ACCURSIO v. TREE HOUSE

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

JOHN ACCURSIO,
Plaintiff/Appellant,

v.

TREE HOUSE LABS, LLC, ET AL.,
Defendants/Appellees.

No. CV-25-0028-PR
Filed September 10, 2026

Appeal from the Superior Court in Maricopa County
The Honorable Dewain D. Fox, Judge
No. CV2023-091725
REVERSED AND REMANDED

Memorandum Decision of the Court of Appeals
Division One
No. 1 CA-CV 24-0298
Filed Jan. 9, 2025
VACATED

COUNSEL:

Jill Ormond (argued), Gordon Rees Scully Mansukhani, LLP, Phoenix,
Attorneys for BB Group LLC, Justin Brandt, Clark Wu, and Mukunda
Shanbhag

Kyle O’Dwyer (argued), Fortify Legal Services, Mesa, Attorneys for John
Accursio

ACCURSIO v. TREE HOUSE LABS, LLC
Opinion of the Court

JUSTICE KING authored the Opinion of the Court, in which CHIEF
JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ, and JUSTICES BOLICK
and BEENE joined. JUSTICE MONTGOMERY, joined by JUSTICE CRUZ,
dissented.

JUSTICE KING, Opinion of the Court:

¶1 The rules of professional conduct governing lawyers are in
Rule 42 of the Rules of the Supreme Court of Arizona.1 See Ariz. R. Sup. Ct.
42 (setting forth the Ethical Rules). An individual or entity may file a charge
with the State Bar of Arizona (“State Bar”) alleging unprofessional conduct
by a lawyer or the unauthorized practice of law. See Ariz. R. Sup. Ct. 53,
55(a), 77(a), 78(a). “Communications to the . . . state bar . . . relating to
lawyer misconduct, lack of professionalism or disability, and testimony
given in the proceedings shall be absolutely privileged conduct, and no civil
action predicated thereon may be instituted against any complainant or
witness.” Ariz. R. Sup. Ct. 48(l); see also Ariz. R. Sup. Ct. 80(a)(6)
(“Communications to the . . . state bar . . . relating to alleged unauthorized
practice of law, and testimony given in the proceedings shall be absolutely
privileged conduct, and no civil action predicated thereon may be instituted
against any complainant or witness.”). Rules 48(l) and 80(a)(6) also provide
that certain enumerated people “shall be immune from suit for” their
conduct, but that list of people does not include complainants who file
charges.

¶2 In this case, we consider whether Plaintiff John Accursio may
maintain a wrongful institution of civil proceedings (“WICP”) claim against
Defendant Clark Wu on the basis that Wu filed a charge against Accursio
with the State Bar. In doing so, we must determine whether the filing of a
charge with the State Bar is a “civil proceeding” for purposes of a WICP
claim. We conclude the filing of such a charge may serve as the predicate

1 In this Opinion, we refer to the Rules of the Supreme Court of Arizona as

the “Rules.”
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“civil proceeding” for a WICP claim. Also, Rules 48(l) and 80(a)(6) do not
immunize a complainant from a WICP claim for the act of filing a charge.
These Rules merely provide that statements made to the State Bar or given
in testimony are privileged, and a civil action may not rely upon such
privileged statements. A plaintiff in a WICP action, however, may rely
upon relevant, admissible evidence that is not privileged, such as the
complainant’s non-privileged communications, the timing of filing, and
other background facts.

¶3 We also consider when the “civil proceeding” commences, as
such timing is relevant to a WICP claim. We conclude the timing depends
on the nature of the charge. When a charge alleges a lawyer admitted to
practice in Arizona has violated the Ethical Rules, the “civil proceeding”
commences when the lawyer is provided written notice of a screening
investigation and required to provide a written response to the
allegations. See Ariz. R. Sup. Ct. 55(b)(1). When a charge alleges a person
has engaged in the unauthorized practice of law, such “proceeding
commences upon receipt by the state bar of a charge against a respondent.”
Ariz. R. Sup. Ct. 78(a).

¶4 Accursio’s complaint sufficiently alleges that the charge Wu
filed with the State Bar commenced a “civil proceeding,” and Accursio
alleges non-privileged facts in support of his claims. Therefore, we reverse
the dismissal of Accursio’s WICP and related aiding and abetting claims
under Arizona Rule of Civil Procedure 12(b)(6) for failure to state a claim
upon which relief can be granted. On remand, the trial court will determine
whether Accursio can prove a WICP claim without considering the content
of privileged communications to the State Bar, an issue that is not before us.

BACKGROUND

¶5 Accursio appeals the trial court’s dismissal of his WICP and
aiding and abetting claims for failure to state a claim upon which relief can
be granted. See Ariz. R. Civ. P. 12(b)(6). For purposes of evaluating this
motion to dismiss, we “must . . . assume the truth of the well-pled factual
allegations and indulge all reasonable inferences therefrom.” Cullen v.
Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 7 (2008). Therefore, the facts here
are taken from Accursio’s complaint.

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¶6 This case began with a dispute over ownership interests in Tree
House Labs, LLC and access to business records. In 2021, Tree House Labs
and others filed a lawsuit in Maricopa County Superior Court, Case
No. CV2021-019322 (the “Underlying Action”). Wu and his law firm, BB
Group, LLC, represented the plaintiffs in the Underlying Action. Accursio,
a lawyer admitted to practice in New York and Washington, D.C.,
represented the defendants in the Underlying Action. Two lawyers
admitted to practice in Arizona served as co-counsel with Accursio
(“Arizona co-counsel”), also representing the defendants in the Underlying
Action. At some point during those proceedings, Accursio told Wu that BB
Group’s representation of the plaintiffs appeared to violate conflict of
interest provisions in the Ethical Rules. In 2022, the plaintiffs voluntarily
dismissed the Underlying Action.

¶7 Since 2021, Accursio and Arizona co-counsel have made
multiple requests for records from Wu’s clients. More recently, Wu
indicated that Accursio’s clients needed to sign a non-disclosure agreement
before Wu’s clients would provide the requested records. Wu sent a draft
non-disclosure agreement to Accursio and Arizona co-counsel. Accursio
reviewed the agreement and sent a second draft version to Wu and Arizona
co-counsel. Shortly after, Wu accused Accursio of engaging in the
unauthorized practice of law in Arizona. Accursio replied that his conduct
was permissible under Ethical Rule 5.5, as he was associating with Arizona
co-counsel. See Ariz. R. Sup. Ct. 42, Ethical Rule 5.5(c)(1) (allowing a lawyer
admitted in another United States jurisdiction to provide temporary legal
services that involve Arizona law under certain circumstances, including
when “undertaken in association with a lawyer who is admitted to practice
in Arizona and who actively participates in the matter”).

¶8 Accursio contacted the State Bar and was purportedly
informed that his representation qualified for the exception in Ethical Rule
5.5. In addition, Accursio discussed with the State Bar Wu’s potential
conflict of interest, and filed a bar charge against Wu, Charge No. 22-1747.

¶9 Accursio then informed Wu of the charge that he filed against
him. Immediately thereafter, Wu filed a charge with the State Bar against
Accursio, Charge No. 22-1748, alleging that Accursio had engaged in the
unauthorized practice of law in Arizona. As a result of this charge, a State

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Bar staff member contacted Accursio and requested information from him.
Accursio drafted and delivered a response letter to the State Bar.

¶10 Later, Accursio received a letter from Senior Bar Counsel
explaining that “a screening investigation is being undertaken pursuant to
Rule 55(b), Ariz. R. Sup. Ct.” The letter also stated:

Your participation in the screening investigation is extremely
important, as Bar Counsel will make a recommendation at the
end of the investigation as to the disposition of this matter.
Pursuant to [Ethical Rule] 8.1(b) and Rule 54(d), Ariz. R. Sup.
Ct., you have a duty to cooperate with this investigation.
Failure to fully and honestly respond to, or cooperate with,
the investigation is, in itself, grounds for discipline.

The letter requested that Accursio provide specific information about his
alleged involvement in drafting or editing (or providing legal advice about)
a memorandum of understanding and various employment offer letters
before associating with local counsel.

¶11 Accursio submitted the requested information to Senior Bar
Counsel in a redacted letter and an unredacted letter. Due to the sensitive
nature of the unredacted information, Accursio simultaneously requested
a protective order. The State Bar filed a Request for Protective Order
Sealing a Portion of the Record with the Presiding Disciplinary Judge, and
it was granted.

¶12 While the charge against Accursio was pending, Accursio
received and accepted an offer of employment with a New York law firm.
Accursio informed the New York law firm of the pending charge against
him, and the firm subsequently rescinded the offer of employment.

¶13 Ultimately, the State Bar dismissed the charge against
Accursio purportedly because the alleged unauthorized practice of law
could not be proven by clear and convincing evidence. Accursio informed
the New York law firm of the dismissal of the charge, but the firm did not
reinstate Accursio’s employment offer. Although Accursio later secured
other employment, the compensation was less than he would have received
at the New York law firm.

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¶14 Accursio filed this lawsuit, which included two claims
relevant here: (1) a WICP claim against Wu based on the charge he filed
against Accursio, and (2) a claim against BB Group and one of its lawyers,
Justin Brandt, for aiding and abetting Wu’s tortious filing of a charge
against Accursio.2 Accursio’s complaint alleges he did not engage in the
unauthorized practice of law, and Wu filed the charge “without any
supporting evidence,” “without probable cause,” and “in retaliation” for
the charge Accursio filed against Wu. Wu, Brandt, and BB Group
(collectively “Defendants”) moved to dismiss Accursio’s claims for failure
to state a claim upon which relief can be granted.
See Ariz. R. Civ. P. 12(b)(6).

¶15 The trial court determined that Wu potentially subjected
himself to WICP liability by filing a charge against Accursio. But “the State
Bar’s disciplinary counsel conducted a screening investigation and
dismissed the bar charge before instituting a proceeding.” The court
observed the similarities between this case and Goldman v. Sahl, which
affirmed the dismissal of an abuse of process claim premised on the filing
of a State Bar charge. 248 Ariz. 512, 530 ¶ 64 (App. 2020) (determining “the
mere filing of a bar charge is not ‘use’ of a judicial process” and thus
plaintiff failed to state a claim for relief for abuse of process). The court
determined that “as in Goldman, Accursio fails to state a viable claim for
[WICP].”

¶16 Next, the court observed that “aiding and abetting is a theory
of secondary liability.” Wells Fargo Bank v. Ariz. Laborers, Teamsters &
Cement Masons Loc. No. 395 Pension Tr. Fund, 201 Ariz. 474, 485 ¶¶ 34, 36
(2002) (stating that one element for aiding and abetting tortious conduct is
that “the primary tortfeasor must commit a tort that causes injury to the
plaintiff”). Because Accursio failed to state a WICP claim, the court
determined that the aiding and abetting claim must also be dismissed. The
court dismissed Accursio’s WICP and aiding and abetting claims with
prejudice.

2 The lawsuit included several other parties and claims that are not relevant

to the issues before us.
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¶17 The court of appeals vacated the dismissal of the WICP and
aiding and abetting claims. See Accursio v. Tree House Labs, LLC,
No. 1 CA-CV 24-0298, 2025 WL 52198, at *7 ¶¶ 38–39 (Ariz. App. Jan. 9,
2025) (mem. decision). The court determined that a state bar discipline
proceeding may be a civil proceeding for purposes of a WICP claim, noting
that a “WICP claim arising out of the alleged misuse of the attorney
disciplinary process is consistent with the Restatement.” Id. at *4–5
¶¶ 25–27 (citing Ariz. R. Sup. Ct. 48(a) and Restatement (Second) of Torts
§ 680 (1977) (referring to “the initiation . . . of civil proceedings . . . before an
administrative board”)).

¶18 The court also noted that “[c]ommunications to the [State Bar]
shall be absolutely privileged conduct, and no civil action predicated
thereon may be instituted against any complainant or witness.” Id. at *3
¶ 20 & nn.2–3 (quoting Ariz. R. Sup. Ct. 48(l) and 80(a)(6)). But this did not
preclude Accursio’s WICP claim because his allegations are not based on
Wu’s communications in the charge. Id. at *3–4 ¶¶ 20–24.

¶19 Finally, the court rejected the argument that Accursio failed
to state a claim because the State Bar dismissed the charge before a
proceeding commenced. Id. at *5–7 ¶¶ 28–38. The charge against Accursio
was based on the unauthorized practice of law (a matter governed by Rules
75 through 80), but the State Bar’s letter to Accursio indicated “a screening
investigation is being undertaken pursuant to Rule 55(b).” Id. at *6
¶¶ 31–32. The court determined that Accursio’s complaint stated a viable
claim whether evaluated under Rule 78 or Rule 55. Id. ¶¶ 32–33. Rule 78(a)
provides that “[a]n unauthorized practice of law proceeding commences
upon receipt by the state bar of a charge against a respondent.” Id. ¶ 31.
And under Rule 55, a civil proceeding commenced because the State Bar
conducted a screening investigation—twice asking for information from
Accursio in response to the charge and obtaining a protective order to seal
sensitive information in his responses. Id. at *6–7 ¶¶ 35–37. “Because
Accursio was required to respond to requests for information by a
regulatory body with authority to compel his cooperation had he resisted,
the Bar’s [unauthorized practice of law] investigation was a ‘proceeding’
for purposes of a WICP claim.” Id. at *7 ¶ 37.

¶20 We granted review to determine whether a WICP claim may
be predicated on a charge filed with the State Bar and, if so, when that “civil

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proceeding” commences for purposes of the WICP claim. These are issues
of statewide importance that are likely to recur. We have jurisdiction under
article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶21 We review the interpretation of court rules de novo and
according to the same principles we use for statutory interpretation.
Contreras v. Bourke, 260 Ariz. 319, 322 ¶ 12 (2025); Phillips v. O’Neil, 243 Ariz.
299, 301 ¶ 8 (2017). We also “review dismissal of a complaint de novo.”
State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 130 ¶ 7 (2020).
Dismissal is appropriate only if “as a matter of law . . . plaintiffs would not
be entitled to relief under any interpretation of the facts susceptible of
proof.” Fid. Sec. Life Ins. Co. v. State Dep’t of Ins., 191 Ariz. 222, 224 ¶ 4 (1998).
Looking only to the pleadings, we “must assume the truth of all
well-pleaded factual allegations and indulge all reasonable inferences from
those facts, but mere conclusory statements are insufficient.” Id.

A. May A Charge Serve As The Predicate “Civil Proceeding”?

1. WICP Claim

¶22 To state a WICP claim, a plaintiff is required to allege that the
defendant (1) instituted a civil proceeding that was (2) motivated by malice,
(3) begun or maintained without probable cause, (4) terminated in
plaintiff’s favor, and (5) damaged plaintiff. See Stephens v. State, 262 Ariz.
233, 239 ¶ 25 (2026); Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411,
416–17 (1988); Carroll v. Kalar, 112 Ariz. 595, 596 (1976). At issue here is
whether the filing of a charge with the State Bar constitutes a “civil
proceeding” for purposes of a WICP claim. We begin with an overview of
the State Bar and the Rules governing the process after a charge is filed.

2. The Supreme Court’s Regulation Of The Practice Of Law

¶23 Under the Arizona Constitution, “[t]he judicial power shall be
vested in an integrated judicial department.” Art. 6, § 1. “[T]he Arizona
Constitution’s creation of an integrated judiciary gives to this Court the
power not just to regulate all courts but also to regulate the practice of law.”
Scheehle v. Justices of the Supreme Court of the State of Arizona, 211 Ariz. 282,
290 ¶ 29 (2005); see also In re Riley, 142 Ariz. 604, 607 (1984) (“[T]he Supreme

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Court of Arizona has the exclusive jurisdiction to regulate the admission to
the practice of the law and the discipline of those admitted.”).

¶24 Early in this state’s history, petitions alleging lawyer
misconduct and seeking discipline were filed directly with the Arizona
Supreme Court. See In re Bailey, 30 Ariz. 407 (1926). This Court had original
jurisdiction to hear the proceeding and inherent authority to discipline a
respondent lawyer who engaged in misconduct. See id.; In re Spriggs,
36 Ariz. 262 (1930).

¶25 But now, the Arizona Supreme Court “maintains under its
direction and control a corporate organization known as the State Bar of
Arizona.” Ariz. R. Sup. Ct. 32(a); see also State v. Harold, 74 Ariz. 210, 214
(1952). “The State Bar exists only by virtue of this [C]ourt’s rules, adopted
under authority of article III and article VI, §§ 1 and 5 of the Arizona
Constitution.” In re Smith, 189 Ariz. 144, 146 (1997). Also, the State Bar can
have no greater jurisdiction or authority than this Court. See Drummond v.
Stahl, 127 Ariz. 122, 126 (App. 1980); In re Riley, 142 Ariz. at 608.

¶26 A person or entity with concerns about a lawyer’s
unprofessional conduct or the unauthorized practice of law may
communicate those concerns to the State Bar by filing a charge. The charge
sets into motion a variety of procedures that may eventually culminate in
an action before the Arizona Supreme Court. See Ariz. Const., art. 6, §§ 1,
5(3), and 5(6); Ariz. R. Sup. Ct. 55–59, 78–79.

3. Charges Relating To An Arizona Lawyer’s Unprofessional
Conduct

¶27 Rules 46 through 69 detail the process for addressing
allegations of unprofessional conduct by lawyers admitted to practice in
Arizona. This process begins with the filing of a charge with the State Bar.
If a charge proceeds to the State Bar’s screening investigation stage, “[t]he
respondent shall provide a written response to the allegations to bar
counsel within twenty (20) days after notice of the investigation is given.”
Ariz. R. Sup. Ct. 55(b)(1). “If respondent fails to timely respond,” bar
counsel may then “seek an investigative subpoena pursuant to Rule 47(h)(1)
to compel respondent’s attendance and production of documents.”
Ariz. R. Sup. Ct. 55(b)(1)(B). “The subpoena may compel a respondent to

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provide a written response to the allegations, as required in Rule 55(b)(1),
the attendance of witnesses and the production of pertinent books, papers
and documents, and answers to written interrogatories.”
Ariz. R. Sup. Ct. 47(h)(1). Also, “a deposition upon subpoena [may be]
required as result of a respondent’s failure to comply with bar counsel’s
request for information,” in which case “the respondent shall be liable for
the costs of the deposition.” Id.

¶28 There are significant implications for failure to appear or
comply with a subpoena, as “the person may be subject to civil contempt
proceedings.” Ariz. R. Sup. Ct. 47(h)(4), 55(b)(1)(B). In those civil contempt
proceedings, if a respondent continues to not comply with a subpoena to
appear and provide information or documents, the presiding disciplinary
judge “may issue an order holding the person in contempt and impose
reasonable sanctions to ensure compliance with the subpoena.” Ariz. R.
Sup. Ct. 47(h)(4)(B). If a respondent is “found to be in contempt under these
proceedings, the presiding disciplinary judge may, among other possible
sanctions, summarily suspend the respondent from the practice of law until
the respondent complies with the subpoena or order.” Id. Notably, all these
provisions apply before a complaint is ever filed with the presiding
disciplinary judge under Rule 58(a). See Ariz. R. Sup. Ct. 58(a) (“Formal
discipline proceedings shall be instituted by bar counsel filing a
complaint . . . with the disciplinary clerk.”); see also Ariz. R. Sup. Ct. 47(h),
55(b).

¶29 Also, a respondent against whom a charge has been filed
“may tender, with the agreement of bar counsel, a conditional admission to
the charge . . . in exchange for a stated form of discipline” or “may
voluntarily consent to disbarment,” all before a complaint is ever filed.
Ariz. R. Sup. Ct. 57(a)(1), (5). The respondent may agree to various forms
of sanctions that are available under Rule 60(a), such as (1) disbarment,
(2) suspension, (3) reprimand, (4) probation, (5) restitution “to persons
financially injured, including reimbursement to the state bar client security
fund,” and (6) payment of costs and expenses. See Ariz. R. Sup. Ct. 60(a),
(d); see also Ariz. R. Sup. Ct. 57(a). Moreover, a person harmed by a lawyer’s
conduct may file a charge with the State Bar and seek redress from the State
Bar’s Client Protection Fund. See Ariz. R. Sup. Ct. 32(d)(8); see also The Client
Protection Fund of the State Bar of Arizona, Declaration of Trust (created on Jan.
7, 1961, and amended on Sep. 29, 2017) (describing the Client Protection

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Fund and identifying eligible claims as losses caused by the dishonest
conduct of a lawyer arising out of and by reason of a lawyer-client
relationship).

4. Charges Relating To The Unauthorized Practice Of Law

¶30 Rules 75 through 80 detail the process for addressing
allegations that a person has engaged in the unauthorized practice of law
in Arizona. This process begins with the filing of a charge with the State
Bar. See Ariz. R. Sup. Ct. 75(a) (“Proceedings against non-members . . . may
also be instituted pursuant to Rules 47 through 60, and such proceedings
may be concurrent with proceedings under [Rules 75 through 80].”); see also
Ariz. R. Sup. Ct. 78(a). After the State Bar receives such a charge,
unauthorized practice of law counsel, volunteer bar counsel, or staff
investigators may commence an investigation. Ariz. R. Sup. Ct.
78(b)(1)–(2). “For purposes of investigation by unauthorized practice of law
counsel, the chief bar counsel or the chair or vice-chair of the committee
shall have the power to issue investigative subpoenas with the same force
and effect as in a civil action in superior court.” Ariz. R. Sup. Ct. 77(c).

¶31 If a respondent fails to comply with any request for
information, the respondent’s deposition may be required pursuant to a
subpoena, in which case “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.” Ariz. R. Sup. Ct. 78(b)(3)(B). Also, during the
investigation, a subpoena may be issued “to compel the attendance of
witnesses, the production of pertinent books, papers and documents, and
answers to written interrogatories.” Ariz. R. Sup. Ct. 78(b)(4); see also
Ariz. R. Sup. Ct. 77(c). A respondent may be subject to sanctions for failure
to respond promptly to an inquiry or request from unauthorized practice
of law counsel for information relevant to the matter under investigation.
Ariz. R. Sup. Ct. 76(a)(3)–(4). Notably, all these provisions apply before a
complaint is ever filed in superior court alleging the unauthorized practice
of law under Rule 79(a). See Ariz. R. Sup. Ct. 79(a) (“Formal unauthorized
practice of law proceedings shall be instituted by unauthorized practice of
law counsel filing a . . . complaint with the clerk of the superior court.”).

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¶32 Also, before a complaint is ever filed, the respondent may
enter into a consent agreement, “tender[ing] a conditional admission to the
charge . . . in exchange for the imposition of a stated sanction,” which may
include an agreement to cease and desist certain activities, refund fees
collected, pay costs and expenses, make appropriate restitution, or any
other lawful sanction agreed to by the parties. See Ariz. R. Sup. Ct. 78(c);
see also Ariz. R. Sup. Ct. 76(b)(1). Indeed, in any unauthorized practice of
law proceeding, possible sanctions include (1) a cease and desist order,
(2) an injunction, (3) a civil or criminal contempt citation,
(4) “restitution . . . to any individual for money, property, or other items of
value received and retained by a respondent,” (5) a civil penalty up to
$25,000, and (6) costs, expenses, and attorney fees relating to the
proceeding. Ariz. R. Sup. Ct. 76(b).

5. Civil Proceeding

¶33 We now consider whether a charge filed with the State Bar
may constitute a “civil proceeding” for purposes of a WICP claim.

¶34 The Rules repeatedly identify the process after a charge is
filed with the State Bar as a “proceeding”—both for charges alleging
unprofessional conduct against an Arizona lawyer and charges alleging the
unauthorized practice of law. See, e.g., Ariz. R. Sup. Ct. 46(h)(12) (defining
“[d]iscipline proceeding” as “any action involving a respondent pursuant
to the rules relating thereto”); Ariz. R. Sup. Ct. 57(a)(1) (stating “[a]
respondent against whom a charge has been made” may consent to
discipline “at any stage of the proceedings”); Ariz. R. Sup. Ct. 75(b)(16)
(defining “[u]nauthorized practice of law proceeding” as “any action
involving a respondent pursuant to the rules relating to the unauthorized
practice of law”); Ariz. R. Sup. Ct. 78(a) (stating “[a]n unauthorized practice
of law proceeding commences upon receipt by the state bar of a charge”).
The use of “proceeding” in these Rules is consistent with the term’s
definition in Black’s Law Dictionary. See Proceeding, Black’s Law Dictionary
(12th ed. 2024); Proceeding, Black’s Law Dictionary (5th ed. 1979). Thus, a
proceeding exists after a charge is filed with the State Bar. But is it a “civil
proceeding”?

¶35 “[C]ourts generally give words their ordinary meaning and
may look to dictionary definitions.” DBT Yuma, L.L.C. v. Yuma Cnty. Airport

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Auth., 238 Ariz. 394, 396 ¶ 9 (2015) (internal citation omitted). The term
“civil” means (1) “Of, relating to, or involving the state or its citizenry,”
(2) “Of, relating to, or involving private rights and remedies that are sought
by action or suit, as distinct from criminal proceedings,” and (3) “Of,
relating to, or involving any of the modern legal systems derived from
Roman law.” Civil, Black’s Law Dictionary (12th ed. 2024); Civil, Black’s
Law Dictionary (5th ed. 1979) (to same effect); see also Civil,
Merriam-Webster, https://www.merriam-webster.com/dictionary/civil
(last visited Aug. 20, 2026) (defining “civil” as “of or relating to citizens”
and “of or relating to the state or its citizenry”). Also, Black’s Law
Dictionary defines a “civil proceeding” as “[a] judicial hearing, session, or
lawsuit in which the purpose is to decide or delineate private rights and
remedies, as in a dispute between litigants in a matter relating to torts,
contracts, property, or family law.” Civil Proceeding, Black’s Law Dictionary
(12th ed. 2024).3

¶36 As an initial matter, we note that all these proceedings occur
through the judicial branch of government. See Goldman, 248 Ariz. at 525
¶ 40 (recognizing that a discipline proceeding is a quasi-judicial
proceeding). The filing of a charge with the State Bar and subsequent steps
occur by virtue of the Rules adopted by this Court. And a complainant who
files a charge with the State Bar submits himself to the jurisdiction of this
Court and either (1) the State Bar or (2) the superior court. See Ariz. R. Sup.
Ct. 53(b), 77(a). If bar counsel ultimately files a complaint against an
Arizona lawyer, the presiding disciplinary judge presides over the
discipline proceeding, see Ariz. R. Sup. Ct. 58, and a decision may be
appealed to the Arizona Supreme Court, see Ariz. R. Sup. Ct. 59. The
presiding disciplinary judge is appointed by the Arizona Supreme Court.
Ariz. R. Sup. Ct. 51(a). Also, an unauthorized practice of law matter may
result in a complaint being filed in the superior court, and the superior
court’s decision is reviewable by the court of appeals and this Court. Ariz.
R. Sup. Ct. 79.

3 According to our review, Black’s Law Dictionary first provided a
definition of “civil proceeding” in 2014, and it is identical to the definition
quoted in this opinion. See Civil Proceeding, Black’s Law Dictionary (10th
ed. 2014).
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¶37 As discussed, the proceedings that follow the filing of a
charge are not mere informal inquiries. Instead, they occur through defined
procedures under the Rules. A charge puts into motion an adjudicative
process that may result in (1) the respondent being required to respond to
a complainant’s allegations with information, documents, or depositions,
(2) the issuance of investigative subpoenas, (3) the initiation of civil
contempt proceedings, (4) the respondent being required to pay restitution
to persons financially injured, civil penalties, or other amounts, or (5) the
respondent being subject to significant adverse action, such as disbarment.
Supra ¶¶ 27–32. The Rules even use the term “civil” when addressing the
initial phase of the proceedings when a charge is merely pending with the
State Bar—before a complaint is ever filed. See Ariz. R. Sup. Ct. 47(h)(4), (i);
see also Ariz. R. Sup. Ct. 77(c) (stating the State Bar “shall have the power to
issue investigative subpoenas with the same force and effect as in a civil
action in superior court”).

¶38 Defendants assert that filing a charge with the State Bar is akin
to “[f]iling a police report, causing noise citations to be issued, and
demanding prosecution of ordinance violations,” which “do not show that
a party has used an instrument of the judicial process.” Not so. First, those
examples are not proceedings that occur through the judicial branch of
government and trigger a quasi-judicial proceeding. Second, Goldman
indicated that a bar charge is akin to a police report for which the prosecutor
then has discretion whether to proceed. 248 Ariz. at 530 ¶ 63. But Goldman
did not recognize that investigative subpoenas may be issued and
significant adverse action may be taken against a respondent who fails to
comply at the charge investigation stage. The subject of a police
investigation does not have a similar obligation to cooperate. Goldman’s
comparison is not convincing.

¶39 Defendants rely on other language in Goldman to support
their position that a charge filed with the State Bar is not a civil proceeding.
Goldman acknowledged that “an action within a disciplinary proceeding
may implicate an action for improper litigation conduct,” but determined
“the mere filing of a bar charge is not ‘use’ of a judicial process” as required
for abuse of process. Id. ¶ 64. Goldman then proceeded to state, “[i]n this
case, there was no process, nor was there a proceeding to sustain a claim
for the wrongful institution of civil proceedings.” Id. But there was no
WICP claim in Goldman, and thus the court did not consider whether a “civil

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proceeding” existed. See id. at 516 ¶ 1. Goldman’s brief mention of WICP
was dicta that was unnecessary to its outcome and failed to analyze the
substance of the Rules in context with the term “civil proceeding.” See State
v. Brown, 260 Ariz. 476, 486 ¶ 49 (2025). Goldman’s perfunctory reference to
WICP does not compel us to exclude charges filed with the State Bar from
being considered “civil proceedings.”

6. The Dissent

¶40 Our dissenting colleagues do not dispute that a proceeding
occurs after a charge is filed with the State Bar. They just dispute the
characterization of that proceeding as a “civil proceeding.”

¶41 The dissent points to Rule 48(a), which provides: “Discipline
and disability proceedings are neither civil nor criminal, but are sui
generis.” Infra ¶¶ 104–105, 109–111, 138. Although Defendants do not rely
on Rule 48(a), the dissent contends that this sentence supports the
proposition that a State Bar discipline proceeding can never be a “civil
proceeding” for purposes of a WICP claim. We disagree.

¶42 First, Rule 48(a) does not state that a discipline proceeding
may never constitute a civil proceeding for a collateral legal purpose. The
dissent’s construction effectively reads language into Rule 48(a) that does
not exist.

¶43 Second, discipline proceedings are unique and are, therefore,
sui generis. See Sui Generis, Black’s Law Dictionary (5th ed. 1979)
(explaining “sui generis” is Latin and means “[o]f its own kind or class”).
As discussed, a proceeding exists after a charge is filed with the State Bar
and that proceeding may (or may not) become a civil proceeding. Supra
¶ 34; infra ¶ 77 (explaining that a civil proceeding does not commence
under Rule 55 until a respondent is given the written notice of investigation
and must provide a written response to the allegations). A discipline
proceeding is not automatically a civil proceeding. Whether a discipline
proceeding ever amounts to a civil proceeding depends on the stage and
substance of each particular proceeding, which is evaluated on a
case-by-case basis. That feature makes discipline proceedings unique.

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¶44 Third, Rule 48(a) cannot be read in isolation, but instead must
be read in context with the remainder of Rule 48, as context is a primary
determinant of meaning. See San Diego Gas & Elec. Co. v. Ariz. Dep’t of
Revenue, 259 Ariz. 105, 108 ¶ 11 (2025) (citing Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 167 (2012) (explaining
that courts must interpret a statute’s plain language in context, because
“[c]ontext is a primary determinant of meaning”)); S. Ariz. Home Builders
Ass’n v. Town of Marana, 254 Ariz. 281, 286 ¶ 31 (2023) (explaining that we
determine the meaning of a statute “according to the plain meaning of the
words in their broader statutory context”); State v. Aguilar, 209 Ariz. 40, 47
¶ 23 (2004) (“We interpret court rules according to the principles of
statutory construction.”). The following provisions appear immediately
after Rule 48(a): (1) Rule 48(b) adopts specific Arizona Rules of Civil
Procedure that apply to proceedings before the presiding disciplinary
judge, (2) Rule 48(c) provides that the Arizona Rules of Evidence, with
certain exceptions, “shall be followed as far as practicable,” and (3) Rule
48(d) and (e) set forth the standard of proof and burden of proof that apply.
See Ariz. R. Sup. Ct. 48. We do not read Rule 48(a) in isolation, or invoke “a
narrow, crabbed reading of [the] text.” State v. Serrato, 259 Ariz. 493, 497
¶¶ 15–16 (2025). Instead, we analyze Rule 48 as a cohesive whole so that
we do not overlook contextual clues that inform the meaning of
subsection (a). See id. Read in context, Rule 48(a) means that discipline
proceedings are also unique as they relate to the applicability of certain
court rules and the relevant standard of proof and burden of proof.

¶45 The dissent traces the history of Rule 48(a) and contends that
its text was originally sourced from American Bar Association (“ABA”)
Model Rule for Lawyer Disciplinary Enforcement (“Model Rule”) 17(A),
which, in turn, was addressed by ABA Standard 1.2, and we should
therefore use the commentary to ABA Standard 1.2 to inform our
understanding of Rule 48(a). Infra ¶¶ 104–05. Even assuming we should
look to the commentary of ABA Standard 1.2 to interpret the meaning of
Rule 48(a), that commentary supports our position. The commentary
observes that (1) the question of what rules “should be applied . . . must be
determined upon the facts presented in a particular case,” and (2) “[t]he
general consensus is that disciplinary proceedings are unique and thus may
properly be characterized as sui generis.” Joint Committee on Professional
Discipline of the Appellate Judges’ Conference and the Standing
Committee on Professional Discipline, Standards for Lawyer Disciplinary and

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Disability Proceedings 1.2 cmt. (A.B.A., Tentative Draft 1978) (cleaned up).
We agree that discipline proceedings are unique. As discussed, the filing
of a bar charge initiates a proceeding, and whether it ever becomes a civil
proceeding depends on the facts presented in each particular case (i.e.,
whether the process reaches a point where the respondent is required to
respond subject to significant penalties). Supra ¶ 34; infra ¶ 77.
Accordingly, we agree with the dissent’s observation that “the sui generis
nature of disciplinary proceedings concerns the need to engage in a case-
by-case determination.” Infra ¶ 105. Discipline proceedings are also unique
with respect to the applicability of certain court rules and the relevant
standard of proof and burden of proof. Supra ¶ 44.

¶46 The WICP cause of action remedies harms resulting from a
civil proceeding that was motivated by malice and lacked probable cause.
Similar types of harms may arise immediately after a charge is filed with
the State Bar. Even before a complaint is ever filed, these adverse
consequences may include investigative subpoenas, contempt proceedings
resulting in sanctions, or an agreement that requires diversion, imposes
discipline, or provides restitution to those financially injured. See Ariz. R.
Sup. Ct. 47(h)(4), 55(b)(1)(B), 56, 57(a), 60.

¶47 The dissent does not address the substance and significance
of the proceedings under the Rules—namely, that a charge may ultimately
result in a respondent having to respond with information, documents, or
depositions; the issuance of investigative subpoenas; the initiation of civil
contempt proceedings; the mandatory payment of restitution to persons
financially injured or other sanctions; or other significant adverse action
against a respondent, such as disbarment. See supra ¶¶ 27–29. We cannot
ignore the fundamental character and nature of discipline proceedings
provided in the Rules. These proceedings bear several hallmarks of a
lawsuit filed by a plaintiff against a defendant—e.g., compulsory process,
adverse consequences for failing to participate, disclosures, subpoenas,
depositions, sanctions, monetary obligations, and orders aimed at
compensating injured parties, many of which pertain expressly to civil
actions. The substance of the applicable Rules supports a determination
that a discipline proceeding can be a “civil proceeding” for purposes of a
WICP claim.

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¶48 The dissent claims that discipline proceedings do not occur
within the adversarial framework of “private litigation between parties
with competing interests,” and their purpose is “to protect the public and
ensure the integrity of the legal profession.” Infra ¶¶ 118–19 (citing cases
for the proposition that the purpose of lawyer discipline is to protect the
public and deter misconduct by the attorney and others). But a proceeding
does not cease to be civil in nature merely because it serves the purpose of
protecting the public and deterring misconduct by others while
simultaneously seeking to achieve a private remedy for an injured person.
See, e.g., A.R.S. § 44-1528(A)(2) (permitting the attorney general, under the
Consumer Fraud Act, to seek an injunction in court prohibiting a person
from continuing unlawful practices and also authorizing a court to
“[r]estore to any person in interest any monies or property, real or personal,
which may have been acquired by” an unlawful practice). Moreover, in
this context, a key method of protecting the public and deterring
misconduct by others is through the Rules’ various enforcement
mechanisms and sanctions, one of which requires a respondent to pay
restitution to persons damaged by the lawyer’s conduct, thereby making
that injured person whole. See Ariz. R. Sup. Ct. 60(a)(6) (“Restitution may
be imposed by order . . . to persons financially injured, including
reimbursement to the state bar client security fund.”). These proceedings
assist in resolving certain types of private disputes—a function that persists
even though the respondent is opposite the State Bar.

¶49 A discipline proceeding also adjudicates professional
licensing interests that implicate private rights, such as a lawyer’s
suspension from the practice of law or disbarment. A charge filed with the
State Bar puts into motion a proceeding that decides issues pertaining to
private rights and remedies.

¶50 Although “proceeding” does not contain the modifier “civil”
in Rule 55, this does not preclude a discipline proceeding from being civil
in nature. A “proceeding” is a general term that can include a “civil
proceeding,” as already reflected in Arizona law. See, e.g.,
A.R.S. §§ 12-401(14) (addressing venue for “[a]ctions . . . to stay
proceedings”); -168 (“Proceedings before the [tax] court are original,
independent proceedings and shall be tried de novo.”); -1143 (explaining
that, in eminent domain actions, “[a] proceeding under this article may be
instituted by filing a complaint”). Indeed, Rule 48’s adoption of (1) multiple

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Rules of Civil Procedure, and (2) the Rules of Evidence applicable in the
superior court that are to be followed as far as practicable, reinforces our
conclusion that a State Bar discipline proceeding is a type of civil
proceeding.4 See Ariz. R. Sup. Ct. 48(b)–(c).

¶51 In sum, Rule 48(a)’s “sui generis” phrase does not transform
the substance of all the Rules previously addressed into a categorical
requirement that we may never recognize a discipline proceeding as a type
of civil proceeding for a WICP claim. Rule 48(a) does not substantively
declare the nature of a discipline proceeding as a wholly distinct category
that can never be civil in nature. The text of the relevant Rules, including
Rule 48(a), establishes that a State Bar proceeding may constitute a “civil
proceeding” for purposes of a WICP claim. In Part C, we address when that
“civil proceeding” commences.

B. Do Rules 48(l) And 80(a)(6) Grant Complete Immunity From Suit
For Filing A Charge With The State Bar?

¶52 We now consider the impact of Rules 48(l) and 80(a)(6) on a
WICP claim arising from the filing of a charge with the State Bar. Rule 48(l)
provides, in relevant part:

Communications to the . . . state bar . . . and testimony given
in the proceedings shall be absolutely privileged conduct, and
no civil action predicated thereon may be instituted against
any complainant or witness. Members of the board, members
of the committee, the presiding disciplinary judge, hearing
panel members, the peer review committee, client protection
fund trustees and staff, fee arbitration committee arbitrators
and staff, the Committee on the Rules of Professional
Conduct, participants in an approved member assistance
program, including those seeking assistance and those
seeking to provide assistance, or participants or staff in a State

4 For the reasons discussed in detail, we do not—as the dissent
implies—rely solely on Rule 48’s reference to certain Rules of Civil
Procedure to conclude that discipline proceedings are civil proceedings. See
infra ¶ 105.
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Bar law office or practice management assistance program,
state bar staff, and court staff shall be immune from suit for
any conduct in the participation in the program.

Similarly, Rule 80(a)(6) provides, in relevant part:

Communications to the . . . state bar . . . relating to alleged
unauthorized practice of law, and testimony given in the
proceedings shall be absolutely privileged conduct, and no
civil action predicated thereon may be instituted against any
complainant or witness. Board members, bar counsel,
unauthorized practice of law counsel, volunteer bar counsel,
investigators, and state bar and court staff shall be immune
from suit for any conduct in the course of their official duties.

¶53 In Goldman, the court of appeals observed that Rule 48(l)
codifies common law privileges and immunities. 248 Ariz. at 527 ¶ 47. The
court discussed the litigation privilege in common law and explained that
“[a] privilege applies to the content of the communication, which serves to
defeat an action predicated on the privileged statement.” Id. at 522 ¶ 30.
“An examination of our jurisprudence reflects an application of a privilege
protecting the content of the bar charge—reasoning that a disciplinary
proceeding is a quasi-judicial proceeding and a bar charge is entitled to the
litigation privilege.” Id. at 525 ¶ 40. But Rule 48(l) “does not provide the
actor with an immunity against a right of action premised on improper
litigation conduct,” such as claims for WICP, malicious prosecution, and
abuse of process.5 Id. at 522 ¶ 30, 524 ¶ 36 n.5. We agree with Goldman on
these points.

¶54 The litigation privilege does not grant immunity from all
causes of action. If it did, WICP would not be a cause of action because the
party who instituted the civil proceeding would have absolute immunity
from all civil liability. As Goldman correctly observed, a privilege is distinct

5 Abuse of process differs from WICP. As Goldman explained, the elements

of an abuse of process claim are (1) a willful act in the use of a judicial
process; (2) for an ulterior purpose not proper in the regular conduct of the
proceedings. 248 Ariz. at 522 ¶ 27.
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from an immunity. Id. at 522–23 ¶ 31 (explaining generally that a privilege
precludes the use of privileged communications as evidence to sustain a
cause of action but does not bar the cause of action altogether; the privilege
only renders the cause of action unsustainable if based exclusively on
privileged statements).

¶55 Rules 48(l) and 80(a)(6) expressly provide that
“[c]ommunications to the . . . state bar” and “testimony given in
proceedings shall be absolutely privileged conduct.” “Communications”
and “testimony” limit the reach of the privilege by referring only to
statements made to the State Bar or given in testimony. See Communication,
Black’s Law Dictionary (5th ed. 1979) (“Information given; the sharing of
knowledge by one with another.”); Testimony, Black’s Law Dictionary (5th
ed. 1979) (“Evidence given by a competent witness under oath or
affirmation.”). Significantly, Rules 48(l) and 80(a)(6) do not refer to the act
of filing a charge. As relevant here, therefore, the “absolutely privileged
conduct” refers to the statements that the complainant made to the State
Bar—not his act of filing the charge. And the language “no civil action
predicated thereon may be instituted against any complainant” means that
those privileged statements may not be used in a civil action against the
complainant.6

¶56 The text and structure of Rules 48(l) and 80(a)(6) further
demonstrate the distinction between “privilege” and “immunity.” The first
sentence of each Rule states that communications to the State Bar and
testimony given in proceedings “shall be absolutely privileged conduct”
and refers to a “complainant” and “witness.” See Ariz. R. Sup. Ct. 48(l),
80(a)(6). The second sentence states that an enumerated group of people
(e.g., State Bar staff, board members, and others) “shall be immune from
suit for any conduct in the participation of the program” or “in the course
of their official duties.” Id. Significantly, in providing immunity from suit

6 The dissent points to this Court’s reference in In re Alexander, 232 Ariz. 1,
10 ¶ 36 (2013), about a lawsuit being based in part on the filing of bar
complaints, “even though Rule 48(l) prohibits civil lawsuits against bar
complainants.” See infra ¶ 98. This statement is consistent with our
interpretation today: Rule 48(l) prohibits civil lawsuits against
complainants when based only on privileged statements in the charge.
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to several enumerated categories of people, the second sentence does not
refer to a “complainant.” Id.

¶57 The use of different terms in these Rules—“privilege” in the
first sentence (which applies to a “complainant”) and “immunity” in the
second sentence (which does not apply to a “complainant”)—demonstrates
that “privilege” and “immunity” serve different functions. See Arizonans
for Second Chances, Rehab., & Pub. Safety v. Hobbs, 249 Ariz. 396, 407 ¶ 34
(2020) (declining to interpret two distinct terms as having the same
meaning); see also Scalia & Garner, supra, at 170 (explaining when one term
is used “in one place, and a materially different term in another, the
presumption is that the different term denotes a different idea”). Reading
“privilege” to have the same meaning as “immunity” would disrupt the
text and structure of Rules 48(l) and 80(a)(6) that extend a “privilege” to a
complainant but not an “immunity.” Put simply, Rules 48(l) and 80(a)(6)
do not grant complete immunity to a complainant—thereby shielding that
person from suit altogether—for the act of maliciously filing a charge with
the State Bar without probable cause. Indeed, Rules 48(l) and 80(a)(6) do
not even reference the filing of a charge.

¶58 Defendants and the dissent effectively contend that Rules
48(l) and 80(a)(6) immunize the act of filing a charge with the State Bar. But
this reading undermines the text and structure of Rules 48(l) and 80(a)(6)
and incorrectly collapses the privilege into a blanket immunity. If Rules
48(l) and 80(a)(6) completely immunized a complainant from suit, the first
sentence in those provisions would have used the word “immunity” (rather
than “privileged”) and the second sentence would have included
“complainants” in the list of people granted immunity. The dissent’s
endeavor to trace the history of Rules 48(l) and 80(a)(6) to determine their
meaning—including its reliance on the ABA commentary’s discussion of
“immunity”—fails to account for the key textual differences in Rules 48(l)
and 80(a)(6) as drafted. See Scalia & Garner, supra, at 170.

¶59 Also, the word “conduct” in Rules 48(l) and 80(a)(6) does not
independently enlarge the privilege beyond the person’s communications
made to the State Bar and testimony given. The subject of the provisions is
“[c]ommunications,” which in turn defines the word “conduct” for
purposes of the Rules. Rules 48(l) and 80(a)(6) expressly identify the
“absolutely privileged conduct” as “testimony given” and

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“communications to the . . . state bar”—not the act of “filing” a charge. This
means that a complainant’s statements that he made in a charge and a
witness’s statements that he gave in testimony are “absolutely privileged
conduct” that cannot be used to support a civil action. See Conduct, Black’s
Law Dictionary (5th ed. 1979) (“[p]ersonal behavior; deportment; mode of
action; any positive or negative act”). The dissent claims that the word
“conduct” supports a conclusion that “a civil action may not be predicated
on the act of filing a state bar complaint.” Infra ¶ 128. We might agree if
Rules 48(l) and 80(a)(6) referenced the act of filing a bar complaint, but they
do not. The text and structure of Rules 48(l) and 80(a)(6) do not support
converting a privilege into a categorical immunity from suit.

¶60 According to the dissent, the source for now-Rule 48(l) is ABA
Model Rule 12, and the related ABA Standard is 8.3—Immunity of
Complainants. Infra ¶¶ 89–92. The dissent contends that we should, in
turn, examine the commentary to ABA Standard 8.3 to understand the
original public meaning of Rule 48(l) (and the virtually identical language
in Rule 80(a)(6)) and that such commentary is “useful to bench and bar.”
Infra ¶¶ 87–92, 102.

¶61 But the path from ABA Standard 8.3 to Rules 48(l) and 80(a)(6)
is neither as clear nor as direct as the dissent suggests. ABA Standard 8.3’s
first iteration provided that “[c]omplainants should be absolutely immune
from civil liability for all communications to the agency.” See Standards for
Lawyer Disciplinary and Disability Proceedings, supra ¶ 45, 8.3. Standard 8.3
expressly provided complainants with an “immunity,” not a “privilege.”
Id. But Arizona has adopted Rules 48(l) and 80(a)(6), which only provide a
“privilege” to complainants and exclude complainants from the list of
specific individuals who have an “immunity.” Due to the materially
different language, we doubt the usefulness of Standard 8.3 and its
commentary in our interpretation of Rules 48(l) and 80(a)(6).7

7 Moreover, the commentary to ABA Standard 8.3 states that “[i]t is
unlikely that even a malicious complaint will cause any damage beyond
some inconvenience.” See Standards for Lawyer Disciplinary and Disability
Proceedings, supra ¶ 45, 8.3 cmt. But, as discussed, the Arizona Supreme
Court Rules impose more than “some inconvenience” on respondents when
a proceeding reaches a certain point.
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¶62 Even if we look to ABA Standard 8.3’s commentary for
guidance, that commentary supports our position. The commentary states:
“Immunity from civil actions attaches only to communications made to the
agency.” See Standards for Lawyer Disciplinary and Disability Proceedings,
supra ¶ 45, 8.3 cmt. Under our interpretation of Rules 48(l) and 80(a)(6), the
statements made in a charge are absolutely privileged, and no civil action
predicated solely on such statements may be instituted against a
complainant. Thus, if a WICP claim is based exclusively on privileged
statements in the charge, the complainant is effectively immune from suit.
This may explain why other materials addressing reports of lawyer
misconduct have at times conflated the terms “privilege” and “immunity”
and referred to a complainant’s “immunity.” See, e.g., AZ Jud. Adv. Op.
90-13 (Ariz. Sup. Ct. Jud. Eth. Adv. Comm.), at *3 n.5, 1990 WL 10521402.

¶63 Also, at least one jurisdiction expressly immunizes a
complainant’s filing of a charge and participation in the attorney discipline
system. See Tex. R. Disciplinary P. 17.09 (titled “Immunity”) (“No lawsuit
may be instituted against any Complainant or witness predicated upon the
filing of a Grievance or participation in the attorney disciplinary and
disability system.”). In contrast, Arizona’s Rules do not grant immunity to
a complainant for filing a charge or participating in the system. See Ariz. R.
Sup. Ct. 48(l), 80(a)(6).

¶64 The dissent contends that we have improperly engaged in
“textualism unmoored from original public meaning.” Infra ¶ 106. We
have not. We interpret court rules using the same principles that govern
statutory interpretation. Aguilar, 209 Ariz. at 47 ¶ 23. “Statutory
interpretation requires us to determine the meaning of the words the
legislature chose to use,” S. Ariz. Home Builders Ass’n, 254 Ariz. at 286 ¶ 31,
according to their original public meaning and broader statutory context,
Matthews v. Indus. Comm’n, 254 Ariz. 157, 163 ¶ 29 (2022). Our
interpretation of Rules 48(l) and 80(a)(6) is consistent with this Court’s
established methodology. We have focused on the plain meaning of the
specific words this Court adopted in Rules 48(l) and 80(a)(6) at the time of
their adoption. And notably, the dissent does not contend that the public
meaning of the terms “privilege” or “immunity” has changed since their
adoption.

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¶65 Further, our analysis of Rules 48(l) and 80(a)(6) is consistent
with how privileges apply in judicial proceedings. In Samaritan Foundation
v. Goodfarb, this Court reiterated the U.S. Supreme Court’s conclusion that
the attorney-client privilege “only protects disclosure of communications;
it does not protect disclosure of the underlying facts by those who
communicated with the attorney.” 176 Ariz. 497, 501–02 (1993) (quoting
Upjohn Co. v. United States, 449 U.S. 383, 395–96 (1981)). More recently, in
State ex rel. Adel v. Adleman, this Court explained that a party seeking to
assert the attorney-client privilege may produce a privilege log that
identifies privileged communications by date, time, and participants, but
does not reveal the communications themselves. 252 Ariz. 356, 361 ¶ 14
(2022). And in Fann v. Kemp, a case involving the legislative privilege, this
Court explained that a legislative body may prepare a privilege log that
identifies a communication and explains why the document is privileged
“without revealing its content or otherwise violating the privilege.”
253 Ariz. 537, 547–48 ¶¶ 33–34 (2022) (citing Ariz. R. Civ. P. 26(b)(6)(A)(i)).
In those cases, as here, the communication is privileged, but the fact that a
communication took place is not privileged.

¶66 We note the court of appeals’ statement in Drummond that
“[i]n our opinion, public policy and legal precedent compel us to adopt the
position that there is an absolute privilege extended to anyone who files a
complaint with the State Bar alleging unethical conduct by an attorney.”
127 Ariz. at 126. But this Court has not blessed this statement in Drummond.
Instead, we promulgated Rules 48(l) and 80(a)(6), which clarified our view
and did not exist at the time of Drummond.

¶67 Drummond tied the absolute privilege to the filing of a
charge—but Rules 48(l) and 80(a)(6) do not even reference the filing of a
charge. See id. Rules 48(l) and 80(a)(6) textually take a different approach,
establishing that a complainant’s statements made to the State Bar are
privileged and cannot be used in a civil action. But a complainant is not
altogether immune from suit for filing a charge. See Goldman, 248 Ariz.
at 522 ¶ 30, 524–25 ¶ 39 (recognizing that “prior caselaw has held that an
absolute privilege applies to those that submit a bar charge,” but this does
not provide “a basis to interpret a rule in a manner that would grant an
alleged tortfeasor an absolute immunity” for all improper litigation
conduct). Thus, the broad statement in Drummond does not persuade us to

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interpret the now-existing Rules 48(l) and 80(a)(6) in a manner contrary to
their text.

¶68 The privilege and the right to file a WICP claim serve different
but important interests. The privilege allows unfettered communications
to the State Bar in connection with possible wrongdoing. WICP is a cause
of action for wrongfully weaponizing that process. Our interpretation
preserves both policy objectives. Under the dissent’s interpretation, by
contrast, complainants who file knowingly fabricated, retaliatory, and
malicious charges with the State Bar would receive complete immunity.
But Rules 48(l) and 80(a)(6) do not support this construction.

¶69 Also, the dissent believes our decision “employ[s] a novel
interpretation” that dramatically changes Arizona lawyer regulation. Infra
¶ 108. It does not. Indeed, six years ago, the court of appeals ruled that
Rule 48(l) “does not provide the actor with an immunity against a right of
action premised on improper litigation conduct.” Goldman, 248 Ariz. at 522
¶ 30.

¶70 Additionally, the dissent contends that our interpretation of
Rules 48(l) and 80(a)(6) “will prove unworkable in practice” because
evaluating a WICP claim necessarily requires examination of the charge’s
contents. Infra ¶¶ 129, 139. Not so. Courts routinely separate privileged
communications from non-privileged communications—in the context of
attorney-client privilege, legislative privilege, clergy-penitent privilege,
and the like. In those cases, a claim may proceed if sufficiently supported
by non-privileged evidence. As relevant here, the privilege protects a
complainant’s statements made to the State Bar—not all underlying facts.
In a case like this, a WICP claim may be supported by non-privileged
evidence, such as the complainant’s non-privileged statements; the fact the
complainant filed a charge and timing of the filing; what the complainant
knew, reviewed, and considered before filing the charge; the complainant’s
motivation in filing the charge; surrounding events and circumstances; any
inconsistencies on the part of the complainant; the respondent’s conduct;
the outcome of the charge; and other relevant, admissible evidence. Thus,
not all WICP claims necessarily require examining what was stated in a
charge. In sum, the existence of a privilege does not eliminate a cause of
action altogether.

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¶71 To be clear, a plaintiff’s WICP claim will be barred if he only
relies on privileged statements that the complainant made in a charge to
support an element of the claim. See Ariz. R. Sup. Ct. 48(l), 80(a)(6)
(providing “no civil action predicated thereon may be instituted against
any complainant”). But privileged communications differ from, and do not
protect, the act of filing a charge. Cf. Granger v. Wisner, 134 Ariz. 377, 379–80
(1982) (explaining “the privilege protects only confidential communications
between a client and his or her attorney” but “does not extend to facts which
are not part of the communication,” and therefore “the fact that a client has
consulted an attorney” and “the dates and number of visits to the attorney
are normally outside the scope and purpose of the privilege”).

¶72 Here, Accursio alleges facts apart from the statements in Wu’s
charge that sufficiently allege a WICP claim. For example, Accursio’s
complaint alleges: (1) Accursio was an attorney licensed to practice in New
York and Washington, D.C., (2) Accursio worked with local counsel in
Arizona and was not engaged in the unauthorized practice of law in
Arizona, (3) Wu was aware that Accursio was working with local counsel
in Arizona, (4) Accursio told Wu that BB Group’s representation appeared
to violate conflict of interest rules, (5) Accursio filed a charge against Wu
with the State Bar, (6) Accursio informed Wu of that charge, and Wu
retaliated immediately thereafter by filing a State Bar charge against
Accursio, and (7) Brandt told Accursio: “We are relying on the advice of
ethics counsel and will continue to do so unless we are informed by the bar
that you are not engaged in the unauthorized practice of law in Arizona.”

¶73 Statements made in a charge filed with the State Bar are
absolutely privileged, and a respondent may not rely on the privileged
statements in a subsequent civil action. See Ariz. R. Sup. Ct. 48(l), 80(a)(6).
But this rule does not foreclose Accursio from seeking discovery of and
relying on non-privileged evidence in support of his claim. This may be a
heavy lift. But the issue of whether Accursio can ultimately prove all
elements of his WICP claim without referencing privileged
communications to the State Bar is not before us. The trial court will
determine that issue on remand.

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Opinion of the Court

C. When Does A Civil Proceeding Commence?

¶74 The trial court determined that Accursio could not prevail
because the State Bar dismissed the charge before a civil proceeding ever
commenced. We must now determine when a civil proceeding commences
in this context.

¶75 Unauthorized practice of law charges are governed by Rules
75 through 80. But see Ariz. R. Sup. Ct. 75(a) (“Proceedings against
non-members . . . may also be instituted pursuant to Rules 47 through 60,
and such proceedings may be concurrent with proceedings under [Rules 75
through 80]”). Here, however, Senior Bar Counsel notified Accursio that a
screening investigation was beginning under Rule 55. It is not entirely clear
whether the State Bar proceeded under Rule 55 or Rule 78, and so we
analyze the issue under both Rules.

1. Rule 55

¶76 Rule 55(a) (“Commencement; Determination to Proceed”)
requires bar counsel to evaluate all charges alleging unprofessional
conduct, misconduct, or incapacity. Bar counsel may refer the matter for a
screening investigation after determining the alleged conduct may warrant
the imposition of a sanction. Referring the matter for a screening
investigation requires that “[b]ar counsel . . . give the respondent written
notice that the respondent is under investigation and of the nature of the
allegations.” Ariz. R. Sup. Ct. 55(b). “No disposition adverse to the
respondent shall be recommended by bar counsel until the respondent has
been afforded an opportunity to respond in writing to the charge.” Id. The
respondent has twenty days after receiving the notice of investigation to
provide a written response. Ariz. R. Sup. Ct. 55(b)(1).

¶77 A civil proceeding commences under Rule 55 when a
respondent is given the written notice of investigation and must provide a
written response to the allegations. A respondent who fails to respond
faces significant adverse action. Failure to respond may result in an
investigative subpoena to compel attendance and production of
documents. See Ariz. R. Sup. Ct. 55(b)(1)(B). It may also subject the
respondent to contempt proceedings that could result in various forms of
sanctions including fines and potential disbarment. See id.; Ariz. R. Sup. Ct.
47(h)(4). Moreover, a respondent’s responses may prompt the need for the
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Opinion of the Court

State Bar to seek a protective order with the presiding disciplinary judge,
as occurred here. See Ariz. R. Sup. Ct. 70(g). Thus, a civil proceeding may
commence even before a complaint is filed with the presiding disciplinary
judge.

2. Rule 78

¶78 Rule 78(a) (“Commencement”) states that “[a]n unauthorized
practice of law proceeding commences upon receipt by the state bar of a
charge against a respondent.” This Rule leaves no ambiguity for charges
alleging the unauthorized practice of law—the State Bar’s receipt of a
charge is when the civil proceeding commences.

3. Commencement Of Civil Proceeding

¶79 We conclude that a civil proceeding commenced against
Accursio, regardless of whether the issue is analyzed under Rule 55 or Rule
78. Accursio was subject to a screening investigation, whereby he was
required to substantively respond to the charge or otherwise face
significant adverse action, and a protective order was obtained from the
presiding disciplinary judge. A civil proceeding commenced against him
under Rule 55.

¶80 A civil proceeding also commenced against Accursio under
Rule 78 because the State Bar received a charge against him.

4. Defendants’ Public Policy Arguments

¶81 Defendants highlight the public policy interest in not creating
a chilling effect that discourages people from reporting lawyer misconduct
to the State Bar. But WICP claims cannot be based on charges that are
merely imprudent, mistaken, or even incorrect. The elements of a WICP
claim require proof of much more—a plaintiff must prove malice, lack of
probable cause, a charge terminating in plaintiff’s favor, and damages. See
Stephens, 262 Ariz. at 239 ¶ 25.

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Opinion of the Court

¶82 Further, the interest highlighted by Defendants is not the
exclusive interest at stake. By virtue of the existence of WICP claims,
Arizona law also recognizes an interest in preventing harm to a person by
the malicious institution of a proceeding that lacks probable cause. Such
harm could include, among other things, damage to one’s professional
reputation or loss of job opportunities or clients.

CONCLUSION

¶83 Although we agree with the court of appeals’ ultimate
disposition, we vacate its memorandum decision to replace its reasoning
with our own.

¶84 We reverse the trial court’s dismissal of Accursio’s WICP and
aiding and abetting claims, and remand to the trial court for further
proceedings consistent with this Opinion.

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ACCURSIO V. TREE HOUSE LABS, LLC
JUSTICE MONTGOMERY, joined by JUSTICE CRUZ, Dissenting

MONTGOMERY, J., joined by CRUZ, J., dissenting:

¶85 The Majority holds that (1) a charge filed with the State Bar
constitutes a “civil proceeding” for purposes of a wrongful institution of
civil proceedings (“WICP”) claim, and (2) Arizona Supreme Court Rules
48(l) and 80(a)(6) privilege only statements made to the State Bar or
provided in testimony while leaving a complainant otherwise exposed to
civil liability. Supra ¶ 2. Because the Majority’s analysis is directly contrary
to the scope of the protection the language in Rule 48(l) originally afforded
complainants, as well as Rule 80(a)(6), we respectfully dissent. We would
vacate the court of appeals’ memorandum decision and affirm the trial
court’s dismissal of Accursio’s WICP and aiding and abetting claims.

I. THE ORIGINAL PUBLIC MEANING OF RULE 48(l) DOES NOT
SUPPORT THE MAJORITY’S CONCLUSION

¶86 “We construe rules of court using the same principles
applicable to [the] interpretation of statutes.” Chronis v. Steinle, 220 Ariz.
559, 560 ¶ 6 (2009). When interpreting court rules, “we seek to give terms
the original public meaning understood by those who used and approved
them.” Matthews v. Indus. Comm’n, 254 Ariz. 157, 163 ¶ 29 (2022) (noting
use of original public meaning regarding constitutional provisions); State ex
rel. Ariz. Dep’t of Revenue v. Tunkey, 254 Ariz. 432, 437 ¶ 23 (2023) (Bolick, J.,
concurring) (observing that “[s]tatutory interpretation requires us to
determine the meaning of the words the legislature chose to use according
to their original public meaning and broader statutory context” (citation
modified)). Therefore, we turn to the history of Rule 48(l) to determine its
original public meaning, which also informs the interpretation of Rule
80(a)(6).

¶87 In 1984, the Arizona Supreme Court adopted sweeping
amendments to Part V of the Rules of the Supreme Court addressing the
admission and discipline of attorneys. See West, 1984 Special Pamphlet
(“Special Pamphlet”) viii (Oct. 1984) (setting forth Supreme Court Order
September 7, 1984).8 The prefatory comment to the Rules stated that the

8 In full, the Order deleted prior Rules 27 through 49 and substituted
amended Rules 27 through 121.
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JUSTICE MONTGOMERY, joined by JUSTICE CRUZ, Dissenting

purpose of the revisions was “to improve proceedings relating to the
discipline and disability of attorneys.” Special Pamphlet 1. The comment
further acknowledged the sources for the amendments:

The work of the American Bar Association Standing
Committee on Professional Discipline was a major source for
the revision of the rules relating to the discipline of attorneys,
and commentary to those works, where the same have been
incorporated in these rules, will be useful to bench and bar.
See, e.g., ABA Joint Committee on Professional Discipline,
Standards for Lawyer Discipline and Disability Proceedings (ABA
1978) (referred to herein as “ABA Standard”). The ABA
committee was continuing its work at the same time as the
State Bar of Arizona Special Committee to Revise the
Disciplinary Rules, and some of these amendments therefore
find their origin in two different documents: ABA Standing
Committee on Professional Discipline, Suggested Guidelines for
Rules of Disciplinary Enforcement (3d ed. June 9, 1977) (referred
to herein as “ABA 1977 Rule ___”); and Model Rules for Lawyer
Disciplinary Enforcement (October 1979 draft) (referred to
herein as “ABA Model Rule ___”).

Id.9

¶88 The ABA Standards drafted by the Joint Committee were later
adopted by the ABA House of Delegates in February 1979 and published in
Professional Discipline for Lawyers and Judges. See Model Rules For Lawyer
Disciplinary Enforcement xi (2007). “The ABA Standing Committee on
Professional Discipline then transformed the Standards into court rule
format,” which were adopted as the Model Rules for Lawyer Disciplinary

9 Notably, two Arizonans participated in these efforts. One of the
Co-Chairmen of the ABA Joint Committee was then-Chief Justice James
Duke Cameron of the Arizona Supreme Court, who was also serving on the
Court when it promulgated the new rules and jointly signed the Order.
Mark I. Harrison, a District 12 Member and a member of the Standing
Committee on Professional Discipline, served on the Subcommittee on
Lawyer Discipline.
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JUSTICE MONTGOMERY, joined by JUSTICE CRUZ, Dissenting

Enforcement by the ABA House of Delegates in 1989. Id.; see also Miller v.
Wash. State Bar Ass’n, 679 F.2d 1313, 1317 n.4 (9th Cir. 1982) (discussing the
development of the Model Rules). Thus, the genesis of a Model Rule begins
with an ABA Standard. And, as the Court’s prefatory comment states,
where works of the ABA Standing Committee are incorporated in Part V,
commentary to the works “will be useful to bench and bar.” Special
Pamphlet 1.

¶89 Turning to the language of Rule 48(l), it was originally
adopted by the Sept. 7, 1984 Order as Rule 54(l) “Immunity from civil suit”:
Communications to the court, state bar, commission,
committee or bar counsel relating to lawyer misconduct or
disability and testimony given in the proceedings shall be
absolutely privileged conduct, and no civil action predicated
thereon may be instituted against any complainant or
witness. Members of the board, commission, hearing
committees and bar counsel and staff shall be immune from
suit for any conduct in the course of their official duties.

Special Pamphlet 97.

¶90 After each rule, a source for the rule is identified. The source
for Rule 54(l) is “ABA Model Rule 12.” Id. Model Rule 12, “Immunity”
states:

A. From Civil Suit. Communications to the board, hearing
committee, or counsel relating to lawyer misconduct or
disability and testimony given in the proceedings shall be
absolutely privileged, and no lawsuit predicated thereon may
be instituted against any complainant or witness. Members of
the board, members of hearing committees, counsel and staff
shall be immune from suit for any conduct in the course of
their official duties.

Standing Comm. on Pro. Discipline and The Nat’l Ctr. for Pro. Resp.,
Model Rules for Lawyer Disciplinary Enforcement 14 (October 1979 Draft).

¶91 The related ABA Standard, 8.3 “Immunity of Complainants,”
provides: “Complainants should be absolutely immune from civil liability

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JUSTICE MONTGOMERY, joined by JUSTICE CRUZ, Dissenting

for all communications to the agency, but disclosure of the information to
anyone else should not be protected.” Joint Committee on Professional
Discipline of the Appellate Judges’ Conference and the Standing
Committee on Professional Discipline ABA, Standards for Lawyer
Disciplinary and Disability Proceedings: Tentative Draft 47 (“Standards”) (June
1978). Given the direction from this Court in the prefatory comment to the
Rules that “commentary to those works . . . will be useful to bench and bar,”
the commentary to ABA Standard 8.3 is therefore relevant to determining
the original public meaning of the scope of protection afforded to
complainants when this Court adopted the Rule. Special Pamphlet 1.

¶92 Pertinent to our inquiry here, the commentary to ABA
Standard 8.3 reads:

Complainants are granted absolute privilege from suit, rather
than qualified privilege, because qualified privilege is
inadequate. Immunity from suit under the qualified privilege is
overcome by simply alleging malice. See Wiener v. Weintraub,
22 N.Y.2d 330, 292 N.Y.S.2d 667 (1968); Ramstead v. Morgan, 219 Or. 383, 347 P.2d 594 (1959).

A policy of conferring absolute immunity on the complainant
encourages those who have some doubt about a lawyer’s
conduct to submit the matter to the proper agency, where it
may be examined and determined. Without immunity, some
valid complaints will not be filed. The individual lawyer may
suffer some hardship as the result of the occasional filing of a
malicious complaint, but a profession that wants to retain the
power to police its own members must be prepared to make
some sacrifice to that cause.

It is unlikely that even a malicious complaint will cause any
damage beyond some inconvenience. The members of the
agency to whom the complaint is submitted will surely not
hold it against the lawyer, for their very function is to separate
meritorious from undeserving complaints. The policy of
agencies not to divulge the existence of complaints while they
are being investigated effectively protects the lawyer from
any unwarranted public disclosure. Thus, the lawyer is given

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JUSTICE MONTGOMERY, joined by JUSTICE CRUZ, Dissenting

more practical protection than a party to an ordinary suit, in
which pleadings are public.

Immunity from civil actions attaches only to communications
made to the agency.

Standards 47 (emphasis added). Therefore, the Majority’s conclusion that a
complainant can be subject to a WICP claim alleging malice is directly
contrary to the original understanding of the scope of absolutely privileged
conduct.

¶93 It is true, as the Majority notes, that the second sentence of
Rule 48(l), then 54(l), provides immunity for the persons listed rather than
an absolute privilege. Supra ¶¶ 56–57. And our canons of statutory
construction presume that privilege and immunity carry different
meanings. See State v. Harm, 236 Ariz. 402, 407 ¶ 19 (App. 2015) (noting that
“when the [L]egislature chooses different words within a statutory scheme,
we presume those distinctions are meaningful and evidence an intent to
give a different meaning and consequence to the alternate language”);
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 170 (2012) (discussing the Presumption of Consistent Usage canon
and noting that where a term is used “in one place, and a materially
different term in another, the presumption is that the different term denotes
a different idea”). However, that is a presumption. Here, although the
commentary begins by using the term “privilege,” it also consistently uses
“immunity” to describe the scope of protection afforded to a complainant.
Standards 47. Thus, the presumption otherwise applicable to different terms
is defeated by the consistent description of the scope of protection
regardless of the specific term used.

¶94 The presence of “privilege” and “immunity” does not,
however, equate the scope of protection between complainants and the
enumerated persons with responsibility for administering the disciplinary
system. That distinction is made by the conduct protected. A complainant
is only protected from a civil suit with respect to communications to the
persons listed “relating to lawyer misconduct, lack of professionalism or
disability” or with respect to testimony in disciplinary proceedings. Ariz.
R. Sup. Ct. 48(l). Should a complainant share information with any other
person or share unrelated information with the listed persons, then an

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JUSTICE MONTGOMERY, joined by JUSTICE CRUZ, Dissenting

attorney harmed by that conduct may seek to hold the complainant liable.
In contrast, the listed persons who have a role within the disciplinary
system cannot face liability “for any conduct in the course of their official
duties.” Id. (emphasis added).

¶95 This understanding of the broad scope of immunity afforded
by Rule 54(l) is carried forward in a formal opinion issued by this Court’s
Judicial Ethics Advisory Committee (“JEAC”) in 1990.10 In response to “an
increasing number of requests from attorneys as to the parameters of their
duty to report another lawyer’s apparent misconduct,” the Committee
issued a formal opinion regarding the obligation to report in Arizona.11 AZ
Jud. Adv. Op. 90-13 (Ariz. Sup. Ct. Jud. Eth. Adv. Comm.), at *1, 1990 WL
10521402.

¶96 The Committee observed that “[a] duty to report, however,
can easily breed a climate of suspicion and distrust and, if applied too
literally and not tempered with reason and judgment, is susceptible to
trivialization and abuse.” Id. at *3. With respect to the “trivialization and
abuse” observation, the Committee acknowledged, despite the use of
“privilege” in the Rule, that “[t]he potential for abuse is heightened by the
absolute immunity conferred on complainants by Rule 54(l), Rules of the
Supreme Court, 17A A.R.S. at 475.” Id. at n.5 (emphasis added). In further
support, the Committee cited Drummond v. Stahl, 127 Ariz. 122, 126 (App.
1980) (concluding that “there is an absolute privilege extended to anyone
who files a complaint with the State Bar alleging unethical conduct by an
attorney”).12

10 The Committee initially operated without formal authority until Chief
Justice Frank Gordon signed Administrative Order 89-23 on December 13,
1989. The Order served to “ratify the prior existence and functioning of the
[JEAC].” Thereafter, the Court organized the JEAC by Order dated
February 25, 1991, under Arizona Supreme Court Rule 82.
11 The concerns arose from an opinion issued by the Supreme Court of

Illinois in the matter of In re Himmel, 533 N.E.2d 790 (Ill. 1988). The Court
suspended Himmel, an attorney, for one year for failure to report another
attorney’s misconduct to the appropriate state bar authorities.
12 Although Drummond predated the adoption of Rule 54(l), the court of

appeals’ reasoning is reflected in the commentary to ABA Standard 8.3.
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JUSTICE MONTGOMERY, joined by JUSTICE CRUZ, Dissenting

¶97 In 1996, further amendments were made to the rules
governing the regulation of lawyers to permit complainants to reveal that
they had filed a complaint. Petition to Amend Rules 47, 48, 49, 52, 53, 54,
55, and 61, R-96-0012 (June 1996). As noted in the petition, “[t]he proposed
amendments to Rules 54 and 61 relate primarily to the confidentiality rules
currently applicable to disciplinary records and proceedings. Presently,
those rules prohibit disciplinary complainants from disclosing the fact that
they have filed an ethical complaint with the Bar or that the Bar is
investigating.” R-96-0012 at 11. The proposal drew a pointed comment on
the basis that the proposed amendments regarding confidentiality were
“fundamentally unfair and discriminatory.” Id. The comment went on to
observe that the amendments would:

[A]llow untruthful, unsubstantiated, and unfounded
complaints against an attorney to become public records. At
the same time, the attorney has no adequate remedy at law to
prevent or dissuade such unfounded complaints, since
absolute judicial privilege protects anyone who files a complaint,
leaving attorneys with fewer rights than other citizens.

Id. (emphasis added).

¶98 And this Court recognized the plain import of the protections
Rule 48(l) affords in the matter of In re Alexander, 232 Ariz. 1 (2013). As part
of the Court’s review of the discipline imposed, it noted that the
disciplinary panel found a violation of Ariz. R. Sup. Ct. 42, Ethical Rule
(“ER”) 3.4(c), Fairness to Opposing Party and Counsel, arising from a
lawsuit that was based in part on the filing of bar complaints, “even though
Rule 48(l) prohibits civil lawsuits against bar complainants.” Id. at 10 ¶ 36
(emphasis added). The Court rejected the finding of a violation of ER 3.4(c).

¶99 In support of the Court’s rejection, the Court observed that
the attorney had “testified she could not recall researching ‘the nature of
immunity provided to complainants in Bar proceedings.’” Id. at 10–11 ¶ 38
(emphasis added). The Court further observed that “motions to dismiss the
complaint argued that defendants were immune from civil liability for
initiating bar complaints, but none cited Rule 48(l) or cases relying on that
rule.” Id. at 11 ¶ 38 (emphasis added). This Court’s treatment of Rule 48(l)
in that disciplinary proceeding comports with the scope of the protection

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JUSTICE MONTGOMERY, joined by JUSTICE CRUZ, Dissenting

that the Rule’s language offered when adopted.13

¶100 Subsequent amendments to Rule 54(l) broadened the scope
and increased the number of persons afforded immunity from civil suit
associated with the disciplinary system, but the language concerning the
absolute privilege for a complainant never changed. See, e.g., Rules Petition
92-0019 (Aug. 1992) (adding monitors for the Members Assistance Program
and Law Office Management Program to the list of those to whom
communications are absolutely privileged and who are immune from civil
suit). In 2003, the Court renumbered and reorganized the Rules concerning
lawyer regulation. See Order R-03-0002 (2003). In this process, the language
of Rule 54(l) was moved to Rule 48(l).14

¶101 Also in 2003, the Court ordered an amendment to Rule 31 and
promulgated new Rules 76 through 80. Order 02-0017 (2003). The
underlying petition explained that Rules 76 through 80 were proposed to
“create an unauthorized practice of law regulatory system similar to the
present procedure for prosecuting lawyer disciplinary cases.” Petition to
Amend Supreme Court Rule 31 and to Add Rules 32, 76–80, R-02-0017 at 2
(2002).

¶102 Rule 80, as drafted, was “virtually identical to the Rules of
Construction and Rules of Procedure to the Admission and Discipline of
Attorney Rules set forth in Rules 54 and 55.” Id. at 13. The proposed Rule,
titled “Immunity from civil suit,” stated:

Communications to the Court, State Bar, Hearing
Commission, Probable Cause Panel, Unauthorized Practice of
Law Counsel, volunteer Bar counsel or investigators relating
to testimony given in the proceedings shall be absolutely
privileged as provided by law, and no civil action predicated

13 The Court’s references to “immunity” in the context of the scope of
protection offered by Rule 48(l) are not fairly read to be limited to
statements. See supra ¶ 55 n.6.
14 Inexplicably, the notes for the 2003 amendments state that language in

Rule 48(l) and (m) came from Rule 54(l) and (m). However, the language
constituting Rule 48(m) never existed as Rule 54(m).
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JUSTICE MONTGOMERY, joined by JUSTICE CRUZ, Dissenting

thereon may be instituted against any complainant or
witness.

Id. at 32, Ex. A. This language is now at Rule 80(a)(6). Nothing in the
petition or any comment to the petition suggested that an unauthorized
practice of law complainant had a different scope of immunity compared
to a lawyer misconduct complainant.

¶103 Accordingly, the Majority’s textualist conclusion regarding
the scope of immunity afforded to a complainant by Rule 48(l) is
demonstrably at odds with the original public meaning of the protection
provided at the time it was first adopted, as demonstrated by the Court’s
own JEAC, practitioners, and this Court. With respect to Rule 48(a), that
language has a similar pedigree.

¶104 The same petition in 2003 that transferred Rule 54(l) to Rule
48(l) transferred Rule 54(a) to Rule 48(a). Order R-03-0002 (2003). Rule 54(a)
stated: “Disciplinary and disability proceedings are neither civil nor
criminal, but are sui generis.” The source for Rule 54(a) is identified as
Model Rule 17(A), see Special Pamphlet 97, which stated: “ADDITIONAL
RULES OF PROCEDURE. Nature of Proceedings. Disciplinary proceedings
are neither civil nor criminal but are sui generis.” The nature of disciplinary
proceedings is addressed by ABA Standard 1.2. “Nature of Proceedings,”
which provides: “Lawyer discipline and disability proceedings are sui
generis, and rules of procedure for civil, criminal, and administrative
proceedings do not automatically apply.” Standards 2. And, just as the
commentary to ABA Standard 8.3 informs the understanding of Rule 54(l),
now 48(l), so too does the commentary to ABA Standard 1.2 inform our
understanding of Rule 54(a), now 48(a):

The question whether a particular rule of the civil or criminal
law, not otherwise provided for by statute or categorically
established by case law, should be applied . . . must be
determined upon the facts presented in a particular case.
Emslie v. State Bar, 520 P.2d 991 (Cal. 1974).

The holder of a license to practice law is subject to discipline
for breaches of the standards of professional conduct; the
license must not be arbitrarily taken away and the holder is

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JUSTICE MONTGOMERY, joined by JUSTICE CRUZ, Dissenting

entitled to procedural due process in any proceeding relating
to such conduct. In re Oliver, 333 U.S. 257 (194[8]). Such due
process rights include fair notice of the charges (Standard
8.21), right to counsel (Standard 8.33), right to discovery and
subpoena (Standards 8.29 and 8.34), right to cross-examine
witnesses (Standard 8.35), right to present arguments to the
adjudicators (Standards 8.42 and 8.50), and right of appeal
(Standard 8.46).

Disciplinary proceedings have been characterized as neither
civil nor criminal: Niklaus v. Simmons, 196 F. Supp. 691 (D.
Neb. 1961); In re Black, 363 P.2d 206 (Ore. 1961); In re Echeles,
430 F.2d 347 (7th Cir. 1970). They have also been characterized
as both civil and quasi-criminal: Erdmann v. Stevens, 458 F.2d
1205 (2d Cir. 1972); Polk v. State Bar of Texas, 480 F.2d 998 (5th
Cir.
1973); In re Ruffalo, 390 U.S. 544 (196[8]).

The general consensus is that disciplinary proceedings are
unique and thus may properly be characterized as sui generis.
See Yokozeki v. State Bar, 521 P.2d 858 (Cal. 1974); State v.
Post[o]rino, 193 N.W.2d 1 (Wis. 1972).

Standards 2–3.

¶105 The commentary makes clear that the sui generis nature of
disciplinary proceedings concerns the need to engage in a case-by-case
determination about which rules of procedure to apply, while ensuring that
disciplinary proceedings satisfy due process. But determining which rules
apply to a given disciplinary proceeding does not serve to convert it into a
civil proceeding. If this were true, then probate, juvenile, and family law
proceedings could just as easily become a civil proceeding based solely on
the importation of a rule of civil procedure. Cf. Ariz. R. Prob. P. 4(a)(1)
(“The Civil Rules apply to probate proceedings unless they are inconsistent
with these probate rules or A.R.S. Title 14. For purposes of applying Civil
Rule 42.1, ‘action’ has the same meaning as ‘probate case’ under Rule 3 of
these rules.”); Ariz. R.P. Juv. Ct. 103(d) (“The Civil, Civil Appellate,
Criminal, Family Law, Probate, Protective Order, and Supreme Court Rules
are applicable only as specifically set forth or incorporated by reference in

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JUSTICE MONTGOMERY, joined by JUSTICE CRUZ, Dissenting

these rules.”); Ariz. R. Fam. Law P. 1(c) (“The Arizona Rules of Civil Procedure
apply only when these rules expressly incorporate them. If language in
these rules is substantially the same as language in the civil rules, case law
interpreting the language of the civil rules will apply to these rules.”).

¶106 The Majority’s analysis demonstrates that textualism
unmoored from original public meaning can produce results that conflict
with a provision’s original meaning. And that is not how this Court
interprets the law. Whenever the meaning of a provision is in question, it
is critical to confirm the meaning at the time the provision was adopted.15

¶107 Goldman v. Sahl, 248 Ariz. 512 (App. 2020), which the Majority
agrees with and relies on, provides no safe harbor either. Supra ¶¶ 53–54.
Goldman, just as the Majority does here, interpreted the text of Rule 48(l).
Goldman, 248 Ariz. at 522 ¶ 29. The court of appeals acknowledged that
“[a]lthough we recognize that our prior caselaw has held that an absolute
privilege applies to those that submit a bar charge, that recognition does
not provide us with a basis to interpret a rule in a manner that would grant
an alleged tortfeasor an absolute immunity, undoubtedly abrogating all the
injured party’s rights of action associated with the conduct, without first
identifying the origin of such immunity.” Id. at 524–25 ¶ 39. Unfortunately,
the court never identified the source: Model Rule 12, with the useful
commentary accompanying ABA Standard 8.3. Neither did Goldman
acknowledge In re Alexander. The failure to consider the very source of the
immunity it was looking for or to engage with this Court’s treatment of Rule
48(l) renders Goldman’s reasoning of little service here and undeserving of

15 The prototypical example is using the current meaning of the phrase
“domestic violence” and applying it to determine the meaning of Article IV,
Section 4 of the United States Constitution: “The United States shall
guarantee to every State in this Union a Republican Form of Government,
and shall protect each of them against Invasion; and on Application of the
Legislature, or of the Executive (when the Legislature cannot be convened)
against domestic Violence.” See Lawrence B. Solum, Surprising Originalism:
The Regula Lecture, 9 ConLawNOW 235, 243 (2018) (“Our intuitive reaction
to clever arguments that Article Four referred to spousal abuse is that these
verbal gymnastics are a form of sophistry.”).

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the Majority’s reliance.

¶108 Ultimately, it may be advisable to permit a WICP claim
arising out of a bar charge in limited circumstances, and the Majority sets
forth a rational public policy justification based on individuals “wrongfully
weaponizing that process.” Supra ¶ 68. But if the Majority wishes to enact
its policy preference and end the scope of protection a complainant has had
for over forty-one years, it should not do so through an Opinion employing
a novel interpretation that will jeopardize the protections for the people the
disciplinary system is designed to protect: members of the public who may
be dissuaded from contacting the State Bar with the mere threat of a
lawsuit.16 Such “[a] dramatic change to Arizona [lawyer regulation] should
occur through rulemaking, not through an opinion effectively rewriting our
[disciplinary] rules.” Craig v. Craig, 227 Ariz. 105, 107 ¶ 15 (2011). Indeed,
“[t]he rules governing disciplinary matters are the result of a carefully
crafted rulemaking process. This process benefits greatly from public input
and can readily be modified when appropriate.” Hancock v. O’Neil,
253 Ariz. 509, 514 ¶ 19 (2022). And as much as bad facts can make for bad
law, they can also make for a bad interpretation of our rules.

II. BAR DISCIPLINARY PROCEEDINGS ARE NOT CIVIL
PROCEEDINGS

¶109 Even if we abandon this Court’s original public meaning
jurisprudence, the Majority’s conclusion that a charge filed with the State
Bar can constitute a “civil proceeding” for WICP purposes cannot be fairly
reconciled with the plain text of the Rule and rational analysis. That is not
what the Rule says, and this Court should not amend a rule while
construing it. See State v. Salazar-Mercado, 234 Ariz. 590, 592 ¶ 4 (2014) (“We
interpret court rules to effect the rule-makers’ intent, using the same
principles we apply when interpreting statutes.”); see also State v. Brown, 260 Ariz. 476, 482 ¶ 27 (2025) (noting that to “effectively rewrite [a] statute
[is] something we cannot do”). Rule 48(a) declares in unambiguous terms:
“Discipline and disability proceedings are neither civil nor criminal, but are

16 The Majority’s rejoinder that they are not engaged in a novel
interpretation overlooks In re Alexander and gives too much weight to
Goldman. Supra ¶ 69.
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sui generis.” Ariz. R. Sup. Ct. 48(a); Matter of Marquardt, 161 Ariz. 206, 215
(1989) (discussing with approval a West Virginia Supreme Court decision
in which the court “[s]ummarily dismiss[ed] any ex post facto concerns
[regarding imposition of a disciplinary rule that did not exist at the time of
the offending conduct] because attorney disciplinary cases are sui generis”).
Although the Majority acknowledges this, supra ¶ 43, it then reads the
phrase so narrowly as to drain it of any substantive meaning through a
“legal purpose” gloss the rule’s text does not support, supra ¶ 42.

¶110 Rule 48(a) states, without qualification, that discipline
proceedings “are neither civil nor criminal.” That is not a stray phrase
awaiting a contextual determination—it is a direct classification of the exact
proceeding at issue. The Majority’s response is to read a limitation into the
rule that it does not state: Rule 48(a) forecloses treating a discipline
proceeding as civil only for its own internal purposes (procedure, evidence,
standard of proof) but not for a collateral “legal purpose” such as a WICP
claim.

¶111 Rule 48(a) does not describe discipline proceedings as sui
generis in passing—it answers, in terms, the precise question the Majority
spills much ink over trying to answer by other means. Supra ¶¶ 33–51. And
nothing in Rule 48(a)’s text draws the line the Majority ascribes to it. A
provision that says a thing “is neither X nor Y” is not naturally read to mean
“is neither X nor Y, except when a court later finds it convenient for an
unrelated tort claim.” The plain and natural reading of Rule 48(a) is as a
substantive declaration about the nature of disciplinary proceedings, not a
procedural housekeeping provision.

¶112 If the Majority is right that “sui generis” is mainly concerned
with which procedural and evidentiary rules apply—a role already fully
performed by Rule 48(b) (importing specific civil procedure rules), 48(c)
(evidence), and 48(d)–(e) (standard and burden of proof)—then Rule 48(a)’s
classification does no independent work at all, and the Majority has
relegated it to mere surplusage. See Nicaise v. Sundaram, 245 Ariz. 566, 568
¶ 11 (2019) (“A cardinal principle of statutory interpretation is to give
meaning, if possible, to every word and provision so that no word or
provision is rendered superfluous.”).

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¶113 Rule 48(b)’s work to import thirty specific rules of civil
procedure one provision at a time is itself telling. A proceeding that was
simply civil by default would not need its procedural rules requisitioned
piecemeal by cross-reference. The selective borrowing is textual evidence
that the underlying proceeding is not inherently civil—otherwise the rules
would simply apply wholesale.

¶114 The Majority’s contextual reading is further undermined by
the way this Court uses the word “proceeding” without the modifier “civil”
throughout the relevant rules. Rule 55 is titled “Initiation of Proceedings;
Investigation.” Rule 78(a) states that “[a]n unauthorized practice of law
proceeding commences upon receipt by the state bar of a charge against a
respondent.” Ariz. R. Sup. Ct. 78(a). The absence of the adjective “civil” in
either rule is fully consistent with Rule 48(a)’s designation of these
proceedings as sui generis rather than civil. Had this Court intended for
disciplinary proceedings to constitute “civil proceedings” for all purposes
or a particular purpose—including as predicates for WICP claims—the
rules would say so. They do not.

¶115 Additionally, the Majority’s definitions of “proceeding,”
“civil,” and “civil proceeding” do not help its cause. “Proceeding” is
defined as:

In a general sense, the form and manner of conducting
juridical business before a court or judicial officer. Regular
and orderly progress in form of law, including all possible
steps in an action from its commencement to the execution of
judgment. Term also refers to administrative proceedings
before agencies, tribunals, bureaus, or the like.

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Proceeding, Black’s Law Dictionary (5th ed. 1979).17

¶116 “Civil” is defined as “[o]f or relating to the state or its
citizenry. Relating to private rights and remedies sought by civil actions as
contrasted with criminal proceedings.” Civil, Black’s Law Dictionary (5th
ed. 1979). And, although there is no entry for “civil proceeding” in the fifth
edition of Black’s, there is an entry for “civil action,” which reads: “Action
brought to enforce, redress, or protect private rights.” Civil Action, Black’s
Law Dictionary (5th ed. 1979).

¶117 Combining civil and proceeding leads to the definition
provided by the Majority, “[a] judicial hearing, session, or lawsuit in which
the purpose is to decide or delineate private rights and remedies, as in a dispute
between litigants in a matter relating to torts, contracts, property, or family law.”
Supra ¶ 35 (emphasis added). But this definition further supports the
distinction that Rule 48(a) makes between a civil proceeding and a
disciplinary proceeding. And the definition of “civil” likewise makes clear
that a civil proceeding involves determining private rights and remedies
between litigants. None of the definitions offered by the Majority correlates
with what a lawyer disciplinary proceeding consists of.

¶118 Adjudicating allegations of lawyer misconduct does not
occur within the adversarial framework that defines civil proceedings,
which consists of private litigation between parties with competing
interests. A bar charge does not adjudicate a dispute “between litigants.”
It is bar counsel’s own investigation of a licensee, undertaken on the Court’s
regulatory authority, in which the complainant is not a party seeking
judgment, and the respondent’s opposite number is the State Bar, not the
complainant. Ariz. R. Sup. Ct. part V. Regulation of the Practice of Law.
This distinction matters.

17 Curiously, the Majority’s definition for “proceeding,” supra ¶ 34, goes to
the last entry and skips over the last part of the preceding entry, which
further underscores the remedial nature of a proceeding: “In a more
particular sense, any application to a court of justice, however made, for aid
in the enforcement of rights, for relief, for redress of injuries, for damages,
or for any remedial object.” Proceeding, Black’s Law Dictionary (5th ed.
1979).
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¶119 WICP claims—and their tort predecessor, malicious
prosecution —exist to redress harm caused by the wrongful use of legal
18

processes designed to resolve private disputes. Bar disciplinary
proceedings serve to protect the public and ensure the integrity of the legal
profession. See, e.g., In re Alexander, 232 Ariz. at 15 ¶ 63 (stating 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’” (quoting In re Zawada, 208 Ariz. 232,
236 ¶ 12 (2004))); In re Swartz, 141 Ariz. 266, 277 (1984) (discipline exists to
protect the public and deter misconduct); In re Richey, 76 Ariz. 152, 154
(1953) (“The purpose of disciplining lawyers is the protection of the public,
the profession and the administration of justice, and not the punishment of
the persons disciplined . . . .”).

¶120 The Majority’s answer—that a proceeding “does not cease to
be civil in nature merely because it serves the purpose of protecting the
public . . . while simultaneously seeking to achieve a private remedy for an
injured person”—rests on a tension it cannot resolve, because it assumes its
conclusion without proving it. Supra ¶ 48. And the Majority’s assertion
that a disciplinary proceeding is unique because “[w]hether a discipline
proceeding ever amounts to a civil proceeding depends on the stage and
substance of each particular proceeding . . . which is evaluated on a
case-by-case basis,” is certainly unique reasoning, but it does not support
an equally unique and contrary understanding of sui generis as provided

18 Dinsman v. Wilkes, 53 U.S. 390, 402 (1851) (observing that a suit for
malicious prosecution “has been extended to civil as well as criminal cases
where legal process has been maliciously used against another without
probable cause”). “The action of malicious prosecution, which was first
developed as a remedy against the unjustified initiation of criminal
proceedings, has undergone a slow process of extension into the field of the
wrongful initiation of civil suits.” Wong v. Tabor, 422 N.E.2d 1279, 1283 (Ind.
Ct. App. 1981); see also 8 American Law of Torts § 28:21 (noting that
malicious prosecution “had its origin as a remedy for unjustifiable criminal
proceedings and in the majority of American courts has been extended into
the field of wrongful initiation of civil suits”).

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for in the Rule. Supra ¶ 43.

¶121 The Majority’s subsequent discussion of discrete points of
what a disciplinary proceeding entails, the implication of private rights
involving a license, and the recovery of restitution leads the Majority to the
conclusion: “that a State Bar proceeding may constitute a ‘civil proceeding’
for purposes of a WICP claim.” Supra ¶ 51. But the move from defining
“proceeding,” “civil,” and “civil proceeding” to the conclusion is not
adequately reasoned. Nowhere does the Majority muster a clear statement
of why a bar disciplinary proceeding is a civil proceeding.

¶122 We would hold that a bar disciplinary proceeding, which is
neither civil nor criminal, cannot constitute a “civil proceeding” for a WICP
claim. Because Accursio’s WICP claim is predicated solely on Wu’s filing
of a bar charge, the claim fails as a matter of law, as does the aiding and
abetting claim. We would affirm the trial court’s dismissal on that basis
alone.

III. THE PLAIN TEXT OF RULES 48(l) AND 80(a)(6)

¶123 Assuming, contrary to our view, that a bar proceeding can
constitute a “civil proceeding” for WICP purposes, we would nonetheless
affirm the trial court’s dismissal given that the act of filing a bar charge is
absolutely privileged conduct. The Majority’s effort to sever the act of filing
a bar charge from its contents to privilege the latter but not the former
cannot be reconciled with the plain text of Rules 48(l) and 80(a)(6) or with
what constitutes a communication.

A. The Text of Rules 48(l) and 80(a)(6) Privileges the Conduct of Filing

¶124 Rule 48(l) provides, in relevant part, that “[c]ommunications
to the . . . state bar . . . and testimony given in the proceedings shall be
absolutely privileged conduct, and no civil action predicated thereon may
be instituted against any complainant or witness.” Ariz. R. Sup. Ct. 48(l)
(emphasis added). Rule 80(a)(6) contains materially identical language in
the unauthorized practice of law context. Ariz. R. Sup. Ct. 80(a)(6). The
operative word the Majority must account for—and yet does not—is
“conduct.”

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¶125 The Majority reads “absolutely privileged conduct” as though
it meant “absolutely privileged statements.” Supra ¶ 55. Under this
reading, the word “conduct” is stripped of independent meaning and
functions as a synonym for statements made to the state bar or in testimony.
But this Court does not interpret rules in a manner that renders words
superfluous. Sundaram, 245 Ariz. at 568 ¶ 11 (“A cardinal principle of
statutory interpretation is to give meaning, if possible, to every word and
provision so that no word or provision is rendered superfluous.”).

¶126 The Majority argues that “communications” and “testimony”
as used in the Rules limit the privileged conduct to statements, supra ¶ 55,
and that “communications,” in turn, “defines the word ‘conduct’ for
purposes of the rules,” supra ¶ 59. As the Majority notes, Black’s Law
Dictionary defines communication as “[i]nformation given; the sharing of
knowledge by one with another.” Communication, Black’s Law Dictionary
(5th ed. 1979). But Black’s also defines a communication as an “[a]ct of or
system of transmitting information,” and “[a] ‘communication’ is ordinarily
considered to be a deliberate interchange of thoughts or opinions between
two or more persons.” Id. Thus, here “communication” encompasses both
the act of sharing information about alleged misconduct and the
information itself.

¶127 The definition of “testimony” does not help the Majority’s
cramped reading of the Rule either. Black’s defines the term as “[e]vidence
given by a competent witness under oath or affirmation; as distinguished
from evidence derived from writings, and other sources.” Testimony,
Black’s Law Dictionary (5th ed. 1979). Thus, testimony is a type of evidence,
though it also requires the act of attending a proceeding and speaking. But
Black’s equates neither communication nor testimony with a statement, and
if the Rule meant what the Majority wants it to mean, then it would read:
Any statement offered by a complainant is absolutely
privileged—dispensing with the problematic word “conduct.” Alas, it does
not. To say that a statement of alleged misconduct is privileged but not the
act of exchanging it makes no sense. The Majority privileges the message
while exposing the messenger to civil liability for sending it. That result is
not supported by the text and undermines the evident purpose of the Rules.

¶128 “Conduct” is a broader term encompassing actions and
behavior. Conduct, Black’s Law Dictionary (5th ed. 1979) (“[p]ersonal

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behavior; deportment; mode of action; any positive or negative act”). Thus,
although “communications” informs the scope of conduct involved, it does
not sever the product of the conduct—statements—from the act of
production, sharing a statement regarding lawyer misconduct with the
State Bar. And the Majority cites no rule of grammar or authority for its
contrary linguistic construction. See supra ¶ 59. The plain terms of Rules
48(l) and 80(a)(6) privilege the conduct of communicating with the State
Bar, including the act of filing a bar charge. The phrase “no civil action
predicated thereon” then means no civil action may be predicated on that
conduct—that is, a civil action may not be predicated on the act of filing a
state bar complaint. Accursio’s WICP claim is therefore predicated on the
very conduct that is absolutely privileged under the Rules.19

B. The Majority’s Content/Conduct Distinction Cannot Be Applied in
Practice

¶129 The Majority’s distinction between a statement and the act of
sharing—filing—will prove unworkable. To adjudicate a WICP claim
predicated on the filing of a bar charge, a fact finder must evaluate whether
the charge was filed without probable cause and with malice.

¶130 The Majority assures readers that privileged statements are
off-limits while the act of filing is actionable, supra ¶ 55, but it provides no
workable framework for how courts and juries are to evaluate probable
cause and malice without consulting the charge itself. A fact finder asked
to assess probable cause must look at what was alleged in the charge and
whether the evidence—the statements—supported the allegations. See
Carroll v. Kalar, 112 Ariz. 595, 596 (1976) (discussing the sufficiency of facts
for determining whether there is probable cause). A fact finder asked to
find malice and determine whether the bar charge was filed for a wrongful

19 Additionally, the Majority’s commencement analysis calls into question
whether there is a distinction between instituting or commencing a
proceeding and who is the acting party. See supra ¶ 77 (identifying Bar
Counsel’s decision to issue a written notice of investigation requiring a
written response as commencing a proceeding under Rule 55); but see supra
¶ 78 (stating that a proceeding commences “upon receipt by the state bar of
a charge against a respondent” with no identified actor).
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purpose or improper motive will have to examine what was stated in the
charge, how it was framed, and whether the stated basis for the charge was
pretextual.

¶131 This practical reality confirms that the act of filing a bar
complaint and the statements made to establish misconduct cannot be
cleanly severed for purposes of WICP liability. The Majority’s rule will
require parties and courts to engage in precisely the kind of inquiry that
“absolutely privileged conduct” forecloses. The result will be that bar
complainants will face civil exposure despite the Rules’ declaration that
their conduct is “absolutely privileged” and that “no civil action predicated
thereon may be instituted.” The Majority’s interpretation converts an
absolute privilege into a contingent one—absolute only as to defamation
claims, but vulnerable through a carefully pleaded WICP claim.

C. The Majority’s Analogies and Textual Supports Are Flawed

¶132 The Majority draws an analogy to the attorney–client
privilege and the legislative privilege, noting that those privileges protect
the content of communications, while the mere occurrence of a
communication is not itself privileged. Supra ¶ 65. But those evidentiary
privileges serve a different function than Rules 48(l) and 80(a)(6) do. The
attorney–client privilege “encourage[s] a client to confide in his or her
attorney all the information necessary in order that the attorney may
provide effective legal representation.” Granger v. Wisner, 134 Ariz. 377, 379
(1982). It is unnecessary to also protect a client’s act of meeting with the
attorney. The legislative privilege “protect[s] the integrity and functioning
of the [L]egislature.” Fann v. Kemp, 253 Ariz. 537, 540 ¶ 1 (2022). But there
is no corollary need to protect the act of legislators gathering together.

¶133 In contrast, Rules 48(l) and 80(a)(6) function to protect those
who might not otherwise bring an allegation of wrongdoing to the attention
of the disciplinary system, especially those who will now be threatened
with a civil action to dissuade reporting. Thus, Rules 48(l) and 80(a)(6)
function to prevent civil suits; both Rules use the phrase “no civil action
predicated thereon may be instituted.” The analogy to evidentiary
privileges misses this critical distinction.

¶134 The Majority also points to Texas Rule of Disciplinary
Procedure 17.09, adopted effective May 1, 1992, after our Rules, which
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expressly immunizes complainants from suit “predicated upon the filing of
a Grievance or participation in the attorney disciplinary and disability
system.” Supra ¶ 63. But for the textual gyrations in the Majority’s analysis,
our Rule says the same thing. That Texas found it necessary to add specific
language reaching the act of filing—on top of privileging
communications—is at least equally consistent with Texas addressing a
concern that Arizona’s broader term “conduct” already resolves. The
comparative-law contrast the Majority draws is ambiguous at best and adds
nothing to applying the plain meaning of Arizona’s Rules.

IV. THE ANTI-ABROGATION CLAUSE DOES NOT REQUIRE A
DIFFERENT RESULT

¶135 The Majority does not reach the Anti-Abrogation Clause (the
“Clause”) given its resolution of this matter. However, because we would
dismiss Accursio’s WICP claim, we address it.

¶136 The Clause prohibits abrogation of “rights of action that
existed at statehood or that are based in rights of action existing at
statehood.” Torres v. JAI Dining Servs. (Phoenix), Inc., 256 Ariz. 212, 216 ¶ 13
(2023). Our inquiry then is “whether a plaintiff alleging the same harm
could have recovered damages against the same type of defendant at
statehood.” Id. at 218 ¶ 16 (emphasis omitted).

¶137 The pre-statehood cases recognizing the tort of malicious
prosecution involved criminal charges or the institution of civil suits—the
traditional predicate for the tort. See, e.g., McDonald v. Atl. & Pac. R.R. Co.,
3 Ariz. 96, 98 (1889) (setting forth elements that require a “criminal
charge”); Cunningham v. Moreno, 9 Ariz. 300, 302 (1905); see also Ackerman v.
Kaufman, 41 Ariz. 110, 112–13 (1932) (discussing the history of WICP in the
civil context). We have found no reported cases from the territorial era or
early statehood in which a plaintiff recovered malicious prosecution
damages against a person who filed a complaint with a bar association or
analogous professional regulatory body. Therefore, the Clause is not
implicated in denying a WICP claim arising from the filing of a bar charge.
See Torres, 256 Ariz. at 218 ¶ 16 (noting that the Clause does not create new
causes of action but protects pre-existing rights of action).

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V. CONCLUSION

¶138 As originally understood at the time the language in Rule
48(l) was originally adopted and as later reflected in Rule 80(a)(6), as
understood by the Court’s own JEAC, practitioners, and this Court, a
complainant cannot be subject to suit predicated on the filing of a bar
complaint or a complaint alleging the unauthorized practice of law. And
even aside from an original public meaning interpretation, the Majority’s
analysis cannot be reconciled with how this Court engages in statutory
interpretation. Bar disciplinary proceedings are, by the express declaration
of this Court’s Rules, “neither civil nor criminal, but are sui generis.” Ariz.
R. Sup. Ct. 48(a). They cannot serve as the predicate “civil proceeding” for
a WICP claim.

¶139 Alternatively, and independently, Rules 48(l) and 80(a)(6)
absolutely privilege the conduct of filing a bar charge—including the act of
filing itself—and no civil action may be predicated on that conduct.20 The
Majority’s statement/conduct distinction reads the word “conduct” out of
the Rules and will prove unworkable in practice. We would vacate the
court of appeals’ memorandum decision and affirm the trial court’s
dismissal of Accursio’s WICP and aiding and abetting claims.

20 Because we hold that a bar charge is not a “civil proceeding,” and
alternatively that the act of filing it is absolutely privileged conduct, the
WICP claim fails at the threshold. We therefore have no occasion to address
two issues the Majority reaches: (1) when a “civil proceeding” commences
for WICP purposes, supra ¶¶ 74–80; and (2) the public-policy
considerations permitting such a claim, supra ¶¶ 81–82. Both inquiries
presuppose that a bar charge can support a WICP claim—the premise we
reject. Our silence does not equate to agreement with the Majority’s
treatment of either, and we express no view on them.
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