SUPREME COURT OF ARIZONA 

En Banc 

 

In the Matter of ) Arizona Supreme Court 

 ) No. SB-02-0103-D 

THOMAS J. ZAWADA, ) 

Attorney No. 5815 ) Disciplinary Commission 

 ) No. 98-2465 

 Respondent. ) 

__________________________________) O P I N I O N 

DISCIPLINARY ACTION 

Respondent Suspended 

State Bar of Arizona Phoenix 

 by John A. Furlong, Staff Bar Counsel 

Thomas J. Zawada, Respondent Tucson 

In Propria Persona 

J O N E S, Chief Justice 

¶1 We granted sua sponte review of this disciplinary 

matter in order to determine whether the Disciplinary 

Commission’s recommended sanctions of prosecuting attorney Thomas 

J. Zawada were adequate in light of the objectives of lawyer 

discipline. We hold they were not. 

I. Facts and Procedural History 

¶2 At all times relevant, Zawada was a prosecutor in the 

Pima County Attorney’s Office. He prosecuted Alex Hughes in 1994 

for various violent crimes, including first degree murder, all 
stemming from a shooting incident that resulted in the death of 

one person. Hughes’ defenses consisted solely of insanity and 

self-defense. Throughout Hughes’ trial, Zawada was fully aware 

that each of the six mental health experts who examined Hughes in 

relation to the crimes in question, including those retained by 

the state, found him to be mentally ill. 

¶3 Notwithstanding the insanity plea, a jury found him 

guilty of first degree murder, attempted second degree murder, 

aggravated assault, disorderly conduct, and felony flight. On 

appeal, this court reversed Hughes’ convictions, finding that 

“the cumulative effect of [Zawada’s] misconduct deprived [Hughes] 

of a fair trial.” State v. Hughes, 193 Ariz. 72, 74, ¶ 1, 969 

P.2d 1184, 1186 (1998). On remand, the trial court dismissed all 

charges, holding that Article 2, Section 10, of the Arizona 

Constitution, the double jeopardy clause, forbade retrial. This 

court affirmed that holding after observing that double jeopardy 

bars retrial when there is “intentional prosecutorial misconduct 

aimed at preventing an acquittal.” State v. Jorgenson, 198 Ariz. 

390, 391, ¶¶ 3-4, 10 P.3d 1177, 1178 (2000) (citing Pool v. 

Superior Court, 139 Ariz. 98, 109, 677 P.2d 261, 272 (1984)). 

¶4 Subsequent to this court’s ruling in Hughes, a Bar 

complaint was filed against Zawada alleging prosecutorial 

misconduct in the handling of the case. The matter went to 

hearing, following which the hearing officer determined Zawada’s 

2
acts of prosecutorial misconduct included (a) appeals to fear by 

the jury if Hughes was not convicted, (b) disrespect for and 

prejudice against mental health experts that led to harassment 

and insults during cross-examination, and (c) improper argument 

to the jury. 

¶5 For example, during cross-examination of one of Hughes’ 

mental health experts, Zawada implied that the expert fabricated 

his diagnosis to coincide with the defendant’s theory of the 

case: 

I mean, you pick up Mr. Hughes as a . . . client for 

the court, initially, and you are not able to make any 

decision, and then what happens is after you are hired 

by the defense, you are able to come to a conclusion? 

 

More improperly, in rebuttal argument, Zawada asserted that 

defense counsel paid his expert to fabricate a diagnosis: 

He knows the result he is looking for. Subject comes 

in with schizophrenic-potential schizophrenic 

diagnosis. He knows right there what he is looking 

for, and $950 later, yes, that’s what he’s got . . . . 

Also in rebuttal, Zawada improperly argued that mental health 

experts in general create excuses for criminals: 

How about the Judge back there in New York, was it, 

that was infatuated with the secretary or somebody else 

and he followed her around and sent her notes and sent 

her letters and all kinds of things and wouldn’t leave 

her alone. I don’t know if he stalked her or not, and 

ultimately they looked into the case a little bit. You 

know what they did, they created a syndrome for him to 

try to justify his action. 

(Emphasis added.) 

3
¶6 The hearing officer concluded that Zawada’s conduct, 

wholly unsupported by evidence of any kind, violated Ethical Rule 

(“ER”) 1.1 (competence),1

 ER 3.1 (assertions made without good 

faith basis in law or fact), ER 3.4(e) (trial tactics unsupported 

by admissible evidence), and ER 8.4(d) (conduct prejudicial to 

the administration of justice). As a result, the hearing officer 

recommended (a) that Zawada be censured and placed on probation 

for six months, (b) that he be required to attend fifteen hours 

of continuing education that addresses the effective use of and 

response to psychiatric and psychological testimony, (c) that he 

be prohibited from handling any case involving a significant 

mental health component until he completes the continuing 

education requirement, and (d) that he be assessed the costs and 

expenses of the disciplinary proceedings. 

¶7 The Disciplinary Commission modified the hearing 

officer’s recommended sanction by removing the probation and 

continuing education requirement and adding as a requirement a 

Member Assistance Program (“MAP”) referral. Zawada sought review 

of the Commission’s decision and this court denied his petition. 

Nevertheless, the court, under Supreme Court Rule 59(i), 

determined, sua sponte, to review the proposed discipline and, in 

 

1 The Disciplinary Commission did not agree that Zawada’s 

conduct evidenced incompetence and therefore found no ER 1.1 

violation. 

4
light of the record, to decide whether the sanction should 

include a period of suspension. 

II. Discussion 

A. The Court Has Authority, Sua Sponte, to Review Zawada’s 

Actions. 

¶8 Zawada challenges this court’s legal authority to take 

sua sponte review of the appropriate sanction in this case, 

arguing that Supreme Court Rule 53(e)(7) (subsequently renumbered 

Rule 59(i)) permits review only if the Commission has recommended 

suspension or disbarment, and where no timely petition for review 

is filed. He argues that because neither of these requirements 

has been met, the Supreme Court cannot review this action. 

Zawada misreads this court’s authority to review disciplinary 

matters. 

¶9 “[T]he Supreme Court of Arizona has the exclusive 

jurisdiction to regulate the admission to the practice of law and 

the discipline of those admitted.” In re Riley, 142 Ariz. 604, 

607, 691 P.2d 695, 698 (1984). As a result, “the Bar 

Disciplinary Board and its committees are mere arms of this court 

and can have no greater jurisdiction or authority than this 

court.” Id. at 608, 691 P.2d at 699. Under Zawada’s 

interpretation of the rule, the court would be bound by the 

Commission’s disciplinary decision, even though the Commission 

derives its authority and jurisdiction from the court. Zawada 

contends that when the Commission recommends a sanction less than 

5
suspension, the court has no jurisdiction to review that 

particular sanction. The result is illogical and inconsistent 

with case law as well as the Supreme Court Rules. See id.; see 

also Ariz. R. Sup. Ct. 32(a)(2) (This court may “discipline a 

member when it is satisfied that such member is not mentally or 

morally qualified to practice law even though none of the 

specific grounds for discipline set forth in these rules exist.”) 

(emphasis added) (formerly Rule 31(a)(2)); Ariz. R. Sup. Ct. 

33(b) (stating that the supreme court has power to impose, 

without limitation and on its own motion, the suspension of an 

attorney). 

¶10 Rule 59 does not place the limitation on the court that 

Zawada urges. The Rule provides: 

If no timely petition for review of a commission 

recommendation of suspension or disbarment is filed, 

the disciplinary clerk shall prepare and file a 

certificate attesting to those facts, and transmit to 

the court copies of the commission report and related 

order, the certificate, and a form of judgment for 

signature and entry by the clerk of the court. Within 

sixty (60) days, the court, in its discretion, may 

decline review, or it may grant review sua sponte. If 

the court grants review, the record shall be 

transmitted to the clerk. 

Ariz. R. Sup. Ct. 59(i). The rule is clear. The language merely 

addresses the procedures to be followed when no petition for 

review is filed. There is no suggestion that when a petition has 

been filed, the court is stripped of authority to review the case 

sua sponte on other issues. Were that the case, an attorney 

6
subject to discipline could necessarily avoid review of certain 

issues raised in a disciplinary proceeding by filing a petition 

addressing other matters. The intent of the rule does not 

contemplate that result. 

B. Standard of Review. 

¶11 “In disciplinary proceedings, this court is the 

ultimate trier of fact and law, requiring clear and convincing 

evidence of all facts.” In re Brady, 186 Ariz. 370, 373, 923 

P.2d 836, 839 (1996). Although the hearing officer’s factual 

findings and the Commission’s recommendations are not ultimately 

determinative, they deserve great weight. Id. 

C. The Sanctions Imposed In Light of the Purposes of 

Lawyer Discipline. 

¶12 Lawyer discipline serves two main purposes: (1) to 

protect the public and the courts and (2) to deter the attorney 

and others from engaging in the same or similar misconduct. In 

re Kleindienst, 132 Ariz. 95, 102, 644 P.2d 249, 256 (1982) 

(citing In re Stout, 122 Ariz. 503, 596 P.2d 562 (1974)). 

Accomplishing these objectives promotes and maintains confidence 

in the bar’s integrity. In re Horwitz, 180 Ariz. 20, 29, 881 

P.2d 352, 362 (1994). To this end, Arizona generally follows the 

American Bar Association’s Standards for Imposing Lawyer 

Sanctions (1991) (“ABA Standards”) to help determine appropriate 

discipline. In re Wolfram, 174 Ariz. 49, 57, 847 P.2d 94, 102 

(1993). ABA Standard 3.0 states that the court should consider 

7
four factors: (1) the duty violated, (2) the lawyer’s mental 

state, (3) the potential for actual injury or actual injury 

caused by the lawyer’s misconduct, and (4) the existence of 

aggravating and mitigating factors. We also oversee the 

proportionality of discipline imposed in analogous cases. In re

Bowen, 178 Ariz. 283, 286, 872 P.2d 1235, 1238 (1994). Viewed in 

its entirety, the record in this disciplinary matter clearly 

establishes that Zawada indeed engaged in intentional and 

egregious prosecutorial misconduct, and that serious 

consideration by this court of the appropriate sanction is fully 

warranted. 

(1) The Duty Violated 

¶13 The hearing officer and the Commission found that clear 

and convincing evidence established Zawada’s violations of ER 3.1 

(assertions made without good faith basis in law or fact), 

ER 3.4(e) (trial tactics unsupported by admissible evidence), and 

ER 8.4(d) (misconduct prejudicial to the administration of 

justice).2

 We agree. Although the State Bar also alleged that 

 

2 In addition to Zawada’s improper cross-examination and 

argument regarding Hughes’ mental health, the hearing officer and 

Commission found that Zawada also violated these three ERs when, 

in closing argument, he improperly invoked personal fear in the 

jury to create unfair prejudice. Zawada warned the jury of 

possible future consequences of its decision: 

You know, the next time you are out on a nice, pretty, 

sunny afternoon, perhaps with your family, and you are 

driving along the roads or maybe you are at a picnic, 

your radio is on and you hear about a murder or 

8
Zawada violated ER 3.4(c) (knowing disobedience of an obligation 

under the rules), inexplicably the hearing officer did not find 

clear and convincing evidence that Zawada violated that rule. 

The hearing officer stated only that “[t]he ‘knowing’ component 

of 3.4(c) was not proven.” We believe the hearing officer erred. 

¶14 Ethical Rule 3.4(c) states: “[A lawyer shall not] 

knowingly disobey an obligation under the rules of a tribunal 

except for an open refusal based on an assertion that no valid 

obligation exists[.]” One such obligation is that a prosecutor 

cannot “imply unethical conduct on the part of an expert witness 

without having evidence to support the accusation.” Hughes, 193 

Ariz. at 86, ¶ 59, 969 P.2d at 1198 (citing State v. Bailey, 132 

Ariz. 472, 479, 647 P.2d 170, 177 (1982)). The record 

demonstrates with utmost clarity that Zawada knowingly disobeyed 

this obligation under the rule, placing him in direct violation 

of ER 3.4(c). The Arizona Rules of Criminal Procedure permitted 

the defendant, Hughes, to present expert psychiatric and 

 

something like that, or an aggravated assault, you 

think back to this case you are going to have to be 

able to say right then and there that you were 

convinced that the evidence was clear and convincing 

that this man was insane. Not just paranoid 

schizophrenic, not mentally ill, not possibly mentally 

ill, but insane. Because you know, you go back there 

in your deliberation now and you’re sitting there and 

you can’t imagine that day, ladies and gentlemen, when 

you hear this on the report and you can’t say, yes, I 

was clearly convinced, you know, that the defendant 

carried his burden. 

9
psychological testimony to support the defense of insanity. In 

fact, the rules prescribe a detailed and specific role for mental 

health professionals to assess a criminal defendant’s mental 

state. See Ariz. R. Crim. P. 11. Faced with such expert 

testimony for the defendant, a prosecutor has several options: 

he can rebut the testimony with controverting evidence; he can 

stipulate to the accuracy of the testimony; he can attack the 

defense expert through legitimate cross-examination; or he can 

ignore the testimony altogether. But a prosecutor cannot attack 

the expert with non-evidence, using irrelevant, insulting crossexamination and baseless argument designed to mislead the jury 

and undermine the very purpose of the rule. A prosecutor is 

surely entitled to an opinion as to the persuasiveness or 

validity of mental health evidence presented but must 

nevertheless adhere to established rules and standards in the 

presentation of evidence and argument in the courtroom. 

¶15 Knowing behavior is established by invoking, among 

other things, objective factors that include “the situation in 

which the prosecutor found himself, the evidence of actual 

knowledge and intent and any other factors which may give rise to 

an appropriate inference or conclusion.” Pool, 139 Ariz. at 108 

n.9, 677 P.2d at 271 n.9. Applying this standard, there can be 

no doubt that Zawada, an experienced prosecutor, was aware of his 

direct disobedience of a court rule. 

10
¶16 Zawada’s misconduct occurred in part during crossexamination when he accused the psychiatrist of indecision and of 

reaching a conclusion of insanity only after he was hired by the 

defense and paid for his services. Zawada knew there was no 

evidentiary basis for the accusation, nor did he offer one. He 

continued the attack in closing argument, suggesting, still 

without evidence, that defense counsel paid money to the mental 

health expert to fabricate a diagnosis of insanity for the 

defendant. This was not a case of negligence; rather, it was an 

intentional, knowing attack by Zawada on defense counsel, on the

experts, and on the mental health profession. Zawada’s actions 

unquestionably indicate he knew his conduct constituted outright 

disobedience in violation of ER 3.4(c). 

 (2) Zawada’s Mental State 

¶17 The hearing officer’s conclusion with regard to 

Zawada’s mental state in violating the rules is equally clear: 

“[He] violated the duties to his client and to the legal system. 

The conduct was intentional, although [he] believed that his 

actions were well-founded and appropriate.” Based on the complete 

record, the court concludes that Zawada’s rebuttal arguments and 

cross-examination of the experts were grossly improper and 

deliberate and thus in violation of the rule that protects the 

defendant’s right to present the defense of insanity. With 

11
specific reference to our decision in Hughes, we declared in 

Jorgensen: 

[Zawada’s method of prosecution] was “a dishonest way 

to represent the State . . . , and it was especially 

dishonest . . . where the evidence of insanity was 

substantial, and where the [s]tate had no evidence that 

[Defendant] had fabricated an insanity defense.” We 

unanimously concluded that the “evidence of mental 

illness was overwhelming” and Defendant’s case for 

acquittal on grounds of insanity was “substantial.” 

The state overwhelmed Defendant’s insanity defense, 

“but it did not do so with evidence; it did so with 

prosecutorial misconduct.” We condemned this win-byany-means strategy, agreeing with Defendant’s argument 

that it “was a direct attempt to . . . prejudice the 

jury” and to put the fear of acquittal in the jurors’ 

minds. 

198 Ariz. at 390-91, ¶ 2, 10 P.3d at 1177-78 (second alteration 

in original) (internal citations omitted). 

¶18 In his attempt to discredit, Zawada attacked the 

experts, their profession and credibility through disingenuous, 

baseless argument and cross-examination. This was highly 

improper and provides ample evidence that Zawada’s actions were 

intentional and knowing, aimed at thwarting Hughes’ insanity 

defense and gaining a conviction at any cost. 

(3) Potential or Actual Injury 

¶19 The more serious the injury, the more severe should be 

the sanction. See, e.g., In re Cardenas, 164 Ariz. 149, 152, 791 

P.2d 1032, 1035 (1990) (noting that the difference between ABA 

Standards 4.41(b) (calling for disbarment) and 4.42(a) (calling 

for suspension) is the seriousness of the injury). Serious 

12
injury was caused by Zawada’s misconduct. The criminal justice 

system suffered, as did society as a whole. When serious crime 

goes unpunished everyone suffers, not because the suspect was 

unidentifiable, but because a prosecutor’s misconduct bars 

retrial as a matter of double jeopardy. Disciplinary 

Commissioner Cahill spoke accurately in his dissent from the 

Commission’s recommendation: “Simply put, [Zawada’s] knowing, 

deliberate and intentional misconduct either caused a murderer to 

walk free, or it helped convict an innocent man of first-degree 

murder. Either way, no harm could be more serious.” 

(4) Aggravating vs. Mitigating Factors 

¶20 The hearing officer considered both aggravating and 

mitigating factors in determining the proper sanction to be 

recommended. Pursuant to ABA Standard 9.22(c), the officer found 

that Zawada engaged in a pattern of misconduct consisting of 

serious violations that occurred during both the Hughes trial and 

the Pool trial.3

 Together, these cases demonstrated repeated 

instances of misconduct in cases that involved serious 

consequences. We agree with that finding. In addition, we 

agree, pursuant to ABA Standard 9.22(i), that Zawada’s 

 

3 Zawada was the prosecutor in Pool, and there, as in Hughes, 

double jeopardy attached because Zawada “intentionally engaged in 

improper conduct for the purpose of forcing defendant to seek a 

mistrial so that the prosecution could procure a new indictment 

with correct charges.” Pool v. Superior Court, 139 Ariz. 98, 

107, 677 P.2d 261, 270 (1984). The court found his conduct to be 

“egregiously incorrect.” Id.

13
substantial experience in the practice of law should be treated 

as an aggravating factor. The finding of substantial experience 

is justified by the fact Zawada has practiced law in Arizona 

since 1979. 

¶21 No less important is that much of his experience as an 

attorney has come through many years working as a prosecutor. 

Because prosecutors’ ethical duties exceed those of lawyers 

generally, substantial experience as a prosecutor may become a 

further aggravating circumstance, particularly in cases, as here, 

where the prosecutor should have learned much earlier to conform 

his conduct to the rules, but has not done so.4

¶22 We addressed this issue squarely in our very recent 

decision, In re Peasley, __ Ariz. __, __, ¶ 40, 90 P.3d 764, 774 

(2004), finding that “when a lawyer’s substantial experience 

places that lawyer in a position that would be unavailable to a 

less experienced lawyer, and that lawyer’s experience also 

affords, or should afford, a greater appreciation of the 

advantages of eliciting false testimony, substantial experience 

may be considered a relevant aggravating factor.” As a seasoned 

prosecutor in the Pima County Attorney’s Office, Peasley, like 

 

4 We do agree, in mitigation, that Zawada does not have a 

prior disciplinary record with the Bar. ABA Standard 9.32(a). 

However, we accord little or no consideration to the absence of a 

disciplinary record when there is evidence of prior, known 

misconduct. See In re Peasley, __ Ariz. __, __-__ ¶¶ 51-52, 90 

P.3d 764, 775-76 (2004). Such is the case here. See Pool, 139 

Ariz. at 98, 677 P.2d at 261. 

14
Zawada, was given the responsibility of prosecuting capital 

cases. Id. An inexperienced attorney would not be given such 

responsibility. Further, Peasley’s extensive experience as a 

prosecutor helped him understand how a jury would react to 

unfavorable evidence. Accordingly, he suborned perjured 

testimony to destroy the negative inference the jury would 

otherwise have drawn. Id. 

¶23 Similarly, Zawada’s substantial experience informed him 

how the jury would react if he did not impeach the defendant’s 

experts. His substantial experience also informed him that an 

improper cross-examination such as the one he engaged in would 

affect the defense experts’ credibility. As a result, Zawada, 

without supporting evidence, launched a full scale attack on the

credibility of defendant’s experts and on the mental health 

profession in general. 

¶24 Thus we conclude, as in Peasley, that Zawada’s 

substantial experience as a prosecutor is an aggravating factor. 

Cf. Maretick v. Jarrett, 204 Ariz. 194, 199, ¶ 19, 62 P.3d 120, 

125 (2003); New Jersey v. Torres, 744 A.2d 699, 708 (N.J. Super. 

Ct. App. Div. 2000) (“A prosecutor is not simply another lawyer 

who happens to represent the state. Because of the overwhelming 

power vested in his office, his obligation to play fair is every 

bit as compelling as his responsibility to protect the public.”). 

15
¶25 Moreover, like the dissenting Commissioner, we find 

clear evidence that Zawada has refused, and to this day continues 

to refuse, to acknowledge wrongful conduct both in Hughes and in 

Pool. His unwillingness to recognize wrongful conduct has led 

Zawada to outright hostility. Such an attitude is an aggravating 

circumstance in itself under ABA Standard 9.22(g). At the 

disciplinary hearing, Zawada stated, “I’m here not because I did

anything wrong. I’m not here because I did anything unethical, 

and I’m not here because I deserve to be punished for anything 

that’s transpired.” Since this disciplinary process began, this 

has been Zawada’s attitude. In his own words, Zawada believes 

that “[t]his Court simply wishes to punish [him] for thinking 

[differently] on the issue of the admissibility of, reliability 

of, psychiatric-psychological testimony.” He believes this case 

“expose[s] the Arizona Supreme Court’s pro-psychiatry/antiprosecution position; its pop culture values; it’s [sic] 

overzealousness in pursuit of those values.” Finally, he asserts 

that “there is no precedent in the history of Arizona 

jurisprudence” to suggest that he acted unethically. As the 

dissenting Commissioner noted, 

[Zawada] fails to acknowledge that he is singlehandedly responsible for much of the law in Arizona on 

the consequences of extreme prosecutorial misconduct. 

His sweeping statement about our jurisprudence omits 

mention of several pertinent cases, each of which 

addresses whether he has ever done anything unethical. 

State v. Pool, State v. Hughes, and State v. Jorgenson. 

 

16
It would be difficult, in view of Zawada’s acrimonious statements 

to the hearing officer, to the Disciplinary Commission, and to 

this court, to conclude that Zawada acknowledges even a single 

violation. As a result, we find, pursuant to ABA Standard

9.22(g), that Zawada’s continuing refusal to recognize what is 

clearly gross misconduct is a further aggravator to be considered 

in the process of determining the sanction in this case. 

(5) Proportionality of Discipline Imposed in Analogous 

Cases 

¶26 The hearing officer correctly noted the absence of 

Arizona case law with similar facts. The Supreme Court of 

Florida, however, was confronted with a prosecutorial misconduct 

case strikingly similar to the case before us. Florida Bar v. 

Schaub, 618 So. 2d 202, 204 (Fla. 1993). That decision, though 

not binding, is instructive. 

¶27 The Supreme Court of Florida suspended Mr. Schaub, a 

prosecutor, because: 

1. During cross-examination, Schaub improperly 

elicited irrelevant testimony from the defense’s expert 

psychiatrist, Dr. Tanay, that a non-testifying expert 

had classified him as a “hired gun.” Later, in 

summation to the jury, Schaub again referred to Tanay 

as a “hired gun.” 

2. Schaub accused Dr. Tanay of charging $600 per hour 

for his deposition testimony. Yet, Schaub had a copy 

of the itemized bill showing Tanay charged $150 per 

hour. 

3. Throughout his cross-examination, Schaub insulted 

Dr. Tanay, ignored the trial court’s rulings on defense 

objections, and inserted his personal opinions on 

17
psychiatry and the insanity defense into his 

questioning. 

Id. at 203. 

¶28 Like Zawada, Schaub “refus[ed] to acknowledge the 

wrongful nature of his conduct.” Id. at 204. And like Zawada, 

Schaub had substantial experience as a prosecutor. Id. 

Importantly, unlike Zawada, nothing in the Florida opinion 

suggests that Schaub’s misconduct was repetitive, although 

neither he nor Zawada had a formal disciplinary record. Schaub 

received a thirty-day suspension. Id. 

¶29 Suspension from the practice by reason of misbehavior 

either in the courtroom or in court-related proceedings is not 

without precedent in Arizona. In In re Alcorn, 202 Ariz. 62, 41 

P.3d 600 (2002), this court, sua sponte, increased the 

Commission’s recommended discipline of a thirty-day suspension to 

six months. Alcorn and Feola defended a doctor in a medical 

malpractice action against the doctor and a hospital. Id. at 64, 

¶ 9, 41 P.3d at 602. By secret agreement, the injured plaintiff 

and the defendant doctor effectively pursued a “mock” trial, 

taking the court’s time and resources without disclosing to the 

judge that the trial was a sham. Id. at 65, ¶ 11, 41 P.3d at 

603. The agreement between the injured plaintiff and the doctor 

was concealed from the court even when the judge sensed the 

possibility that such an arrangement existed and asked about it. 

Id. at 66, ¶ 15, 41 P.3d at 604. The purpose of the sham trial 

18
was to help the plaintiff bring the hospital back into the case 

as a defendant by adducing damning information from the defendant 

doctor at trial, while at the same time having given the doctor a 

covenant not to execute on any judgment. Id. at 65, ¶ 12, 41 

P.3d at 603. 

¶30 In holding that a six-month suspension was appropriate, 

the court found that the attorneys’ conduct was knowing and 

intentional and, among other things, had wasted valuable judicial 

resources. Id. at 74, ¶¶ 42-43, 41 P.3d at 612. The court found 

several mitigating factors, including a non-selfish motive, a 

cooperative attitude toward the disciplinary proceedings, and an 

unlikely repetition of such conduct in the future. Id. at 74-75, 

¶¶ 45-46, 41 P.3d at 612-13. 

¶31 In contrast, Zawada has remained hostile, utterly 

refusing to cooperate in the disciplinary proceedings. His 

unwillingness to acknowledge gross misconduct suggests at least 

some risk that Zawada, given the opportunity, would treat expert 

witnesses in another case with a serious mental health component 

in the same manner in which he treated the expert witnesses in 

Hughes. That risk, without appropriate discipline at this point, 

is unacceptable. 

¶32 In In re Moak, 205 Ariz. 351, 71 P.3d 343 (2003), also 

in sua sponte review proceedings, this court increased the 

Commission’s recommended discipline of six months’ suspension to 

19
six months and one day in order to require Moak to follow the 

formal application and reinstatement procedure under the rule. 

See Ariz. R. Sup. Ct. 64(e). 

¶33 Moak, the disciplined attorney, withheld vital evidence 

of his client’s injuries sustained in a second car accident 

before the case went to trial on the first accident. Id. at 353-

54, ¶ 10, 71 P.3d at 345-46. He thus knowingly misled the jury 

by withholding relevant evidence as to the occurrence of injuries 

for which the defendant clearly was not responsible. Equally 

serious, Zawada misled the jury by attacking the experts with 

irrelevant interrogation and baseless argument, all without 

evidence offered in support. 

¶34 Finally, this court disbarred prosecutor Peasley 

because he knowingly introduced perjured testimony through a 

police witness in two capital trials. Peasley, __ Ariz. at __-

__, ¶¶ 65-66, 90 P.3d at 778-79. The distinction between Peasley 

and Zawada is that Peasley concealed acts amounting to 

subornation of perjury, while Zawada misled the jury openly, 

appealing to fear and emotion. Both acts are serious and deserve 

to be sanctioned. But Peasley’s acts, because they involved 

fraud and concealment within the judicial system, are 

substantially more serious. Conversely, there was no intentional 

concealment on Zawada’s part. 

20
(6) The Proper Sanction 

¶35 A mere censure of Zawada or even the imposition of 

probation without suspension, in our judgment, would undermine 

the disciplinary process applicable to all lawyers, would 

contravene the presumptive discipline suggested by the ABA 

Standards, and would be grossly disproportionate to discipline 

imposed in other cases in which serious misconduct was found. We 

agree with the dissenting member of the Disciplinary Commission: 

A public rebuke will do nothing to deter [Zawada]. The 

Supreme Court’s 1984 criticism of his trial tactics in 

State v. Pool – in all practical effect a public 

censure – had no deterrent effect; he repeated his Pool

misconduct in State v. Hughes. The Supreme Court’s 

scathing assessment in the State v. Hughes opinion also 

has had no effect; [Zawada] is still right and everyone 

else is wrong – and biased. Finally, even State v. 

Jorgenson is not enough to deliver the message to 

[Zawada]. What else can be said to get him to obey the 

law? Why do we think he will heed our censure, when 

Supreme Court opinions mean absolutely nothing to him? 

Disciplinary Commission Report, at 10 (Cahill, dissenting). 

¶36 ABA Standard 6.22 recommends that suspension be imposed 

when a lawyer “knowingly” disobeys a court order or rule. 

Standard 6.23, on the other hand, recommends a censure for 

disobedience that was merely negligent. Zawada’s misconduct in 

the prosecution of the Hughes case was knowing and intentional, 

not merely negligent. Further, in light of the aggravating 

circumstances, including the evidence of prior misconduct in the 

Pool case, the single mitigating factor – absence of prior bar 

discipline - is not sufficient to justify a lesser sanction. We 

21
must apply discipline here where Zawada has acted knowingly or 

intentionally, where aggravating factors outweigh mitigating 

factors, and where substantial damage resulted. 

¶37 Sanctions should be reasonably proportionate. On this 

record, therefore, we believe that a suspension, together with a 

subsequent probationary period, a referral to the Member 

Assistance Program, and requiring continuing education hours, 

will have the best chance of accomplishing the purposes of lawyer 

discipline. 

III. Conclusion and Order 

¶38 Based on the record, Mr. Zawada is hereby suspended 

from the practice of law in Arizona for six months plus one day, 

beginning thirty days from the date of this opinion. Further, 

upon reinstatement, Mr. Zawada shall be placed on probation, 

under bar supervision, for one year. He shall also be referred 

to the Member Assistance Program in which he shall participate 

under conditions imposed on him by Program officers. Mr. Zawada 

shall attend fifteen hours of continuing education that addresses 

the effective use of and response to psychiatric and 

psychological testimony, and shall not participate in any case 

involving a mental health component until such time as he shall 

have completed the continuing education requirement. Finally, 

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Mr. Zawada is ordered to pay the costs and expenses of these 

disciplinary proceedings. 

___________________________________ 

 Charles E. Jones, Chief Justice 

CONCURRING: 

____________________________________ 

Ruth V. McGregor, Vice-Chief Justice 

____________________________________ 

Rebecca White Berch, Justice 

____________________________________ 

Michael D. Ryan, Justice 

____________________________________ 

Andrew D. Hurwitz, Justice 

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