remanding the case to the hearing judge where the attorney presented in his Motion for Reconsideration newly discovered evidence that may impeach the credibility of a key witness and reflect positively on the credibility of the attorney in a case that depends heavily on witness credibility
How later courts described this case
- remanding the case to the hearing judge where the attorney presented in his Motion for Reconsideration newly discovered evidence that may impeach the credibility of a key witness and reflect positively on the credibility of the attorney in a case that depends heavily on witness credibility
- ”[A]ny concerns that a respondent ... has been prejudiced by false statements made during the Peer Review process are ameliorated by the fact that the respondent ... ultimately will have the opportunity to confront the complainant, under oath, at an evidentiary hearing.” (Citations omitted)
- "the purpose of the Peer Review Panel is not principally to make recommendations as to the appropriateness of formal charges"; if it appears to the panel that there is a "substantial basis for formal charges and there is reason to believe that the [respondent] attorney has committed professional misconduct or is incapacitated, the Panel may ... make an appropriate recommendation to the Commission or ... inform the parties of its determination and allow the attorney an opportunity to consider a reprimand or a Conditional Diversion Agreement"
- “[A]ny concerns that a respondent attorney has been prejudiced by false statements made during the Peer Review process are ameliorated by the fact that the respondent attorney ultimately will have the opportunity to confront the complainant, under oath, at an evidentiary hearing.”
Written by the judges who cited it.
The opinion
RAKER, J., concurs.
RAKER, J.,
concurring:
I would hold that an inconsistent statement may not be used as substantive evidence, but, in order to prevent perjury and to protect the integrity of the judicial process, that a prior inconsistent statement may be used for impeachment purposes. Cf. Harris v. New York, 401 U.S. 222, 226 , 91 S.Ct. 643, 646 , 28 L.Ed.2d 1 (1971) (permitting criminal defendant’s credibility to be impeached by use of prior inconsistent statement and holding that “[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances”). Although confidentiality is important in peer review proceedings, it is not always sacrosanct and must yield to the right of an attorney to defend him or herself in these most serious of disciplinary proceedings. Cf. Pennsylvania v. Ritchie, 480 U.S. 39, 61 , 107 S.Ct. 989, 1003 , 94 L.Ed.2d 40 (1987) (holding that a defendant’s due process right entitled him to know whether protective services’ confidential file on the alleged abuse of his daughter contained information that may have changed the outcome of his trial *121 had it been disclosed); Davis v. Alaska, 415 U.S. 308, 319 , 94 S.Ct. 1105, 1112 , 39 L.Ed.2d 347 (1974) (holding that a defendant’s right to juvenile records to impeach the credibility of the State’s witness outweighed the State’s interest in maintaining the confidentiality of such records). I concur in the judgment of the Court remanding this matter for further hearings in the Circuit Court. I disagree, however, with the Court’s holding that all statements made at a Peer Review Panel remain totally confidential and privileged and, therefore, are unavailable for use to impeach a witness as a prior inconsistent statement at a subsequent evidentiary hearing in that disciplinary process.
I do not find that the plain reading of the Rule requires the conclusion that all statements, no matter who the declarant is, be unavailable for use to impeach a witness against an attorney at a subsequent disciplinary hearing against that attorney. While the laudatory purpose of the Rule is to promote candor and an open and frank environment, the purpose cannot be to protect false statements. See Hernandez v. State, 203 Ariz. 196 , 52 P.3d 765, 768-69 (2002) (en banc) (holding that inconsistent statements made during confidential compromise negotiations are admissible at a subsequent hearing for impeachment purposes because excluding impeachment evidence would not further the policy of encouraging complete candor); 23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5314 (1980) (stating that “[t]he purpose of [Federal] Rule 408 [ precluding use of statements made during compromise negotiations] is to foster ‘complete candor’ between the parties, not to protect false representations”); see also Lynne H. Rambo, Impeaching Lying Parties with Their Statements During Negotiation: Demysticizing the Public Policy Rationale Behind Evidence Rule 408 and the Mediation-privilege Statutes, 75 Wash. L.Rev. 1037 (2000) (postulating that reliance on the public policy rationale to preclude impeachment protects only dishonest parties and proposing a qualified approach to allow impeachment).