June 2011


Tuesday evening saw 2011’s version of what has become a noteworthy legal event for Arizona. That was the reception honoring the lawyers who were counsel in the cases that garnered the Top 10 Civil Verdicts moniker, as published in our June Arizona Attorney Magazine.

Lawers from this year's Top 10 Civil Verdicts. Our author Kelly MacHenry, a trial lawyer herself, is seated in the front row.

Hosted at Snell & Wilmer by partner and litigator Kelly MacHenry, the event brings together those trial lawyers, as well as those who won significant defense verdicts in cases where claimed damages were high.

I wrote about this event last year, and one thing makes the event better with every passing June.

The characteristic that marks the evening and makes it a must-attend event is not the wonderful food or the plush digs, both of which are great every time. The true value of the gathering lies in the remarks by the trial lawyers themselves. For after Kelly describes each case and hands the lawyers their certificates, they get the opportunity to share something about the case—what element was decisive, any aha moments that were milestones, what witness or piece of evidence was key to their success.

It is a pleasure and a surprise for me every year how open and expressive the honorees are in response to Kelly’s invitation to share some of their trial strategies—or moments of great good luck! People whose livelihood is ensuring a good outcome for their clients in a courtroom often relax into a discussion of the moment when it all came together—or when it looked like it was all going to hell in a handbasket.

Huge Arizona Attorney cover-photo appears dwarfed by photograph from Snell & Wilmer's art collection.

I told the attendees why the issue is one of my favorites throughout the year: I enjoy hearing what Arizona juries are doing and what trends the verdicts may reflect. But I also enjoy the successes and stories of trial lawyers. Although a huge part of their job is preparation, at the end of the day, they must act decisively even when surprises arise.

If you are comfortable only when you have your belt and suspenders firmly cinched up, litigating may not be the venue for you.

I also have to single Kelly MacHenry out for praise. She brings to a thankful magazine the complete package: She writes extremely well, she’s laser-focused on accuracy, she meets deadlines—and she’s super-smart! If any potential authors out there embody even one of these qualities, I’d be happy to work with you on an article. If you bring all four—you’ve made my month! Write to me at arizona.attorney@azbar.org.

Congratulations to all the lawyers and their amazing trial teams. And thanks to Kelly for phenomenal writing and idea generation.

Click here to see some more pictures on the Arizona Attorney Magazine Facebook page.

And here is the list of honorees (in alphabetical order):

What’s the best antidote to the slow stew you feel when your desk is overloaded and there’s no end in sight?

Get up from your desk, of course. Leave the office. And volunteer at an event hosted by the Arizona Foundation for Legal Services & Education.

That’s exactly what I did last Thursday, and I’m still living off the residual good karma.

We the People is an incredible program in which schoolkids demonstrate their grasp of difficult, thorny constitutional issues. It requires months of study and teamwork, and it culminates in front of mock panels of Congressional leaders. That’s where I and others come in.

But those amazing performances are preceded by some pretty impressive foundational work by their teachers. In fact, to have your class take part in the grueling competition, the schoolteachers have to go through it themselves first.

That’s what last week was about. We Congress-folk listened, cajoled and questioned the teachers, who had spent a lot of their free time learning what We the People takes. And they were terrific.

Their performance makes me look forward even more to the school year, when some of the best of Arizona’s youth will show their chops in regard to the U.S. Constitution.

Thanks to the Foundation for letting a law geek like me take part. As always, it was a privilege.

Click here to see some more pictures on the Arizona Attorney Magazine facebook page.

A news release from the State Bar of Arizona yesterday warns lawyers—and others—about a scam that comes, goes, and is back again.

As the Bar’s Rick DeBruhl describes it, the scam leads the unwary into sending money directly into the hands of criminals. The Bar has warned about this in the past, but it bears repeating.

Here is the beginning of the news item. Read the complete piece here.

A Scam Aimed at Stealing Money from Lawyers is Surging Through Arizona Again

By Rick DeBruhl, Chief Communications Officer
June 27, 2011

“While the details vary, the basics remain the same. Sometimes the lawyer is contacted by someone who claims to want representation (often it involves a divorce or business settlement). At the beginning of the relationship, the lawyer is sent a check from the alleged client as a retainer. Shortly after the check has been deposited the client explains that he needs a portion or all of the money returned (sometimes because the bogus case “settled” before the lawyer had a chance to take action). The lawyer dutifully returns the money, only to find out that the original check has bounced and now the bank wants the funds returned. …”

The complete release is here.

This morning, the U.S. Supreme Court announced its decision in two combined Arizona cases, which together comprise what we’d call the Clean Elections case.

As SCOTUSBlog originally announced (and the ABA Journal passed on), the 5–4 decision found the Arizona law an unconstitutional infringement of free speech.

Here are the opinion and dissent (in PDF).

I have not yet read the opinion, so I cannot tell if it relied on any of the arguments stated in a pro–con on the topic we ran in the November 2010 Arizona Attorney Magazine.

But I would be curious about one thing: How many of the Court’s opinions or dissents through history have used the word “chutzpah,” as Justice Kagan did in her dissent:

This suit … may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while bankrolling someone else’s. … But the candidates bringing this challenge do not make that claim—because they were never denied a subsidy. Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

This case, and the Court’s other recent campaign-funding jurisprudence, means one thing for sure: We will be covering the topic in future issues.

It is Change of Venue Friday, when we take a well-earned rest from the veddy veddy serious business of law practice to muse upon something a bit lighter.

Today’s idea comes to me via my boss, Rick DeBruhl. As the Chief Communications Officer of the State Bar of Arizona, he is responsible for big ideas, big branding, big communicating.

That’s why his being the source of this idea—lawyer license plates—is so surprising.

Using his cellphone, he sent me a few pictures while we were both in Tucson at the annual Bar Convention. He was strolling through the attendee parking lot (thinking Big Thoughts, for sure) when he spotted these two metallic examples of lawyer marketing.

Then, this morning, as I drove to work in Phoenix, I was roused from my drowsiness by the court order that graced an SUV license plate ahead of me.

Very funny, all. If you want to send me any other examples of street-view communications, write to me at arizona.attorney@azbar.org.

Have a great weekend.

We’ve all become accustomed to sifting through nearly incomprehensible news stories about complex financial crimes. They usually involve hedge funds, offshore accounts and other economic tomfoolery that most of us can only marvel at.

But every now and then, a good old-fashioned crime story comes along that we can all sink our teeth into. And one of those happened yesterday.

It was reported that James “Whitey” Bulger was arrested in Santa Monica, Calif. His crimes were of the decidedly non-yawn-inducing variety: He was sought in connection with up to 21 murders in the 1970s and 1980s.

Read the story here.

So rip-roaring was this criminal’s (excuse me, suspect’s) yarn that when acclaimed filmmaker Martin Scorcese looked around for a compelling story, Bulger’s came to the fore. Out of his own brand of domestic terrorism, we got the admirable movie “The Departed.”

James J. Bulger in 1959, Alcatraz

Adding to the intrigue was the fact that the FBI, which will get attaboys for catching someone who has been on the lam for a decade, also was harshly criticized for their own cozy relationship with the accused murderer. In fact, it was a former Boston FBI agent who tipped off Bulger back in 1995 that he was about to be indicted that caused him to amscray; and that agent was later convicted of second-degree murder for other tipoffs he gave Bulger that led to killings. Ludlum and Turow couldn’t do much better than that.

Not enough to draw you in? Try this: His younger brother is William M. Bulger, a former President of the Massachusetts State Senate and the University of Massachusetts.

A sidebar to this tale comes from the Los Angeles Times, which asks, “Is ‘Whitey’ Bulger OC’s elderly bandit?”

The 2005 story was one of a string of possible Bulger sightings; time and evidence will tell whether he robbed Orange County banks. Clearly, the economy has forced many retirees to continue to toil at their lifelong profession.

Having lived in Orange County and enjoyed the L.A. area, I chuckle a bit at the specter of an old mobster living out his golden years amidst the sun, surf and celebrity. Finally, it appears, his relaxation plans have been put on hold. Congratulations to the FBI.

Victor Riches, Arizona House Chief of Staff

Two stories percolating this week demonstrate solidarity in the face of adversity. Oddly enough, both come out of the Arizona Legislature.

I say “oddly” because recent actions from lawmakers demonstrate an almost unwavering support for a variety of themes: law and order, personal responsibility, a dislike for excuses. But those things fall away when it’s one of your own whose ox is being gored.

The first story is about the chief aide to the House Speaker. He was stopped for extreme DUI, and cocaine was even found in the car he was driving. But both Speaker Andy Tobin and former Speaker Kirk Adams stand by Victor Riches. They say they appreciate his “candor” about the 2010 incident.

Here is another story about the arrest. It quotes a criminal defense attorney who muses on the different type of treatment that differently situated defendants receive.

House Speaker Andy Tobin and former Speaker Kirk Adams

That follows on the heels of the Scott Bundgaard domestic-violence case. Laurie Roberts in the Republic writes about that again today.

As Roberts described it, the matter is “perhaps the longest misdemeanor investigation ever.” But how much more abbreviated it might have been if lawmakers decided not to throw their unwavering support behind the state senator.

Optimistic readers may hope this all signals a new openness among leaders to arguments that the facts underlying criminal charges are often complicated, and that no one should be demonized until they get their day in court.

A hopeful lot, they.

State Senator Scott Bundgaard

Former Bar President Bob Schmitt speaks after receiving the Walter E. Craig Distinguished Service Award, June 16, 2011

Last Friday, hundreds of State Bar of Arizona convention attendees thronged a Westin ballroom to hear what Juan Williams had to say. And that is understandable, as we wonder about the view held by those from lofty vantage points.

But if there is a heart to a convention—and to an entire profession of lawyers—that heart was found the day before. In a ballroom not so different—though not quite as filled—the Arizona Foundation for Legal Services & Education hosted its own luncheon. There, it honored a variety of commitment that may be less ballyhooed but that is just as noteworthy. For the Foundation luncheon honored lawyers who had brought it—and when I say “it,” of course, I mean justice. These individuals had stepped up for years and years when there was no limelight and no microphone. When their only payment may have been a quiet moment in their drive back home late at night. When the more common response to a dire legal problem—walk away—would have meant devastation or worse to a person or a family.

At the luncheon, then-President-Elect Joe Kanefield delivered what may be described as one of the briefest keynotes in history (that bodes extremely well for his presidential year!), but he used his time wisely.

He took well-earned pride in the fact that Arizona lawyers recently exceeded the $1 million mark in voluntary donations via their dues statements. And he spoke eloquently about how access to justice was not merely his passion—and one of his year’s goals—but that it was a “critical component to the State Bar’s mission; and now it has been made a part of our mission statement.”

As a concrete part of his own commitment, President Kanefield was re-initiating the Bar’s Access to Justice Task Force.

He also related—via Foundation Executive Director Kevin Ruegg—a “typical day in the life of an Arizona legal services provider”:

  • 434 people had their questions answered and their hope restored.
  • 47 attorneys volunteered their time.
  • Even after all that, more than 750 had been turned away, either because they exceeded the laughably low cutoff for someone who is “too well-off” to receive free legal assistance, or because there were insufficient resources to serve them.

The facts were bleak, but Joe’s words were inspiring. And they were followed by the awards themselves:

  • John Bouma: Foundation for Justice Award
  • Hon. Daniel Barker: Mark Santana Law-Related Education Attorney of the Year
  • Ben Smith: William E. Morris Pro Bono Service Award
  • Robert Schmitt: Walter E. Craig Distinguished Service Award

Many of the award winners, as well as the distinguished people who introduced them, took the opportunity to remind the audience about the role each of them could play.

In the years that lawyer Ben Smith has stepped up to provide pro bono services, he has assisted more than 1,800 people.

That is not a typo: 1,800+

But that massive number is only a fraction of the need, Smith said.

“It epitomizes the dimensions of the problem we’re all trying to help people with. There are thousands and thousands of people with no access to the justice system.”

Cleans Elections chief Todd Lang, who introduced Ben Smith, put it more bluntly: “We all believe mightily in justice, and yet access to justice languishes.”

Throughout the event-packed convention, a profession winced, and knew not why.

In the video tribute leading up to Bob Schmitt’s award, a friend said, “Bob simply won’t say no to any request, no matter how demanding, as long as it helps someone.”

Yuma lawyer (and former Bar President) Larry Suciu said, “If every lawyer in Arizona practiced like Bob does, this would be a much better profession.”

Schmitt himself hearkened back to his old 1992 President’s column in Arizona Attorney Magazine (thanks for the shout-out, Bob!), where he “preached the 3 Ps”: pride, participation and professionalism.

All the words spoken by the honorees were nice, of course, and much appreciated. But they were unnecessary, as every one of them had lived what they preached.

Next year, if you have the opportunity, pony up the modest fee so you can attend the Foundation luncheon. It’ll help remind you why, when practiced with compassion and commitment, a trade can be transformed into a profession. 

Here are some more pictures from the event.

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Sheriff Joe Arpaio

Judge Sam Myers of the Superior Court for Maricopa County has issued an order in regard to the report by the Pinal County Sheriff’s Office on possible misconduct by officials in the Maricopa County Sheriff’s Office. (The report was undertaken by Pinal Sheriff Paul Babeu, who today won accolades as the National Sheriff of the Year.)

News organizations had sought the public release of the complete report. Today, Judge Myers ruled that portions of the report pertaining to individuals no longer employed at the Maricopa County Sheriff’s Office may be released. The remainder—in regard to Captain Joel Fox—will remain under wraps until his disciplinary process has been completed.

Here is the minute entry in Phoenix Newspapers Inc. v. Joseph M. Arpaio, LC2011-000277-001 DT

MINUTE ENTRY

Following oral argument, the Court took under advisement Petitioners’ Complaint for Statutory Special Action and Respondent’s Motion to Dismiss.  The Court has subsequently received Post-Hearing briefs from both parties.

Sheriff Paul Babeu accepts the award for 2011 National Sheriff of the Year.

In their Complaint, Petitioners argue that the investigative report conducted by Pinal County Sheriff Paul Babeu (“Babeu report”) must be open in full to public inspection pursuant to Arizona’s Public Records Law, A.R.S. §39-121.  Respondent argues that A.R.S. §38-1101(K) prohibits full disclosure because the investigation of Mr. Fox is ongoing and the disciplinary appeal process has not concluded.

In order to analyze the proper treatment underArizona law, it is crucial to understand the nature of the Babeu report.  Sheriff Babeu was tasked with conducting an “administrative investigation concerning alleged policy violations” of three MCSO employees (Report of Administrative Investigation, page 1).  The Babeu report is not a criminal investigation; its purpose is to determine if three MCSO employees had violated MCSO policies.

Because the Babeu report is an administrative investigation of employees, Arizonalaw gives protections that would otherwise be unavailable to other “public records”.  A.R.S. §38-1101(K) states:

An employer shall not include in that portion of the personnel file of a law enforcement officer or probation officer that is available for public inspection and copying any information about an investigation until the investigation is complete or the employer has discontinued the investigation. If the law enforcement officer or probation officer has timely appealed a disciplinary action, the investigation is not complete until the conclusion of the appeal process.

Having considered the arguments of the parties, the Court interprets A.R.S. §38-1101(K) as a mandate from the legislature to protect employee investigations from public disclosure until either the investigation is closed or the appeal rights of the employee have terminated.

Following the issuance of the Babeu report, two of the three investigatory subjects have resigned from MCSO.  According to counsel for Respondent, one employee, Mr. Fox, is still involved in the disciplinary process.  For this reason, the Court finds that A.R.S. §38-1101(K) precludes the public disclosure of the Babeu report as it pertains to Mr. Fox.  However, A.R.S. §38-1101(K) is inapplicable to the two former employees, and A.R.S. §39-121 mandates the release of the report as to those two individuals.

On June 1, 2011, the Court ordered Respondent to provide in-camera a complete copy of the unredacted Babeu report and copies of the redacted public disclosures in order to determine if the redactions were properly made.  The Court was promptly provided with both versions of the report.  Having reviewed thousands of pages of the redacted report that were provided to Petitioners, the Court cannot find that the redactions are inappropriate.  Respondents were tasked with the difficult job of protecting the Fox investigation while releasing the remainder of the report.  The Court finds that Respondents have acted in compliance with A.R.S. §38-1101(K).

In regard to Respondent’s Motion to Dismiss, the Court finds no basis upon which to dismiss Petitioners’ action.  The Babeu report is a public record that, upon completion of Mr. Fox’s disciplinary process, will be disclosed in full to the public.  The Court finds that Petitioner’s action is legitimate and, though temporarily denied in part, will ultimately be granted in full.

IT IS ORDERED accepting jurisdiction of Petitioners’ Complaint for Statutory Special Action.

IT IS FURTHER ORDERED granting relief in part, as outlined above, to Petitioners’ Complaint for Statutory Special Action.

IT IS FURTHER ORDERED that, within thirty (30) days of the expiration of Mr. Fox’s disciplinary appeal rights, that Respondent shall provide the complete unredacted report to Petitioners.

IT IS FURTHER ORDERED denying Respondent’s Motion to Dismiss.

On offer this year: A fortune-cookie. Hmmm.

The State Bar Convention ended on Saturday, but there are still a few housekeeping matters I need to address. So expect a post or two more about Convention content.

One of the favorite posts from last year’s convention (OK, one of my favorite posts) had to do with swag, those (sometimes) marvelous items you get from exhibitors as you traipse past their hard-working booths.

Spoiler-alert: I don’t think this year’s haul was quite as remarkable as last year’s. Nonetheless, I am honor-bound to provide photos of the 2011 swag. (Special thanks to my daughter Willa Eigo, who schlepped up and down stairs and ventured into multiple conversations in order to bring these items to your view. I really do need to pay her more.)

Without further ado, here are the items (please don’t complain, but I did not have the strength to photograph the surfeit of pens that were on offer. I like pens as much as the next free-seeker, but if it was a simple pen with an exhibitor’s logo, no photo)

Tomorrow, I give you my thoughts on what was one of the best events at convention.

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