In the Matter of Carly Van Dox

• Court: Arizona Supreme Court
• Decided: February 21, 2007
• Status: Published

Opinion

SUPREME COURT OF ARIZONA En Banc

In the Matter of a Non-Member of ) Arizona Supreme Court the State Bar of Arizona, ) No. SB-06-0121-D ) CARLY VAN DOX, ) Disciplinary Commission ) No. 04-1846 Respondent. ) __________________________________) 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. Phoenix By Mark I. Harrison Sara S. Greene

And

CLINT BOLICK Phoenix By Clint Bolick Attorneys for Carly Van Dox

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 We granted review in this disciplinary case to clarify

the standard the Disciplinary Commission must apply when

reviewing a hearing officer’s findings of fact and 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. FACTS AND PROCEDURAL BACKGROUND

¶2 Respondent Carly Van Dox is a lawyer who has been

admitted to practice law in both Virginia and Florida. She is

also certified in Florida as a mediator. Since 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 the mediator of this fact. When the mediator

questioned Van Dox, she readily acknowledged that she was

licensed in Florida, but not Arizona.

- 2 - ¶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 Van Dox could ethically proceed with the

mediation. The buyers’ attorney also agreed to 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 Although the mediation did not resolve the dispute,

the 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 involving dishonesty, fraud, deceit, or

misrepresentation, in violation of ER 8.4(c); and 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. The State Bar appealed to the Disciplinary

Commission, which reversed several of the Hearing Officer’s

findings and conclusions. 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 censure, rather than

1 Both the Hearing Officer’s Report, In re Van Dox, No. 04- 1846 (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 of the

Commission’s recommended sanction, which we granted.2 We have

jurisdiction pursuant to Article 6, Section 5(3) of the Arizona

Constitution and Arizona Supreme Court Rule 59(a).

II. DISCUSSION

¶10 Attorney discipline is designed to protect the public,

the legal profession, and the legal system and to deter other

attorneys from engaging in unprofessional conduct. In re

Scholl, 200 Ariz. 222, 227, ¶ 29, 25 P.3d 710, 715 (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 Van Dox does not challenge the conclusion that she

engaged in the unauthorized practice of law and failed to

respond to State Bar inquiries. 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. In determining the sanctions for

ethical violations, we are guided by the American Bar

Association Standards for Imposing Lawyer Discipline (1992)

(“ABA Standards”). In re Peasley, 208 Ariz. 27, 33, ¶ 23, 90

P.3d 764, 770 (2004). We consider the following factors

relevant in determining appropriate discipline: (1) the duty

violated, (2) the lawyer’s mental state, (3) the potential or

actual injury caused by the lawyer’s conduct, and (4) the

existence of aggravating or mitigating factors. Standard 3.0;

Peasley, 208 Ariz. at 32, ¶ 19, 90 P.3d at 769. We address each

factor in turn.

1. Duty violated

¶12 The Hearing Officer and the Commission both found that

Van 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. Mental state

¶13 A lawyer’s mental state affects the sanction for

ethical violations. 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. See ABA Standards at 9-10. Compare Peasley, 208

Ariz. at 41-42, ¶ 65, 90 P.3d at 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 violations of ethical rules), with Standard 7.4

(stating that an admonition is the presumed sanction for

isolated instance of negligent violation of ethical rules). The

Hearing Officer found that Van Dox’s conduct in engaging in the

unauthorized practice of law was merely negligent. The

Commission disagreed, concluding that Van Dox’s conduct was

knowing rather than negligent. In so concluding, the Commission

relied on two facts: 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. In re Clark, 207

- 7 - Ariz. 414, 417, ¶ 14, 87 P.3d 827, 830 (2004). The Hearing

Officer, after observing Van Dox and hearing her testimony,

found that she acted negligently. In disciplinary proceedings,

the Commission must defer to 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 of evidence for that of the [factfinder]”). To be

clearly erroneous, a finding must be unsupported by any

reasonable evidence. 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 Deference to a hearing

3 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 review a hearing

officer’s factual findings for clear error. 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.” ABA

Standards at 12. 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. Moreover, Florida, the state

from which she had come, 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 practiced law without authorization when she

agreed to participate in the mediation. Her belief was

supported by the mediator’s consultation with an attorney. The

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. Although these sources were

consulted after Van Dox began 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 of law was not knowing, but negligent. See id.

Because substantial evidence supports the Hearing Officer’s

finding, we defer to it. 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 a “knowing” violation is that the respondent was

aware that she performed actions, and the actions in fact

constituted the unauthorized practice of law; she need not have

been aware when she acted that she was engaging in the

unauthorized practice of law. 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 definition of “knowledge,” however,

refutes the Bar’s argument. The ABA Standards define

“knowledge” as “the conscious awareness of the nature or

attendant circumstances of the conduct.” ABA Standards at 12.

This definition clarifies that merely 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 P.2d 1093, 1118 (1993) (indicating that the

knowledge required for setting a higher sanction for

professional misconduct is “knowledge that [respondent] may have

been violating an ethical rule”).

¶22 In this case, the Hearing Officer found that Van Dox

did not know that her actions constituted the unauthorized

practice of law. 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 with the Hearing Officer’s legal

determination. Adopting the State Bar’s definition of

“knowledge” would have the effect of rendering any act of

unauthorized practice a “knowing” violation 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 this Court’s established

- 12 - 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. The Hearing Officer found

that Van Dox’s conduct caused little or no injury. The

Commission disagreed. Whether a lawyer’s actions caused harm is

a question of fact. 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.” ABA Standards at 12. “[A]

reference to ‘injury’ alone indicates any level of injury

greater than ‘little or no’ injury.” Id. The comment to

Standard 7.0 notes that violations of duties owed 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 from it, a conclusion the

Commission does not challenge. The Commission decided, however,

that the Hearing Officer failed to consider any possible injury

to the public, the legal system, or the profession. We do not

agree. After considering the harm to the sellers, the Hearing

Officer addressed the lack of injury to the buyers and concluded

that they too suffered little or no injury from Van Dox’s

conduct.4 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, the legal system, and the profession when he

concluded that “neither the public nor other lawyers 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 therefore erred in not

4 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. Presumptive sanction

¶30 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, or the legal system.” Standard 7.4 (defining

admonition, the equivalent of Arizona’s informal reprimand).

Having concluded that Van Dox negligently 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. 98- 2052 (Disciplinary Comm’n May 15, 2000), discussed infra ¶¶ 40- 41, 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. See Peasley, 208 Ariz. at

36, ¶ 36, 90 P.3d at 773. We examine those factors next.

5. Aggravating and mitigating factors

¶32 Standards 9.2 and 9.3 enumerate potential aggravating

and mitigating factors to be considered in determining the

appropriate sanction for professional misconduct. The Hearing

Officer found no aggravating factors, but found the existence of

five mitigating factors: (1) the absence of a prior

disciplinary record, Standard 9.32(a); (2) the 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); (4) good character or reputation,

Standard 9.32(g); and (5) exhibition of remorse, Standard

9.32(m). The Commission agreed that four of the five mitigating

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 absence of a dishonest or selfish

motive is a fact question. See Clark, 207 Ariz. at 418, ¶ 18,

87 P.3d at 831. 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 cases in which we have found a dishonest or

selfish motive have involved intentional or knowing ethical

violations. 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 lawyer-client relationship” by inducing client to

purchase property to lawyer’s advantage and client’s

disadvantage). 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. We

further agree that no aggravating factors were proved.

- 18 - ¶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 that may be considered in determining

sanctions. Shannon, 179 Ariz. at 71, 876 P.2d at 567.

B. 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.” Alcorn, 202 Ariz. at 76, ¶ 49, 41 P.3d

at 614. In this 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 Winiarski, who was licensed in Maine but not Arizona,

twice appeared on behalf of a construction company at

administrative hearings. Id. at 2-3 (Hr’g Officer’s Rpt. Dec.

2, 1999). 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. Id. Winiarski was charged

- 19 - 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 the conduct constituted an isolated

instance of misconduct. Id. at 2-3 (Disciplinary Comm’n May 15,

2000). Four mitigating and no aggravating factors were found.

Id. at 2. Applying Standard 7.4, a sanction of informal

reprimand was imposed. Id. at 3-4.

¶41 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 addition to engaging in the unauthorized

practice of law. Such a failure is serious. 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 an

appropriate alternative to discipline in this case. The State

Bar counters that diversion is not available to a non-member of

the Arizona Bar. See Ariz. R. Sup. Ct. 46(f)(15) (defining

“non-member”). 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 The State Bar may recommend diversion in certain cases

in accordance with the State Bar of Arizona Diversion

Guidelines. Ariz. R. Sup. Ct. 55(b). The Diversion Guidelines

provide: “The purpose of the Diversion Program is to protect

the 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.” Id.

- 22 - ¶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. CONCLUSION

¶48 For the foregoing reasons, we vacate the Commission’s

factual findings and recommendation related to sanction and

impose on Respondent Van Dox a sanction of informal reprimand

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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.

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