dismissal or by the filing of a complaint in the superior court seeking imposition of one or more sanctions as provided in these rules.
(b) Screening and Investigation. Upon the commencement of an unauthorized practice of law proceeding against a respondent, the matter shall proceed as provided in this section.
1. Screening. Unauthorized practice of law counsel shall evaluate all information coming to his or her attention, in any form, by charge or otherwise alleging the respondent engaged in unauthorized practice of law. If the allegations, if true, would not constitute unauthorized practice of law under these rules, the matter shall be dismissed. If the information alleges facts which, if true, would constitute unauthorized practice of law, unauthorized practice of law counsel shall conduct an investigation.
2. Investigation. All investigations shall be conducted by unauthorized practice of law counsel, volunteer bar counsel, or staff investigators. Unauthorized practice of law counsel may request information through an investigative subpoena pursuant to Rule 78(b)(4). Following an investigation, unauthorized practice of law counsel may dismiss the matter; enter into a consent to cease and desist agreement with the respondent pursuant to Rule 78(c); or file a complaint in superior court seeking injunctive relief, assessment of costs and expenses, and restitution. Unauthorized practice of law counsel shall not commence a superior court proceeding until the respondent is afforded an opportunity to respond in writing to the charge. Respondent shall have twenty days from notice of the request for information to respond.
3. Failure of Respondent to Provide Information; Deposition. When a respondent has failed to comply with any request for information made pursuant to these rules for more than thirty days, unauthorized practice of law counsel may notify respondent that failure to so comply within ten days may necessitate the taking of the deposition of the respondent pursuant to subpoena.
A. Venue. Any deposition conducted after the expiration of that ten day period and necessitated by the continued failure to cooperate by the respondent may be conducted at any place within the State of Arizona.
B. Imposition of Costs. When a respondent's failure to cooperate results in a deposition being conducted pursuant to the preceding subsection (b)(3)(A), the respondent shall be liable for the actual costs of conducting the deposition, including but not limited to service fees, certified court reporter fees, travel expenses and the cost of transcribing the deposition, regardless of the ultimate disposition of the unauthorized practice of law proceeding. Upon application of chief bar counsel to the committee, itemizing the costs and setting forth the reasons necessitating the deposition, and after giving the respondent ten days to respond, the committee shall, by order, assess such costs as appear appropriate against the respondent. An order assessing costs under this rule may be appealed to the superior court.
4. Investigative Subpoenas. During the course of an investigation and prior to the filing of a complaint, unauthorized practice of law counsel may obtain issuance of a subpoena to compel the attendance of witnesses, the production of pertinent books, papers and documents, and answers to written interrogatories, by filing a written request with the chief bar counsel or the chair or vice-chair of the committee. A copy of the request, which shall contain a statement of facts to support the requested subpoena, shall be provided to respondent or respondent's counsel, if represented. Upon receipt of a request for subpoena, a party may, within five days of service by first class mail, file a written objection with the committee. The committee may rule on the objection without oral argument.
5. Dismissal by Unauthorized Practice of Law Counsel. After conducting an investigation, unauthorized practice of law counsel may dismiss an unauthorized practice of law proceeding if there is no probable cause to determine that unauthorized practice of law occurred. Unauthorized practice of law counsel shall provide complainants with a right-to-sue letter upon dismissal of the charge.
(c) Consent to Cease and Desist Agreement.
1. Consent to Cease and Desist. A respondent against whom a charge has been made or a complaint has been filed may tender a conditional admission to the charge or complaint or to a particular count in exchange for the imposition of a stated sanction at any stage of the proceedings.
2. Procedure. A tender of admissions and consent to cease and desist agreement, signed by respondent, respondent's counsel, if any, and unauthorized practice of law counsel, shall be filed with the clerk of the superior court. All agreements must be accompanied by a joint memorandum in support of consent to cease and desist agreement, as set forth below. Exhibits in support of the agreement or the sanction to be imposed must be filed with the agreement and joint memorandum, in addition to a statement of costs and expenses on proven counts. The agreement must state that the agreement and joint memorandum have been approved as to form and content by the chief bar counsel.
3. Form of Agreement. All agreements must include the following:
A. Rule Violation. Each count alleged in the charge or complaint must be addressed in the agreement, including a statement as to the specific rule that was violated, and the facts necessary to support the alleged violation, conditional admission, or decision to dismiss a count.
B. Form of Sanction. The form of sanction to be imposed must be set forth in the agreement.
C. Restitution. Restitution to each complainant named in the charge or complaint must be addressed in the agreement. If restitution is not sought or agreed to, unauthorized practice of law counsel must avow that the complainant has been made aware that restitution will not be forthcoming pursuant to these proceedings.
D. General Language. Agreements must include the following language, as applicable:
(1) A statement that the respondent's admission(s) to the charge, complaint, or portion thereof, is being tendered in exchange for the stated form of sanction and is submitted freely and voluntarily and not as a result of coercion or intimidation.
(2) A statement that the respondent has chosen not to seek the assistance of counsel, if not represented by counsel, and voluntarily waives his or her right to an adjudicatory hearing on the complaint, unless otherwise ordered, and waives all motions, defenses, objections or requests that he or she has made or raised, or could assert thereafter, if the conditional admission and proposed form of sanction is approved.
(3) A statement that respondent acknowledges the duty to comply with all rules pertaining to the unauthorized practice of law.
(4) A statement that outlines the possible consequences of any violation of the provisions of the agreement, including the fact that a violation of such agreement shall prima facie establish that the respondent knows that he or she has in the past violated or is violating these rules.
4. Joint Memorandum in Support of Consent to Cease and Desist Agreement. Each agreement must be accompanied by a Joint Memorandum in Support of Consent to Cease and Desist Agreement that includes an analysis of the proposed sanction, including a discussion as to why a greater or lesser sanction would not be appropriate under the circumstances of the case.
5. Superior Court Hearing. The superior court may hold an evidentiary hearing within thirty days of the filing of the agreement to establish a factual basis for the agreement and may accept, reject, or order the agreement modified.
A. Acceptance. If the agreement is accepted by the superior court it shall be final, with the same force and effect of other final orders.
B. Modification. The superior court may recommend the modification of an agreement and shall clearly state the nature and substance of the proposed modifications and give the parties not less than ten nor more than thirty days to execute the proposed modifications and file the amended agreement and joint memorandum for consideration. If the parties fail to submit a modified agreement within the time provided, and no request for additional time has been submitted, the agreement shall be deemed rejected. For good cause shown, the superior court may grant one thirty day extension of time to file the agreement.
C. Rejection. Upon rejection, the agreement and all admissions contained therein are withdrawn and cannot be used against the parties in any subsequent proceeding. The parties may file an appeal for review by the court of appeals within ten days after service of the superior court's report. If a timely appeal is not filed, the superior court shall proceed with the adjudication hearing within thirty days.
6. Judgment. Upon the acceptance of the consent to cease and desist agreement by the superior court the clerk of the superior shall promptly enter a judgment enjoining the respondent from engaging in the unauthorized practice of law and stating that the respondent shall remain subject to the jurisdiction of this court with respect to unauthorized practice of law matters. Unless otherwise ordered, no further sanctions shall be taken in reference to the matters that were the subject of the charges or complaint upon which the agreement to cease and desist and the judgment enjoining the respondent from engaging in the unauthorized practice of law were based. The form of judgment signed and entered by the superior court clerk shall be:
This matter having come on for hearing before the superior court, said court having duly rendered its decision.
IT IS ORDERED, ADJUDGED AND DECREED that (Respondent), is hereby enjoined from engaging in the unauthorized practice of law.
(IT IS FURTHER ORDERED that (Respondent) shall pay restitution (in the following amounts to the following individual(s):))
(IT IS FURTHER ORDERED that (Respondent) shall be assessed the costs and expenses of these proceedings in the amount of __________.)

Credits

Added Jan. 15, 2003, effective July 1, 2003. Amended Sept. 18, 2006, effective Jan. 1, 2007; June 30, 2010, effective Jan. 1, 2011.
17A Pt. 2 A. R. S. Sup. Ct. Rules, Rule 78, AZ ST S CT Rule 78
Current with amendments received through 08/15/2020.
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