SUPREME COURT OF ARIZONA

En Banc

In the Matter of a ) Arizona Supreme Court

Suspended and Inactive ) No. SB-02-0046-D

Member of the )

State Bar of Arizona ) Disciplinary Commission

) No. 00-1831

ROGER A. McKEE, )

Attorney No. 2715 )

) MEMORANDUM DECISION

)

Respondent. )

__________________________________)

ON PETITION FOR REVIEW

VACATED IN PART; APPROVED IN PART

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State Bar of Arizona Phoenix

By Maret Vessella

Senior Bar Counsel

and Ralph Adams

Staff Bar Counsel

Attorneys for State Bar of Arizona

Fennemore Craig Phoenix

By Timothy J. Burke

Attorneys for Roger A. McKee

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M c G R E G O R, Vice Chief Justice

¶1 This matter began as a disciplinary proceeding against

Respondent Roger A. McKee. During the course of the disciplinary

hearing, the hearing officer transferred McKee to temporary

disability status and set a hearing to determine whether he should

be transferred to permanent disability inactive status. See Ariz.

R. Sup. Ct. 59(b). On June 24, 2001, the hearing officer issued an

amended report, effecting the transfer and assessing the costs and
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expenses of the disability proceeding against Respondent, pursuant

to Rule 59(b).

¶2 The State Bar did not file its statement of costs until

November 10, 2001, at which time Respondent objected on the basis

that the State Bar had not timely filed its statement. In its

decision of December 24, 2001, the Disciplinary Commission adopted

the hearing officer’s recommendation that McKee be placed on

permanent disability inactive status with probation and assessed

costs, pursuant to Rules 59(b), 52(a)6 and 8.

¶3 Respondent sought review to challenge the assessment of

costs against him. We agree that the State Bar failed to file a

timely statement of costs. The official note to Rule 59(e), which

permits the hearing officer to assess the costs of disability

proceedings, states that costs should be assessed “consistent with

rule 52(a)8.” Ariz. R. Sup. Ct. 59(e), Note to 1991 Amendment.

Rule 52, in turn, directs the State Bar to file its statement of

costs “within seven (7) days after a hearing officer report is

filed.” Ariz. R. Sup. Ct. 52(a)8. The Bar failed to file its

statement of costs within seven days and has provided no

explanation for that failure. Respondents in disciplinary and

disability proceedings are entitled to receive prompt notice of the

costs requested by the State Bar. We therefore vacate the

assessment of costs against McKee.

¶4 We also granted the State Bar’s cross-petition for review
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to determine whether the Disciplinary Commission’s decision to

adopt terms of probation, to which McKee agreed, effectively

insulates McKee from any adverse consequence of disobeying the

terms of probation. We agree that, because McKee’s transfer to

permanent disability status stays all disciplinary matters, see

Ariz. R. Sup. Ct. 59(b)2, the State Bar could not prosecute a

violation of the terms of probation. Moreover, imposing conditions

of probation conflicts with Rule 59(b)1.C, which provides that

orders of transfer to disability status “may include conditions of

conduct in the nature of probation . . . .” Ariz. R. Sup. Ct.

59(b)1.C (emphasis added). We therefore re-designate the terms of

probation imposed by the Disciplinary Commission and order that the

conditions set forth as terms of probation become effective as

conditions of conduct, pursuant to Rule 59(b). If Respondent fails

to comply with the Order of this court imposing those conditions of

conduct, he can be held in contempt of court in appropriate

proceedings.

¶5 We approve the remainder of the December 24, 2001

Disciplinary Commission Report.

______________________________________

Ruth V. McGregor, Vice Chief Justice
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CONCURRING:

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Charles E. Jones, Chief Justice

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Stanley G. Feldman, Justice

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Rebecca White Berch, Justice