                          SUPREME COURT OF ARIZONA
                                   En Banc

In the Matter of a Non-Member of  )         Arizona Supreme Court
the State Bar of Arizona,         )         No. SB-06-0121-D
                                  )
CARLY VAN DOX,                    )         Disciplinary Commission
                                  )         No. 04-1846
                      Respondent. )
__________________________________)         O P I N I O N

                 Review from the Disciplinary Commission
                   No. 04-1846 (Filed April 12, 2006)

               VACATED IN PART; DISCIPLINE IMPOSED
________________________________________________________________

OSBORN MALEDON, P.A.                                                  Phoenix
     By   Mark I. Harrison
          Sara S. Greene

And

CLINT BOLICK                                                          Phoenix
     By   Clint Bolick
Attorneys for Carly Van Dox

STATE BAR OF ARIZONA                                     Phoenix
     By   Robert B. Van Wyck, Chief Bar Counsel
          Denise K. Tomaiko, Staff Bar Counsel
Attorneys for State Bar of Arizona
________________________________________________________________

B E R C H, Vice Chief Justice

¶1          We granted review in this disciplinary case to clarify

the   standard     the    Disciplinary     Commission    must    apply     when

reviewing    a    hearing     officer’s    findings     of   fact    and   the

definition of “knowledge,” as that term is used in the American

Bar   Association        Standards   for   Imposing     Lawyer      Sanctions.
Because the Commission failed to properly defer to the Hearing

Officer’s     factual       findings       and     misinterpreted          the     term

“knowledge” in determining the appropriate sanction, we decline

to impose the Commission’s recommended sanction of censure and

instead impose a sanction of informal reprimand.

                    I.    FACTS AND PROCEDURAL BACKGROUND

¶2           Respondent Carly Van Dox is a lawyer who has been

admitted to practice law in both Virginia and Florida.                           She is

also   certified     in    Florida    as   a     mediator.     Since       moving    to

Arizona in 1997, she has worked as a licensed realtor, but has

not applied for admission to the Arizona Bar.

¶3           In 2004, a co-worker asked Van Dox to represent the

sellers in a real estate transaction in a private mediation.

Van Dox explained to the sellers that she was not licensed to

practice law in Arizona and so could not represent them if the

dispute did not settle during the mediation.                        Following the

disclosure, the sellers signed a retainer form that Van Dox had

used in her Florida law practice and agreed to pay her $1,000

for her services in the mediation.

¶4           During the mediation, the buyers’ attorney discovered

that Van Dox was not licensed to practice law in Arizona and

informed     the    mediator    of     this      fact.       When   the     mediator

questioned    Van    Dox,    she     readily      acknowledged      that    she     was

licensed in Florida, but not Arizona.


                                        - 2 -
¶5           The mediator then called an Arizona attorney who was

versed in unauthorized practice of law issues.                       After talking to

that attorney and conducting independent research, the mediator

concluded     that     Van      Dox    could     ethically         proceed   with    the

mediation.       The buyers’ attorney also agreed to proceed.                        The

mediation ended without resolving the dispute.

¶6           Van     Dox     believed    that        her    participation       in   the

mediation was proper because the mediation was not court ordered

and, in Florida, a certified mediator need not be an attorney.

After the mediation, she discussed the issue with a retired

superior court commissioner who advised Van Dox that she could

rely on the mediator’s determination.

¶7           Although the mediation did not resolve the dispute,

the    sellers     were    satisfied     with    Van       Dox’s   work   and   neither

requested return of the $1,000 fee nor filed a complaint against

her.     The buyers, however, filed a complaint with the Arizona

State Bar.         After Van Dox failed to respond to two inquiries

from the State Bar regarding the matter, the Bar filed a formal

complaint     charging        her     with     engaging      in     the   unauthorized

practice of law, in violation of Arizona Supreme Court Rule 31

and Ethical Rule (“ER”) 5.5 of the Arizona Rules of Professional

Conduct;     conduct       involving         dishonesty,       fraud,     deceit,     or

misrepresentation,         in    violation       of    ER     8.4(c);     and   conduct

prejudicial to the administration of justice, in violation of ER


                                             - 3 -
8.4(d).   She was also charged with violating Supreme Court Rule

53 by failing to cooperate with the Bar and respond promptly to

the Bar’s inquiries.       See Ariz. R. Sup. Ct. 53(d) (refusal to

cooperate); id. 53(f) (failure to respond promptly).

¶8        A hearing on the charges was held before a State Bar

Hearing Officer who concluded that Van Dox violated ER 5.5 and

Supreme Court Rule 31 by engaging in the unauthorized practice

of law, and Supreme Court Rule 53(f) by failing to promptly

respond to the Bar’s inquiries.1        He recommended diversion as a

sanction because he found that Van Dox’s actions were negligent,

caused little or no injury, and were not motivated by dishonesty

or selfishness.        The State Bar appealed to the Disciplinary

Commission,    which   reversed    several   of   the   Hearing   Officer’s

findings and conclusions.        First, the Commission determined that

Van Dox had knowingly rather than negligently engaged in the

unauthorized practice of law.        Second, the Commission found that

Van Dox’s conduct was motivated by dishonesty or selfishness

because she accepted compensation for her work.              Finally, the

Commission found that her conduct caused actual or potential

injury.       The   Commission    recommended     censure,   rather    than


1
     Both the Hearing Officer’s Report, In re Van Dox, No. 04-
1846 (Nov. 2, 2005), and the Disciplinary Commission’s Report,
In re Van Dox, No. 04-1846 (Apr. 12, 2006), are available at
http://www.supreme.state.az.us/dc/matrix.htm.




                                    - 4 -
diversion, as the appropriate sanction.

¶9          Van       Dox   petitioned     this      Court      for    review      of    the

Commission’s recommended sanction, which we granted.2                              We have

jurisdiction pursuant to Article 6, Section 5(3) of the Arizona

Constitution and Arizona Supreme Court Rule 59(a).

                                   II.    DISCUSSION

¶10         Attorney discipline is designed to protect the public,

the legal profession, and the legal system and to deter other

attorneys      from    engaging     in    unprofessional           conduct.         In    re

Scholl,   200     Ariz.     222,   227,    ¶   29,    25    P.3d      710,   715    (2001)

(citing In re Neville, 147 Ariz. 106, 116, 708 P.2d 1297, 1307

(1985), and In re Swartz, 141 Ariz. 266, 277, 686 P.2d 1236,

1247 (1984)).         Attorney discipline is not intended to punish the

offending attorney, although the sanctions imposed may have that

incidental effect.          Id. at 224, ¶ 8, 25 P.3d at 712 (citing In

re Pappas, 159 Ariz. 516, 526, 768 P.2d 1161, 1171 (1988)).

A.    ABA Standards

¶11         Van Dox does not challenge the conclusion that she

engaged   in    the     unauthorized       practice        of   law    and    failed     to

respond to State Bar inquiries.                Thus, the only issue before us


2
     We originally also granted review on the issue of this
Court’s jurisdiction over a lawyer who is not a member of the
Arizona Bar and engages in the unauthorized practice of law. We
now conclude that review of that question was improvidently
granted and therefore vacate review on that issue.


                                          - 5 -
is the appropriate sanction.                    In determining the sanctions for

ethical      violations,           we     are     guided    by    the    American      Bar

Association         Standards       for    Imposing     Lawyer    Discipline      (1992)

(“ABA Standards”).              In re Peasley, 208 Ariz. 27, 33, ¶ 23, 90

P.3d     764,       770    (2004).        We     consider   the   following      factors

relevant in determining appropriate discipline:                           (1) the duty

violated, (2) the lawyer’s mental state, (3) the potential or

actual      injury        caused   by     the    lawyer’s   conduct,      and   (4)    the

existence of aggravating or mitigating factors.                          Standard 3.0;

Peasley, 208 Ariz. at 32, ¶ 19, 90 P.3d at 769.                         We address each

factor in turn.

       1.       Duty violated

¶12             The Hearing Officer and the Commission both found that

Van    Dox      engaged      in    the     unauthorized      practice     of    law,    in

violation of ER 5.5 and Supreme Court Rule 31, and that she

failed to respond promptly to State Bar inquiries, in violation

of Supreme Court Rule 53(f).                     Standard 7.0 provides that such

conduct violates a duty owed to the profession, although it may

violate duties owed to clients, the public, or the legal system

as well.

       2.       Mental state

¶13             A    lawyer’s      mental       state   affects    the    sanction     for

ethical violations.                Intentional or knowing conduct threatens

more harm to the public, the legal system, and the profession


                                                - 6 -
than does negligent conduct, and is accordingly sanctioned more

severely.        See ABA Standards at 9-10.                   Compare Peasley, 208

Ariz.    at   41-42,    ¶   65,    90    P.3d      at    778-79    (holding    that    any

sanction less than disbarment would be inappropriate based on

respondent’s intentional ethical violations), with In re Bemis,

189 Ariz. 119, 122-23, 938 P.2d 1120, 1123-24 (1997) (censuring

respondent for negligent professional misconduct); compare also

Standard 7.2 (stating that suspension is the presumed sanction

for    knowing    violations      of     ethical        rules),    with    Standard     7.4

(stating      that     an   admonition        is    the     presumed       sanction     for

isolated instance of negligent violation of ethical rules).                            The

Hearing Officer found that Van Dox’s conduct in engaging in the

unauthorized         practice     of    law     was      merely     negligent.          The

Commission       disagreed,     concluding         that    Van     Dox’s    conduct     was

knowing rather than negligent.                In so concluding, the Commission

relied on two facts:            Van Dox had the sellers sign the standard

retainer agreement she had used in her Florida law practice,

which contained the designation “Law Offices of Carly R. Van

Dox, P.A.,” and she signed the “Mediation Agreement Rules and

Procedures” form provided by the mediator as “Carly Van Dox,

Atty.”        These    acts,    the     Commission        found,    showed    Van     Dox’s

awareness that she was engaging in the unauthorized practice of

law.

¶14           State of mind is a fact question.                     In re Clark, 207


                                           - 7 -
Ariz. 414, 417, ¶ 14, 87 P.3d 827, 830 (2004).                                The Hearing

Officer,    after    observing       Van     Dox      and    hearing    her    testimony,

found that she acted negligently.                     In disciplinary proceedings,

the   Commission      must       defer     to     a    hearing      officer’s     factual

findings and “may not reject the hearing officer’s findings of

fact related to discipline unless it determines that the factual

findings are clearly erroneous.”                   Id. at 418, ¶ 18, 87 P.3d at

831; see Ariz. R. Sup. Ct. 58(b).

¶15            The   “clear        error”       standard          requires     that        the

Commission give “great deference” to a hearing officer’s factual

findings.       See Scholl, 200 Ariz. at 226, ¶ 25, 25 P.3d at 714.

This means that, in resolving factual questions, the Commission

may not simply substitute its judgment for that of a hearing

officer.       See United Cal. Bank v. Prudential Ins. Co., 140 Ariz.

238, 286, 681 P.2d 390, 438 (App. 1983) (reviewing court “will

not substitute its judgment as to credibility of witnesses or

weight    of    evidence     for    that     of       the   [factfinder]”).           To   be

clearly     erroneous,       a     finding      must        be    unsupported     by       any

reasonable evidence.             Moreno v. Jones, 213 Ariz. 94, 98, ¶ 20,

139 P.3d 612, 616 (2006) (citing O’Hern v. Bowling, 109 Ariz.

90, 92-93, 505 P.2d 550, 552-53 (1973)).3                        Deference to a hearing


3
     One court explained that, “[t]o be clearly erroneous, a
decision must [be] more than just maybe or probably wrong; it
must . . . strike [the reviewing body] as wrong with the force


                                            - 8 -
officer’s factual findings is appropriate because, having had

the opportunity to observe and hear the witnesses, the hearing

officer is in a superior position to assess them and judge their

credibility.      See In re Piatt, 191 Ariz. 24, 27, 951 P.2d 889,

892 (1997).

¶16        Like      the    Commission,   we     also   review   a   hearing

officer’s factual findings for clear error.             Ariz. R. Sup. Ct.

59(b); In re Alcorn, 202 Ariz. 62, 64 n.4, 41 P.3d 600, 602 n.4

(2002).   We must therefore determine whether the Hearing Officer

clearly erred in finding that Van Dox negligently engaged in the

unauthorized practice of law.

¶17        “Negligence” occurs when a lawyer fails “to heed a

substantial risk that circumstances exist or that a result will

follow, which failure is a deviation from the standard of care

that a reasonable lawyer would exercise in the situation.”                 ABA

Standards at 12.           The evidence adduced at the hearing showed

that Van Dox believed that the private mediation in which she

participated did not involve the unauthorized practice of law

because it was not court ordered.            Moreover, Florida, the state

from   which   she    had    come,   certifies    mediators   who    are   not



of a five-week-old, unrefrigerated dead fish.”     Parts & Elec.
Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th
Cir. 1988). Although the Arizona courts’ explanations are less
vivid, they adequately express the correct legal standard.




                                     - 9 -
attorneys.       Thus, she reasoned, non-lawyers may participate in

private mediations.             She advised her clients at their first

meeting that she was not licensed as an attorney in Arizona.

She further advised them that if the matter progressed beyond

mediation, she would not be able to assist them.                   She signed in

at the mediation as “Carly Van Dox, Atty.” because she is in

fact an attorney.

¶18          Although Van Dox erred in thinking that her actions

did not constitute the unauthorized practice of law in Arizona,

the Hearing Officer found that her belief was honest and that

she   negligently       practiced      law    without    authorization     when   she

agreed     to    participate      in    the     mediation.       Her     belief   was

supported by the mediator’s consultation with an attorney.                        The

mediator concluded that the mediation could ethically proceed

with Van Dox’s participation, a result confirmed to Van Dox by a

former superior court commissioner.                Although these sources were

consulted       after    Van     Dox    began     her    participation      in    the

mediation, they demonstrate that her confusion on the issue was

not unreasonable.

¶19          These      facts    amply       support    the    Hearing     Officer’s

finding that Van Dox’s conduct in engaging in the unauthorized

practice    of    law    was    not    knowing,    but    negligent.        See   id.

Because     substantial        evidence      supports    the   Hearing     Officer’s

finding, we defer to it.                See Merryweather v. Pendleton, 91


                                          - 10 -
Ariz. 334, 338, 372 P.2d 335, 338 (1962).

¶20          In support of the Commission’s finding of a “knowing”

violation, the State Bar argues that all that is required to

constitute      a    “knowing”       violation        is    that       the    respondent    was

aware   that        she    performed     actions,          and    the       actions    in   fact

constituted the unauthorized practice of law; she need not have

been    aware       when     she    acted      that    she       was        engaging   in   the

unauthorized practice of law.                   Therefore, the Bar argues, Van

Dox’s conduct was knowing rather than negligent because she knew

that she provided a retainer agreement from her Florida practice

and that she signed in as an attorney representing the sellers

at the mediation.

¶21          The      applicable       definition          of    “knowledge,”          however,

refutes    the        Bar’s        argument.          The        ABA     Standards       define

“knowledge”         as     “the    conscious     awareness             of    the   nature    or

attendant circumstances of the conduct.”                           ABA Standards at 12.

This    definition         clarifies     that     merely         knowing        one    performs

particular actions is not the same as consciously intending by

those actions to engage in unethical conduct.                                 The actor must

also know the nature and circumstances of those actions; that

is, a respondent knowingly engages in the unauthorized practice

of law only if she is aware that her conduct constitutes the

unauthorized practice of law.                  See In re Taylor, 180 Ariz. 290,

292, 883 P.2d 1046, 1048 (1994)                  (concluding that respondent who


                                            - 11 -
admittedly “knew that he should not be practicing [law] during

[a period of suspension]” knowingly engaged in the unauthorized

practice of law); see also In re Tocco, 194 Ariz. 453, 457,

¶ 11, 984 P.2d 539, 543 (1999) (holding that “a mere showing

that the attorney reasonably should have known her conduct was

in violation of the rules, without more, is insufficient” to

establish a knowing ethical violation); In re Levine, 174 Ariz.

146,    171,    847       P.2d    1093,          1118    (1993)     (indicating          that    the

knowledge       required          for        setting          a     higher        sanction       for

professional misconduct is “knowledge that [respondent] may have

been violating an ethical rule”).

¶22            In this case, the Hearing Officer found that Van Dox

did    not   know        that    her       actions       constituted        the    unauthorized

practice of law.                He concluded that an honest but erroneous

belief that one’s actions do not constitute the unauthorized

practice of law does not constitute a knowing violation.

¶23            We     agree        with           the        Hearing      Officer’s          legal

determination.               Adopting            the     State      Bar’s     definition          of

“knowledge”         would       have       the    effect      of    rendering       any    act    of

unauthorized         practice          a    “knowing”        violation       of    the    ethical

rules, unless the respondent acted while asleep or unconscious.

Such an interpretation would negate mental state as a factor in

determining suitable sanctions for unauthorized practice of law

violations,         in      contravention               of   this      Court’s      established


                                                  - 12 -
practice.     See Peasley, 208 Ariz. at 32, ¶ 19, 90 P.3d at 769;

Tocco, 194 Ariz. at 457 n.3, 984 P.2d at 543 n.3.

¶24          Applying      the    proper       definition        of    “knowledge”        and

deferring to the Hearing Officer’s findings of fact, we conclude

that Van Dox’s conduct was negligent.

       3.    Actual or potential injury

¶25          The Court also considers the harm caused by ethical

violations in determining sanctions.                 The Hearing Officer found

that   Van    Dox’s   conduct         caused    little      or    no     injury.          The

Commission disagreed.            Whether a lawyer’s actions caused harm is

a question of fact.         See Reed v. Mitchell & Timbanard, P.C., 183

Ariz. 313, 318, 903 P.2d 621, 626 (App. 1995).                        Thus, we and the

Commission must defer to the Hearing Officer’s finding that Van

Dox’s actions caused little or no injury unless that finding is

clearly erroneous.

¶26          The   ABA     Standards        define   “injury”          as     “harm      to   a

client, the public, the legal system, or the profession which

results from a lawyer’s misconduct.”                 ABA Standards at 12.                 “[A]

reference     to   ‘injury’       alone      indicates      any       level    of     injury

greater     than   ‘little       or   no’   injury.”        Id.        The     comment        to

Standard     7.0   notes     that      violations      of    duties         owed    to    the

profession, such as are present in this case, are “generally

. . . less likely to cause injury to a client, the public, or

the administration of justice.”


                                            - 13 -
¶27           The    Hearing        Officer    found      that    the     sellers       were

satisfied with Van Dox’s representation and concluded that they

suffered      little      or   no     injury     from      it,    a     conclusion       the

Commission does not challenge.                The Commission decided, however,

that the Hearing Officer failed to consider any possible injury

to the public, the legal system, or the profession.                           We do not

agree.     After considering the harm to the sellers, the Hearing

Officer addressed the lack of injury to the buyers and concluded

that   they    too     suffered      little    or    no    injury     from    Van    Dox’s

conduct.4      The Hearing Officer also noted that all involved,

other than the buyers, agreed that the mediation would not have

ended differently if Van Dox had been an Arizona attorney.                              The

Hearing Officer indirectly touched upon the lack of injury to

the    public,      the   legal      system,     and      the    profession      when     he

concluded     that     “neither       the     public      nor    other    lawyers       will

benefit from whatever lessons might be gleaned from Respondent’s

conduct in representing the [sellers] in a private mediation.”

¶28           On    review     of    the    evidence,       we    conclude       that    the

Hearing Officer’s finding that Van Dox’s conduct caused little

or no injury was supported by substantial evidence and was not

clearly     erroneous.         The     Commission         therefore      erred    in     not


4
     Six months after buying the house that was the subject of
the mediation, the buyers sold it at a substantial profit.




                                            - 14 -
deferring to the Hearing Officer’s finding.

¶29         Before this Court, the State Bar raises the additional

arguments that Van Dox’s conduct could have injured the sellers

by    depriving    them      of   the    benefit       of   the    attorney-client

privilege and a potential legal malpractice action had Van Dox’s

representation not been adequate.                    Because the Bar failed to

raise these claims below, we decline to address them.                        See Van

Loan v. Van Loan, 116 Ariz. 272, 274, 569 P.2d 214, 216 (1977)

(declining to address issues raised for first time on appeal).

      4.    Presumptive sanction

¶30         An informal reprimand “is generally [the] appropriate

[sanction] when a lawyer engages in an isolated instance of

negligence that is a violation of a duty owed as a professional,

and causes little or no actual or potential injury to a client,

the   public,     or   the   legal      system.”        Standard    7.4     (defining

admonition,     the    equivalent       of   Arizona’s      informal   reprimand).

Having     concluded    that      Van    Dox    negligently       engaged    in   the

unauthorized practice of law, a violation of a duty owed as a

professional,     and   deferring       to     the   Hearing   Officer’s      finding

that her act constituted an isolated instance of misconduct,5 the


5
     On this point, the Hearing Officer compared Van Dox’s
conduct to that of the respondent in In re Winiarski, No. 98-
2052 (Disciplinary Comm’n May 15, 2000), discussed infra ¶¶ 40-
41, whose conduct in twice appearing before an administrative
tribunal was deemed an “isolated instance.”


                                         - 15 -
presumptive sanction is an informal reprimand.

¶31         The presence of aggravating or mitigating factors may,

however, overcome the presumption.                  See Peasley, 208 Ariz. at

36, ¶ 36, 90 P.3d at 773.           We examine those factors next.

       5.   Aggravating and mitigating factors

¶32         Standards 9.2 and 9.3 enumerate potential aggravating

and    mitigating    factors    to    be     considered          in   determining         the

appropriate sanction for professional misconduct.                            The Hearing

Officer found no aggravating factors, but found the existence of

five    mitigating     factors:            (1)   the       absence       of        a    prior

disciplinary      record,   Standard        9.32(a);       (2)    the    absence         of   a

dishonest or selfish motive, Standard 9.32(b); (3) a cooperative

attitude toward the proceedings following her initial failure to

respond,    Standard   9.32(e);       (4)    good     character         or   reputation,

Standard    9.32(g);    and    (5)     exhibition          of     remorse,         Standard

9.32(m).    The Commission agreed that four of the five mitigating

factors were established, but found the evidence insufficient to

support the mitigating factor of “absence of a dishonest or

selfish motive.”       The Commission instead concluded that Van Dox

had a “dishonest or selfish motive” because she accepted a fee

of $1,000 for her services.

¶33         The    presence    or    absence     of    a    dishonest         or       selfish

motive is a fact question.            See Clark, 207 Ariz. at 418, ¶ 18,

87 P.3d at 831.      The Commission may not make additional findings


                                       - 16 -
of fact in a disciplinary proceeding, Tocco, 194 Ariz. at 456,

¶ 9, 984 P.2d at 542, or deviate from those found by a hearing

officer unless they are clearly erroneous, Ariz. R. Sup. Ct.

58(b).         We     therefore     must     determine        whether    the    Hearing

Officer’s finding that Van Dox lacked a dishonest or selfish

motive was clearly erroneous.

¶34            The Commission appears to have based its finding that

Van Dox had a dishonest or selfish motive solely on the fact

that she accepted payment for her services.                         Standing alone,

however, the receipt of a fee does not mandate a finding of a

dishonest or selfish motive.                See In re Castro, 164 Ariz. 428,

434, 793 P.2d 1095, 1101 (1990).

¶35            The    cases    in   which    we   have   found      a    dishonest     or

selfish    motive       have   involved      intentional       or   knowing     ethical

violations.          In In re Shannon, for example, to protect his own

interests, an attorney represented a client and another, despite

an obvious conflict in the parties’ interests.                          179 Ariz. 52,

69, 876 P.2d 548, 565 (1994); see also In re Spear, 160 Ariz.

545, 555-56, 774 P.2d 1335, 1345-46 (1989) (finding a dishonest

or selfish motive because respondent “intentional[ly] abuse[d]

. . .    the    lawyer-client       relationship”        by    inducing       client   to

purchase        property       to    lawyer’s        advantage          and    client’s

disadvantage).          In In re Arrick, we found that the respondent

possessed a dishonest or selfish motive, in part, because he


                                            - 17 -
made “deliberate misrepresentations . . . designed to cover his

negligence.”     180 Ariz. 136, 143, 882 P.2d 943, 950 (1994); see

also In re Hansen, 179 Ariz. 229, 232, 877 P.2d 802, 805 (1994)

(finding a dishonest or selfish motive because respondent “lied

to the court to cover up her error”).                We have also found a

dishonest or selfish motive in cases involving conversion of

client funds for an attorney’s own use and knowingly filing

frivolous lawsuits.       See, e.g., Levine, 174 Ariz. at 171, 847

P.2d at 1118 (filing frivolous lawsuits); In re Jones, 169 Ariz.

19, 19, 21, 816 P.2d 916, 916, 918 (1991) (converting client

funds); In re Henry, 168 Ariz. 141, 144, 811 P.2d 1078, 1081

(1991) (same).     In no case have we found a dishonest or selfish

motive solely from the receipt of reasonable compensation.

¶36          As we have already concluded, Van Dox’s conduct was

negligent rather than intentional or knowing.              In the absence of

other facts to indicate a dishonest or selfish motive on Van

Dox’s part, we cannot conclude that the Hearing Officer clearly

erred in finding that Van Dox lacked such a motive.

¶37          We agree with the Hearing Officer’s finding that five

mitigating     factors    are   present:       (1)       the    absence     of    a

disciplinary record, (2) the absence of a dishonest or selfish

motive, (3) Van Dox’s ultimate cooperation in the proceedings,

(4)   her   character    or   reputation,    and   (5)    her    remorse.        We

further agree that no aggravating factors were proved.


                                    - 18 -
¶38          We do agree with the Commission, however, that the

Hearing Officer improperly considered the potential effects of

discipline on Van Dox’s livelihood and reciprocal discipline in

Florida and Virginia in determining the sanction.                          The effects

of sanctions on an attorney’s practice and livelihood are not

mitigating     factors      that    may        be       considered   in     determining

sanctions.     Shannon, 179 Ariz. at 71, 876 P.2d at 567.

B.      Proportionality

¶39          When sanctioning lawyers, in addition to the guidance

provided by the ABA Standards, “we look to other, similar cases

in determining whether the sanction imposed is proportionate to

the misconduct charged.”           Alcorn, 202 Ariz. at 76, ¶ 49, 41 P.3d

at    614.     In    this   case,    the       Hearing         Officer    found   In   re

Winiarski, No. 98-2052 (Disciplinary Comm’n May 15, 2000), to be

most similar to this case.

¶40          Winiarski, who was licensed in Maine but not Arizona,

twice     appeared    on    behalf        of        a    construction      company     at

administrative hearings.            Id. at 2-3 (Hr’g Officer’s Rpt. Dec.

2, 1999).     Winiarski had been told before the hearings that he

did not need to be an attorney to participate.                              Id.   at 3.

Winiarksi failed to inform the tribunal that he was not licensed

in Arizona and signed in as an attorney at the second hearing.

Id.     At both hearings, the tribunal believed that Winiarski was

licensed to practice law in Arizona.                     Id.   Winiarski was charged


                                          - 19 -
with    the      unauthorized       practice    of     law.        Id.   at    1.    The

Commission concluded that Winiarski’s conduct was negligent and

caused no actual or potential injury and adopted the Hearing

Officer’s        finding     that    the   conduct     constituted        an   isolated

instance of misconduct.              Id. at 2-3 (Disciplinary Comm’n May 15,

2000).      Four mitigating and no aggravating factors were found.

Id.    at   2.      Applying        Standard    7.4,    a     sanction    of   informal

reprimand was imposed.              Id. at 3-4.

¶41           Here, as in Winiarski, a non-member of the Arizona bar

negligently participated in a proceeding believing that she did

not need to be an attorney to participate.                      Little or no actual

or potential harm resulted from the conduct, which constituted

an isolated instance of the unauthorized practice of law.

¶42           The Commission distinguished Winiarski on the grounds

that Van Dox, unlike Winiarski, failed to respond promptly to

Bar    inquiries       in    addition      to   engaging      in   the    unauthorized

practice of law.            Such a failure is serious.             See In re Espino,

168 Ariz. 139, 141, 811 P.2d 1076, 1078 (1991).                          We agree with

the Hearing Officer’s conclusion, however, that “[t]he State Bar

has    failed     to   prove    by     clear    and    convincing        evidence   that

Respondent’s failure to respond to the State Bar’s letter[s] was




                                           - 20 -
in bad faith or meant to obstruct the disciplinary process.”6

Consequently, we find that this factor does not justify a more

severe   sanction.     Cf.   Standard   9.22(e)    (listing   “bad    faith

obstruction of the disciplinary proceeding” as an aggravating

factor).     Moreover, an additional mitigating factor was found to

exist in Van Dox’s case that did not exist in Winiarski’s case.

The Commission’s recommended sanction of censure of Van Dox is

therefore not proportionate to her misconduct.

C.    Appropriate Sanction

¶43          Determining the appropriate sanction for an ethical

violation is a question of law that we review de novo.               See In

re Walker, 200 Ariz. 155, 160, ¶ 20, 24 P.3d 602, 607 (2001).

Although we consider the recommendation of the Hearing Officer

and   the    Commission,   “the   responsibility   to   decide   upon   the

appropriate sanction in a disciplinary proceeding is ultimately

ours.”      Peasley, 208 Ariz. at 33, ¶ 23, 90 P.3d at 770 (quoting


6
     Although failure to respond need not be done in bad faith
or to obstruct the disciplinary process to constitute an ethical
violation, see Ariz. R. Sup. Ct. 53(f), a lawyer’s reason for
the failure may bear on the appropriate sanction for the
violation. Van Dox testified that her failure to respond to the
Bar’s inquiries was initially attributable to diminished memory,
lapses in concentration, and inattention to detail resulting
from a stroke she suffered in 2002, and later to her belief that
the complaint would be dropped.    The Hearing Officer found Van
Dox a “compelling witness” and found her explanation “[r]elevant
to her failure to respond.”     He thus gave less weight to her
failure to respond.   Since receiving the formal complaint from
the Bar, Van Dox has fully cooperated with all proceedings.


                                    - 21 -
Walker, 200 Ariz. at 160, ¶ 20, 24 P.3d at 607).                          Considering

the ABA Standards and our proportionality analysis, we conclude

that Standard 7.4 applies here and impose an informal reprimand

for Van Dox’s ethical violations.

¶44        Van      Dox   urges      this     Court    to    find    diversion      an

appropriate alternative to discipline in this case.                        The State

Bar counters that diversion is not available to a non-member of

the Arizona Bar.          See Ariz. R. Sup. Ct. 46(f)(15) (defining

“non-member”).       We do not reach the question whether diversion

is available to non-members because we hold that, in any event,

diversion is not appropriate here.

¶45        The State Bar may recommend diversion in certain cases

in    accordance     with      the    State     Bar     of    Arizona       Diversion

Guidelines.      Ariz. R. Sup. Ct. 55(b).             The Diversion Guidelines

provide:    “The purpose of the Diversion Program is to protect

the   public   by    improving       the    professional     competency       of   and

providing educational, remedial and rehabilitative programs to

members of the State Bar of Arizona . . . .”                              Guidelines/

Regulations for Implementation of the Diversion Program at 1

(2004),    available      at    http://www.myazbar.org/LawyerRegulation/

DiversionGuidelines2004.pdf.               A sub-goal is to prevent similar

future violations by the respondent.                  Id.    The Guidelines note

that diversion is not available in cases that “present little

hope that diversion will achieve program goals.”                    Id.


                                           - 22 -
¶46        Given the purpose of the diversion program to educate

attorneys, improve competency, and prevent future violations,

even if diversion were theoretically available to a non-member,

it is not appropriate in this case.              It makes little sense to

allow diversion for a non-member who has engaged in a single

instance of unauthorized practice of law and is not likely to

re-offend.      Indeed,     the     Hearing    Officer    acknowledged      that

“Respondent’s violations were the result of negligence relating

to a legal issue about which Respondent is now knowledgeable.

There is no risk Respondent will make the same mistake twice.”

¶47        Moreover, this case involves not only the unauthorized

practice of law, but also failure to respond to two inquiries

from the State Bar regarding the matter.                  Although Van Dox’s

failure to respond was not intended to hinder the disciplinary

process, it nonetheless constitutes a violation of this Court’s

Rules and persuades us that discipline is appropriate in this

case.     We   thus   conclude    that   an    informal    reprimand   is    the

appropriate sanction.

                             III.    CONCLUSION

¶48        For the foregoing reasons, we vacate the Commission’s

factual   findings    and   recommendation      related     to   sanction    and

impose on Respondent Van Dox a sanction of informal reprimand




                                      - 23 -
for her violations of ER 5.5 and Arizona Supreme Court Rules 31

and 53(f).



                         _______________________________________
                         Rebecca White Berch, Vice Chief Justice


CONCURRING:


_______________________________________
Ruth V. McGregor, Chief Justice


_______________________________________
Michael D. Ryan, Justice


_______________________________________
Andrew D. Hurwitz, Justice


_______________________________________
Lawrence F. Winthrop, Judge*



*Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Lawrence F. Winthrop, Judge of the Arizona Court
of Appeals, Division One, was designated to sit in this matter.




                              - 24 -
