                               SUPREME COURT OF ARIZONA


STATE BAR OF ARIZONA,                )          Arizona Supreme Court
                                     )          No. CV-20-0035-SA
             Petitioner,             )
                                     )          Office of the Presiding
         v.                          )          Disciplinary Judge
                                     )          No. PDJ2019-9008
THE HONORABLE WILLIAM O’NEIL, )
Presiding Disciplinary Judge,        )          State Bar Nos. 17-0624
                                     )                         18-0693
             Respondent Judge,       )
                                     )
JUAN M. MARTINEZ,                    )
Attorney No. 9510                    )          FILED: 07/13/2020
                                     )
             Real Party in Interest. )
                                     )

                                      DECISION ORDER

          The Court en banc 1 has considered the briefs and arguments of the parties; the
disciplinary court’s minute entries, transcripts, and orders; and the relevant rules and case law
in this matter. The Court rules as follows:

          In March 2019, the State Bar brought an ethical complaint against Juan Martinez, a
deputy county attorney with the Maricopa County Attorney’s Office. Among other claims, the
complaint alleged that Martinez had sexually harassed multiple female law clerks at the County
Attorney’s Office over several years. The State Bar alleged that this conduct violated Rule 41(g)
of the Rules of the Supreme Court of Arizona, which prohibits lawyers from engaging in
unprofessional conduct. Martinez moved for summary judgment, arguing that unprofessional
conduct under Rule 41(g) does not include conduct involving sexual harassment of legal staff
and subordinates. The presiding disciplinary judge agreed and granted Martinez’s motion.




1
 Justice William G. Montgomery is recused from this case. Pursuant to article 6, section 3 of the
Arizona Constitution, Justice John Pelander (Retired), was designated to sit in this matter.
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           We accept special action jurisdiction to determine whether the presiding disciplinary
judge’s order was arbitrary and capricious or an abuse of discretion. Ariz. R.P. Spec. Act. 3(c).
Special action review is proper because there has been no formal decision entered in compliance
with Arizona Rule of Supreme Court 58(k). Additionally, this case involves a purely legal issue
of statewide importance. See Piner v. Superior Court, 192 Ariz. 182, 185 ¶ 10 (1998).

           Rule 41(g) states that members of the Bar are required “[t]o avoid engaging in
unprofessional conduct.” This prohibition is not aspirational; rather, it is the duty of attorneys
to avoid engaging in such conduct. Matter of Martinez, 248 Ariz. 458, 463–64 ¶¶ 20–22 (2020); see
Ariz. R. Sup. Ct. 31, editor’s note, “The Oath of Admission to the Bar” (stating that an attorney
“will avoid engaging in unprofessional conduct”). Additionally, Comment 1 to Rule 41(g) does
not alter or limit the Rule’s broad proscription against such conduct. Rule 41(g), Ariz. R. Sup.
Ct. cmt. 1 (2016 amendment); see State v. Aguilar, 209 Ariz. 40, 48 ¶ 26 (2004) (stating that
“[a]lthough    a comment may        clarify    a rule's ambiguous   language,   a comment cannot
otherwise alter the clear text of a rule.”).

           The prohibition against “unprofessional conduct” in both Rule 41(g) and the Oath
includes substantial and repeated sexual harassment of staff or subordinates.            Cf. Rule
31(a)(2)(E), Ariz. R. Sup. Ct. (stating that unprofessional conduct includes “substantial or
repeated violations of the Oath of Admission to the Bar or the Lawyer’s Creed of Professionalism
of the State Bar of Arizona”). Our decision here is consistent with our prior cases stating that
sexual harassment by lawyers in other professional contexts is unethical. See, e.g., In re Abrams,
227 Ariz. 248 (2011) (sanctioning judge who sexually harassed attorneys appearing before him);
In re Walker, 200 Ariz. 155 (2001) (sanctioning attorney who sexually harassed client); In Matter
of Piatt, 191 Ariz. 24 (1997) (same).

           IT IS ORDERED reversing the decision of the presiding disciplinary judge.
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          IT IS FURTHER ORDERED remanding this matter to the presiding disciplinary
judge for further proceedings consistent with this order.

          DATED this 13th day of July, 2020.



                                                       /s/
                                            Chief Justice Robert M. Brutinel
