                                             IN THE
       SUPREME COURT OF THE STATE OF ARIZONA
                               __________________________________________



                             IN THE MATTER OF A MEMBER
                            OF THE STATE BAR OF ARIZONA


                                  JUAN M. MARTINEZ,
                                  ATTORNEY N O. 9510
                                      Respondent.
                               __________________________________________


                                  No. SB-17-0081-AP
                                  Filed April 30, 2020
                               __________________________________________



          Appeal of Hearing Panel Opinion and Disciplinary Order from the
                     Office of the Presiding Disciplinary Judge
                 The Honorable William J. O’Neil, Presiding Judge
                                 No. PDJ20179044
                    AFFIRMED IN PART, VACATED IN PART
                             REPRIMAND IMPOSED

COUNSEL:

J. Scott Rhodes, Kerry Hodges, Jennings, Strouss & Salmon P.L.C., Phoenix, Attorneys for
Juan M. Martinez

Craig D. Henley, Senior Bar Counsel, State Bar of Arizona, Phoenix, Attorney for State
Bar of Arizona

Mikel Steinfeld, Phoenix; and James J. Belanger, J. Belanger Law PLLC, Tempe, Attorneys
for Amicus Curiae Arizona Attorneys for Criminal Justice

Jared G. Keenan, American Civil Liberties Union Foundation of Arizona, Phoenix,
Attorney for Amici Curiae American Civil Liberties Union and American Civil Liberties
Union of Arizona

Timothy J. Agan, Lindsay Herf, Arizona Justice Project, Phoenix, Attorneys for Amicus
Curiae Arizona Justice Project
                               __________________________________________
                               IN RE JUAN M. MARTINEZ
                                   Opinion of the Court

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF JUSTICE
BRUTINEL, VICE CHIEF JUSTICE TIMMER, JUSTICES BOLICK, GOULD, and BEENE
joined. *
                                 __________________________________________



JUSTICE LOPEZ, Opinion of the Court:

¶1             We consider whether prosecutor Juan M. Martinez’s conduct, characterized
in five Arizona appellate court decisions as “prosecutorial misconduct” that did not rise
to the level requiring reversal of criminal convictions, violates attorney ethical rules. We
affirm the disciplinary hearing panel’s (“the panel”) determination that Martinez did not
violate Supreme Court Rule 41(g) and Arizona Rule of Professional Conduct (“ER”)
4.4(a). We conclude, however, that Martinez violated ER 8.4(d) and we impose the State
Bar’s (“the Bar”) requested sanction of reprimand.

                                      BACKGROUND

¶2           Martinez was licensed to practice law in Arizona in 1984. He has served as
a prosecutor at the Maricopa County Attorney’s Office since 1988. On September 28,
2016, following the Bar’s investigation of Martinez’s conduct as a prosecutor in five
capital murder prosecutions spanning nearly ten years, the Attorney Discipline Probable
Cause Committee (“the Committee”) found that probable cause existed that Martinez
violated Rule 41(g) and ERs 4.4(a) and 8.4(d). The Committee issued an Order of
Admonition and Probation requiring Martinez to complete nine hours of continuing legal
education and professionalism courses and to pay costs. Martinez objected to the order
and demanded formal proceedings.

¶3            The Bar filed a formal disciplinary complaint against Martinez and the
matter proceeded to a hearing. At the September 12, 2017, hearing, the Bar called four
witnesses, including expert Paul Charlton, and Martinez called one witness, expert
Thomas Zlaket. Martinez did not testify. Following the hearing and a brief recess, the
panel dismissed the complaint. On November 27, 2017, the panel issued a decision and
order dismissing the complaint with prejudice. The panel held, in sum, that the Bar had
failed to prove by clear and convincing evidence that Martinez violated any ethical rule.




*   Justice William G. Montgomery has recused himself from this case.

                                                    2
                                IN RE JUAN M. MARTINEZ
                                    Opinion of the Court

¶4            The Bar appealed the panel’s order. On January 18, 2018, this Court
remanded the case to the panel to make supplemental findings of fact and conclusions of
law. On September 21, 2018, the panel made these findings, again holding that the Bar
failed to prove Martinez violated any ethical rule.

¶5            We have jurisdiction pursuant to Article 3 and Article 6, Sections 1, 5(3),
and 5(4) of the Arizona Constitution.

                                       DISCUSSION

              I.     Standard of Review

¶6            The Bar must prove allegations of misconduct by clear and convincing
evidence, Ariz. R. Sup. Ct. 58(j)(3), which are proven by showing it was “highly probable”
that the allegations are true. In re Alexander, 232 Ariz. 1, 5 ¶ 11 (2013). We review the
panel’s conclusions of law de novo and its findings of fact by a clearly erroneous
standard. Id.; Ariz. R. Sup. Ct. 59(j). “Findings are clearly erroneous if they are not
supported by reasonable evidence.” In re Alexander, 232 Ariz. at 5 ¶ 11.

              II.    Special Duties of a Prosecutor

¶7             The panel began its supplemental findings and conclusions by stating,
“This is a case involving a prosecutor whose job it is to seek executions and a prosecution
of him that was not well executed.” This statement mischaracterizes the role of a
prosecutor. We could not disagree more strongly with the first part of this statement.
The role of a prosecutor is not to seek convictions and sentences but rather to seek justice:

       [T]he prosecutor is not the representative of an ordinary litigant; he is a
       representative of a government whose obligation to govern fairly is as
       important as its obligation to govern at all. The prosecutor’s interest in a
       criminal prosecution “is not that it shall win a case, but that justice shall be
       done.” Thus, “while he may strike hard blows, he is not at liberty to strike
       foul ones.” It is the prosecutor’s duty to refrain from improper methods
       calculated to produce a wrongful conviction just as it is his duty to use all
       proper methods to bring about a just conviction.

Pool v. Superior Court, 139 Ariz. 98, 103 (1984) (quoting Berger v. United States, 295 U.S. 78,
88 (1935)).



                                              3
                               IN RE JUAN M. MARTINEZ
                                   Opinion of the Court

¶8             Prosecutors’ unique role in the justice system is recognized in ER 3.8,
“Special Responsibilities of a Prosecutor,” which states that “[a] prosecutor has the
responsibility of a minister of justice and not simply that of an advocate,” and has the
duty to “see that the defendant is accorded procedural justice, that guilt is decided upon
the basis of sufficient evidence, and that special precautions are taken to prevent and to
rectify the conviction of innocent persons.” See also In re Peasley, 208 Ariz. 27, 35 ¶ 34
(2004) (noting that “courts generally recognize that the ethical rules impose high ethical
standards on prosecutors”). Thus, prosecutors must act as “ministers of justice and
exercise professionalism even in the heat of trial.” State v. Hulsey, 243 Ariz. 367, 394 ¶ 123
(2018).

              III.   The Cases

¶9            The Bar alleges that Martinez violated ethical rules by committing
prosecutorial misconduct in the following five capital murder cases:

              A.     State v. Morris

¶10         Martinez prosecuted the defendant in 2005 for murdering five women.
Following conviction, Morris was sentenced to death. On direct appeal, this Court
reviewed Martinez’s remarks on the “putrid” odor of one victim’s jacket—offered by
Martinez to the jury for its “smelling pleasure”—and concluded that they were
“inappropriate,” but not misconduct. State v. Morris, 215 Ariz. 324, 338 ¶¶ 62–64 (2007).

¶11           We also reviewed Martinez’s interaction with the jury during argument,
including his singling out members of the jury based on their appearance and gender and
addressing them personally. Id. at 337–38 ¶¶ 57–61. For example, Martinez queried:

       [W]hich one of you wants to volunteer? I want a show of hands on this one.
       Which one of you ladies—and we don’t need guys on this one, because he
       didn’t take guys. He only took women.

       Which one of you want [sic] to volunteer to come sit here and have the
       defendant sit himself on your chest and say, Oh, that didn’t hurt? Because
       the defense attorney is saying throw common sense out of [the] window.
       Which one? I challenge anybody to say, That is something I want to do.

       And anyway, and on top of that, while he’s sitting on my chest, which one
       of you, since the one lower left-hand side has the longer hair of the jurors,


                                              4
                              IN RE JUAN M. MARTINEZ
                                  Opinion of the Court

      maybe she wants to have him grab her hair while he’s sitting on her chest .
      . . to grab it and pull it around her neck.

      You think that’s not going to hurt? You think one of you guys is going to
      volunteer for that? You can’t leave your common sense aside. [Defense
      counsel] wants you to because he makes these arguments and says, well,
      we don’t know what is in their heads. We don’t know what is in Juror
      Number 1’s head. Can you tell me you don’t think it’s not going to hurt
      when he sits on you?

      Hey, Juror Number 1 or Juror Number 14, whatever it is, what if we put
      [the] Winnie the Pooh tie around your neck? Are you going to enjoy that?
      Are you going to like it? Going to feel real good when you can’t breathe?

Id. at 337 ¶ 58 n.6. We concluded that Martinez’s comments constituted misconduct
because he impermissibly inflamed the jury’s sympathy for the victims and exploited its
fear of the defendant. Id. ¶ 58.

             B.     State v. Beemon

¶12           Martinez prosecuted the defendant for murder. Beemon testified during
the guilt phase of his trial, admitting a 1997 drug conviction without mentioning a 1984
robbery conviction that the trial court had ruled inadmissible during that phase. State v.
Beemon, 1 CA-CR-05-1161, at 16 ¶ 23 (Ariz. App. Feb. 21, 2008),
https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2008/1%20CA-CR%2005-
1161-82958.PDF.

¶13           During the aggravation phase opening statement and closing argument,
Martinez “attacked” Beemon for his “dishonesty” in failing to reveal his 1984 robbery
conviction during his guilt-phase testimony. Id. at 17 ¶ 27. Martinez also insisted at a
bench conference during the aggravation phase that the defendant had no right to
“withhold information” from the jury regarding the robbery conviction. Id. at 17–18 ¶
27. The court of appeals concluded that Martinez’s remarks were “clearly improper”
because the trial court had precluded mention of the 1984 conviction. Id.

¶14            The court of appeals also described Martinez’s characterization of defense
counsel’s argument in the aggravation phase as “reprehensible” and “both improper and
unprofessional,” notwithstanding the “apparent vigor of defense counsel’s argument.”
Id. at 18–22 ¶¶ 28–32. There, Martinez repeatedly analogized defense counsel’s argument
to Hitlerian propaganda tactics—the “big lie”—in an attempt to rebut the defense’s claim
                                             5
                              IN RE JUAN M. MARTINEZ
                                  Opinion of the Court

that Martinez was misleading the jury. Id. The court of appeals affirmed Beemon’s
conviction and sentence, finding that reversal for prosecutorial misconduct was
unwarranted, but instructed the court’s clerk to forward a copy of its decision to the Bar
to review Martinez’s conduct. Id. at 21–22 ¶¶ 32–33.

              C.     State v. Gallardo

¶15              Martinez prosecuted the defendant for first degree murder, burglary, and
kidnapping of the victim in his family’s home. In response to defense counsel’s penalty
phase argument to the jury for a life sentence, Martinez invoked the victim’s family’s loss,
including that the victim’s father would never be able to speak with his murdered son,
and he persisted with a line of argument concerning a defense expert witness’ alleged
bias despite the trial court repeatedly sustaining defense counsel’s objections. State v.
Gallardo, 225 Ariz. 560, 569 ¶¶ 41–44 (2010). We found Martinez’s conduct “improper,”
noting “[a] prosecutor should not repeat an argument after it has been the subject of a
sustained objection,” but we concluded that no pervasive misconduct deprived Gallardo
of a fair trial. Id.

              D.     State v. Lynch (II)

¶16             After convicting Lynch of a 2001 felony murder, the jury failed to reach a
verdict on the penalty. Following a new penalty phase, Lynch was sentenced to death.
On direct appeal in 2010, this Court ordered a new trial on the penalty phase because an
aggravating factor was applied improperly, but we found no prosecutorial misconduct
warranting reversal. State v. Lynch, 225 Ariz. 27, 42–43 ¶¶ 82–88 (2010). In Lynch II,
following the jury’s return of a death verdict, we considered Martinez’s conduct in the
retrial of the penalty phase. 238 Ariz. 84, 92 ¶ 6 (2015), rev’d, 136 S. Ct. 1818 (2016).

¶17           There, we found Martinez “improperly made argumentative statements
during opening,” but concluded “the misconduct” did not affect the jury’s verdict, the
“aggressive” questioning of witnesses, including experts, did not constitute fundamental
error, and the alleged ad hominem attacks on defense counsel were criticisms aimed at
defense theories, not counsel, and were not improper. Id. at 92 ¶ 10, 95 ¶ 22, 100 ¶¶ 47–
49. We also found that Martinez “invited the jurors to place themselves in the victim’s
position and appealed to their fears” when he told them “they could not know what it
was like to be ‘manhandled’ by the knife-wielding defendant.” Id. at 100 ¶ 49. We
concluded that “prosecutorial misconduct, while present in some instances, was not so
pronounced or sustained as to require a new sentencing trial.” Id. at 101 ¶ 52.



                                             6
                               IN RE JUAN M. MARTINEZ
                                   Opinion of the Court

              E.     State v. Arias

¶18           Martinez prosecuted the defendant for first degree murder. At trial, during
a bench conference outside the presence of the jury while discussing defense counsel’s
attempt to introduce a witness’s testimony that the victim told Arias he wanted to
“f**king kill himself,” Martinez said he would “f’ing want to kill [him]self” if he were
married to defense counsel. Martinez promptly apologized but disparaged counsel again
by suggesting she go back to law school. Defense counsel moved to dismiss the
indictment or notice of intent to seek the death penalty based, in part, on Martinez’s
comments. The trial court denied the motion, reasoning that the comments were made
outside the presence of the jury, no juror indicated knowledge of the incident, and
Martinez was quick to acknowledge his error and expressed regret. The court of appeals
affirmed Arias’ convictions, but described Martinez’s pervasive misconduct, including
his comments to defense counsel at issue here, as “an egregious case of misconduct by a
highly-experienced prosecutor” and referred the matter to the Bar for review. State v.
Arias, 1 CA-CR 15-0302, at 27 ¶ 77 (Ariz. App. April 21, 2020).

¶19           Thus, in Morris, Beemon, Gallardo, Lynch II, and Arias, Arizona appellate
courts found that Martinez engaged in various forms of prosecutorial misconduct that
did not warrant reversal of convictions. To date, Martinez’s prosecutorial misconduct in
these cases has not resulted in disciplinary findings of ethical misconduct. 1

              IV.    Ethical Misconduct

              A.     Rule 41(g): Duties and Obligations of Members

¶20           Rule 41(g) provides that the duties and obligations of Bar members shall be
“[t]o avoid engaging in unprofessional conduct and to advance no fact prejudicial to the
honor or reputation of a party or a witness unless required by the duties to a client or the
tribunal.” “Unprofessional conduct, as defined by Rule 31(a)(2)(E), during the practice
of law may result in discipline pursuant to Rule[] 41(g) . . . .” Ariz. R. Sup. Ct. 41, cmt. 1
(2016).

¶21          Rule 31(a)(2)(E) defines “[u]nprofessional conduct” as “substantial or
repeated violations of the Oath of Admission to the Bar [“the Oath”] or the Lawyer’s
Creed of Professionalism of the State Bar of Arizona [“the Creed”].” The Oath provides,


1There is no evidence that the Bar received or acted on the court of appeals’ referral in
Beemon.

                                              7
                               IN RE JUAN M. MARTINEZ
                                   Opinion of the Court

in relevant part, that lawyers “will avoid engaging in unprofessional conduct,” “will not
advance any fact prejudicial to the honor or reputation of a party or witness” unless
required by their duties to their client or the tribunal, “will support the fair administration
of justice” and “professionalism among lawyers,” and “will at all times faithfully and
diligently adhere to the rules of professional responsibility and A Lawyer’s Creed of
Professionalism.” The Creed provides that, in representing a client, a lawyer must be
cognizant that “unprofessional conduct is detrimental to the proper functioning of our
system of justice.”

¶22           The panel observed that “Rule 41(g) is a two-part Rule that initially states
what is ‘aspirational’ for members of the State Bar.” The Bar contends that the panel
erred by characterizing Rule 41(g) as aspirational. Although we do not interpret the
panel’s decision as applying an incorrect standard, we clarify that because unprofessional
conduct is actionable under Rule 41(g), the rule is not merely aspirational. Ariz. R. Sup.
Ct. 41(g), cmt. 1 (2016) (“Unprofessional conduct, as defined by Rule 31(a)(2)(E), during
the practice of law may result in discipline pursuant to Rules 41(g) and 53(j).”).

¶23           The Bar argues, and Martinez concedes, that the panel erroneously
construed Rule 41(g) in the conjunctive such that a violation occurs only when a lawyer
engages in unprofessional conduct and advances a fact prejudicial to the honor or
reputation of a party or witness. We agree. Rule 41(g) must be read in the disjunctive
because its text proscribes both types of misconduct but does not require evidence of both
to prove a violation.

¶24           The Bar alleged that Martinez’s conduct in Morris, Beemon, and Arias was
unprofessional and, thus, violated Rule 41(g). The Bar contended that Martinez’s
“smelling pleasure” comments about a victim’s jacket in Morris, his reference to defense
counsel’s Hitlerian tactics (the “big lie”) in Beemon, and his comments about defense
counsel concerning an expletive in testimony that defense counsel sought to present to
the jury in Arias violate the rule.

¶25           Martinez argues that the Bar’s allegations concerning Rule 41(g) violate his
due process rights because it never explained until its opening brief here which of the
numerous duties enumerated in the Oath or Creed he allegedly violated. We disagree.
The language of Rule 41(g) is materially identical to a portion of the Oath and the Creed
which provides that “unprofessional conduct is detrimental to the functioning of our
justice system.” In any event, the Bar adequately explained the basis for its Rule 41(g)
allegations in its prehearing memorandum before the panel hearing. Thus, Martinez
received adequate notice of the alleged Rule 41(g) violations.

                                              8
                               IN RE JUAN M. MARTINEZ
                                   Opinion of the Court

¶26           The Bar argues the panel erred by not finding a violation of Rule 41(g) in
Morris. The panel concluded that Martinez’s “smelling pleasure” comment, in which he
remarked about the putrid odor of a murder victim’s jacket that was properly admitted
as evidence, did not violate the rule. The panel concluded that Martinez’s conduct was
not improper because this Court determined the jacket was properly admitted into
evidence and that Martinez’s “smelling pleasure” comment was, “at worst,” “offhand,”
and “inappropriate.” The panel also noted that Martinez’s and the Bar’s experts found
the remark inartful but not deserving of discipline. We agree. Although Martinez’s
comments about a victim’s jacket were unseemly, they were not unprofessional as
contemplated by Rule 41(g).

¶27           The Bar contends that the panel erred in concluding that Martinez did not
violate Rule 41(g) in Beemon for his “big lie” comments because Martinez was justified in
responding to defense counsel’s attacks on his character. Although we do not condone
Martinez’s remarks, and note that he should have selected a less inflammatory analogy
to make his point, we agree that his conduct, when viewed in context, does not violate
Rule 41(g) because it was directed at defense counsel’s argument rather than at counsel
personally.

¶28            Finally, the Bar contests the panel’s determination that Martinez’s
comments to defense counsel at sidebar in Arias did not violate Rule 41(g). At the sidebar
discussion, Martinez explained his hearsay objection to defense counsel’s attempt to
introduce a witness’s testimony that the victim told Arias he wanted to “f**king kill
himself.” In this context, Martinez said, “[b]ut the thing is that if [defense counsel] and I
were married, I certainly would say I f’ing want to kill myself. That doesn’t mean I want
to kill myself. It just means there’s a bad relationship and I want you to leave me alone.”
The panel reasoned that Martinez did not violate Rule 41(g) because his comment was
made in the context of an evidentiary objection, defense counsel “likewise intended to
have the victim disrespected in the eyes of the jury by the hearsay use of the expletive she
sought to have attributed to him,” and both experts testified that the sidebar conduct was
not worthy of a sanction. We agree that Martinez’s comments outside the presence of the
jury, although inappropriate, were made in the context of explaining his evidentiary
objection and mimicking the expletive defense counsel sought to present to the jury and
were mitigated by his prompt apology to defense counsel and the court. The panel did
not address Martinez’s bench conference comment that defense counsel “ought to go
back to law school” and the Bar did not provide additional argument in its brief here.
Notwithstanding, attorneys should refrain from such contemptuous behavior. Again,
Martinez fell far short of a model of professionalism but, in context, his conduct did not
violate Rule 41(g).

                                             9
                               IN RE JUAN M. MARTINEZ
                                   Opinion of the Court

              B.     ER 4.4(a): Respect for Rights of Others

¶29          ER 4.4(a) states, “[i]n representing a client, a lawyer shall not use means that
have no substantial purpose other than to embarrass, delay, or burden any other person,
or use methods of obtaining evidence that violate the legal rights of such a person.”

¶30           The Bar alleged that Martinez violated E.R. 4.4(a) in (1) his attempt to
discredit the defendant in Beemon at the aggravation phase with his failure to disclose his
1984 robbery conviction during his guilt-phase testimony, even though the trial court had
precluded its guilt-phase admission, and (2) his insistence at a bench conference during
the aggravation phase that the defendant had no right to “withhold information” from
the jury regarding the robbery conviction because the conduct served no other purpose
than to embarrass, delay, or burden Beemon and his counsel.

¶31           The panel held that the Bar failed to prove that Martinez’s conduct in
Beemon violated ER 4.4(a) because it provided no evidence, much less clear and
convincing evidence, that Martinez’s subjective purpose was to embarrass, delay or
burden the defendant or his counsel. The panel noted the Bar’s failure to call Martinez
to testify concerning his motive for pursuing the contested trial tactics. Although the
panel could consider Martinez’s subjective motive in evaluating an ER 4.4(a) violation,
ultimately it was required to apply an objective standard. In re Alexander, 232 Ariz. at 7
¶ 23. Thus, Martinez’s failure to testify did not impede the panel’s ability to objectively
assess his conduct.

¶32           Martinez argued at trial that he was entitled to discredit Beemon at the
aggravation phase—in which the 1984 robbery conviction was properly admitted for
aggravation purposes—because Beemon had misled the jury during his guilt-phase
testimony about the circumstances of his 1997 robbery conviction to gain sympathy from
the jury. Beemon, 1 CA-CR-05-1161, at 16–17 ¶¶ 23–27. Although Martinez’s reasoning
was legally flawed, we agree with the panel’s conclusion that the Bar provided
insufficient evidence that Martinez’s purpose was to embarrass, delay, or burden other
parties rather than to counter the defendant’s perceived deception of the jury. Therefore,
we conclude that the Bar failed to prove an ER 4.4(a) violation by clear and convincing
evidence.

              C.    ER 8.4(d): Misconduct
¶33          ER 8.4(d) provides “[i]t is professional misconduct for a lawyer to . . .
engage in conduct that is prejudicial to the administration of justice.” ER 8.4(d) “does not
require a mental state other than negligence,” In re Alexander, 232 Ariz. at 11 ¶ 40, and an

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                              IN RE JUAN M. MARTINEZ
                                  Opinion of the Court

Arizona lawyer may violate the rule without committing any other ethical violation, see
In re Clark, 207 Ariz. 414, 418 ¶¶ 16–17 (2004). A lawyer’s conduct violates ER 8.4(d) if it
causes injury or potential injury. Id at ¶ 17.

¶34           The Bar alleged that Martinez’s comments to juries in Morris, Gallardo, and
Lynch II, his repeated disregard of sustained objections during closing argument in
Gallardo, and his continued insistence at a bench conference that the defendant had no
right to “withhold information” from the jury regarding his 1984 robbery conviction in
Beemon were professional misconduct and, thus, violated ER 8.4(d), because they were
prejudicial to the administration of justice.

¶35            The panel erred by relying on out-of-jurisdiction cases inconsistent with
Arizona law—e.g., In re Discipline of Att’y, 815 N.E.2d 1072 (Mass. 2004)—for the
proposition that ER 8.4(d) requires a violation of another ethical rule “unless [the
violation] is so egregious and flagrantly violative of accepted professional norms as to
undermine the legitimacy of the judicial process.” As we have previously stated, an
Arizona lawyer may violate ER 8.4(d) without committing any other ethical violation. See
In re Clark, 207 Ariz. at 418 ¶¶ 16–17 (finding an ER 8.4(d) violation where an attorney’s
negligent act of “transferring assets to his professional corporation and notifying another
creditor of the transfer may have deprived [his client] of partial recovery on his
judgment”). The panel erred as a matter of law by concluding otherwise. To the extent
the panel suggests that ER 8.4(d) applies exclusively to egregious and flagrant non-
litigation conduct, we disagree. In Clark, we did not signal an intent to limit application
of ER 8.4(d) to non-litigation conduct prejudicial to the administration of justice and we
decline to do so here. Because the panel articulated its erroneous interpretation of ER
8.4(d) in its preliminary analysis of the applicable rules, we presume it applied this
standard to all its ER 8.4(d) rulings.

¶36          The panel held that Martinez’s comments to juries in Morris, Gallardo, and
Lynch II and his conduct in Beemon did not violate ER 8.4(d). The panel found that
although the statements in Morris were improper, they were remote in time and could
not support an ER 8.4(d) violation absent another ethics rule violation. The panel
concluded that Martinez’s invocation of the victim’s family’s loss in Gallardo was proper,
and that his persistence with a line of argument in that case despite the trial court
repeatedly sustaining defense counsel’s objections was attributable to a
misunderstanding. The panel determined that Martinez’s closing argument in Lynch II,
which the Bar characterized as personalized and as improperly inviting “the jurors to
place themselves in the victim’s position,” did not violate ER 8.4(d) because the improper
comments were stricken as an appropriate remedy. Finally, the panel found that the Bar

                                            11
                               IN RE JUAN M. MARTINEZ
                                   Opinion of the Court

failed to prove an ER 8.4(d) violation in Beemon based on his attempt to use the
defendant’s 1984 bank robbery conviction because he had a right to use it.

¶37           We conclude Martinez violated ER 8.4(d) for his comments made to juries
in Morris, Gallardo, and Lynch II. In Morris, this Court cited State v. Comer, 165 Ariz. 413,
426 (1990), for the well-settled proposition that a prosecutor “cannot make arguments
that appeal to the fears or passions of the jury.” 215 Ariz. at 337 ¶ 58. When Comer was
decided in 1990, Martinez was already admitted to practice in Arizona and, in light of his
extensive career as a prosecutor, he should have been aware of Comer’s prohibition on
improper emotional appeals to a jury when he tried Morris in 2005. And after having
been chastised in Morris for improperly appealing to jurors’ fears or passions, he was
undoubtedly aware of the prohibition. Yet, when trying Gallardo in 2009, in closing
argument, Martinez appealed to jurors’ emotions, and persisted with a line of argument
despite the trial court repeatedly sustaining defense counsel’s objections. And Martinez
disregarded the prohibition again in 2012 when trying Lynch II by asking jurors to put
themselves in the victim’s place. Even if Martinez’s misconduct in Morris could be
characterized as “isolated”—an unwarranted and charitable description of Martinez’s
outrageous and highly improper singling out of jurors during argument—his repetition
of similar conduct in Gallardo and Lynch II was at least negligent, which is sufficient to
establish an ER 8.4(d) violation.

¶38           We conclude, for the reasons discussed, supra ¶ 32, that Martinez did not
violate ER 8.4(d) in Beemon because he did not attempt to use the defendant’s 1984 bank
robbery conviction for an improper purpose and did not engage in conduct prejudicial to
the administration of justice.

              D.    Staleness of Claims
¶39            The panel and Martinez emphasize that the age of the allegations militates
against a finding of ethical misconduct. We disagree. If anything, what is notable about
the age of the claims is the systemic failure to timely scrutinize Martinez’s conduct under
the ethical rules.

¶40             The purpose of lawyer discipline is not to punish the lawyer but to protect
the public, the legal profession, and the justice system. See, e.g., In re Abrams, 227 Ariz.
248, 250–51 ¶ 15 (2011). Lawyer discipline also “deter[s] the [disciplined] attorney and
others from engaging in the same or similar misconduct.” In re Alexander, 232 Ariz. at 15
¶ 63; see also In re Alcorn & Feola, 202 Ariz. 62, 75 ¶ 48 (2002) (“Perhaps more important
than rehabilitation of an individual attorney, however, is the value of discipline as a
deterrent to other attorneys and as a process that maintains ‘the integrity of the profession

                                             12
                               IN RE JUAN M. MARTINEZ
                                   Opinion of the Court

in the eyes of the public.’” (quoting In re Fioramonti, 176 Ariz. 182, 187 (1993))). The
prompt reporting of ethical violations serves to both protect the public and rehabilitate
the lawyer. However, where the misconduct involves repeated violations, older
violations are subject to scrutiny and are relevant to mental state findings. Thus, there is
no statute of limitations for disciplinary actions concerning ethical violations and the
vintage of the alleged misconduct does not necessarily diminish the seriousness of the
claims or the necessity for proper redress.

¶41           The panel and Martinez also note that despite criticism from this Court and
others concerning his conduct as a prosecutor, save one case (Beemon), courts have
demurred in referring him to the State Bar for disciplinary action. 2 But the failure of a
court to report is not evidence that an ethical violation did not occur. Such inaction does
not tie our hands in enforcing the ethical rules.

              E.     Prosecutorial Misconduct versus Ethical Misconduct


¶42           This case presents an opportunity to provide guidance to courts by
clarifying the difference between prosecutorial misconduct that may necessitate a new
trial and a prosecutor’s conduct that violates the ethical rules.

¶43             To succeed on a claim of prosecutorial misconduct, a defendant “must show
that the prosecutor’s actions amounted to misconduct and that there is a ‘reasonable
likelihood . . . that the misconduct could have affected the jury’s verdict, thereby denying
defendant a fair trial.’” Hulsey, 243 Ariz. at 388 ¶ 89 (quoting State v. Anderson, 210 Ariz.
327, 340–41 ¶ 45 (2005)).

¶44            Martinez argues that prosecutorial misconduct does not necessarily equate
to ethical misconduct because prosecutorial misconduct may encompass negligent acts.
The Bar contends, citing Hulsey, that the distinction between prosecutorial misconduct
and ethical misconduct is that prosecutorial misconduct involves a prosecutor’s ethical
misconduct that likely deprives a defendant of a fair trial. Implicit in the Bar’s reasoning
is that all prosecutorial misconduct claims involve ethical misconduct.

¶45          The Bar errs in presuming that prosecutorial misconduct always equates to
ethical misconduct. The term “prosecutorial misconduct” broadly encompasses any
conduct that infringes a defendant’s constitutional rights. It sweeps in prosecutorial

2As noted, supra ¶ 18, the court of appeals has recently referred Martinez to the Bar for
review of his conduct in Arias.

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                                  Opinion of the Court

conduct ranging from inadvertent error or innocent mistake to intentional misconduct.
Thus, because a prosecutor’s error may not implicate an ethical rule, the Bar’s position
blurs the line between prosecutorial misconduct and ethical misconduct. See, e.g., State v.
Valdez, 160 Ariz. 9, 14 (1989), overruled on other grounds by Krone v. Hotham, 181 Ariz. 364
(1995) (noting that “in cases where there has been misconduct of either the prosecutor or
defense counsel, but reversal is not required, the proper remedy will be affirmance,
followed by institution of bar disciplinary proceedings against the offending lawyer, if
such proceedings are warranted” (emphasis added)).

¶46            The American Bar Association (ABA) has recognized this distinction and
urged courts in criminal cases, “when reviewing the conduct of prosecutors[,] to
differentiate between ‘error’ and ‘prosecutorial misconduct’”:

       The term “prosecutorial misconduct” has become a term of art in criminal
       law that is sometimes used to describe conduct by the government that
       violates a defendant’s rights whether or not that conduct was or should
       have been known by the prosecutor to be improper and whether or not the
       prosecutor intended to violate the Constitution or any other legal or ethical
       requirement. But, the term is not the equivalent of a finding of professional
       misconduct on the part of the prosecuting attorney. Nor does every finding
       of “prosecutorial misconduct” involve a finding that the prosecutor has
       engaged in misconduct (as opposed to agents acting in cooperation with, or
       under the prosecutor’s control) or that any actions or omissions on the part
       of the prosecution involved maliciousness, knowing, intentional or even
       reckless wrongdoing. “Prosecutorial misconduct” is a term understood to
       apply to a wide range of claims, some of which may be sustained by the
       mere unintentional and good faith failure of a police agency to provide to
       the prosecutor information favorable to the accused to which the accused is
       entitled. Nevertheless, a finding of “prosecutorial misconduct” may be
       perceived as reflecting intentional wrongdoing, or even professional
       misconduct, even in cases where such a perception is entirely unwarranted.

ABA Recommendation 100B (2010). Thus, the ABA recognizes “that there can be a
difference between misconduct and error, and it urges courts, when reviewing claims
that prosecutors have violated a constitutional or legal standard, to choose the term that
more accurately describes the prosecutorial conduct while fully protecting a defendant’s
rights.” Id.

¶47          We are persuaded by the ABA’s reasoning and, thus, adopt its approach to
distinguishing prosecutorial error and ethical misconduct. Cf. In re Scholl, 200 Ariz. 222,
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                                   Opinion of the Court

224 ¶ 9 (2001) (noting that this Court “views the ABA Standards [for Imposing Lawyer
Sanctions] as a suitable guideline” in determining the proper extent of lawyer discipline);
see also Valdez, 160 Ariz. at 14 (implicitly recognizing that every case of prosecutorial
misconduct does not warrant bar disciplinary proceedings). When reviewing the
conduct of prosecutors in the context of “prosecutorial misconduct” claims, courts should
differentiate between “error,” which may not necessarily imply a concurrent ethical rules
violation, and “misconduct,” which may suggest an ethical violation. For purposes of
evaluating the merits of a “prosecutorial misconduct” claim, any finding of error or
misconduct may entitle a defendant to relief, but courts should not conflate that inquiry
with the collateral issue of a prosecutor’s ethical culpability.

             V.     Sanction

¶48            The Bar requests that we impose on Martinez a sanction of reprimand. We
agree that, in these circumstances, reprimand is the appropriate sanction.

¶49            We determine appropriate disciplinary sanctions in conjunction with the
ABA’s Standards for Imposing Lawyer Sanctions (“Standards”). In re Alexander, 232 Ariz. at
13 ¶ 49. “The sanction . . . is tailored to the unique circumstances of the case.” Id.
“Standard 3.0 lists four factors for courts to examine in deciding an appropriate sanction:
‘(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury
caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating
factors.’” Id.

             A.      Duty

¶50           Martinez’s ethical misconduct involves his comments to juries in Morris,
Gallardo, and Lynch II, which we conclude violated ER 8.4(d), because it was prejudicial
to the administration of justice. Consequently, Standards 7.3 and 6.23, applicable to cases
involving a lawyer’s violation of professional duty which causes injury to a client, the
public, or the legal system, inform our analysis.

             B.      Mental State

¶51           Martinez’s mental state when he violated his duties to the public and the
legal system determines, in part, the presumptive sanction. In re Phillips, 226 Ariz. 112,
117–18 ¶ 31 (2010). The Standards “recommend more severe sanctions for intentional or
knowing misconduct than negligent misconduct, which threatens less harm.” In re
Alexander, 232 Ariz. at 13–14 ¶ 52.


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                                   Opinion of the Court

¶52           Martinez’s comments to juries in Morris, Gallardo, and Lynch II, in which he
singled out jurors, encouraged them to put themselves in place of the victims to elicit
sympathy for the victims and fear of the defendants, or persisted with a line of argument
over defense counsel’s sustained objections, were at least negligent (the theory the Bar
urges here) in view of Comer’s prohibition on improper appeal to juries and Martinez’s
experience as a prosecutor. Supra ¶ 37.

              C.      Potential or Actual Injury

¶53            Standards 7.3 and 6.23 each provide that a reprimand is presumptive if a
lawyer’s negligent conduct injures or potentially injures the public or the legal system.
Martinez argues that his conduct did not constitute ethical misconduct and, therefore,
could not cause potential or actual injury. We disagree. Martinez’s comments to juries
in Morris, Gallardo, and Lynch II, and his disregard of defense counsel’s sustained
objections in Gallardo, at least potentially caused harm to the public and the legal system.
As a prosecutor, Martinez’s serial improper appeals to juries to elicit sympathy for
victims and fear of defendants and his failure to comply with a court ruling jeopardized
the integrity of the legal system. That Martinez’s negligent conduct did not result in
reversal of criminal convictions does not absolve him of ethical culpability for potential
systemic injuries.

              D.      Aggravating and Mitigating Factors

¶54            Martinez’s negligent misconduct injured the public and the legal system.
Thus, the presumptive sanction is reprimand. See Standard 7.3 (providing that a
reprimand “is generally appropriate when a lawyer negligently engages in conduct that
is a violation of a duty owed as a professional and causes injury or potential injury to a
client, the public, or the legal system”); Standard 6.23 (providing that a reprimand “is
generally appropriate when a lawyer negligently fails to comply with a court order or
rule, and causes injury or potential injury to a client or other party, or causes interference
or potential interference with a legal proceeding”). The sanction to be imposed, however,
requires consideration of relevant aggravating and mitigating factors. See Standard 9.1.

¶55           The Bar argues that the applicable aggravating factors are Standard 9.22(c),
pattern of misconduct; Standard 9.22(d), multiple offenses; and Standard 9.22(i),
substantial experience in the practice of law. The Bar identifies the applicable mitigating
factors as Standard 9.32(b), absence of dishonest or selfish motive; and Standard 9.32(e),
full and free disclosure to disciplinary board and cooperative attitude toward
proceedings. Aggravating factors must be supported by reasonable evidence. In re


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                                   Opinion of the Court

Abrams, 227 Ariz. at 252 ¶ 27. We agree with the Bar’s identification of applicable
aggravating and mitigating factors.

              E.      Appropriate Sanction

¶56           An appropriate sanction advances the primary objectives of lawyer
discipline “(1) to protect the public and the courts and (2) to deter the [disciplined]
attorney and others from engaging in the same or similar misconduct.” In re Alexander,
232 Ariz. at 15 ¶ 63 (quoting In re Zawada, 208 Ariz. 232, 236 ¶ 12 (2004). “The sanction is
not intended to punish the disciplined lawyer.” Id.

¶57           The Bar requests a sanction of reprimand. In considering the aggravating
and mitigating factors and the purpose of lawyer discipline, we conclude that the
presumptive sanction of reprimand is warranted. Martinez’s repetitious misconduct in
addressing jurors in trial in a manner inconsistent with established case law and
disregard of sustained objections was prejudicial to the administration of justice and is
inexcusable given his substantial experience as a prosecutor and repeated court warnings
to cease such conduct. But we also consider that this is Martinez’s first disciplinary
sanction after 36 years as a member of the Bar, including serving 32 years as a prosecutor.
For any lawyer, a reprimand, particularly as a first disciplinary sanction, is a serious
consequence and embodies risk of a more serious sanction if that lawyer again fails to
conform to the ethical rules. See, e.g., In re Brown, 184 Ariz. 480, 484 (1996) (“[M]ore severe
sanctions are appropriate where a lawyer violates the terms of a prior disciplinary order
or engages in further acts of the same or similar misconduct for which he or she has
already been reprimanded.”). This sanction is not intended to punish Martinez, but
rather to protect the public and the courts and to deter Martinez and others from
engaging in similar misconduct. A reprimand serves these objectives.

¶58          We also note the absence of a dishonest or selfish motive and Martinez’s
cooperation with the disciplinary panel. Despite this mitigation, we decline to reduce the
presumptive sanction of reprimand.

                                      CONCLUSION

¶59           Martinez committed professional misconduct by violating ER 8.4(d). We
therefore impose a sanction of reprimand and vacate the part of the panel’s supplemental
decision dismissing with prejudice the allegation of violations of ER 8.4(d). All other
parts of the supplemental decision remain in effect. Martinez shall pay the costs and
expenses of the proceeding.


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