WE DONT NEED NO STINKIN ATTORNEY DISCIPLINE OR

WE DON’T NEED NO STINKIN’ ATTORNEY DISCIPLINE. …OR DO WE? . . . Annual Ethics CLE Arizona City Attorneys 2018 Summer Conference William J. O’Neil Presiding Disciplinary Judge for the Supreme Court of Arizona

FOUNDATIONAL THINKING “The unexamined life is not worth living. ” Plato

ETHICS • Ethics comes from the Greek words, ethos or ethikos. • Ethics has been defined as decisions based upon individual character and a defined set understanding of right and wrong. It is what we “ought” to do.

CULTURE From the Latin word cultura, which means “agriculture. ” In the most basis sense, culture refers to what people do with the world. It is what we make of the world. It reflects the “belief” system of a group of people.

Culture is the environment we live in and can become what we think is normal. It becomes a way of thinking and our patterns of living.

Asian Proverb If you want to know what water is, don’t ask the fish.

THINKING THROUGH THE BASICS Does Culture Influence Our Ethics?

Culture is not people; culture is what people do as people. It changes according to human innovations, inventions, fashions, and ideas.

In some places, people don’t know their neighbors. In some neighborhoods people know all their neighbors. In some neighborhoods, people love all their neighbors. In some neighborhoods, people eat their neighbors…

HOW TO DEFINE GOOD?

Attorney discipline is a subcategory of the Supreme Court Rules which can be generally boiled down in concept to two words; “Shall” and “Shall Not. ”

DANGER ZONE “Ignorance is the mother of presumption. ” Marie de Gournay “Depair ruins some, presumption many. ” Benjamin Franklin Why is this true in law?

“WINNING IS NOT EVERYTHING, IT IS THE ONLY THING. ” Vince Lombardi

“One of the unique characteristics of the American character is that they don’t need any books, because they’ve already found the truth within themselves. ” ALEXIS DE TOCQUIVILLE

Americans inherently give more authority to that which is inward, precisely because it is inward than to anything external. There is no external authority that counts as highly as an inward hunch or experience. Wade Clark Roof

ANCIENT LATIN MAXIMS 1 Te de aliis, quam alios de te suaviust fiere doctos. Plautus, Persa, 540

It’s better to profit by a horrible example than to be one.

“It ain't what you don't know that gets you into trouble. It's what you know for sure that just ain't so. ” Mark Twain

THE DEAL FROM O’NEIL To Find What Works, Learn From What Doesn’t

ANCIENT LATIN MAXIMS: 2 Bibamus, moriendum est. Seneca the Elder, Controversiae, II, 6, 3

Death’s unavoidable; let’s have a drink.

THE CIVIL WAR OF PURPOSE

The purpose of attorney discipline is not to punish the offending lawyer. In re Petrie, 154 Ariz. 295, 742 P. 2 d 796 (1987); In re Neville, 147 Ariz. 106, 708 P. 2 d. 1297 (1985).

VS.

Purpose of attorney discipline is: -protecting the public; -maintaining the integrity of the profession; -deterring other lawyers from engaging in unprofessional conduct. In re Brady, 186 Ariz. 370, 923 P. 2 d 836 (1996); In re Murray, 159 Ariz. 280, 767 P. 2 d 1 (1988).

“The question to be asked at the end of an educational step is not 'What has a student learned? ’ but ‘What has the student become? '" President James Monroe

The Attorney Regulation View -Follow the Yellow Brick Road. Attorney Discipline is about what one “shall” do and “shall not” do for the good of the profession, the lawyer and thereby the good of the public.

More is required than adherence to the Rules of Professional Conduct See Rule 31(2)(E).

THE LAWYER’S OATH • You will maintain the respect due to courts of justice and judicial officers. • You will never seek to mislead the judge or jury by any misstatement or false statement of fact or law. • You will abstain from all offensive conduct. Attorney Oath of Office and Supreme Court Rule 41

THE LAWYER’S CREED As a lawyer I must strive to make our system of justice work fairly and efficiently. In order to carry out that responsibility, not only will I comply with the letter and spirit of the disciplinary standards applicable to all lawyers, but I will also conduct myself in accordance with the following Creed of Professionalism when dealing with my client, opposing parties, their counsel, the courts and the general public.

The Preamble to the Rules • Rule 41 [1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Whether or not engaging in the practice of law, lawyers should conduct themselves honorably. • [14] The Rules of Professional Conduct are rules of reason. • [20] Violation of a Rule should not itself give rise to a cause of action against a lawyer…

RECAPPING THE BASICS Ethics are about what one “ought” to do and what one “should” not do. Attorney Discipline is about what one “shall” do and “shall not” do. In each the goal should be to build ethical character.

QUESTIONS?

Presiding Disciplinary Judge Rule 51

Presiding Disciplinary Judge Rule 51 • An independent member of the judiciary. • Rules on pretrial matters. • Presides over the hearing. • Rules on consent agreements • Imposes reciprocal discipline. • Member of each hearing panel.

Rule 54 Grounds for Discipline • Violation of Rules • Violation of Judicial Canons • Knowing Violation of any rule or court order • Violation of Disciplinary Process Obligations • Violation of Probation • Violation of condition of admission • Violation of “serious crime” • Violation in another jurisdiction • Violation of Rule 31(a)(2)(e) -Repeats-

Sanctions-Rule 60 • Disbarment • Suspension • Reprimand • Admonition • Probation • Restitution • Costs

QUESTIONS?

BAR CHARGES • “The State Bar shall evaluate all information coming to its attention in any form…alleging unprofessional conduct, misconduct or incapacity. ” Supreme Court Rule 55(a). • Anyone can initiate a bar charge.

How to Reduce the Odds by 50%

ANCIENT LATIN MAXIMS 3 Errare humanum est, sed perseverare diabolicum. Seneca

To err is human, but to persist (in the error) is diabolical.

O’NEIL’S DISCIPLINE TOP FOUR • Snoozin’ • Stealin’ • Spitin’ Out • Snortin’ In

Some Basic Rules for the Road

NEVER, NEVER LIE • About The Facts; • About The Law; • To Try To Cover Up; • To Ignore A Mistake

DON’T SLEEP WITH YOUR CLIENT

DON’T CURSE AT OR GRAB ANYONE…ESPECIALLY IN THE COURTROOM.

ANCIENT LATIN MAXIMS 3 Facilis descensus Averno; sed ad auras evadere est labor! Virgil, Aeneid, VI, 126

GOING TO HELL IS EASY; IT’S COMING BACK THAT’S HARD!

RESEARCH FIRST, THEN WRITE! “It can hardly be doubted that the ability to do legal research is one of the skills that any competent practitioner must possess. ” A. B. A. task force 1992

An Ounce of Prevention Can’t Hurt… Practical Tips for a Winning Hand

COMPETENCE A lawyer should always, -Before representation is taken measure, -Core capacity to handle the matter by your -Your skill, experience and ability. .

CONFLICTS Attorneys must be rigorous in evaluating conflicts. They are assessed, in part, on an objective standard-what a “reasonably prudent and competent lawyer would do under the circumstances.

EXERCISE CARE AND CAUTION Email communications, clients demands, and a lawyer’s desire to meet those demands put lawyers at risk. Always allow sufficient time to properly perform a service and to carefully communicate with the client

NO RELIANCE ON OTHERS FOR ETHICAL ANALYSIS “A reliance on other lawyers does not relieve an attorney of their ethical obligation to ensure the lawsuit or pleading was supported in law and fact. ” In Matter of Alexander, 232 Ariz. 1 (2013).

QUESTIONS?

RECOGNIZING PRACTICAL ROOT CAUSES OF DISCIPLINE

TO GUARD AGAINST UNETHICAL BEHAVIOR DON’T JUST THINK HOW TO BE ETHICAL. CONSIDER WHY PEOPLE DO UNETHICAL THINGS.

ANOTHER DEAL FROM O’NEIL THE CULTURE OF STINKIN’ THINKIN’ • ENTITLEMENT • EGO • SUDS • SITUATIONAL ETHICS

STEP BY STEP, INCH BY INCH • Under delivering on commitments • Over promising • Turf-guarding • Goal lowering (fear of failure) • Sharp-penciling • Detail skipping • Praise pinching • Credit hogging • Blame buffering • Scapegoating

Three Basic Tenets to Sustain Professionalism and Enjoy a Rewarding Professional Life • Integrity • Commitment to the Rule of Law • Value Public Service

The Number One Reason Consumers choose a Lawyer? The Perceived Ethics of the Lawyer. Wirthlin Worldwide Annual Survey

QUESTIONS?

ONE MAXIM FOR THE ROAD Noli simul flare sorbereque

Don’t whistle and drink at the same time.

WE DON’T NEED NO STINKIN’ ATTORNEY DISCIPLINE …OR DO WE? . . . William J. O’Neil Presiding Disciplinary Judge Supreme Court of Arizona 1501 West Washington, Suite 102 Phoenix, AZ 85007 -3231 Office. PDJ@courts. az. gov