Articles Posted in Professional Malpractice & Ethics

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Ariz. R. Evid. 408 precludes use of a consent judgment to prove substantive facts to establish liability for a subsequent claim. Likewise, a consent judgment cannot be used for impeachment purposes under Ariz. R. Evid. 613. Before disciplinary proceedings were initiated against attorney Brent Phillips, the Arizona Attorney General sued Phillips for violations of the Arizona Consumer Fraud Act (CFA). To resolve the CFA action, Phillips agreed to a consent judgment. During attorney disciplinary proceedings, Phillips’ counsel moved in limine to preclude the State Bar from introducing the consent judgment into evidence for any purpose. The State Bar opposed the motion, arguing that it should be allowed to use the consent judgment to impeach Phillips’ testimony if it differed from the facts contained in the consent judgment. The presiding disciplinary judge (PDJ) concluded that Rule 408 did not render the stipulated facts inadmissible. The Supreme Court vacated the PDJ's order denying Phillips’ motion in limine, holding (1) none of the exceptions to Rule 408 allowed the State Bar to admit the consent judgment or its contents into evidence during the disciplinary proceedings; and (2) Rule 408 did not permit the use of the consent judgment to impeach Phillips. View "Phillips v. Honorable William O’Neil" on Justia Law