In Re Dean

SUPREME COURT OF ARIZONA
En Banc

In the Matter of a Member of the ) Arizona Supreme Court
State Bar of Arizona, ) No. SB-05-0135-D
)
NANCY E. DEAN, ) Disciplinary Commission
Attorney No. 11198 ) No. 02-2290
)
Respondent. )
) O P I N I O N
__________________________________)

Review from the Disciplinary Commission
No. 02-2290

PETITION FOR REVIEW GRANTED; DISCIPLINE IMPOSED; RECOMMENDATIONS
OF THE DISCIPLINARY COMMISSION MODIFIED IN PART AND ADOPTED IN
PART

JENNINGS, STROUSS & SALMON, P.L.C. Phoenix
By J. Scott Rhodes
Attorneys for Nancy E. Dean

STATE BAR OF ARIZONA
By Loren J. Braud, Senior Counsel Phoenix
Attorney for the State Bar of Arizona

H U R W I T Z, Justice

¶1 Justice Jackson once remarked that supreme courts “are

not final because we are infallible.” Brown v. Allen, 344 U.S.

443, 540 (1953) (Jackson, J., concurring). This case requires

this Court to confront the consequences of our fallibility.

I.

¶2 In 2001, while serving as a prosecutor in the Apache

County Attorney’s Office, Nancy E. Dean began a romantic

relationship with Michael C. Nelson, who was then an Apache
County Superior Court Judge. At the time, Nelson regularly

presided over felony cases; the two therefore kept their

relationship a secret. From the time the affair began until

Dean resigned from the County Attorney’s Office in 2003, she

appeared in court before Nelson 485 times.

¶3 In December 2001, in response to a State Bar inquiry,

Dean categorically stated, “I am not now nor have I ever been

involved in an ‘intimate’ or ‘improper’ relationship with the

Hon. Michael Nelson.” Based on this denial, the State Bar

dropped its inquiry. In April 2002, Dean again denied any such

relationship and requested that the file in the matter be

sealed.

¶4 In early 2003, however, after the State Bar received

information from Dean’s former spouse, the investigation was re-

opened. The Bar eventually filed a disciplinary complaint

against Dean alleging conflict of interest and

misrepresentation. A hearing officer found that Dean had in

fact engaged in the affair and misrepresented the facts to the

State Bar. The hearing officer concluded that Dean had violated

several Rules of Professional Conduct set forth in Arizona

Supreme Court Rule 42: ER 1.7(b) (conflict of interest), ER

1.16(a)(1) (terminating/declining representation), ER 8.1(a)

(knowingly making a false statement of fact), ER 8.1(b) (failure

to disclose a fact necessary to correct a misapprehension), ER

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8.4(c) (conduct involving dishonesty, fraud, deceit or

misrepresentation), ER 8.4(d) (conduct prejudicial to the

administration of justice), and ER 8.4(f) (knowingly assisting a

judge in conduct that is a violation of the Code of Judicial

Conduct). As mitigation, the hearing officer found that Dean

had no prior disciplinary troubles, was suffering from personal

and emotional problems, and was motivated by her desire to

protect Nelson. The hearing officer recommended a six-month

suspension. In arriving at this recommendation, the hearing

officer relied on the fact that Nelson had not been disciplined

by the State Bar for his conduct.

¶5 Neither Dean nor the State Bar challenged the hearing

officer’s findings of fact before the Disciplinary Commission,

but both attacked the recommended sanction. Dean argued that

the punishment was too severe given her interim rehabilitation

and the absence of lawyer discipline of Nelson. The State Bar

argued that a lengthier suspension was appropriate.

¶6 The Disciplinary Commission adopted the hearing

officer’s findings of fact but determined that the appropriate

sanction was a one-year suspension retroactive to August 2004,1

1
Under Arizona Supreme Court Rule 65(e), any suspension
lengthier than six months requires the lawyer to go through
formal reinstatement proceedings. Thus, despite the retroactive
suspension recommended by the Commission (the term of which has
now expired), there is a significant difference between a one-

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two years probation, and costs. One commissioner dissented,

finding no warrant to punish Dean this severely in the absence

of lawyer discipline to Nelson.

II.

¶7 Dean has petitioned this Court for review of the

Disciplinary Commission’s recommendation. She attacks the one-

year suspension on two grounds. First, she contends that the

sanction does not give adequate weight to her rehabilitation

efforts. Second, she argues that neither the Disciplinary

Commission nor the hearing officer gave proper consideration to

the absence of lawyer discipline to Nelson in determining the

length of Dean’s suspension.

A.

¶8 We do not find Dean’s first argument persuasive.

While remorse and evidence of rehabilitation may be considered

as mitigating factors by the Disciplinary Commission, Dean’s

offenses were quite serious. As the hearing officer noted, the

presumptive sanction for misrepresentation, the most serious

offense with which Dean was charged, is disbarment. See

American Bar Association, Standards for Imposing Lawyer

Sanctions, Standard 5.11(b) (1992). The one-year suspension

_________________________________
year suspension and the six-month suspension recommended by the
hearing officer.

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recommended by the Commission was, in light of all claimed

mitigation, entirely appropriate.

B.

¶9 Dean’s second argument, however, is more troublesome.

Analysis of this argument requires a summary of what occurred

with respect to former Judge Nelson after his affair with Dean

came to light.

1.

¶10 The Commission on Judicial Conduct brought charges

against Nelson in April 2003. After a formal hearing, the

Commission found that Nelson had violated several Canons of the

Code of Judicial Conduct. The Commission filed its findings

with this Court and recommended that Nelson be removed from

office and, among other things, ordered to pay the costs and

expenses incurred by the Commission associated with the

disciplinary hearing.

¶11 After these recommendations were filed, but before we

could consider them, Nelson filed a letter of resignation. We

concluded that, in light of the resignation, there was no need

to engage in sua sponte review of the recommended sanction of

removal. In re Nelson, 207 Ariz. 318, 320 ¶ 3 n.1, 86 P.3d 374,

376 n.1 (2004). We did, however, grant sua sponte review,

pursuant to Commission on Judicial Conduct Rule 29(a), to

consider the costs sought by the Commission and, eventually

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concluded that certain costs were not taxable. Id. at 323-24 ¶¶

21-25, 86 P.3d at 379-80. We remanded the matter to the

Commission to calculate a new statement of costs. Id. at 325 ¶

29, 86 P.3d at 381.

¶12 The Commission filed a recalculated statement of

costs. On April 22, 2004, we entered an order “approving the

Commission on Judicial Conduct’s costs in the amount of

$2,967.50.” Nelson paid the costs and, on May 25, 2004, the

executive director of the Commission issued a “Satisfaction of

Judgment” under a Supreme Court caption, indicating that it had

received $2,967.50 “in full satisfaction of the judgment of the

Supreme Court dated April 22, 2004.”

2.

¶13 On October 29, 2004, the State Bar filed a

“Recommendation for Imposition of Lawyer Discipline” against

Nelson pursuant to Supreme Court Rule 46(d). Rule 46(d)

provides:

(d) Incumbent Judges. Upon removal or resignation
from office of an incumbent judge as the result of a
judicial discipline or disability proceeding, the
court shall afford the state bar and the judge an
opportunity to submit to the court a recommendation
whether lawyer discipline or disability status should
be imposed based on the record in the judicial
proceeding, and if so, the extent thereof.

The State Bar requested that a hearing officer be assigned to

recommend appropriate disciplinary action. After receiving

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briefing, this Court issued an order on February 8, 2005 denying

the State Bar’s application.

¶14 The State Bar then filed a motion for clarification,

posing three questions with respect to our February 8 order:

a. Does such order indicate the Court found that
Respondent is not subject to the provisions of Ariz.
R. Sup. Ct. 46(d)?

b. Does such order indicate the Court found that
Respondent is instead subject to lawyer discipline
pursuant to Ariz. R. Sup. Ct. 46(c)?

c. Does such order indicate the Court found Respondent
should not be subject to lawyer discipline in this
case under any circumstances?

After receiving briefing, we denied the motion for clarification

on March 22, 2005.

C.

¶15 Neither our February 8 nor our March 22 order

explained our denial of the State Bar’s motions. It is fair to

note, however, that Rule 46(d), which allows the State Bar to

submit a disciplinary recommendation to this Court “[u]pon

removal or resignation from office of an incumbent judge as a

result of a judicial discipline or disability proceeding,” is by

its own terms permissive. Rule 46(d) does not require that the

Court act upon that recommendation or foreclose other procedures

for seeking discipline of a resigned judge. Thus, our denial of

the State Bar’s motions had, on its face, no effect on the

ability of the State Bar to seek sanctions against Nelson.

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¶16 Indeed, Supreme Court Rule 46(c) expressly

contemplates that a former judge can be subject to lawyer

discipline for conduct occurring while on the bench:

(c) Former Judges. A former judge who has resumed the
status of a lawyer is subject to the jurisdiction of
the state bar not only for that person’s conduct as a
lawyer, but also for misconduct that occurred while
serving as a judge that would have been grounds for
lawyer discipline . . . .

Given the language of Rule 46(c), at the time we denied the

State Bar’s motions, we assumed that the Bar could later choose

to initiate disciplinary proceedings against Nelson for any

misconduct he engaged in while serving as a judge.

¶17 Rule 46(c), however, contains an important caveat.

The State Bar has jurisdiction to seek sanctions against a

former judge for conduct while on the bench only if “the

misconduct was not the subject of a judicial discipline

proceeding as to which there has been a final determination by

the court.” Ariz. R. Sup. Ct. 46(c).

¶18 Because we had declined sua sponte review of the

Commission’s recommendation that Nelson be removed from office,

at the time we denied the State Bar’s motion for clarification

we assumed that there had not been a “final determination by the

court” with respect to Nelson’s judicial discipline proceeding.2

2
We could have granted sua sponte review of the Commission’s
recommendations to impose a censure on Nelson. See Nelson, 207
Ariz. at 320 ¶ 3 n.1, 86 P.3d at 376 n.1 (citing In re

8
We now realize that we were in error in that assumption.

¶19 The term “final determination” is explained in

Commission on Judicial Conduct Rule 29(h) as follows:

(h) Final determination. The judgment of the supreme
court dismissing the case or imposing a sanction shall
be regarded as final and shall be effective on the
date the judgment or opinion is filed with the clerk
of the court.

In turn, Commission on Judicial Conduct Rule 18(e) describes

“the assessment of . . . costs” after a formal hearing as a

formal sanction.

¶20 As we have noted above, the Commission sought the

assessment of certain costs against Nelson. In our prior

opinion, we specifically found certain costs taxable against

Nelson. Nelson, 207 Ariz. at 323-25 ¶¶ 21-29, 86 P.3d at 379-

81. We then issued an order requiring Nelson to pay a specific

sum by a specific date.

¶21 The Commission on Judicial Conduct’s recommendation in

this case (of which we granted sua sponte review) expressly

suggested that Nelson be taxed these costs pursuant to

Commission Rule 18(e), and both our order granting sua sponte

review and our opinion refer expressly to Rule 18(e). It

therefore now seems evident that our award of costs constituted

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Fleischman, 188 Ariz. 106, 113, 933 P.2d 563, 570 (1991)). Our
refusal to do so seemingly confirmed the assumption that we had
not made any “final determination” as to judicial discipline
after Nelson’s resignation.

9
an imposition of a sanction pursuant to Rule 18(e). Moreover,

although our order that Nelson pay certain costs is not formally

denominated as a judgment, it was for all intents and purposes a

judgment and was subsequently treated as such by this Court and

the Commission.3

¶22 We have therefore reluctantly concluded that the State

Bar cannot pursue lawyer discipline against Nelson under Supreme

Court Rule 46(c) because, under Commission Rule 29(h), there has

been a “final determination” in the judicial discipline

“imposing a sanction” by virtue of our taxation of costs. Our

previous assumption that the State Bar was free to pursue lawyer

discipline against Nelson was therefore in error.

D.

¶23 The result of the prior proceedings is that while Dean

has been suspended from the practice of law for her conduct,

Nelson has been free to practice law in this State since the

date of his resignation. It is this disparity that Dean asks us

to consider in reviewing the length of her suspension.

¶24 Consideration of the “sanctions imposed in similar

cases is necessary to preserve some degree of proportionality,

ensure that the sanction fits the offense, and avoid discipline

by whim or caprice.” In re Struthers, 179 Ariz. 216, 226, 887

3
The Commission on Judicial Conduct’s May 25, 2004
“Satisfaction of Judgment” (filed under a Supreme Court caption)
indicated that the “judgment” for costs had been satisfied.

10
P.2d 789, 799 (1994). Proportionality review however, is “an

imperfect process.” In re Owens, 182 Ariz. 121, 127, 893 P.3d

1284, 1290 (1990). Normally the fact that one person is

punished more severely than another involved in the same

misconduct would not necessarily lead to a modification of a

disciplinary sanction. Both the State Bar in its capacity as

prosecutor and the Disciplinary Commission in its quasi-judicial

capacity have broad discretion in seeking discipline and in

recommending sanctions.

¶25 However, because Nelson’s complete immunity from

lawyer discipline inadvertently resulted from action by this

Court - our acceptance of the Commission’s recommendation that

we impose the relatively minor sanction of costs upon him - we

believe that this is the rare case in which reconsideration of

an otherwise suitable sanction is appropriate. Our own orders

caused the disparity in treatment of Dean and Nelson, and we

thus should cure the problem. We assuredly do not minimize the

seriousness of Dean’s misconduct. But given the unique facts of

this case, we believe that the interests of justice will be best

served by reducing Dean’s suspension to six months, the period

recommended by the experienced hearing officer. Such a

suspension, retroactive (as the Disciplinary Commission

11
recommended) to September 27, 2004,4 will allow Dean to resume

the practice of law, as Nelson has been free to do since his

resignation as a judge.

III.

¶26 For the foregoing reasons, we grant Dean’s petition

for review, and order that she serve a six-month suspension,

retroactive to September 27, 2004. In all other respects, we

adopt the recommendations of the Disciplinary Commission, which

include two years probation and the imposition of costs. A

formal judgment in accordance with this opinion will be entered

by the Court.

__________________________________
Andrew D. Hurwitz, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

4
The Disciplinary Commission apparently recommended a
suspension retroactive to August 2004 because it believed that
Dean had become an inactive member of the State Bar at that
time. Our records indicate, however, that Dean assumed inactive
status on September 27, 2004.

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_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

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