In the Matter of a Member of the State Bar of Arizona Rachel R. ALEXANDER, Attorney No. 20092, Respondent.
No. SB-12-0039-AP.
Supreme Court of Arizona, En Banc.
May 2, 2013.
300 P.3d 536
TIMMER, Justice.
John S. Gleason, Alan C. Obye, James S. Sudler, Independent Bar Counsel, Denver, CO, Attorney for State Bar of Arizona.
OPINION
TIMMER, Justice.
¶ 1 This case presents our first opportunity to issue an opinion on the propriety of findings made and discipline imposed by a hearing panel under our new attorney-discipline procedures. We accept the panel‘s determination that Rachel R. Alexander violated Arizona Rules of Professional Conduct (“ERs“) 1.1, 1.7(a)(1), 3.1, and 8.4(d) and former Arizona Supreme Court Rule 53(d) and (f).1 We disagree she violated ERs 1.7(a)(2), 3.4(c), and 4.4(a). We reduce her suspension to six months and, as a condition for reinstatement, require her to take ten hours of classes focusing on the ethical responsibilities of Arizona lawyers.
BACKGROUND
¶ 2 Alexander was admitted to the State Bar of Arizona in 2000. She met Andrew Thomas in 2004 while he was campaigning for the office of Maricopa County Attorney. After Thomas was elected, Alexander became a deputy county attorney and his special assistant. Alexander did not directly handle cases but assisted trial lawyers with “behind-the-scenes work” and performed non-legal tasks like disseminating information to the public through websites, social media, and speeches.
¶ 4 MCAO and the Sheriff‘s Office initially considered filing a civil RICO lawsuit against the Board in fall 2009 but seemingly abandoned the idea after several attorneys, including Deputy County Attorney Peter Spaw, MCAO‘s designated RICO expert, advised against it due to a lack of supporting evidence. Thomas reconsidered without consulting his senior advisors, however, and directed Deputy County Attorney Lisa Aubuchon to pursue the lawsuit.
¶ 5 On December 1, 2009, Aubuchon filed the RICO lawsuit on behalf of Thomas and Arpaio in their official capacities. She alleged that the defendants committed acts of bribery and extortion as part of a conspiracy to hinder the investigation and prosecution of elected officials, county employees, and their attorneys concerning the funding and construction of a court tower in Maricopa County.
¶ 6 Days after the lawsuit was filed, Thomas assigned Alexander to the case because Aubuchon had a potential conflict of interest. Alexander had no prior trial experience and only minimal knowledge of RICO. According to Mark Faull, her supervisor for deputy county attorney duties, Alexander incompetently handled routine court matters, and he warned that appointing Alexander as lead counsel in the RICO lawsuit would be “inviting malpractice” as she lacked sufficient experience and training.
¶ 7 Thomas transferred Alexander to work under Spaw‘s supervision. MCAO also retained the law firm of Ogletree, Deakins, Nash, Smoak & Stewart (“Ogletree Deakins“) to provide “advice, research and review of pleadings” in the RICO lawsuit, but terminated the engagement two weeks later. Deputy County Attorney Jeffrey Duvendack was also initially assigned to assist Alexander but never did so. Although Spaw communicated with opposing counsel and Thomas about the lawsuit and otherwise worked on the matter, only Alexander appeared as counsel of record in the lawsuit after Aubuchon withdrew.
¶ 8 The RICO defendants filed motions to dismiss the complaint, and Alexander and Spaw drafted and filed responses. While the motions were pending, Alexander and Spaw, with input from Thomas, drafted and filed a first-amended complaint, which added two counts. The court rejected the pleading, concluding MCAO was not entitled to amend the complaint without leave of the court. Alexander moved the court to either reconsider its order or grant plaintiffs leave to file the amended complaint. The court never ruled on this motion or the motions to dismiss. In early March 2010, the court granted the Sheriff‘s motion to substitute out-of-state counsel for MCAO. One week later, Alexander and the Sheriff‘s new attorneys filed a notice voluntarily dismissing the complaint.
¶ 9 Also in March 2010, at the request of the Executive Director of the State Bar of Arizona, Chief Justice Rebecca White Berch appointed independent bar counsel to investigate and, as appropriate, prosecute allegations of ethical misconduct against Thomas and other MCAO lawyers. Pursuant to former
DISCUSSION
I. Professional Misconduct
¶ 11 Alexander argues bar counsel failed to prove the alleged misconduct by clear and convincing evidence.
A. ER 3.1: Meritorious Claims and Contentions
¶ 12
¶ 13 We apply an objective standard to assess whether a legal proceeding is frivolous, but we use a subjective standard to determine whether the lawyer acted in good faith. In re Levine, 174 Ariz. 146, 153, 847 P.2d 1093, 1100 (1993). To warrant suspension, the evidence must demonstrate that the lawyer knowingly violated
¶ 14 Alexander does not dispute the panel‘s finding that the RICO lawsuit was frivolous. Instead, Alexander argues she was unaware the lawsuit was frivolous and acted in good faith by relying on representations of more experienced MCAO lawyers while she conducted a reasonable inquiry regarding the merits of the RICO allegations. Alexander contends she did not know that Spaw and other lawyers had previously advised against filing a RICO lawsuit, she was not involved in filing the initial complaint, she had no reason to doubt representations that MCAO lawyers and detectives had properly investigated the allegations underlying the RICO lawsuit, and she worked under Spaw‘s supervision.
¶ 15 The involvement of other lawyers in filing the RICO complaint did not relieve Alexander of her ethical obligation to ensure the RICO lawsuit was supported in law and fact. “What is required of lawyers . . . is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith and nonfrivolous arguments in support of their clients’ positions.”
¶ 16 That Alexander worked under Spaw‘s supervision similarly did not reduce her responsibilities under
¶ 17 We accept that when Alexander was first assigned to the RICO lawsuit she reasonably assumed Aubuchon had properly investigated the RICO allegations before filing the complaint. Alexander‘s compliance with
¶ 18 The evidence adduced at the disciplinary hearing supports the panel‘s finding that Alexander knowingly failed to establish that factual and legal bases existed to continue the RICO lawsuit. Alexander was well aware when she substituted for Aubuchon that the complaint was deficient. Two days before Alexander filed her notice of substitution of counsel, Spaw, whom she relied on as “the senior RICO attorney,” sent her an e-mail relating his “deep and profound concern about the viability of [the RICO] action” and advising her that the complaint appeared “legally deficient at every issue” making it “dead-on-arrival.” Spaw advised her to draft an entirely new complaint rather than attempt to salvage the existing one. Days later, Spaw told Alexander she needed to “find the investigative file,” emphasizing that “without access to the detailed facts supporting this suit,” all efforts to “research’ a way out of a dismissal with prejudice” would be “tantamount to simply rearranging the deck chairs on the Titanic.” Contemporaneously, a lawyer from Ogletree Deakins told Alexander, Spaw, and Duvendack that the complaint was “weak,” particularly as it concerned the judge defendants, and it “would have a real problem even standing up to an initial challenge.” Alexander‘s own research confirmed she needed to “beef up” the complaint with “more details and facts and allegations” in order to avoid dismissal. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (holding complaint must state a claim “plausible on its face” to avoid dismissal).
¶ 19 Despite the warnings from other more experienced lawyers and the results of her research, Alexander failed to confirm the existence of any meaningful evidence to support plausible RICO claims. Alexander testified at the disciplinary hearing that she maintained the RICO lawsuit in good faith by reviewing “hundreds of documents” collected by the MCAO executive division and hearing from “everyone [she] talked to in the office” that judges were trying to stop prosecutions of Board members. But this review did not enable Alexander to correct the deficiencies in the complaint by alleging specific facts supporting the claims of racketeering activity. For example, in the proposed amended complaint, Alexander repeated Aubuchon‘s allegation that defendants conspired to “commit bribery and/or extortion” but did not identify or state any facts plausibly supporting this allegation. When asked to identify the factual bases for these allegations and others at the disciplinary hearing, Alexander was unable to do so, with one exception,3
¶ 20 The evidence also supports a finding that Alexander knew her factual inquiry was inexcusably deficient. Alexander never obtained Aubuchon‘s investigative file. As late as one week before plaintiffs voluntarily dismissed the RICO lawsuit, Aubuchon refused to produce the file because the investigative material purportedly related to an ongoing investigation. And Alexander never enlisted the investigative services of either the Sheriff‘s Office or MCAO‘s investigation division, never saw a police report concerning allegations of criminal activity, and, despite the then-recent nature of events, could not recall at the disciplinary hearing whether she ever located anyone familiar with an investigation of the RICO allegations.
¶ 21 Although Alexander could not identify any facts to plausibly support the RICO lawsuit and knew the complaint was, in Spaw‘s words, “dead on arrival,” she nevertheless filed an opposition to its dismissal. And because Alexander knew the lawsuit was frivolous, she cannot escape responsibility for her misconduct by blaming Spaw.
B. ER 4.4(a): Respect for Rights of Others
¶ 22 The hearing panel found that Alexander violated
¶ 23 To determine whether Alexander‘s means in representing Thomas and Arpaio had a substantial purpose other than embarrassing, delaying, or burdening the RICO defendants, we examine her motives. In re Levine, 174 Ariz. at 154, 847 P.2d at 1101. In doing so, we consider Alexander‘s subjective perspective, but we ultimately apply an objective standard to determine whether she violated
¶ 24 Bar counsel argues that he proved the violation by showing the lack of any legal or factual basis for the RICO lawsuit and that
C. ER 1.1: Competence
¶ 25 The hearing panel found that Alexander violated
¶ 26 A lawyer‘s negligence in handling a matter does not necessarily constitute a violation of
¶ 27 The evidence supports the panel‘s finding that Alexander violated
¶ 28 Alexander correctly contends that a lawyer can acquire competence through study and association with more experienced lawyers.
¶ 29 Second, for the reasons previously explained, see supra ¶¶ 18-21, Alexander violated
¶ 30 We reaffirm that a lawyer‘s negligence does not necessarily constitute a violation of
D. ER 1.7: Conflict of Interest: Current Clients
¶ 31
¶ 32 In December 2008, the Board declared that MCAO had a conflict of interest representing the Board due to ongoing disputes. Consequently, the Board retained private counsel to advise it, created its own “General Litigation Department,” and refused to send new civil litigation matters, except tax cases, to MCAO‘s civil division. MCAO disputed the legality of the Board‘s action and filed an action seeking declaratory relief. Because the Board-declared conflict was pending when Alexander maintained the RICO lawsuit, she argues she did not simultaneously act as the Board‘s lawyer and therefore did not violate
¶ 33 Unquestionably, the lawyer-client relationship between MCAO and the Board continued during the life of the RICO lawsuit. First,
¶ 35 Bar counsel nevertheless argues that the panel properly imputed Thomas‘s personal interests to Alexander pursuant to
E. ER 3.4(c): Fairness to Opposing Party and Counsel
¶ 36 The panel found that Alexander violated
¶ 37 Alexander “knowingly” violated
¶ 38 The record does not contain clear and convincing evidence that Alexander knowingly violated
¶ 39
¶ 40 Alexander argues the panel erred because no evidence suggests she intended to retaliate against or intimidate judges. But
¶ 41 Alexander also contends the panel erred because it was debatable whether the defendant judges were immune from civil liability. We disagree. Judges are absolutely immune from civil damages lawsuits based on judicial acts taken within their subject matter jurisdiction, “even when the judge is accused of acting maliciously and corruptly.” Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); accord Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Acevedo v. Pima Cnty. Adult Prob. Dep‘t, 142 Ariz. 319, 321, 690 P.2d 38, 40 (1984).6 A judge loses that immunity only when acting in a non-judicial capacity or in “complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991); see also Acevedo, 142 Ariz. at 321, 690 P.2d at 40 (“[Judges] are not liable in a civil action for damages for their judicial acts, even when such acts are in excess of their jurisdiction or are alleged to have been done maliciously or corruptly.“).
¶ 42 Alexander unquestionably maintained the RICO lawsuit against the judges for judicial acts taken in criminal cases over which the judges had subject matter jurisdiction. For example, the complaint and proposed amended complaint alleged as racketeering acts that one judge ignored state law in quashing a grand jury subpoena and in disqualifying MCAO from investigating court tower project expenditures, and another judge wrongly failed to recuse himself from presiding over a criminal case and then issued an improper ruling. Alexander‘s response to the motions to dismiss the complaint highlighted that the RICO claims against the judges stemmed from their rulings: “Defendant judges willfully acted unlawfully by ignoring the law and issuing rulings shielding themselves and other defendants from investigation and prosecution.” The judges’ rulings constituted judicial acts, as they were acts typically performed by judges and involved cases. See Ashelman v. Pope, 793 F.2d 1072, 1075-76 (9th Cir. 1986) (listing factors relevant in deciding whether an act is judicial, including whether it is a function normally performed by a judge and relates to a case). Consequently, the defendant judges were immune from the claims alleged in the RICO lawsuit.
¶ 43 Alexander finally argues that because the judges only testified they were adversely
G. Former Rule 53: Failure to Cooperate
¶ 44 The panel found that Alexander failed to promptly respond to bar counsel‘s screening investigation letter and instead filed numerous “meritless, frivolous and dilatory motions, replies, and special actions” with the probable cause panelist and this Court in an effort to “delay, obstruct and burden” the screening investigation. According to the panel, Alexander‘s conduct justified application of former Rule 53, which authorized discipline against any lawyer who failed to either cooperate with state bar officials and staff performing their duties, or promptly furnish a full and complete response to bar counsel‘s inquiry.
¶ 45 Alexander did not insulate herself from application of former Rule 53 by retaining lawyers to represent her in the investigation process. We agree with the holding of the Kansas Supreme Court, which addressed application of Kansas’ equivalent to former Rule 53 in a similar situation:
A respondent who retains an attorney to represent him or her in a disciplinary proceeding is not relieved of the responsibilities . . . to cooperate with and provide information to the Disciplinary Administrator. . . . Retained counsel must comply with those duties just as thoroughly as if respondent is communicating directly with the Disciplinary Administrator‘s office. . . . [R]ules violations by a retained attorney may be imputed to the respondent unless the respondent demonstrates he or she could not reasonably know that retained counsel was obstructing the investigation.
In re Doudin, 292 Kan. 83, 249 P.3d 1190, 1198-99 (2011).
¶ 46 Alexander knew her lawyers were obstructing the investigation. Bar counsel sent Alexander‘s lawyers a screening investigation letter on April 13, 2010, advising of the misconduct allegations against Alexander, requesting a written response within twenty days, and unequivocally reminding them of Alexander‘s ethical obligation to cooperate in the investigation. Rather than comply with this request, the lawyers filed five motions with the probable cause panelist over the course of the next month, all seeking to stop, delay, or otherwise burden the investigation. After the probable cause panelist denied the motions, Alexander‘s lawyers challenged the
¶ 47 We also reject Alexander‘s assertion that she complied with former Rule 53 by ultimately providing a comprehensive written response to bar counsel‘s screening investigation letter. The response was not “prompt,” as Alexander‘s lawyers sent it more than two months after the date requested by bar counsel. See
II. Sanction Imposed
¶ 48 Alexander alternately argues the panel erred by suspending her from the practice of law for six months and one day. She contends that reprimand or censure is the appropriate sanction. We review the imposed sanction de novo as a question of law. In re Phillips, 226 Ariz. 112, 117 ¶ 27, 244 P.3d 549, 554 (2010). Although we consider the panel‘s view, we do not defer to it because we are ultimately responsible for deciding the appropriate sanction. Id.
¶ 49 We determine suitable disciplinary sanctions in conjunction with the American Bar Association‘s Standards for Imposing Lawyer Sanctions (“Standards“) and, when appropriate, a proportionality analysis.
¶ 50 The Standards provide presumptive sanctions for misconduct that depend on the lawyer‘s mental state when violating a particular duty and the resulting injury or potential injury. After the presumptive sanction is identified, the Court considers any aggravating and mitigating factors to determine the appropriate sanction. Standards, Preface, § I(B). The Standards do not account for multiple findings of misconduct but suggest that, at a minimum, the imposed sanction align with the sanction for the most serious finding. Standards, Theoretical Framework, § II.
A. Duty
¶ 51 Alexander‘s most serious misconduct was maintaining the RICO lawsuit while knowing it lacked legal and factual merit, thereby violating duties she owed the public and the legal system. See Standards 5.0, 6.0. We recognize that Alexander‘s most important ethical duty was the one owed her clients. See Standards, Theoretical Framework, § II (“In determining the nature of the ethical duty violated, the standards assume that the most important ethical duties are those obligations which a lawyer owes to clients.“). Although she maintained the lawsuit against the Board knowing MCAO was statutorily required to represent the Board in civil matters, see supra ¶ 33, her maintenance of the unfounded RICO lawsuit was the more serious misconduct because it resulted in more injury and potential injury to the public and the legal system than the Board suffered as a result of being sued by its own lawyers. Consequently, Standard 5.2, applicable to cases involving public officials who prejudice the administration of justice, and Standard 6.2, applicable to cases involving non-meritorious claims, guide our analysis.
B. Mental State
¶ 52 Alexander‘s mental state when she violated her duties to the public and the legal system affects the presumptive sanction. In re Phillips, 226 Ariz. at 117-18 ¶ 31, 244 P.3d at 554-55. Not surprisingly, the Standards recommend more severe sanctions for intentional or knowing misconduct than
¶ 53 The hearing panel found that Alexander acted knowingly by maintaining the RICO lawsuit without a factual or legal basis. Alexander disputes the panel‘s finding, arguing she acted negligently, at most, because she relied on the expertise of supervising and senior lawyers at MCAO in concluding that the RICO lawsuit was well founded. For the reasons previously explained in discussing Alexander‘s violation of
C. Potential or Actual Injury
¶ 54 Standards 5.22 and 6.22 each provide that suspension is presumptively warranted if the lawyer‘s knowing misconduct injures or potentially injures a party. Standard 5.22 additionally states that suspension is warranted if the misconduct injures or potentially injures “the integrity of the legal process.” The panel determined that Alexander‘s maintenance of the RICO lawsuit caused serious injury to both the RICO defendants and the legal process.
¶ 55 Alexander again asserts that because the RICO defendants testified they were harmed by the filing of the lawsuit rather than its maintenance, she did not injure them. Alexander splits too fine a hair. No RICO defendant testified he or she suffered injury solely from Aubuchon‘s act of filing the lawsuit. And common sense tells us that as the RICO lawsuit lingered with attendant public scrutiny, the defendants experienced increased levels of distress. All the RICO defendants testified about the emotional upheaval and anxiety caused by the lawsuit. One lawyer defendant, for example, described the harm to his business relationships, reputation, and family as a result of being accused of bribing a judge and added that his law firm spent approximately $300,000 to defend the RICO lawsuit. A judge defendant testified he was impacted emotionally by both the RICO lawsuit and companion criminal charges, became “severe-ly depressed,” and had to “battle through it” with the support of family and colleagues. Had Alexander voluntarily dismissed the RICO lawsuit instead of defending it, defendants’ injuries could have been minimized.
¶ 56 Alexander briefly argues the panel erred because the evidence did not demonstrate how her misconduct caused injury or potential injury to the integrity of the legal process. As previously explained, see supra ¶ 43, Alexander‘s misconduct prejudiced the administration of justice by improperly threatening civil damages against judges for their judicial acts. Indeed, one judge defendant testified that the lawsuit caused her to retire to avoid the possibility that her continued role on the bench would “smear[] [her] colleagues, the institution, where the public must have trust and confidence in order for courts to operate appropriately.” Ample evidence supports the panel‘s finding that Alexander‘s misconduct injured the legal process.
D. Aggravating and Mitigating Factors
¶ 57 Because Alexander engaged in knowing misconduct that injured the RICO defendants and the legal process, the presumptive sanction in this case is suspension. See Standards 5.22, 6.22. The sanction to be imposed, however, requires consideration of any pertinent aggravating and mitigating factors. See Standard 9.1.
¶ 58 Referring to aggravating factors listed in ABA Standard 9.0, and without elaboration, the panel found the existence of four factors: (1) “pattern of misconduct” (9.22(c)); (2) “multiple offenses” (9.22(d)); (3) “bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency” (9.22(e)); and (4) “refusal to acknowledge wrongful nature of conduct” (9.22(g)). It found one mitigating factor: “absence of a prior disciplinary record” (9.32(a)). Alexander challenges the findings of all aggravating factors. Aggravating factors need only be supported by reasonable evidence. In re Abrams, 227 Ariz. 248, 252 ¶ 27, 257 P.3d 167, 171 (2011).
¶ 59 Alexander disputes she committed multiple offenses or obstructed the disciplinary process but offers no arguments not
¶ 60 Alexander also asserts she acknowledged the wrongful nature of her conduct by testifying that she might have proceeded differently had she been aware of all pertinent information. This lukewarm speculation is a far cry from a sincere expression of remorse. Other testimony from Alexander is more revealing:
Q. Now, in your deposition, I asked you if you had any remorse for your conduct in the racketeering case. Do you recall that question?
A. Vaguely.
Q. Do you recall—and I‘m going to paraphrase—your answer was, “only that you are in this proceeding was your only remorse.” Do you recall that answer?
A. That doesn‘t sound completely, but it‘s something like that.
And while the disciplinary hearing was ongoing, Alexander posted to her personal website and published on her Twitter account another person‘s column describing the disciplinary proceedings as “nothing but a trumped-up, meritless witch hunt” that unfairly targeted Alexander for her conservative views. Reasonable evidence supports the panel‘s finding that Alexander is not remorseful.
¶ 61 We agree with Alexander, however, that reasonable evidence does not support the panel‘s finding that she had a pattern of misconduct. Commission of multiple offenses does not necessarily equate to a “pattern of misconduct.” This Court has found patterns when a lawyer had a prior disciplinary record concerning similar misconduct, and a lawyer engaged in misconduct involving multiple parties in different matters that often occurred over an extended period of time. See, e.g., In re Zawada, 208 Ariz. 232, 238 ¶ 20 & n. 3, 92 P.3d 862, 868 & n. 3 (2004) (prosecutor committed same type of misconduct in two cases separated by years); In re Hirschfeld, 192 Ariz. 40, 44 ¶ 18, 960 P.2d 640, 644 (1998) (lawyer had past history of discipline and committed misconduct involving multiple clients in multiple cases); see also In re Levine, 174 Ariz. at 171-72, 847 P.2d at 1118-19 (collecting cases). These cases demonstrate that the “pattern of misconduct” aggravator applies to lawyers who repeatedly engage in ethical misconduct in different contexts. Here, except for her actions in the disciplinary process, Alexander‘s misconduct arose from her actions in a single matter, involved the same people, and spanned approximately ninety days. And she has no prior disciplinary record. Under these circumstances, Alexander did not engage in a pattern of misconduct.
E. Proportionality Review
¶ 62 The panel did not perform a proportionality analysis, and neither Alexander nor bar counsel presents us with other disciplinary cases for purposes of comparison. The unique circumstance of a deputy county attorney pursuing judges, elected officials, a client, and others for civil racketeering damages in a high-profile case makes it difficult to make comparisons to ensure Alexander‘s sanction fits her misconduct. Cf. In re Phillips, 226 Ariz. at 118-19 ¶ 37, 244 P.3d at 555-56 (finding that proportionality review “provide[d] little guidance“). We are not aware of any comparable cases. Consequently, the sanction imposed on Alexander must be tailored to the unique circumstances of this case. See In re Levine, 174 Ariz. at 175, 847 P.2d at 1122 (“We have found no case with misconduct of the unusual nature of this case, so we must tailor the discipline to these unique facts, rather than base the sanction on any comparison of how we have disciplined similar misconduct.“).
F. Appropriate Sanction
¶ 63 In setting the appropriate sanction, we bear in mind that the primary objectives of lawyer discipline are “(1) to protect the public and the courts and (2) to deter the [disciplined] attorney and others from engaging in the same or similar misconduct.” In re Zawada, 208 Ariz. at 236 ¶ 12, 92 P.3d at 866. Fulfilling these objectives promotes confidence in the integrity of the disciplinary process. Id. The sanction is not intended to punish the disciplined lawyer, In re Alcorn, 202 Ariz. 62, 74 ¶ 41, 41 P.3d 600, 612 (2002),
¶ 64 After considering the aggravating and mitigating factors, we conclude that the presumptive sanction of suspension is warranted. We are not convinced, however, that Alexander should be suspended for six months and one day. The consequence of the additional day is that Alexander must complete a more onerous reinstatement process and demonstrate her rehabilitation before reinstatement to the active practice of law, which may significantly extend the effective length of her suspension.8
¶ 65 Requiring Alexander to complete the more rigorous application-for-reinstatement process is not necessary to achieve the objectives of lawyer discipline. A suspension of six months or less, with its attendant loss of income and professional standing, would protect the public by deterring Alexander and others from engaging in similar misconduct. Alexander has no prior disciplinary record, and, although her misconduct caused significant injury to the RICO defendants, the public, and our system of justice, we do not discern any evidence that her misconduct requires her to affirmatively demonstrate rehabilitation before reinstatement. For example, no evidence suggests she acted dishonestly, continued a pattern of misconduct, abandoned a client, proceeded under the influence of illness or chemical dependency, or was motivated by malice, greed, or other morally deficient reason. Cf. In re Zawada, 208 Ariz. at 235 ¶ 6, 238 ¶ 20, 241 ¶ 38, 92 P.3d at 865, 868, 871 (increasing suspension from six months to six months and one day for prosecutor who intentionally deprived defendants of fair trials in two cases); In re Moak, 205 Ariz. 351, 355-56 ¶¶ 25-26, 359 ¶ 46, 71 P.3d 343, 347-48, 351 (2003) (altering suspension from six months to greater than six months for lawyer who withheld evidence in civil case and knowingly misled jury); In re Riches, 179 Ariz. 212, 215, 877 P.2d 785, 788 (1994) (determining three-year suspension appropriate for mentally impaired lawyer who stole money from law firm); In re Kobashi, 177 Ariz. 584, 585-86, 870 P.2d 402, 403-04 (1994) (imposing suspension greater than six months for lawyer who failed to file lawsuit for injured client before expiration of statute of limitations and then failed to communicate with or return personal documents to client, and failed to appear in disciplinary proceedings). If the State Bar questions whether Alexander should be allowed to resume practice after her suspension, it may object to her application for reinstatement, thereby submitting the matter to the presiding disciplinary judge, and potentially this Court, for review.
¶ 66 A six-month suspension is the appropriate sanction here.9 Standard 2.3 advises that a suspension term should be at least six months. In light of the harm inflicted by Alexander‘s misconduct, we are not inclined to deviate from the Standard. Cf. In re Alcorn, 202 Ariz. at 71 ¶¶ 32-33, 76 ¶ 51, 41 P.3d at 609, 614 (ordering six months’ suspension for lawyer who failed to reveal a secret agreement to court that resulted in a “sham” trial); In re Levine, 174 Ariz. at 149, 176, 847 P.2d at 1096, 1123 (imposing six months’ suspension on lawyer who filed numerous frivolous lawsuits against former law partner and others with no purpose but to embarrass, delay, or burden others).
CONCLUSION
¶ 67 Alexander committed professional misconduct by violating ERs 1.1, 1.7(a)(1),
CONCURRING: SCOTT BALES, Vice Chief Justice, JOHN PELANDER and ROBERT M. BRUTINEL, Justices, LAWRENCE F. WINTHROP, Judge.*
* Chief Justice Rebecca White Berch has recused herself from this case. Pursuant to Article 6, Section 3 of the Arizona Constitution, the Honorable Lawrence F. Winthrop, Chief Judge of the Arizona Court of Appeals, Division One, was designated to sit in this matter.