In Re Lazcano

SUPREME COURT OF ARIZONA
En Banc

In the Matter of the Application ) Arizona Supreme Court
of ) No. SB-09-0053-M
)
ALEJANDRO LAZCANO, )
) O P I N I O N
)
Applicant. )
_________________________________ )

APPLICATION DENIED
________________________________________________________________

Alejandro Lazcano El Paso, TX
In Propria Persona

STATE BAR OF ARIZONA
By Raymond A. Hanna, President Prescott
Patricia A. Sallen Phoenix
John A. Furlong, General Counsel
Attorneys for Amicus Curiae State Bar of Arizona
________________________________________________________________

B E R C H, Chief Justice

¶1 This case addresses whether an applicant on Texas

felony deferred adjudication may be admitted to practice law in

Arizona. We conclude that the pending charge prevents the

applicant from showing the good moral character necessary for

admission to the Arizona Bar.

I. BACKGROUND

¶2 In 2002, while an undergraduate student in Texas,

Alejandro Lazcano was arrested and indicted for burglary and

sexual assault. Under a plea agreement, he pled no contest to a
reduced charge of attempted sexual assault. The Texas court

deferred adjudication while Lazcano completed a ten-year term of

probation.

¶3 Lazcano later graduated from law school. He passed the

July 2008 Arizona bar examination and applied for admission to

the Arizona Bar. Following a formal hearing, the Arizona

Committee on Character and Fitness, by a divided vote,

recommended admission. On review, we asked the parties to brief

the effect of a “deferred adjudication” on an applicant’s

fitness to practice law.

II. DISCUSSION

¶4 We have previously described the requirements and

process for admission to the Bar. See In re King, 212 Ariz.

559, 563 ¶¶ 9-10, 136 P.3d 878, 882 (2006); In re Hamm, 211

Ariz. 458, 461-62 ¶ 12, 123 P.3d 652, 655-56 (2005). Generally,

applicants for admission to the Arizona Bar must demonstrate

that they possess good moral character. Ariz. R. Sup. Ct. 34;

Hamm, 211 Ariz. at 462 ¶ 12, 123 P.3d at 656. We examine past

misconduct to see what it reveals about an applicant’s present

moral character. Hamm, 211 Ariz. at 463 ¶ 17, 123 P.3d at 657.

Among other factors, we consider the seriousness of the conduct,

the lapse of time since the conduct, and evidence of

rehabilitation. Ariz. R. Sup. Ct. 36(b)(4). The Committee on

Character and Fitness makes recommendations to this Court on

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admission, but we independently determine whether the applicant

has satisfactorily demonstrated good moral character. Hamm, 211

Ariz. at 462 ¶ 12, 123 P.3d at 656. The central component of

our assessment is, at all times, protection of the public. In

re Arrotta, 208 Ariz. 509, 512 ¶¶ 11-12, 96 P.3d 213, 216

(2004).

A.

¶5 In lieu of trial on charges of sexual assault and

burglary, Lazcano pled no contest to attempted sexual assault.

The court deferred adjudication and placed him on community

supervision for the maximum term of ten years, subject to

conditions that include 240 hours of community service and sex

offender registration. See Tex. Code Crim. P. Ann. art. 42.12

§ 5(a) (Vernon 2006) (providing for deferred adjudication). If

Lazcano successfully complies with the conditions, a judge may

dismiss the charge at the expiration of the supervision period.

Id. § 5(c). But if Lazcano does not, he may be sent to prison

without a trial on the underlying charge. Id. §§ 5(b), 21(b).

¶6 Arizona’s rule regulating admission to the Bar creates

a presumption that an applicant convicted of a felony or a

misdemeanor involving a serious crime should be denied

admission. Ariz. R. Sup. Ct. 36(b)(2). To rebut the

presumption, a convicted felon must provide clear and convincing

evidence of rehabilitation. See id.

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¶7 Our Committee on Character and Fitness correctly

treated the deferred adjudication as a conviction for purposes

of Rule 36(b)(2). Arizona law defines a conviction as a

determination of guilt by verdict, finding, or the acceptance of

a guilty or no contest plea; formal entry of judgment is not

required. State v. Walden, 183 Ariz. 595, 615-16, 905 P.2d 974,

994-95 (1995), overruled on other grounds by State v. Ives, 187

Ariz. 102, 927 P.2d 762 (1996). Lazcano’s no contest plea

qualifies as a conviction because “[l]ike a guilty plea, a plea

of no contest ‘is an admission of guilt for the purposes of the

case.’” State v. Stewart, 131 Ariz. 251, 254, 640 P.2d 182, 185

(1982) (quoting Hudson v. United States, 272 U.S. 451, 455

(1926)). Arizona law on this point comports with Texas law, see

Tex. Code Crim. P. Ann. art. 42.12 § 5(c), which requires a

defendant to plead guilty or no contest to qualify for deferred

adjudication — that is, to “accept responsibility for a crime.”

John Bradley, Deferred Adjudication, 69 Tex. B.J. 296, 296

(2006); see Tex. R. Govern. Bar Adm’n IV(d)(1) (treating

deferred adjudication as conclusive evidence of guilt for lawyer

admission purposes).

B.

¶8 To establish rehabilitation, Lazcano must show “that he

has both (1) accepted responsibility for his past criminal

conduct,” and “(2) identified and overcome the weakness that led

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to the unlawful conduct.” King, 212 Ariz. at 564 ¶ 13, 136 P.3d

at 883 (citing Hamm, 211 Ariz. at 464 ¶ 23, 123 P.3d at 658, and

Arrotta, 208 Ariz. at 513 ¶ 17, 96 P.3d at 217).

¶9 The Committee’s evaluation of Lazcano’s application

turned not on his acceptance of responsibility for his acts and

his efforts to overcome the weaknesses that led to his past

misconduct, see Ariz. R. Sup. Ct. 36(b)(4), but focused instead

on the credibility of the witnesses in the Texas case. Despite

Lazcano’s no contest plea, the Committee found that “the initial

report of non-consensual sexual relations may not be reliable.”

Relying on Lazcano’s statements and the police report, a

majority of the Committee appears to have questioned whether

Lazcano engaged in any criminal conduct stemming from the 2002

incident.

¶10 The Committee serves an important function in

evaluating the moral character of applicants to the State Bar.

We caution, however, that the Committee should not re-try or

second-guess an applicant’s criminal conviction, guilty plea, or

other acknowledgement of criminal responsibility. The Committee

does not have at its disposal all of the evidence, including the

evidence that supported the guilty verdict or plea, and

experience shows that applicants are apt to present a version of

the facts that minimizes their responsibility. The Committee

should instead accept that the defendant has been found guilty

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beyond a reasonable doubt, either by verdict or plea. Thus for

admissions purposes, Lazcano pled no contest to the felony of

attempted sexual assault and remains on deferred adjudication as

a registered sex offender.

C.

¶11 We turn to whether an applicant serving deferred

adjudication for a felony offense is eligible for admission to

the Bar.1 Cases from across the country uniformly require

individuals convicted of crimes to complete their court-ordered

supervision before applying for admission or reinstatement.

See, e.g., In re Culpepper, 770 F. Supp. 366, 373 (E.D. Mich.

1991) (reinstatement); Seide v. Comm. of Bar Exam’rs, 782 P.2d

602, 607 (Cal. 1989) (admission); In re Dortch, 860 A.2d 346,

362-63 (D.C. 2004) (admission); In re Pahules, 382 So. 2d 650,

651 (Fla. 1980) (reinstatement); In re Thompson, 365 N.W.2d 262,

265 (Minn. 1985) (reinstatement); In re Walgren, 708 P.2d 380,

388 (Wash. 1985) (reinstatement). These courts reason that

because probationers typically behave well while on probation,

admissions authorities cannot adequately evaluate rehabilitation

until the applicant has successfully completed probation;

application before completion of a probationary term is deemed

1
An individual on deferred adjudication is treated as though
the charge is still pending. See Tex. Code Crim. P. Ann. art.
42.12 § 5(a); United States v. Bishop, 264 F.3d 535, 556 (5th
Cir. 2001).
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premature. See, e.g., Seide, 782 P.2d at 607. Most also

require significant time to elapse following the end of

probation so that the applicant can demonstrate sustained

rehabilitation. E.g., id. at 605 (“It is not enough that

petitioner kept out of trouble while being watched on probation;

he must affirmatively demonstrate over a prolonged period his

sincere regret and rehabilitation.”); see also In re Polin, 596

A.2d 50, 53-54 (D.C. 1991). These requirements comport with

Arizona’s requirement that an applicant with a felony conviction

must show by clear and convincing evidence that he has been

rehabilitated. Cf. Arrotta, 208 Ariz. at 512 ¶ 12, 96 P.3d at

216 (requiring clear and convincing evidence of rehabilitation).

¶12 Lazcano would not be permitted to apply for membership

in the State Bar of Texas, his home state. Tex. R. Govern. Bar

Adm’n IV(d)(2). A person “guilty of a felony” in Texas is

“conclusively deemed not to have present good moral character

and fitness” and cannot apply for admission to the bar until

five years after completing the probationary term. Id. Thus

Lazcano cannot apply for membership in the Texas Bar until 2018.

¶13 Significantly, had Lazcano been a member of the Arizona

Bar when he pled no contest to the charge, he likely would have

been suspended from practice. See Ariz. R. Sup. Ct. 53(h)

(requiring discipline for a lawyer convicted of a “misdemeanor

involving a serious crime or of any felony”; cf. id. R. 42, ER

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8.4(b) (declaring that it is “professional misconduct for a

lawyer to commit a criminal act that reflects adversely on the

lawyer’s . . . fitness”).

¶14 The same result would have occurred in Texas. Texas

law requires suspension of a lawyer “who has been given

probation” for a felony involving moral turpitude. See Tex.

Gov’t Code Ann. § 81.078(b) (Vernon 2005). Sexual assault

satisfies that requirement. See, e.g., Hernandez v. State Bar,

812 S.W.2d 75, 77-78 (Tex. App. 1991) (suspending lawyer placed

on deferred adjudication for indecency with a child); accord

People v. Martin, 897 P.2d 802, 804 (Colo. 1995) (finding sexual

assault a crime involving moral turpitude). The American Bar

Association’s Standards for Imposing Lawyer Sanctions § 5.12

similarly recommends suspension for lawyers who engage in

criminal conduct that “seriously adversely reflects on the

lawyer’s fitness to practice.” ABA Standards for Imposing

Lawyer Sanctions 21 (2005).

D.

¶15 In regulating attorney admissions, our primary

responsibility is to protect the public. Arrotta, 208 Ariz. at

512 ¶¶ 11-12, 96 P.3d at 216. We must determine whether an

applicant for admission possesses the necessary qualifications

to fulfill his or her responsibilities to the court and the

Arizona public. See In re Shannon, 179 Ariz. 52, 77, 876 P.2d

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548, 573 (1994). The good moral character required for

admission to the Bar “is something more than an absence of bad

character”; it requires that the applicant has acted as a person

“of upright character ordinarily would, should, or does.” In re

Walker, 112 Ariz. 134, 138, 539 P.2d 891, 895 (1975) (quoting In

re Farmer, 131 S.E. 661, 663 (N.C. 1926)). Because law is a

self-regulating profession, we require attorneys to demonstrate

exemplary moral character.

¶16 It would “ero[de] . . . public confidence in the legal

profession and the administration of justice were we to admit an

applicant who is still on parole for crimes as serious as those

committed by [the applicant].” Dortch, 860 A.2d at 348. We

therefore conclude that admitting a felon currently serving

deferred adjudication for a serious offense does not serve the

interests of the public and legal community.

¶17 This Court does not automatically “exclude all

applicants guilty of serious past misconduct from practicing law

in Arizona.” King, 212 Ariz. at 567 ¶ 29, 136 P.3d at 886. We

have previously refrained from announcing per se

disqualifications to State Bar admission. See Hamm, 211 Ariz.

at 462 ¶ 16, 123 P.3d at 656. Today, though, we hold that an

applicant currently on a felony deferred adjudication who

remains under court supervision may not be admitted to practice

law until the period of supervision has ended. Only after

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successfully fulfilling the conditions of a felony deferred

adjudication may an applicant make the necessary showing of

complete rehabilitation necessary for admission to the State

Bar.

III. CONCLUSION

¶18 Individuals currently on Texas deferred adjudication

are not eligible for admission to the Arizona State Bar until

they have completed their probationary term and can demonstrate

complete rehabilitation. Because Lazcano does not complete his

probation until November 2013, he cannot meet his burden of

proving his rehabilitation and good moral character. We

accordingly deny his application for admission to the State Bar

of Arizona.

_____________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

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