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place the burden of proof on petitioners. First, we observe that
in Arizona v. Fulminante, 499 U.S. at 295-296, the Supreme Court
ruled that the State had the burden of proving that the erroneous
admission of the defendant's confession was harmless beyond a
reasonable doubt. By analogy, respondent should bear the burden
of proving that the admitted misconduct of his attorneys was
harmless and had no material effect on the outcome of the trial.
In addition, we note that respondent has had direct and immediate
access to the critical witnesses and most of the relevant
documents since May 1992, when respondent first discovered the
misconduct in question. Further, respondent conducted an initial
investigation of the misconduct, to the exclusion of all private
parties, shortly after discovering the misconduct. Finally,
respondent, by asserting various privileges in response to
Mr. Izen's motion to compel production of documents, succeeded in
protecting from discovery various documents generated during
respondent's investigation. Taken together, these factors
persuade us that the interests of justice are better served by
placing the burden of proof on respondent, and we so hold.
Because these cases concern attorney misconduct in the civil
context, the standard of proof and persuasion that we apply is
clear and convincing evidence. See, e.g., Bunch v. United
States, 680 F.2d 1271, 1283 (9th Cir. 1982) (attorney
misconduct).
For purposes of completeness, we briefly address the
immaterial exception alluded to above. That exception arises
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