Background
John Accursio, a lawyer admitted in New York and Washington, D.C., represented parties in an Arizona business dispute alongside Arizona co-counsel. After Accursio filed a State Bar charge alleging that opposing counsel Clark Wu had a conflict of interest, Wu filed a charge accusing Accursio of unauthorized practice of law in Arizona. The State Bar required Accursio to respond, conducted a screening investigation, and obtained a protective order concerning sensitive material in his submissions.
While the charge was pending, a New York law firm rescinded an employment offer to Accursio after he disclosed the investigation. The State Bar ultimately dismissed the charge, but the firm did not reinstate its offer. Accursio then sued Wu for wrongful institution of civil proceedings and sued BB Group, LLC and Justin Brandt for aiding and abetting. The superior court dismissed those claims with prejudice under Rule 12(b)(6), and the court of appeals vacated the dismissal.
The Court’s Holding
In a 5–2 decision, the Arizona Supreme Court held that a charge filed with the State Bar may serve as the predicate civil proceeding for a wrongful institution of civil proceedings claim. For an ethics charge against an Arizona-admitted lawyer, the civil proceeding commences when the lawyer receives written notice of a screening investigation and must provide a written response. For an unauthorized-practice charge, it commences when the State Bar receives the charge.
The majority also held that Arizona Supreme Court Rules 48(l) and 80(a)(6) privilege communications to the State Bar and testimony in related proceedings, but do not immunize a complainant from liability for the act of filing a charge. A plaintiff may rely on admissible, nonprivileged evidence, including timing, background facts, and nonprivileged communications. Because Accursio sufficiently alleged that a civil proceeding commenced and pleaded nonprivileged supporting facts, the Court reversed the dismissal, vacated the court of appeals’ memorandum decision, and remanded. Justice Montgomery, joined by Justice Cruz, dissented and would have affirmed dismissal, reasoning that State Bar proceedings are not civil proceedings and that the rules absolutely privilege the filing of a charge itself.
Key Takeaways
- A State Bar charge can qualify as a civil proceeding supporting a wrongful institution of civil proceedings claim under Arizona law.
- The commencement point depends on the charge: receipt by the State Bar for unauthorized-practice allegations, or written notice requiring a response for an ethics screening investigation involving an Arizona lawyer.
- Communications to the State Bar remain absolutely privileged, so any surviving claim must be proved through relevant, admissible, nonprivileged evidence.
Why It Matters
The decision permits potential tort liability for wrongfully initiating Arizona State Bar proceedings while preserving the absolute privilege covering statements made to the Bar and related testimony. It also establishes specific commencement rules for determining when disciplinary and unauthorized-practice matters can satisfy the civil-proceeding element of the tort.
The ruling does not establish that Wu is liable. On remand, Accursio must prove every element of his claim—including malice, lack of probable cause, favorable termination, and damages—without relying on privileged communications to the State Bar.