In Re Zawada

SUPREME COURT OF ARIZONA
En Banc

In the Matter of ) Arizona Supreme Court
) No. SB-02-0103-D
THOMAS J. ZAWADA, )
Attorney No. 5815 ) Disciplinary Commission
) No. 98-2465
Respondent. )
__________________________________) O P I N I O N

DISCIPLINARY ACTION
Respondent Suspended

State Bar of Arizona Phoenix
by John A. Furlong, Staff Bar Counsel

Thomas J. Zawada, Respondent Tucson
In Propria Persona

J O N E S, Chief Justice

¶1 We granted sua sponte review of this disciplinary

matter in order to determine whether the Disciplinary

Commission’s recommended sanctions of prosecuting attorney Thomas

J. Zawada were adequate in light of the objectives of lawyer

discipline. We hold they were not.

I. Facts and Procedural History

¶2 At all times relevant, Zawada was a prosecutor in the

Pima County Attorney’s Office. He prosecuted Alex Hughes in 1994

for various violent crimes, including first degree murder, all
stemming from a shooting incident that resulted in the death of

one person. Hughes’ defenses consisted solely of insanity and

self-defense. Throughout Hughes’ trial, Zawada was fully aware

that each of the six mental health experts who examined Hughes in

relation to the crimes in question, including those retained by

the state, found him to be mentally ill.

¶3 Notwithstanding the insanity plea, a jury found him

guilty of first degree murder, attempted second degree murder,

aggravated assault, disorderly conduct, and felony flight. On

appeal, this court reversed Hughes’ convictions, finding that

“the cumulative effect of [Zawada’s] misconduct deprived [Hughes]

of a fair trial.” State v. Hughes, 193 Ariz. 72, 74, ¶ 1, 969

P.2d 1184, 1186 (1998). On remand, the trial court dismissed all

charges, holding that Article 2, Section 10, of the Arizona

Constitution, the double jeopardy clause, forbade retrial. This

court affirmed that holding after observing that double jeopardy

bars retrial when there is “intentional prosecutorial misconduct

aimed at preventing an acquittal.” State v. Jorgenson, 198 Ariz.

390, 391, ¶¶ 3-4, 10 P.3d 1177, 1178 (2000) (citing Pool v.

Superior Court, 139 Ariz. 98, 109, 677 P.2d 261, 272 (1984)).

¶4 Subsequent to this court’s ruling in Hughes, a Bar

complaint was filed against Zawada alleging prosecutorial

misconduct in the handling of the case. The matter went to

hearing, following which the hearing officer determined Zawada’s

2
acts of prosecutorial misconduct included (a) appeals to fear by

the jury if Hughes was not convicted, (b) disrespect for and

prejudice against mental health experts that led to harassment

and insults during cross-examination, and (c) improper argument

to the jury.

¶5 For example, during cross-examination of one of Hughes’

mental health experts, Zawada implied that the expert fabricated

his diagnosis to coincide with the defendant’s theory of the

case:

I mean, you pick up Mr. Hughes as a . . . client for
the court, initially, and you are not able to make any
decision, and then what happens is after you are hired
by the defense, you are able to come to a conclusion?

More improperly, in rebuttal argument, Zawada asserted that

defense counsel paid his expert to fabricate a diagnosis:

He knows the result he is looking for. Subject comes
in with schizophrenic-potential schizophrenic
diagnosis. He knows right there what he is looking
for, and $950 later, yes, that’s what he’s got . . . .

Also in rebuttal, Zawada improperly argued that mental health

experts in general create excuses for criminals:

How about the Judge back there in New York, was it,
that was infatuated with the secretary or somebody else
and he followed her around and sent her notes and sent
her letters and all kinds of things and wouldn’t leave
her alone. I don’t know if he stalked her or not, and
ultimately they looked into the case a little bit. You
know what they did, they created a syndrome for him to
try to justify his action.

(Emphasis added.)

3
¶6 The hearing officer concluded that Zawada’s conduct,

wholly unsupported by evidence of any kind, violated Ethical Rule

(“ER”) 1.1 (competence),1 ER 3.1 (assertions made without good

faith basis in law or fact), ER 3.4(e) (trial tactics unsupported

by admissible evidence), and ER 8.4(d) (conduct prejudicial to

the administration of justice). As a result, the hearing officer

recommended (a) that Zawada be censured and placed on probation

for six months, (b) that he be required to attend fifteen hours

of continuing education that addresses the effective use of and

response to psychiatric and psychological testimony, (c) that he

be prohibited from handling any case involving a significant

mental health component until he completes the continuing

education requirement, and (d) that he be assessed the costs and

expenses of the disciplinary proceedings.

¶7 The Disciplinary Commission modified the hearing

officer’s recommended sanction by removing the probation and

continuing education requirement and adding as a requirement a

Member Assistance Program (“MAP”) referral. Zawada sought review

of the Commission’s decision and this court denied his petition.

Nevertheless, the court, under Supreme Court Rule 59(i),

determined, sua sponte, to review the proposed discipline and, in

1
The Disciplinary Commission did not agree that Zawada’s
conduct evidenced incompetence and therefore found no ER 1.1
violation.

4
light of the record, to decide whether the sanction should

include a period of suspension.

II. Discussion

A. The Court Has Authority, Sua Sponte, to Review Zawada’s
Actions.

¶8 Zawada challenges this court’s legal authority to take

sua sponte review of the appropriate sanction in this case,

arguing that Supreme Court Rule 53(e)(7) (subsequently renumbered

Rule 59(i)) permits review only if the Commission has recommended

suspension or disbarment, and where no timely petition for review

is filed. He argues that because neither of these requirements

has been met, the Supreme Court cannot review this action.

Zawada misreads this court’s authority to review disciplinary

matters.

¶9 “[T]he Supreme Court of Arizona has the exclusive

jurisdiction to regulate the admission to the practice of law and

the discipline of those admitted.” In re Riley, 142 Ariz. 604,

607, 691 P.2d 695, 698 (1984). As a result, “the Bar

Disciplinary Board and its committees are mere arms of this court

and can have no greater jurisdiction or authority than this

court.” Id. at 608, 691 P.2d at 699. Under Zawada’s

interpretation of the rule, the court would be bound by the

Commission’s disciplinary decision, even though the Commission

derives its authority and jurisdiction from the court. Zawada

contends that when the Commission recommends a sanction less than

5
suspension, the court has no jurisdiction to review that

particular sanction. The result is illogical and inconsistent

with case law as well as the Supreme Court Rules. See id.; see

also Ariz. R. Sup. Ct. 32(a)(2) (This court may “discipline a

member when it is satisfied that such member is not mentally or

morally qualified to practice law even though none of the

specific grounds for discipline set forth in these rules exist.”)

(emphasis added) (formerly Rule 31(a)(2)); Ariz. R. Sup. Ct.

33(b) (stating that the supreme court has power to impose,

without limitation and on its own motion, the suspension of an

attorney).

¶10 Rule 59 does not place the limitation on the court that

Zawada urges. The Rule provides:

If no timely petition for review of a commission
recommendation of suspension or disbarment is filed,
the disciplinary clerk shall prepare and file a
certificate attesting to those facts, and transmit to
the court copies of the commission report and related
order, the certificate, and a form of judgment for
signature and entry by the clerk of the court. Within
sixty (60) days, the court, in its discretion, may
decline review, or it may grant review sua sponte. If
the court grants review, the record shall be
transmitted to the clerk.

Ariz. R. Sup. Ct. 59(i). The rule is clear. The language merely

addresses the procedures to be followed when no petition for

review is filed. There is no suggestion that when a petition has

been filed, the court is stripped of authority to review the case

sua sponte on other issues. Were that the case, an attorney

6
subject to discipline could necessarily avoid review of certain

issues raised in a disciplinary proceeding by filing a petition

addressing other matters. The intent of the rule does not

contemplate that result.

B. Standard of Review.

¶11 “In disciplinary proceedings, this court is the

ultimate trier of fact and law, requiring clear and convincing

evidence of all facts.” In re Brady, 186 Ariz. 370, 373, 923

P.2d 836, 839 (1996). Although the hearing officer’s factual

findings and the Commission’s recommendations are not ultimately

determinative, they deserve great weight. Id.

C. The Sanctions Imposed In Light of the Purposes of
Lawyer Discipline.

¶12 Lawyer discipline serves two main purposes: (1) to

protect the public and the courts and (2) to deter the attorney

and others from engaging in the same or similar misconduct. In

re Kleindienst, 132 Ariz. 95, 102, 644 P.2d 249, 256 (1982)

(citing In re Stout, 122 Ariz. 503, 596 P.2d 562 (1974)).

Accomplishing these objectives promotes and maintains confidence

in the bar’s integrity. In re Horwitz, 180 Ariz. 20, 29, 881

P.2d 352, 362 (1994). To this end, Arizona generally follows the

American Bar Association’s Standards for Imposing Lawyer

Sanctions (1991) (“ABA Standards”) to help determine appropriate

discipline. In re Wolfram, 174 Ariz. 49, 57, 847 P.2d 94, 102

(1993). ABA Standard 3.0 states that the court should consider

7
four factors: (1) the duty violated, (2) the lawyer’s mental

state, (3) the potential for actual injury or actual injury

caused by the lawyer’s misconduct, and (4) the existence of

aggravating and mitigating factors. We also oversee the

proportionality of discipline imposed in analogous cases. In re

Bowen, 178 Ariz. 283, 286, 872 P.2d 1235, 1238 (1994). Viewed in

its entirety, the record in this disciplinary matter clearly

establishes that Zawada indeed engaged in intentional and

egregious prosecutorial misconduct, and that serious

consideration by this court of the appropriate sanction is fully

warranted.

(1) The Duty Violated

¶13 The hearing officer and the Commission found that clear

and convincing evidence established Zawada’s violations of ER 3.1

(assertions made without good faith basis in law or fact),

ER 3.4(e) (trial tactics unsupported by admissible evidence), and

ER 8.4(d) (misconduct prejudicial to the administration of

justice).2 We agree. Although the State Bar also alleged that

2
In addition to Zawada’s improper cross-examination and
argument regarding Hughes’ mental health, the hearing officer and
Commission found that Zawada also violated these three ERs when,
in closing argument, he improperly invoked personal fear in the
jury to create unfair prejudice. Zawada warned the jury of
possible future consequences of its decision:

You know, the next time you are out on a nice, pretty,
sunny afternoon, perhaps with your family, and you are
driving along the roads or maybe you are at a picnic,
your radio is on and you hear about a murder or

8
Zawada violated ER 3.4(c) (knowing disobedience of an obligation

under the rules), inexplicably the hearing officer did not find

clear and convincing evidence that Zawada violated that rule.

The hearing officer stated only that “[t]he ‘knowing’ component

of 3.4(c) was not proven.” We believe the hearing officer erred.

¶14 Ethical Rule 3.4(c) states: “[A lawyer shall not]

knowingly disobey an obligation under the rules of a tribunal

except for an open refusal based on an assertion that no valid

obligation exists[.]” One such obligation is that a prosecutor

cannot “imply unethical conduct on the part of an expert witness

without having evidence to support the accusation.” Hughes, 193

Ariz. at 86, ¶ 59, 969 P.2d at 1198 (citing State v. Bailey, 132

Ariz. 472, 479, 647 P.2d 170, 177 (1982)). The record

demonstrates with utmost clarity that Zawada knowingly disobeyed

this obligation under the rule, placing him in direct violation

of ER 3.4(c). The Arizona Rules of Criminal Procedure permitted

the defendant, Hughes, to present expert psychiatric and

something like that, or an aggravated assault, you
think back to this case you are going to have to be
able to say right then and there that you were
convinced that the evidence was clear and convincing
that this man was insane. Not just paranoid
schizophrenic, not mentally ill, not possibly mentally
ill, but insane. Because you know, you go back there
in your deliberation now and you’re sitting there and
you can’t imagine that day, ladies and gentlemen, when
you hear this on the report and you can’t say, yes, I
was clearly convinced, you know, that the defendant
carried his burden.

9
psychological testimony to support the defense of insanity. In

fact, the rules prescribe a detailed and specific role for mental

health professionals to assess a criminal defendant’s mental

state. See Ariz. R. Crim. P. 11. Faced with such expert

testimony for the defendant, a prosecutor has several options:

he can rebut the testimony with controverting evidence; he can

stipulate to the accuracy of the testimony; he can attack the

defense expert through legitimate cross-examination; or he can

ignore the testimony altogether. But a prosecutor cannot attack

the expert with non-evidence, using irrelevant, insulting cross-

examination and baseless argument designed to mislead the jury

and undermine the very purpose of the rule. A prosecutor is

surely entitled to an opinion as to the persuasiveness or

validity of mental health evidence presented but must

nevertheless adhere to established rules and standards in the

presentation of evidence and argument in the courtroom.

¶15 Knowing behavior is established by invoking, among

other things, objective factors that include “the situation in

which the prosecutor found himself, the evidence of actual

knowledge and intent and any other factors which may give rise to

an appropriate inference or conclusion.” Pool, 139 Ariz. at 108

n.9, 677 P.2d at 271 n.9. Applying this standard, there can be

no doubt that Zawada, an experienced prosecutor, was aware of his

direct disobedience of a court rule.

10
¶16 Zawada’s misconduct occurred in part during cross-

examination when he accused the psychiatrist of indecision and of

reaching a conclusion of insanity only after he was hired by the

defense and paid for his services. Zawada knew there was no

evidentiary basis for the accusation, nor did he offer one. He

continued the attack in closing argument, suggesting, still

without evidence, that defense counsel paid money to the mental

health expert to fabricate a diagnosis of insanity for the

defendant. This was not a case of negligence; rather, it was an

intentional, knowing attack by Zawada on defense counsel, on the

experts, and on the mental health profession. Zawada’s actions

unquestionably indicate he knew his conduct constituted outright

disobedience in violation of ER 3.4(c).

(2) Zawada’s Mental State

¶17 The hearing officer’s conclusion with regard to

Zawada’s mental state in violating the rules is equally clear:

“[He] violated the duties to his client and to the legal system.

The conduct was intentional, although [he] believed that his

actions were well-founded and appropriate.” Based on the complete

record, the court concludes that Zawada’s rebuttal arguments and

cross-examination of the experts were grossly improper and

deliberate and thus in violation of the rule that protects the

defendant’s right to present the defense of insanity. With

11
specific reference to our decision in Hughes, we declared in

Jorgensen:

[Zawada’s method of prosecution] was “a dishonest way
to represent the State . . . , and it was especially
dishonest . . . where the evidence of insanity was
substantial, and where the [s]tate had no evidence that
[Defendant] had fabricated an insanity defense.” We
unanimously concluded that the “evidence of mental
illness was overwhelming” and Defendant’s case for
acquittal on grounds of insanity was “substantial.”
The state overwhelmed Defendant’s insanity defense,
“but it did not do so with evidence; it did so with
prosecutorial misconduct.” We condemned this win-by-
any-means strategy, agreeing with Defendant’s argument
that it “was a direct attempt to . . . prejudice the
jury” and to put the fear of acquittal in the jurors’
minds.

198 Ariz. at 390-91, ¶ 2, 10 P.3d at 1177-78 (second alteration

in original) (internal citations omitted).

¶18 In his attempt to discredit, Zawada attacked the

experts, their profession and credibility through disingenuous,

baseless argument and cross-examination. This was highly

improper and provides ample evidence that Zawada’s actions were

intentional and knowing, aimed at thwarting Hughes’ insanity

defense and gaining a conviction at any cost.

(3) Potential or Actual Injury

¶19 The more serious the injury, the more severe should be

the sanction. See, e.g., In re Cardenas, 164 Ariz. 149, 152, 791

P.2d 1032, 1035 (1990) (noting that the difference between ABA

Standards 4.41(b) (calling for disbarment) and 4.42(a) (calling

for suspension) is the seriousness of the injury). Serious

12
injury was caused by Zawada’s misconduct. The criminal justice

system suffered, as did society as a whole. When serious crime

goes unpunished everyone suffers, not because the suspect was

unidentifiable, but because a prosecutor’s misconduct bars

retrial as a matter of double jeopardy. Disciplinary

Commissioner Cahill spoke accurately in his dissent from the

Commission’s recommendation: “Simply put, [Zawada’s] knowing,

deliberate and intentional misconduct either caused a murderer to

walk free, or it helped convict an innocent man of first-degree

murder. Either way, no harm could be more serious.”

(4) Aggravating vs. Mitigating Factors

¶20 The hearing officer considered both aggravating and

mitigating factors in determining the proper sanction to be

recommended. Pursuant to ABA Standard 9.22(c), the officer found

that Zawada engaged in a pattern of misconduct consisting of

serious violations that occurred during both the Hughes trial and

the Pool trial.3 Together, these cases demonstrated repeated

instances of misconduct in cases that involved serious

consequences. We agree with that finding. In addition, we

agree, pursuant to ABA Standard 9.22(i), that Zawada’s

3
Zawada was the prosecutor in Pool, and there, as in Hughes,
double jeopardy attached because Zawada “intentionally engaged in
improper conduct for the purpose of forcing defendant to seek a
mistrial so that the prosecution could procure a new indictment
with correct charges.” Pool v. Superior Court, 139 Ariz. 98,
107, 677 P.2d 261, 270 (1984). The court found his conduct to be
“egregiously incorrect.” Id.

13
substantial experience in the practice of law should be treated

as an aggravating factor. The finding of substantial experience

is justified by the fact Zawada has practiced law in Arizona

since 1979.

¶21 No less important is that much of his experience as an

attorney has come through many years working as a prosecutor.

Because prosecutors’ ethical duties exceed those of lawyers

generally, substantial experience as a prosecutor may become a

further aggravating circumstance, particularly in cases, as here,

where the prosecutor should have learned much earlier to conform

his conduct to the rules, but has not done so.4

¶22 We addressed this issue squarely in our very recent

decision, In re Peasley, __ Ariz. __, __, ¶ 40, 90 P.3d 764, 774

(2004), finding that “when a lawyer’s substantial experience

places that lawyer in a position that would be unavailable to a

less experienced lawyer, and that lawyer’s experience also

affords, or should afford, a greater appreciation of the

advantages of eliciting false testimony, substantial experience

may be considered a relevant aggravating factor.” As a seasoned

prosecutor in the Pima County Attorney’s Office, Peasley, like

4
We do agree, in mitigation, that Zawada does not have a
prior disciplinary record with the Bar. ABA Standard 9.32(a).
However, we accord little or no consideration to the absence of a
disciplinary record when there is evidence of prior, known
misconduct. See In re Peasley, __ Ariz. __, __-__ ¶¶ 51-52, 90
P.3d 764, 775-76 (2004). Such is the case here. See Pool, 139
Ariz. at 98, 677 P.2d at 261.

14
Zawada, was given the responsibility of prosecuting capital

cases. Id. An inexperienced attorney would not be given such

responsibility. Further, Peasley’s extensive experience as a

prosecutor helped him understand how a jury would react to

unfavorable evidence. Accordingly, he suborned perjured

testimony to destroy the negative inference the jury would

otherwise have drawn. Id.

¶23 Similarly, Zawada’s substantial experience informed him

how the jury would react if he did not impeach the defendant’s

experts. His substantial experience also informed him that an

improper cross-examination such as the one he engaged in would

affect the defense experts’ credibility. As a result, Zawada,

without supporting evidence, launched a full scale attack on the

credibility of defendant’s experts and on the mental health

profession in general.

¶24 Thus we conclude, as in Peasley, that Zawada’s

substantial experience as a prosecutor is an aggravating factor.

Cf. Maretick v. Jarrett, 204 Ariz. 194, 199, ¶ 19, 62 P.3d 120,

125 (2003); New Jersey v. Torres, 744 A.2d 699, 708 (N.J. Super.

Ct. App. Div. 2000) (“A prosecutor is not simply another lawyer

who happens to represent the state. Because of the overwhelming

power vested in his office, his obligation to play fair is every

bit as compelling as his responsibility to protect the public.”).

15
¶25 Moreover, like the dissenting Commissioner, we find

clear evidence that Zawada has refused, and to this day continues

to refuse, to acknowledge wrongful conduct both in Hughes and in

Pool. His unwillingness to recognize wrongful conduct has led

Zawada to outright hostility. Such an attitude is an aggravating

circumstance in itself under ABA Standard 9.22(g). At the

disciplinary hearing, Zawada stated, “I’m here not because I did

anything wrong. I’m not here because I did anything unethical,

and I’m not here because I deserve to be punished for anything

that’s transpired.” Since this disciplinary process began, this

has been Zawada’s attitude. In his own words, Zawada believes

that “[t]his Court simply wishes to punish [him] for thinking

[differently] on the issue of the admissibility of, reliability

of, psychiatric-psychological testimony.” He believes this case

“expose[s] the Arizona Supreme Court’s pro-psychiatry/anti-

prosecution position; its pop culture values; it’s [sic]

overzealousness in pursuit of those values.” Finally, he asserts

that “there is no precedent in the history of Arizona

jurisprudence” to suggest that he acted unethically. As the

dissenting Commissioner noted,

[Zawada] fails to acknowledge that he is single-
handedly responsible for much of the law in Arizona on
the consequences of extreme prosecutorial misconduct.
His sweeping statement about our jurisprudence omits
mention of several pertinent cases, each of which
addresses whether he has ever done anything unethical.
State v. Pool, State v. Hughes, and State v. Jorgenson.

16
It would be difficult, in view of Zawada’s acrimonious statements

to the hearing officer, to the Disciplinary Commission, and to

this court, to conclude that Zawada acknowledges even a single

violation. As a result, we find, pursuant to ABA Standard

9.22(g), that Zawada’s continuing refusal to recognize what is

clearly gross misconduct is a further aggravator to be considered

in the process of determining the sanction in this case.

(5) Proportionality of Discipline Imposed in Analogous
Cases

¶26 The hearing officer correctly noted the absence of

Arizona case law with similar facts. The Supreme Court of

Florida, however, was confronted with a prosecutorial misconduct

case strikingly similar to the case before us. Florida Bar v.

Schaub, 618 So. 2d 202, 204 (Fla. 1993). That decision, though

not binding, is instructive.

¶27 The Supreme Court of Florida suspended Mr. Schaub, a

prosecutor, because:

1. During cross-examination, Schaub improperly
elicited irrelevant testimony from the defense’s expert
psychiatrist, Dr. Tanay, that a non-testifying expert
had classified him as a “hired gun.” Later, in
summation to the jury, Schaub again referred to Tanay
as a “hired gun.”

2. Schaub accused Dr. Tanay of charging $600 per hour
for his deposition testimony. Yet, Schaub had a copy
of the itemized bill showing Tanay charged $150 per
hour.

3. Throughout his cross-examination, Schaub insulted
Dr. Tanay, ignored the trial court’s rulings on defense
objections, and inserted his personal opinions on

17
 psychiatry and the insanity defense into his
questioning.

Id. at 203.

¶28 Like Zawada, Schaub “refus[ed] to acknowledge the

wrongful nature of his conduct.” Id. at 204. And like Zawada,

Schaub had substantial experience as a prosecutor. Id.

Importantly, unlike Zawada, nothing in the Florida opinion

suggests that Schaub’s misconduct was repetitive, although

neither he nor Zawada had a formal disciplinary record. Schaub

received a thirty-day suspension. Id.

¶29 Suspension from the practice by reason of misbehavior

either in the courtroom or in court-related proceedings is not

without precedent in Arizona. In In re Alcorn, 202 Ariz. 62, 41

P.3d 600 (2002), this court, sua sponte, increased the

Commission’s recommended discipline of a thirty-day suspension to

six months. Alcorn and Feola defended a doctor in a medical

malpractice action against the doctor and a hospital. Id. at 64,

¶ 9, 41 P.3d at 602. By secret agreement, the injured plaintiff

and the defendant doctor effectively pursued a “mock” trial,

taking the court’s time and resources without disclosing to the

judge that the trial was a sham. Id. at 65, ¶ 11, 41 P.3d at

603. The agreement between the injured plaintiff and the doctor

was concealed from the court even when the judge sensed the

possibility that such an arrangement existed and asked about it.

Id. at 66, ¶ 15, 41 P.3d at 604. The purpose of the sham trial

18
was to help the plaintiff bring the hospital back into the case

as a defendant by adducing damning information from the defendant

doctor at trial, while at the same time having given the doctor a

covenant not to execute on any judgment. Id. at 65, ¶ 12, 41

P.3d at 603.

¶30 In holding that a six-month suspension was appropriate,

the court found that the attorneys’ conduct was knowing and

intentional and, among other things, had wasted valuable judicial

resources. Id. at 74, ¶¶ 42-43, 41 P.3d at 612. The court found

several mitigating factors, including a non-selfish motive, a

cooperative attitude toward the disciplinary proceedings, and an

unlikely repetition of such conduct in the future. Id. at 74-75,

¶¶ 45-46, 41 P.3d at 612-13.

¶31 In contrast, Zawada has remained hostile, utterly

refusing to cooperate in the disciplinary proceedings. His

unwillingness to acknowledge gross misconduct suggests at least

some risk that Zawada, given the opportunity, would treat expert

witnesses in another case with a serious mental health component

in the same manner in which he treated the expert witnesses in

Hughes. That risk, without appropriate discipline at this point,

is unacceptable.

¶32 In In re Moak, 205 Ariz. 351, 71 P.3d 343 (2003), also

in sua sponte review proceedings, this court increased the

Commission’s recommended discipline of six months’ suspension to

19
six months and one day in order to require Moak to follow the

formal application and reinstatement procedure under the rule.

See Ariz. R. Sup. Ct. 64(e).

¶33 Moak, the disciplined attorney, withheld vital evidence

of his client’s injuries sustained in a second car accident

before the case went to trial on the first accident. Id. at 353-

54, ¶ 10, 71 P.3d at 345-46. He thus knowingly misled the jury

by withholding relevant evidence as to the occurrence of injuries

for which the defendant clearly was not responsible. Equally

serious, Zawada misled the jury by attacking the experts with

irrelevant interrogation and baseless argument, all without

evidence offered in support.

¶34 Finally, this court disbarred prosecutor Peasley

because he knowingly introduced perjured testimony through a

police witness in two capital trials. Peasley, __ Ariz. at __-

__, ¶¶ 65-66, 90 P.3d at 778-79. The distinction between Peasley

and Zawada is that Peasley concealed acts amounting to

subornation of perjury, while Zawada misled the jury openly,

appealing to fear and emotion. Both acts are serious and deserve

to be sanctioned. But Peasley’s acts, because they involved

fraud and concealment within the judicial system, are

substantially more serious. Conversely, there was no intentional

concealment on Zawada’s part.

20
 (6) The Proper Sanction

¶35 A mere censure of Zawada or even the imposition of

probation without suspension, in our judgment, would undermine

the disciplinary process applicable to all lawyers, would

contravene the presumptive discipline suggested by the ABA

Standards, and would be grossly disproportionate to discipline

imposed in other cases in which serious misconduct was found. We

agree with the dissenting member of the Disciplinary Commission:

A public rebuke will do nothing to deter [Zawada]. The
Supreme Court’s 1984 criticism of his trial tactics in
State v. Pool – in all practical effect a public
censure – had no deterrent effect; he repeated his Pool
misconduct in State v. Hughes. The Supreme Court’s
scathing assessment in the State v. Hughes opinion also
has had no effect; [Zawada] is still right and everyone
else is wrong – and biased. Finally, even State v.
Jorgenson is not enough to deliver the message to
[Zawada]. What else can be said to get him to obey the
law? Why do we think he will heed our censure, when
Supreme Court opinions mean absolutely nothing to him?

Disciplinary Commission Report, at 10 (Cahill, dissenting).

¶36 ABA Standard 6.22 recommends that suspension be imposed

when a lawyer “knowingly” disobeys a court order or rule.

Standard 6.23, on the other hand, recommends a censure for

disobedience that was merely negligent. Zawada’s misconduct in

the prosecution of the Hughes case was knowing and intentional,

not merely negligent. Further, in light of the aggravating

circumstances, including the evidence of prior misconduct in the

Pool case, the single mitigating factor – absence of prior bar

discipline - is not sufficient to justify a lesser sanction. We

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must apply discipline here where Zawada has acted knowingly or

intentionally, where aggravating factors outweigh mitigating

factors, and where substantial damage resulted.

¶37 Sanctions should be reasonably proportionate. On this

record, therefore, we believe that a suspension, together with a

subsequent probationary period, a referral to the Member

Assistance Program, and requiring continuing education hours,

will have the best chance of accomplishing the purposes of lawyer

discipline.

III. Conclusion and Order

¶38 Based on the record, Mr. Zawada is hereby suspended

from the practice of law in Arizona for six months plus one day,

beginning thirty days from the date of this opinion. Further,

upon reinstatement, Mr. Zawada shall be placed on probation,

under bar supervision, for one year. He shall also be referred

to the Member Assistance Program in which he shall participate

under conditions imposed on him by Program officers. Mr. Zawada

shall attend fifteen hours of continuing education that addresses

the effective use of and response to psychiatric and

psychological testimony, and shall not participate in any case

involving a mental health component until such time as he shall

have completed the continuing education requirement. Finally,

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Mr. Zawada is ordered to pay the costs and expenses of these

disciplinary proceedings.

___________________________________
Charles E. Jones, Chief Justice
CONCURRING:

____________________________________
Ruth V. McGregor, Vice-Chief Justice

____________________________________
Rebecca White Berch, Justice

____________________________________
Michael D. Ryan, Justice

____________________________________
Andrew D. Hurwitz, Justice

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