In Re a Disbarred Member of the State Bar of Arizona, Arrotta

SUPREME COURT OF ARIZONA
En Banc

In the Matter of a Disbarred ) Arizona Supreme Court
Member of the State Bar of ) No. SB-04-0015-R
Arizona )
) Disciplinary Commission
RICHARD B. ARROTTA, ) No. 03-6005
Attorney No. 003992 )
)
Applicant. ) O P I N I O N
__________________________________)

DISCIPLINARY ACTION
Remanded to Hearing Officer
________________________________________________________________

Thomas A. Zlaket Tucson
Attorney for Richard B. Arrotta

State Bar of Arizona Phoenix
by Robert B. Van Wyck, Chief Bar Counsel
and Denise M. Quinterri, Staff Bar Counsel
Attorneys for State Bar of Arizona
________________________________________________________________

M c G R E G O R, Vice Chief Justice

¶1 The issue in this case is whether Richard B. Arrotta,

who was disbarred in 1995, has established that he should be

readmitted to the Arizona State Bar. We conclude that he has

not established that he has been rehabilitated and deny his

application for reinstatement. We review this matter pursuant

to Arizona Rule of the Supreme Court 65(b)(5).

I.

¶2 Arrotta was admitted to practice in Arizona in 1974.

Over the next twenty years, he worked for the United States Army
as a Judge Advocate General, for the Pima County Attorney’s

Office as a deputy county attorney, and as a sole practitioner

in private practice.

¶3 In 1990, Arrotta began representing clients in claims

under the National Childhood Vaccine Act, 42 U.S.C. §§ 300aa-1

to 300aa-34 (1986) (Vaccine Act). The Vaccine Act established an

administrative procedure for compensating children injured as a

result of a required vaccination and provided reimbursement to

attorneys for reasonable fees and costs incurred in representing

a victim. See 42 U.S.C. § 300aa-15. The statute, however,

expressly barred attorneys in Vaccine Act cases from charging

clients any additional fees for services rendered. 42 U.S.C. §

300aa-15(e)(3).

¶4 The Valenzuelas, whose child had died as the result of

a vaccination, retained Arrotta to bring an action under the

Vaccine Act. Although Arrotta received approximately $39,000.00

in fees from the government for representing the Valenzuelas, he

also withheld a one-third contingency fee from the family. In

January 1993, when the State Bar inquired about Arrotta’s fee

practice in Vaccine Act cases, Arrotta falsely stated that he

had never charged a contingency fee, or any other fee, to any of

his thirty-five Vaccine Act clients.

¶5 Also in 1993, unrelated to his misconduct involving

the Vaccine Act cases, Arrotta met Philip N. DePalma, a claims

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adjuster in Arizona’s risk management section. DePalma asked

Arrotta to represent his brother in a case involving his

brother’s termination from his job. Arrotta agreed. Shortly

thereafter, DePalma asked Arrotta if he would represent a

claimant whom DePalma believed had a significant medical

malpractice claim against the state. Arrotta consented, and

DePalma subsequently informed Arrotta of other claimants and

facilitated Arrotta’s solicitation of those cases. While

DePalma initially made no mention of payments due him, months

later DePalma asked Arrotta to give him referral fees for the

cases he had sent to Arrotta. Arrotta agreed and proceeded to

make secret payments, which eventually exceeded $400,000.00, to

DePalma as DePalma continued to provide him confidential

information concerning claims against the State of Arizona.

This information revealed the identities of persons with

potential liability claims against the state, as well as

confidential information related to the claims. Relying on this

information, Arrotta solicited potential claimants as clients

and ultimately received legal fees in excess of $1.1 million for

those cases. At no time did Arrotta or DePalma disclose these

payments to the state. Arrotta has always maintained that all

of the cases were meritorious and involved clear and provable

negligence by the state.

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¶6 When a federal investigation into these matters began,

Arrotta almost immediately gave a full confession to the

Assistant United States Attorney, without seeking any

concessions in return. Shortly thereafter, in September 1995,

Arrotta pled guilty in the United States District Court for the

District of Arizona to two counts of mail fraud in violation of

18 U.S.C. § 1341, Class D felonies. Arrotta also pled guilty to

bribery, a Class 4 felony, fraudulent schemes and practices, a

Class 5 felony, and disclosure of confidential information, a

Class 6 felony, in the Superior Court of Arizona for Maricopa

County. After entering his guilty pleas, Arrotta consented to

disbarment on September 21, 1995.

¶7 As a result of his criminal convictions, Arrotta

served one year in a federal prison. Since his release from

prison, Arrotta has worked as a paralegal/legal assistant for

several attorneys in Tucson and Phoenix and currently works

full-time as a legal assistant for the Hollingsworth Law Firm,

P.C. in Tucson. Although Arizona Rule of the Supreme Court

64(b) permits a disbarred lawyer to apply for reinstatement

after five years,1 Arrotta waited almost eight years to submit

his application.

1
Rule 64(b) provides:

A lawyer who has been disbarred may apply for
reinstatement, as set forth in Rule 65, not sooner

4
¶8 In his application, Arrotta presented dozens of

letters in support of his reinstatement from lawyers, employers,

family members, judges, clergy, and members of his church. In

addition, during his reinstatement hearing, Arrotta offered

testimony from the attorney responsible for prosecuting him in

federal court, the former pastor of his church, a lawyer and

former employer, and Arrotta’s current employer, Louis

Hollingsworth. Arrotta also testified.

¶9 At the outset of the hearing, the State Bar indicated

that it would reserve its opinion as to whether Arrotta should

be reinstated until the close of evidence. At the close of the

hearing, the State Bar recommended reinstatement. Based on the

evidence presented and the position of the State Bar, the

Hearing Officer found that Arrotta has been rehabilitated and

recommended that Arrotta be reinstated to the practice of law in

Arizona; that he be placed on probation for one year, subject to

various terms; and that he pay the costs and expenses incurred

in connection with his application for reinstatement. Pursuant

to Arizona Rule of the Supreme Court 65, the Disciplinary

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than ninety (90) days prior to the fifth anniversary
of the effective date of the disbarment, but may not
be reinstated until after the fifth anniversary of the
effective date of the disbarment.

Ariz. R. Sup. Ct. 64(b).

5
Commission reviewed the Hearing Officer’s Report2 and accepted

the Hearing Officer’s recommendation of reinstatement, one year

of probation, and costs of the proceedings.

¶10 Two members of the Disciplinary Commission dissented,

finding Arrotta unworthy of reinstatement. The dissent took

particular note of the fact that, during oral argument,

Arrotta’s counsel opined that an individual applying for initial

admission to the Arizona State Bar probably would not be

admitted with a criminal record similar to that of Arrotta. The

dissent found it troubling that “the bar apparently is set lower

for readmission than for initial admission. . . . [I]t would

seem that the bar for readmission should be if anything higher.”

Moreover, because Arrotta made no reference in his application

to any kind of “rehabilitation, counseling, therapy or any other

modality to try to understand why he would commit such dishonest

acts,” the dissent concluded that Arrotta had not shown

rehabilitation.

2
Rule 65(b)(4) provides:

The commission shall promptly review the report of the
hearing officer and the record, and will file with the
court its own report containing findings of fact and
recommendation concerning reinstatement, together with
the record. The commission shall serve a copy of the
report on the parties.

Ariz. R. Sup. Ct. 65(b)(4).

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 II.

¶11 Arizona Rules of the Supreme Court 64 and 65 impose

two basic requirements upon a disbarred lawyer who seeks

reinstatement. First, like initial applicants for admission,

the disbarred applicant must establish that he “possesses the

moral qualifications and knowledge of the law required for

admission to practice law in this state.” Ariz. R. Sup. Ct.

64(a). But the disbarred applicant must do more; he must

additionally demonstrate “rehabilitation.” Ariz. R. Sup. Ct.

64(e). The reason for requiring more of an applicant for

reinstatement than of an applicant seeking his initial admission

to the bar should be evident: Knowing that we do not lightly

disbar lawyers, we also know that the disbarred lawyer has

already seriously violated the trust placed in him as an officer

of the court and has revealed that, at least in some

circumstances, he poses a threat to members of the public. We

must “‘endeavor to make certain that [we do] not again put into

the hands of an unworthy petitioner that almost unlimited

opportunity to inflict wrongs upon society possessed by a

practicing lawyer.’” In re Pier, 561 N.W.2d 297, 300 (S.D.

1997) (quoting In re Morrison, 186 N.W. 556, 557 (1922)).

¶12 The burden of establishing rehabilitation falls on the

applicant: “The lawyer requesting reinstatement shall have the

burden of demonstrating by clear and convincing evidence the

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lawyer’s rehabilitation, compliance with all applicable

discipline orders and rules, fitness to practice, and

competence.” Ariz. R. Sup. Ct. 65(b)(2). Moreover, the more

serious the misconduct that led to disbarment, the more

difficult is the applicant’s task in showing rehabilitation. In

re Robbins, 172 Ariz. 255, 256, 836 P.2d 965, 966 (1992). On

the other hand, the severity of a lawyer’s misconduct in itself

does not preclude reinstatement if the lawyer can establish that

he has rehabilitated himself. In re Peterson, 108 Ariz. 255,

256-57, 495 P.2d 851, 852-53 (1972) (“Disbarment is not imposed

as punishment, but rather to protect the public and the other

members of the bar, and to deter other lawyers from the

temptation to violate their ethics.”). Nevertheless, “neither

the fact that Applicant has been sufficiently sanctioned, nor

the mere passage of time, is enough to warrant reinstatement.

Applicant’s burden is to show, by clear and convincing evidence,

that he has been rehabilitated, that he is competent, and that

he poses no further threat to members of the public.” Robbins,

172 Ariz. at 256, 836 P.2d at 966. As we balance these factors,

our primary responsibility remains at all times the protection

of the public.

¶13 In evaluating an application for reinstatement, we

consider four factors: “‘the applicant’s character and standing

prior to the disbarment, the nature and character of the charge

8
for which he was disbarred, his conduct subsequent to the

disbarment, and the time that has elapsed between the disbarment

and the application for reinstatement.’” Id. (quoting In re

Spriggs, 90 Ariz. 387, 388 n.1, 368 P.2d 456, 457 n.1 (1962)).3

¶14 We do not apply these factors mechanically. Rather,

they help us determine whether the applicant has made the

required showing. As we stated in Robbins, “the bottom line

must always be whether the applicant has ‘affirmatively shown

that he has overcome those weaknesses that produced his earlier

misconduct,’ i.e., whether he has been rehabilitated.” Id.

(emphasis added)(quoting In re Krogh, 610 P.2d 1319, 1321 (Wash.

1980)); see also In re King, 177 Ariz. 358, 361, 868 P.2d 941,

944 (1994) (reinstating an attorney following a two-year

suspension for misappropriating client funds, based on the

hearing committee’s finding that “the likelihood of Applicant

again misappropriating funds is remote”).

¶15 Courts in other jurisdictions similarly have stressed

the fundamental importance of gauging whether an applicant has

demonstrated that he has corrected whatever weaknesses led to

his misconduct. See, e.g., In re Wiederholt, 24 P.3d 1219, 1224

(Alaska 2001) (“The major consideration in reinstatement

3
Our approach is consistent with that taken in other
jurisdictions. See, e.g., In re Wiederholt, 24 P.3d 1219, 1224-
25 (Alaska 2001) (defining criteria to consider); In re Stroh,

9
proceedings is whether the disbarred attorney has shown that

those weaknesses that produced the earlier misconduct have been

corrected.”); In re Nash, 855 P.2d 1112, 1116 (Or. 1993) (“We

are entitled to have a reasonable assurance that the misconduct

which brought the petitioner before this court once before will

not reoccur.” (quoting In re Koken, 329 P.2d 894, 895 (1958)));

In re Stroh, 739 P.2d 690, 693 (Wash. 1987) (“The major

consideration in reinstatement proceedings is whether the

disbarred attorney has shown that those weaknesses which

produced the earlier misconduct have been corrected.”); Comm. on

Legal Ethics v. Pence, 297 S.E.2d 843, 846 (W. Va. 1982)

(“Rehabilitation is demonstrated by a course of conduct that

enables the court to conclude there is little likelihood that

after such rehabilitation is completed and the applicant is

readmitted to the practice of law he will engage in

unprofessional conduct.” (citation omitted)); In re Brown, 273

S.E.2d 567, 571 (W. Va. 1980) (“The concept of rehabilitation

cannot be framed around a set of specific principles but will

vary depending on the particular facts of a given case.

Rehabilitation, ultimately, is demonstrated by a course of

conduct that enables the Court to conclude there is little

likelihood that after such rehabilitation is completed and the

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739 P.2d 690, 693 (Wash. 1987) (same); In re Barton, 329 A.2d
102, 104 (Md. 1974) (same).

10
applicant is readmitted to the practice of law he will engage in

unprofessional conduct.”).

¶16 We must retain a focus on whether an applicant has

clearly and convincingly shown his rehabilitation, for we cannot

fulfill our duty to protect the public unless, before granting

reinstatement, we are confident that a lawyer will avoid the

pitfalls that caused his earlier serious misconduct.

III.

¶17 To show rehabilitation, an applicant must first

establish by clear and convincing evidence that he has

identified just what weaknesses caused the misconduct and then

demonstrate that he has overcome those weaknesses. Arrotta has

failed to make either of these showings.

A.

¶18 We find nothing in the record that demonstrates by

clear and convincing evidence that Arrotta understands or even

has identified the cause of his misconduct. That failure sets

him apart from applicants such as Robbins, whose

misappropriation of client funds resulted from serious bouts of

depression, Robbins, 172 Ariz. at 255, 836 P.2d at 965, and

King, who misappropriated client funds because of his

“precarious financial situation,” King, 177 Ariz. at 360, 868

P.2d at 943.

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¶19 Unlike those applicants, who recognized and then

overcame their earlier weaknesses, Arrotta has stated that he

does not understand why he acted as he did. In a letter Arrotta

wrote to the Honorable William D. Browning of the United States

District Court in Tucson prior to his criminal sentencing, he

said: “I have asked myself repeatedly why I did the things to

which I have now plead [sic] guilty. I have no good, or valid,

answer that can provide any justification.” More than eight

years later, Arrotta’s counsel stated to the Disciplinary

Commission:

I am not sure he knows why he did what he did back
then. I think there were a lot of pressures on him
that were economic. There were a lot of social
pressures on him, and there was a lot of weakness
involved. And the combination of all three caused him
to do what he did.

¶20 The only suggested explanation for Arrotta’s

misconduct involved his desire to attain material possessions.

The attorney for the State Bar reasoned: “I think that to put

it bluntly, greed was the motive. I can’t think of any other

motive for the conduct—the underlying conduct other than greed.”

Similarly, in a letter written to a friend from prison, Arrotta

stated he believed that “putting the goal of financial brass

rings and personal desires as primary” was the root of most of

his mistakes and failures. But Arrotta’s desire for material

possessions scarcely distinguishes him from many other lawyers

12
who, despite such desires, fulfill their obligations to their

profession, their clients, and the public. Moreover, if simple

greed caused Arrotta’s misconduct, then he must present clear

and convincing evidence that he has overcome that weakness; the

record contains no such evidence.4

¶21 Nothing else in the record explains Arrotta’s

misconduct. The statements made by Arrotta’s supporters in

letters, both those made before his sentencing hearing and those

made in support of his application for reinstatement, reflect

that same lack of understanding as to Arrotta’s reasons for

acting as he did. Indeed, both sets of letters express

disbelief that Arrotta allowed himself to commit such serious

acts of misconduct. While these letters support Arrotta’s

application, they also illuminate its shortcomings. The

writers’ shock at Arrotta’s behavior reflects the fact that they

apparently did not perceive whatever weaknesses led to Arrotta’s

misconduct. Because they did not understand the reasons for the

misconduct, none offered a basis for concluding that those

reasons no longer exist. Lacking any understanding of the

reasons Arrotta deviated from the course of conduct the writers

4
To the extent that the record speaks at all to the issue of
Arrotta’s desire for material possessions, it does not support a
conclusion that his desire for such possessions has changed.
For instance, although Louis Hollingsworth testified that
Arrotta is one of the nation’s highest paid paralegals, Arrotta

13
expected, presumably these supporters would be equally surprised

today if Arrotta committed further acts of misconduct.

¶22 Moreover, Arrotta offered no testimony from a mental

health professional explaining his misconduct. Although we do

not require professional treatment and testimony to gain

readmission, we recognize that, in many instances, a counselor

can assist an individual in understanding the reasons for his

ethical violations and can help the person acquire tools needed

to prevent future misconduct. An applicant who fails to present

evidence that he has obtained such assistance must carry his

burden by presenting some other basis to justify a finding of

rehabilitation. When misconduct is as serious as that committed

by Arrotta, persuasive evidence that a lawyer has identified and

overcome prior weaknesses becomes even more essential.

¶23 Arrotta’s approach to the issue of needing or

obtaining professional assistance has not been consistent.

Before the Disciplinary Commission and at oral argument, Arrotta

argued that he did not need any medical or clinical counseling.

Furthermore, as the State Bar investigator reported, Arrotta

“did not attend any professional counseling with either a

psychologist or psychiatrist [prior to his incarceration]

because he felt it was unwarranted.”

____________
and his wife jointly contributed less than one percent of their
joint income in 2002 to charity.

14
¶24 In his brief to this court, however, Arrotta suggested

that he in fact did receive counseling about the reasons for his

misconduct. He claims first that “Mr. Aker has counseled [him]

continuously since 1995, and even made trips to Nevada for that

express purpose while [he] was serving his sentence of

confinement.” The record makes clear, however, that Aker

provided emotional and spiritual support but did not counsel

Arrotta about his crimes. Arrotta further states that he

counseled with Randy Reynolds, Director of Renewal Counseling.

The record reveals that, after his incarceration, Arrotta did

visit with Randy Reynolds eight times over a six-month period.

These sessions, however, pertained to Arrotta’s marital problems

with his second wife, rather than to his criminal conduct.5

¶25 Arrotta’s failure to identify the cause of his

misconduct leaves the court unconvinced that the problems that

led to his previous behavior have been identified and rectified—

that is, that Arrotta has been rehabilitated. Absent such a

showing, the Hearing Officer’s finding that Arrotta has been

rehabilitated lacks support and, therefore, is clearly

erroneous. See Ariz. R. Sup. Ct. 59(b).

5
Although Reynolds told the State Bar investigator that he did
not counsel Arrotta concerning his criminal conduct, he also
stated that he felt that Arrotta was unlikely to be recidivist
and that he had been rehabilitated.

15
 B.

¶26 Because the record does not establish that Arrotta has

identified the weaknesses that caused him to violate the trust

of his clients and of the public, it necessarily follows that

the record does not affirmatively show that Arrotta has overcome

those weaknesses. But even if we assume arguendo that, as

Arrotta’s counsel suggests, simple greed caused Arrotta’s

misconduct and that he now recognizes as much, the record before

us does not demonstrate by clear and convincing evidence that he

has overcome that weakness.

¶27 Arrotta primarily relies upon two arguments to

establish his rehabilitation. First, he accurately points out

that he accepted full responsibility for his misconduct. While

admitting that he did not initially respond honestly to the

State Bar’s questions about his practices, he stresses that he

approached law enforcement officials almost immediately after he

learned that a federal investigation of his actions had begun.

Against the advice of his attorneys, Arrotta gave a full

statement to law enforcement officials, accepted full

responsibility for his actions, and did so without requesting or

expecting consideration in exchange for his cooperation.

Indeed, the lawyer responsible for prosecuting Arrotta in

federal court wrote a letter in support of Arrotta’s

reinstatement, emphasizing that Arrotta’s candor with respect to

16
the federal investigation was unusual, and testified before the

Hearing Officer that Arrotta began the rehabilitation process

immediately.

¶28 Second, Arrotta points to the letters and testimony

supporting his application for readmission, which attest both to

his character and standing before disbarment and to his

exemplary conduct subsequent to disbarment. A number of those

witnesses expressed their opinion that Arrotta has been

rehabilitated. For example, Louis Hollingsworth, Arrotta’s

current employer, wrote that Arrotta “began the rehabilitation

process immediately upon being charged with the offense.”

Similarly, Dr. John B. Aker, former Pastor of Christ Church of

Tucson, where Arrotta was an Elder, stated in his letter to the

State Bar that Arrotta underwent “instantaneous” rehabilitation.

Based on his character and standing prior to and subsequent to

his disbarment, the speed with which he confessed his

transgressions, and the assertions of other individuals that he

“immediately” began rehabilitation or “instantaneously” became

rehabilitated, Arrotta argues that he meets the requirements of

Rule 64(e).

¶29 We do not discount the relevance of Arrotta’s

evidence. Accepting responsibility for past misdeeds

constitutes an important element of rehabilitation. Similarly,

we will carefully consider the opinions of those in the

17
community in determining whether rehabilitation has occurred,

but neither of these factors can conclusively establish what our

cases identify as the showing: clear and convincing evidence

that the applicant has overcome the weaknesses that led to his

misconduct. When a disbarred lawyer seeks readmission to the

bar, particularly when disbarment resulted from conduct as

egregious as Arrotta’s, he must demonstrate more than that he

has led a blameless and law-abiding life while disbarred.

“Merely showing that [an individual] is now living and doing

those things he . . . should have done throughout life, although

necessary to prove rehabilitation,” is not sufficient to meet

the applicant’s burden. In re J.J.T., 761 So. 2d 1094, 1096

(Fla. 2000)(citation omitted). In addition, he must bring forth

clear and convincing evidence showing the positive actions he

has taken to overcome the weaknesses that led to his disbarment.

¶30 The required demonstration may come from any number of

showings. For example, testimony from a mental health

professional, while not always necessary, can often play a role

in establishing that the lawyer should gain readmission. The

Washington Supreme Court considered such a situation in In re

Rosellini, 739 P.2d 658, 659 (Wash. 1987), in which the court

granted reinstatement in a case factually similar to the current

action. In Rosellini, the applicant had been disbarred for

misuse of his client trust account and funds. Id. Like

18
Arrotta, Rosellini took steps following his disbarment to

establish rehabilitation: he secured employment; demonstrated

financial responsibility with regard to personal obligations

since his disbarment, including making restitution; participated

in community activities; and became involved in his church. Id.

at 659, 661, 662. In addition, however, Rosellini sought

professional psychiatric help to overcome the weaknesses that

led to his disbarment and, at the time of his reapplication, was

continuing to receive therapy. Id. at 659. Upon receiving his

petition for reinstatement, the state bar appointed a special

investigator who deposed Rosellini’s psychiatrist, who could

assure the court that it was unlikely Rosellini would repeat the

conduct leading to his disbarment. Id. at 660.

¶32 In appropriate cases, the required “positive action”

can be demonstrated by participation in community or charitable

organizations, specialized instruction or education, counseling,

or other similar evidence. But the burden is on the applicant

to show more than that he has successfully lived by the rules of

society after his misconduct. This record does not contain such

a demonstration by clear and convincing evidence.

IV.

¶33 For the foregoing reasons, we deny Arrotta’s

application for reinstatement. Our denial of the application

normally would prevent Arrotta from filing another application

19
for reinstatement for one year. Ariz. R. Sup. Ct. 65(a)(4). In

this instance, however, Arrotta’s failure to present evidence

sufficient to establish rehabilitation may have resulted from

the failure of the State Bar to insist upon such evidence.

Therefore, we suspend Rule 65(a)(4) and remand this matter to

the Hearing Officer to take additional evidence, if such is or

becomes available, that demonstrates both the cause of Arrotta’s

earlier misconduct and that he has taken adequate affirmative

steps to overcome the weaknesses that led to his misconduct.

____________________________________
Ruth V. McGregor, Vice Chief Justice

CONCURRING:

__________________________________
Charles E. Jones, Chief Justice

__________________________________
Rebecca White Berch, Justice

__________________________________
Michael D. Ryan, Justice

__________________________________
Andrew D. Hurwitz, Justice

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