Rule 78. Proceedings
Arizona Revised Statutes AnnotatedRules of the Supreme Court of ArizonaEffective: January 1, 2022
Effective: January 1, 2022
A.R.S. Sup.Ct.Rules, Rule 78
Rule 78. 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 consent agreement or complaint in the superior court seeking imposition of one or more sanctions as provided in these rules.
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 or violated any order or judgment previously entered in an unauthorized practice of law proceeding. If the allegations, if true, would not constitute unauthorized practice of law under these rules or contempt of court, the matter shall be dismissed. If the information alleges facts which, if true, would constitute unauthorized practice of law or contempt of court, 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 agreement with the respondent pursuant to Rule 78(c); file a complaint in superior court seeking injunctive relief, assessment of costs and expenses, and restitution, or file an application for an order to show cause regarding contempt in superior court. 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.
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 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 or that the respondent has failed to comply with an order or judgment previously entered by a court in an unauthorized practice of law proceeding. Unauthorized practice of law counsel shall provide complainants with a right-to-sue letter upon dismissal of the charge.
1. 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. In contempt proceedings, Unauthorized Practice of Law Counsel and respondents may enter into consent agreements, which may be in the form of a stipulation, in exchange for the imposition of stated sanctions.
2. Procedure. A consent 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. 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.
A. Rule, Order or Judgment Violation. Each count alleged in the complaint or application for contempt must be addressed in the agreement, including a statement as to the specific rule, order or judgment that was violated, and the facts necessary to support the alleged violation, conditional admission, or decision to dismiss a count. Pre-complaint consent agreements must include a statement as to the specific rule, order, or judgment that was violated and the facts necessary to support the alleged violation or conditional admission.
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.
(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.
B. Modification. The superior court may recommend the modification of a consent 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 a special action with the court of appeals within ten days after service of the superior court's report. If a special action is not timely filed, the superior court shall proceed with a hearing on the merits.
5. Judgment. Upon the acceptance of the consent agreement by the superior court the clerk of the superior shall promptly enter a judgment that includes a cease and desist order and an order 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 consent agreement 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 for cease and desist orders and injunctions 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) must cease and desist engaging in activity that amounts to the unauthorized practice of law.
IT IS FURTHER ORDERED that (Respondent), is hereby enjoined from engaging in the unauthorized practice of law in Arizona.
(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 __________.)
(IT IS FURTHER ORDERED that (Respondent) is (specific language of other sanctions))
Credits
Added Jan. 15, 2003, effective July 1, 2003. Amended Sept. 18, 2006, effective Jan. 1, 2007; June 30, 2010, effective Jan. 1, 2011; amended on an emergency basis, effective Sept. 30, 2021, adopted on a permanent basis effective Jan. 1, 2022; Aug. 25, 2021, effective Jan. 1, 2022.
17A Pt. 2 A. R. S. Sup. Ct. Rules, Rule 78, AZ ST S CT Rule 78
State Court Rules are current with amendments received through April 1, 2024. The Code of Judicial Administration is current with amendments received through April 1, 2024.
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