Commenter’s Name: - Pascal Brown
Committee Name, if applicable - n/a
Mailing Address - (Office of the Public Advocate) - 570 W. Brown Rd - Mesa, AZ 85201
Phone Number - 480-344-2018
E-mail Address -
[email protected] If you are an attorney: Bar Number - 024246
Regarding Rule 401(e)
As currently proposed, Rule 401(e) appears to provide the guardian with greater protection than the patient, whose liberty interest is actually at stake. Specifically. Rule 401(e)(2) provides that "the court may impose remedies or sanctions to address" a failure to timely serve the guardian. This is, of course, appropriate to help ensure the guardian is adequately aware of action pending against their ward.
However, the Rule does not currently afford the same protections to the patient who is, arguably, significantly more affected by infringement on their liberty interest. While the proposed Rule 401(e)(1) does require service, unlike its counterpart in Rule 401(e)(2), it does not provide for any failure of service. To remedy this inequitable inconsistency, Rule 401(e)(1) should be amended to include the same or similar language: that the court "may impose remedies or sanctions" to address failure to timely serve the patient.
Regarding Rule 502(a)
Rule 502 (a): There is no provision within §36-543 which says if the patient’s attorney does not file a timely response to the application, the court must deem the allegations in the application to be admitted. Instead, §36-543 (D)(2) specifically states it is the defense attorney’s duty within ten days after appointment…to the extent possible to fulfill the duties imposed pursuant to §36-537…and file a response requesting a hearing or submitting the matter to the court for a ruling based on the record. It is clear from the wording of this statute that the language “to the extent possible” asks the defense attorney to do the best they can understanding that clients facing court-ordered treatment renewal are often outpatient within the community, and therefore sometimes transient and hard to contact especially within this short time deadline. Requiring the court to deem the allegations admitted if a timely response is not filed expands the language and intent of §36-543, thereby imposing an unfair “strict liability” penalty on the defense attorney and client when the statute only allows the court the option in §36-543 (D)(3) to either rule on the application “as is” or set the matter for hearing. Therefore, it is requested that subsection (a) be removed from this Rule.
Regarding Rule 502(d)
The argument for Rule 502 (a) applies to Rule 501 (d). Therefore, it is requested that the last sentence of Rule 501 (d) also be removed, which states, “an attorney’s signature on the response constitutes an avowal that the attorney has met with the patient and fulfilled the other duties imposed by A.R.S §§ 36-537 and 36-543(D)(2).” Making an attorney’s signature on the response an avowal that they fulfilled their statutory duties imposes an affirmative duty on the defense attorney, which is not imposed by §36-543 (D)(2). Again, this subsection specifically qualifies the defense attorney’s duty “to the extent possible” understanding the difficulty of sometimes being able to contact clients within the ten-day time limit while also meeting their statutory obligations.