In the Matter of Richard B. Johnson

SUPREME COURT OF ARIZONA
En Banc

In the Matter of an Application ) Arizona Supreme Court
for Reinstatement of a Suspended ) No. SB-12-0040-R
Member of the State Bar of )
Arizona ) Office of the Presiding
) Disciplinary Judge
RICHARD B. JOHNSON, ) No. PDJ20129029
Attorney No. 2118 )
)
)
Applicant. ) O P I N I O N
__________________________________)

Review of Report and Recommendation on
Application for Reinstatement from
the Office of the Presiding Disciplinary Judge

REINSTATED
________________________________________________________________

JENNINGS STROUSS & SALMON PLC Phoenix
By J. Scott Rhodes
Attorney for Richard B. Johnson

STATE BAR OF ARIZONA Phoenix
By Hunter F. Perlmeter
Attorney for State Bar of Arizona
________________________________________________________________

P E L A N D E R, Justice

¶1 Under Arizona Rule of the Supreme Court 65(b)(4), this

Court automatically reviews the disciplinary hearing panel’s

report in attorney reinstatement cases. We granted applicant

Richard B. Johnson’s request to respond to the hearing panel’s

report, which recommended denial of his application for

reinstatement to the active practice of law. Johnson challenged

the hearing panel’s recommendation and asked us to clarify the

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legal standard for reinstatement. We review questions of law de

novo, but review factual findings applying a clearly erroneous

standard. Ariz. R. Sup. Ct. 59(l); see also In re Arrotta, 208

Ariz. 509, 514 ¶ 25, 96 P.3d 213, 218 (2004).

¶2 On January 10, 2013, we issued an order reinstating

Johnson to the active practice of law. This opinion explains

our reasoning.

I.

¶3 Johnson was admitted to practice in Arizona in 1968.

He had a small law firm and focused his practice on trusts,

estates, and probate matters. In 2008, Johnson was suspended

from the practice of law for six months and one day, pursuant to

an agreement for discipline by consent. His suspension resulted

from two counts of misconduct that occurred in 2006: submitting

a will that falsely purported to be the original to the court

for admission to probate after he lost the original (count one),

and improperly purchasing a house from a client estate without

advising his client to seek independent counsel (count two).

¶4 Although Johnson became eligible for reinstatement in

2009, see Ariz. R. Sup. Ct. 64(e)(1), he did not apply until

2012. A three-member hearing panel, chaired by the Presiding

Disciplinary Judge, held a hearing at which Johnson and several

others testified. See Ariz. R. Sup. Ct. 52, 65(b)(1)(A). The

State Bar stipulated, and the hearing panel agreed, that Johnson

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had met his burden of proving “compliance with all applicable

discipline orders and rules, fitness to practice, and

competence.” Ariz. R. Sup. Ct. 65(b)(2); see also Ariz. R. Sup.

Ct. 48(e) (applicant seeking reinstatement has burden of proof).

The hearing panel therefore focused on the issues of

rehabilitation and moral qualifications. See Ariz. R. Sup. Ct.

64(a), 65(b)(2).

¶5 Johnson acknowledged his prior ethics violations.

Regarding count one, Johnson testified that he had rationalized

his preparing and filing a fabricated will because he was

embarrassed about misplacing the original will, was extremely

busy at the time, wanted to help the client, and believed nobody

would be harmed. The house-purchase misconduct in count two,

Johnson explained, resulted because he became too casual in his

professional dealings with a client, to the detriment of a

beneficiary of the estate whom Johnson did not like.

¶6 Johnson attributed his misconduct to two weaknesses:

his “moral compass failed him” and he deviated from his core

beliefs. During his extended time away from the profession,

Johnson reexamined his core values, recommitted himself to his

religious beliefs and church activities, and invested

substantial time in community service. Five people testified on

Johnson’s behalf in support of his reinstatement. No evidence

directly refuted Johnson’s evidence of rehabilitation.

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¶7 After considering all evidence, the hearing panel

found insufficient proof “that the ethical problems that led to

[Johnson’s] sanctioned behavior have been rectified.” The panel

likewise concluded that Johnson had failed to establish his

rehabilitation by clear and convincing evidence and recommended

that his application for reinstatement be denied.

II.

¶8 The requirements for reinstatement are similar to the

requirements for initial admission to the Arizona bar. Compare

Ariz. R. Sup. Ct. 34(b)(1)(B), (C), 34(c), 36(b), with Ariz. R.

Sup. Ct. 64, 65. An applicant for reinstatement must

demonstrate that he or she “possesses the moral qualifications

and knowledge of the law required for admission to practice law

in this state in the first instance.” Ariz. R. Sup. Ct. 64(a).

In addition, an applicant for reinstatement “must show by clear

and convincing evidence that [he or she] has been rehabilitated

and/or overcome his or her disability.” Id.; see also Ariz. R.

Sup. Ct. 65(b)(2); In re (Lee K.) King, 212 Ariz. 559, 563 ¶ 10,

136 P.3d 878, 882 (2006).

¶9 This additional requirement is not meant as further

punishment. In re Peterson, 108 Ariz. 255, 256-57, 495 P.2d

851, 852-53 (1972). Rather, we require evidence of

rehabilitation to protect the public. Id.; see also In re

Arrotta, 208 Ariz. at 512 ¶ 12, 96 P.3d at 216 (“[O]ur primary

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responsibility remains at all times the protection of the

public.”). Because a lawyer seeking reinstatement has already

“violated the trust placed in him as an officer of the court,”

we “‘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 Arrotta, 208 Ariz. at 512 ¶ 11, 96

P.3d at 216 (alteration in original) (quoting In re Pier, 561

N.W.2d 297, 300 (S.D. 1997)).

¶10 Proving rehabilitation is a two-step process. First,

the applicant must identify the weakness or weaknesses that

caused the misconduct. Id. at 513 ¶ 17, 96 P.3d at 217.

Second, the applicant must “demonstrate that he [or she] has

overcome those weaknesses.” Id. In determining whether the

applicant has proven rehabilitation by clear and convincing

evidence, we also consider the nature and extent of the

underlying misconduct because “the more serious the misconduct

that led to disbarment, the more difficult is the applicant’s

task in showing rehabilitation.” Id. at 512 ¶ 12, 96 P.3d at

216 (citing In re Robbins, 172 Ariz. 255, 256, 836 P.2d 965, 966

(1992)). But “the severity of a lawyer’s misconduct in itself

does not preclude reinstatement if the lawyer can establish that

he has rehabilitated himself.” Id.

¶11 In Arrotta, for example, we denied a disbarred

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lawyer’s application for reinstatement because he failed to

identify the cause of his misconduct, id. at 513 ¶ 18, 96 P.3d

at 217, and “[n]othing else in the record explain[ed]” it, id.

at 514 ¶ 21, 96 P.3d at 218. Arrotta simply did not “understand

why he acted as he did” and, in connection with the criminal

proceedings against him, wrote that he had “no good, or valid,

answer that can provide any justification” for his misconduct.

Id. at 513 ¶ 19, 96 P.3d at 217. In contrast, we found that the

applicant in Robbins had identified a “severe episode of

depression” as the cause of his misconduct, 172 Ariz. at 255,

836 P.2d at 965, and in In re (Reed W.) King the applicant

identified his “precarious financial situation” as the cause of

his misconduct, 177 Ariz. 358, 360, 868 P.2d 941, 943 (1994).

In both those cases, we ordered reinstatement.

¶12 Here, the hearing panel found that Johnson

“personally, through introspection and reflection, identified

the weaknesses that produced the misconduct and took the

necessary steps to overcome those weaknesses with self-regulated

discipline.” This is all that Arrotta requires, yet the panel

demanded more, stating that Johnson’s identification of the

weaknesses that produced the misconduct “tells us little of the

cause of that weakness.” The hearing panel required Johnson to

identify not only the weaknesses that caused the underlying

misconduct and the steps taken to overcome them, which Johnson

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did, but also the deeper “root cause” of those weaknesses or the

“character flaw that caused the decision to engage in unethical

misconduct.”

¶13 A reinstatement hearing, however, does not necessarily

require the peeling back of multiple layers of causation or

psychoanalysis. Instead, the applicant must clearly and

convincingly prove rehabilitation by specifically identifying

the causal weakness leading to each count and explaining how the

weakness has been overcome. Based on the record here, we

conclude that Johnson met that burden.

¶14 “[W]e 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.” In re Arrotta, 208 Ariz. at 514

¶ 22, 96 P.3d at 218. But, as the hearing panel correctly

observed, neither mental health treatment nor expert testimony

is required to establish rehabilitation for readmission

purposes. Id. Rather, an applicant’s identification of his or

her weaknesses may suffice. See In re Robbins, 172 Ariz. at

255, 836 P.2d at 965; In re (Reed W.) King, 177 Ariz. at 360,

868 P.2d at 943.

¶15 The hearing panel found, as do we, that Johnson

identified the weaknesses underlying both counts of his prior

misconduct. The evidence on that point was sufficient to

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satisfy the first prerequisite for rehabilitation under In re

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

¶16 The next issue, then, is whether Johnson convincingly

demonstrated that he has overcome his weaknesses. Id. The

applicant must show by clear and convincing evidence “the

positive actions he has taken to overcome the weaknesses that

led to his [sanction].” Id. at 515 ¶ 29, 96 P.3d at 219. “The

required demonstration may come from any number of showings.”

Id. ¶ 30. For example, the applicant may present evidence of

“participation in community or charitable organizations,

specialized instruction or education, counseling, or other

similar [activities].” Id. at 516 ¶ 31, 96 P.3d at 220. The

applicant may also present testimony from character witnesses,

whose well founded opinions “we will carefully consider.” Id.

at 515 ¶¶ 28-29, 96 P.3d at 219. In addition, an applicant’s

“[a]ccepting responsibility for past misdeeds constitutes an

important element of rehabilitation.” Id. ¶ 29. These

categories of evidence are neither exhaustive nor conclusive,

and no single piece of evidence is necessary or sufficient to

prove rehabilitation. Id. at 512 ¶¶ 13-14, 96 P.3d at 216

(stating that in evaluating an application for reinstatement, we

do not mechanically apply the pertinent factors that bear on

rehabilitation).

¶17 The hearing panel’s report refers to the abundant

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evidence Johnson presented of his efforts to rehabilitate

himself. First, Johnson acknowledged his misconduct. Second,

he engaged in extensive charitable activities and was strongly

committed to his community. Indeed, the panel noted that

Johnson’s community service during his suspension period was

undertaken “for the best of reasons” and “demonstrate[d] his

good character.” Third, the panel considered the testimony of

five individuals, each of whom strongly supported Johnson’s

reinstatement, as “aid[ing] his application.” Finally, the

panel considered Johnson’s own testimony “that core values and

character must be achieved through self discipline, adherence to

a strong moral creed, and charitable service,” principles that

governed his actions and decisions after his suspension.

¶18 Like the hearing panel, we do not view Johnson’s

positive actions in a vacuum. Rather, our analysis must

determine whether his actions show that he in fact has overcome

the identified weaknesses. See id. at 515 ¶ 29, 96 P.3d at 219.

Here, Johnson’s charitable activities, community involvement,

and recommitment to his faith are specific actions he took to

overcome his prior shortcomings.

¶19 Community service, religious commitment, and

meditative reflection are not a panacea for applicants seeking

reinstatement. But in this case, Johnson’s actions served to

advance his rehabilitation. Those actions were designed to

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realign Johnson’s moral compass and recalibrate his approach to

developing personal and professional relationships, thereby

addressing the weaknesses that led to his misconduct. We also

find significant that Johnson engaged in the various

rehabilitative activities throughout his extended time away from

the practice of law.

¶20 In concluding that Johnson had not met his burden of

showing rehabilitation, the hearing panel relied in part on In

re Lazcano, 223 Ariz. 280, 222 P.3d 896 (2010), In re (Lee K.)

King, 212 Ariz. 559, 136 P.3d 878 (2006), and In re Hamm, 211

Ariz. 458, 123 P.3d 652 (2005). These cases correctly recognize

that the applicant’s burden of proving rehabilitation increases

with the severity of the underlying conduct. But the

circumstances of those cases differ materially from those

present here. They all involved applicants who had committed

serious felonies — attempted sexual assault, attempted murder,

and first degree murder. Johnson, on the other hand, was not

charged with any crime, has no other disciplinary offenses, and

was found in the prior disciplinary proceedings in this case to

have had “no selfish or dishonest motive.” Nor did Johnson’s

misconduct involve any attempt to gain financially. We do not

take lightly the severity of the misconduct that led to

Johnson’s suspension, but the burden imposed in cases like

Arrotta on applicants who are convicted felons is not warranted

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here.

¶21 Johnson presented clear and convincing evidence of

rehabilitation, through both his own, uncontroverted testimony

and that of the several witnesses. Nothing in the hearing

panel’s report suggests that it found Johnson’s testimony not

credible or otherwise suspect. On the contrary, the panel

praised Johnson’s “laudable efforts” and accorded them

“substantial weight.”

III.

¶22 In cases such as this, “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.” In re Arrotta, 208

Ariz. at 512 ¶ 14, 96 P.3d at 216 (quoting In re Robbins, 172

Ariz. at 256, 836 P.2d at 966) (internal quotation marks

omitted). We hold, however, that to prove rehabilitation an

applicant for reinstatement need not establish what was or might

have been the underlying cause of the identified weakness that

led to the misconduct. Because the hearing panel seemingly

required such a showing, and because we find no other basis for

denying Johnson’s application for reinstatement to the active

practice of law, we grant the application.

__________________________________
John Pelander, Justice

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CONCURRING:

__________________________________
Rebecca White Berch, Chief Justice

__________________________________
Scott Bales, Vice Chief Justice

__________________________________
Robert M. Brutinel, Justice

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Ann A. Scott Timmer, Justice

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