March 2006
Featured Disciplinary Case
Topic
A disparate disciplinary sanction for the same misconduct should not lead to a modification of the sanction absent unique circumstances, such as judicial error.
Summary
In re Nancy E. Dean, 129 P.3d 943 (Arizona, March 16, 2006). The Arizona Supreme Court begins this opinion by noting that, “This case requires this Court to confront the consequences of our fallibility,” and it quotes Justice Jackson, who once remarked that supreme courts "are not final because we are infallible.” While serving as a state prosecutor, Dean began a romantic relationship with Michael C. Nelson, who was a superior court judge. Because Nelson regularly presided over felony cases, the two kept their relationship secret. From the time the affair began until Dean resigned as a prosecutor in 2003, she appeared in court before her lover on 485 occasions.
In response to a 2001 State Bar inquiry, she 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 that denial, the Bar dropped its inquiry. The next year, Dean again denied any relationship and sought to seal the Bar investigative file. In early 2003, however, after the Bar received information from Dean's former spouse, the investigation was re-opened. A formal disciplinary complaint was eventually filed alleging a conflict of interest. She was also charged with lying to thwart the disciplinary investigation. A hearing officer found that she had engaged in the affair and made misrepresentations of material fact to the Bar. A six-month suspension was recommended. In arriving at this recommendation, the hearing officer relied on the fact that Nelson had never been disciplined by the Bar for his conduct. Later, the Disciplinary Commission adopted the hearing officer's findings of fact but determined that the appropriate sanction was a one-year suspension with two years probation and costs. (A suspension lengthier than six months requires a formal reinstatement proceeding in Arizona.) Dean petitioned the Supreme Court for review, arguing that proper consideration was not given to the absence of lawyer discipline to Nelson in determining the length of her suspension. It turns out that, while the Bar was proceeding against Dean, the Commission on Judicial Conduct had brought charges against Nelson. After a hearing, the Commission on Judicial Conduct recommended his removal from the bench. Before the Supreme Court could consider the matter, Nelson resigned. In light of the resignation, the Supreme Court did not review the removal recommendation and eventually entered an order imposing costs. The State Bar then brought a lawyer disciplinary proceeding against Nelson. However, the State Bar only has jurisdiction to seek sanctions against a former judge if "the misconduct was not the subject of a judicial discipline proceeding as to which there has been a final determination by the court.” The Supreme Court declined to review the removal recommendation, the justices erroneously believing that there had been no "final determination by the court" with respect to Nelson's judicial discipline proceeding. This conclusion was erroneous because, although the cost assessment was not formally denominated as a judgment, it was essentially a final judgment. The Court had to conclude “reluctantly” that the Bar could not pursue lawyer discipline against Nelson. Thus, Dean faced suspension and Nelson was free to practice law with no fear of sanction. The Court noted that a proportionality of sanction review is an “imperfect” process. Normally, the fact that one person is punished more severely than another involved in the same misconduct does not necessarily lead to a modification of a disciplinary sanction. Due to the unique circumstances here, Nelson's complete immunity from lawyer discipline inadvertently resulted from action by the Supreme Court and:
[W]e 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.
Dean’s suspension was made retroactive to the date that she assumed inactive status on September 27, 2004, thus allowing her to resume immediately the practice of law.
