Schmidt, Sethi & Akmajian Blog

Disciplinary Proceedings: Offensive Issue Preclusion

Posted by Ted A. Schmidt | Aug 31, 2022 | 0 Comments

Hancock v. O'Neill, No. CV-21-0145-SA (August 29, 2022) (C.J. Brutinel)

The petitioner attorney represented Goodyear tire in tort litigation and was found by the presiding federal judge to have committed numerous acts of fraud. In addition to sanctioning the petitioner, the federal court referred the matter to the Arizona State Bar for disciplinary proceedings. The Presiding Disciplinary Judge granted the Bar's motion for partial summary judgment, applying offensive non-mutual issue preclusion to prevent Hancock from relitigating the district court's fact findings. Petitioner brought this special action. The Arizona Supreme Court accepted jurisdiction and granted relief.

Offensive issue preclusion occurs when the party invoking the doctrine uses it as a sword against another party who lost on the issue in a prior judgment. Because the Arizona Court Rules governing attorney discipline only enumerate two grounds for precluding an attorney from relitigating whether he or she committed a crime or ethical violation: conviction of a crime or discipline by another jurisdiction. Here the findings of the federal court resulted in civil sanctions not “discipline” or conviction of a crime, so offensive issue preclusion could not be applied to support the partial summary judgment.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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