Panelists of "Lawyering Political Environment," June 19, 2013

Panelists of “Lawyering in a Political Environment,” June 19, 2013

The State Bar Convention offers a multitude of learning opportunities. But I’m only one guy, so I opted to attend a morning seminar titled “Lawyering in a Political Environment.” It was deemed a President’s Award winner, and it seemed a good way to start my own 2013 Convention experience.

L to R: Kelly Schwab, Joe Kanefield

L to R: Kelly Schwab, Joe Kanefield

Here’s what I discovered: The first seminar in the first day of the annual State Bar Convention largely had to do with a lawyer who had been disbarred by the State Bar. Quite a morning. But in that regard, the educational offering was probably unique among seminars that could be offered at bar conferences nationwide. Arizona is an interesting place.

The conversation was far ranging, but panelists and their moderator Robert Robb found themselves, more often than not, addressing ethical challenges created by former Maricopa County Attorney Andrew Thomas—now disbarred. And because of that, the seminar was a timely and relevant presentation to a packed house of attorneys who had learned firsthand about the risks of blending law and politics.

The panel was a powerhouse one:

  • Former United States Attorney Paul Charlton
  • Former Governor’s Counsel Joe Kanefield
  • Maricopa County Attorney Bill Montgomery
  • Former Pinal County Attorney Jim Walsh
  • Attorney Kelly Schwab

Robb asked panelists to offer their general views about lawyering in a public setting.

Paul Charlton opened by saying that “Public service is a noble enterprise. Every day your one, monolithic goal is to give back.”

L to R: Robert Robb. Jim Walsh, Paul Charlton

L to R: Robert Robb, Jim Walsh, Paul Charlton

He continued by discussing his most difficult decision as United States Attorney—one that had career-changing implications.

“My most difficult decision? Whether to seek the death penalty.”

Charlton made a choice that did not square with the thinking of the United States Attorney General and so, he said, “I got fired for it.”

“How do you deal with those who take a political view of the world, or with those who think the death penalty should be sought—not pursued—in every situation?”

Bill Montgomery stepped into an office in which the top prosecutor had made politicizing legal decisions the norm. Montgomery says his focus has been on changing that atmosphere.

“It’s about knowing what’s right and wrong, not what’s right and left.”

Joe Kanefield recalled the biggest challenge faced by lawyers in state government: “resisting pressure to pursue legal remedies for political challenges.”

Moderator Robb asked the panel if elected attorneys are “special” because they serve voters first.

“Andy Thomas thought he was special,” said Robb. “But who is the client? Should the criminal and civil functions be separated” to reduce the possibility of overreaching?

No, said Charlton. “I’d say that’s a solution in search of a problem,” because instances like that are rare, “except that we do have Andrew Thomas in our recent history.”

“But that was an aberration,” he continued. “Though it was awful for anyone caught in Thomas’ crosshairs,” the legal community generally “catches” such behavior before it becomes egregious.

Robb kept the focus on specifics when spoke about Bill Montgomery’s recent legal advice to County Supervisor Mary Rose Wilcox that she had a conflict in regard to the county’s civil suit involving Sheriff Joe Arpaio. But the focus remained on a former prominent attorney.

Charlton said, “It was right to go after Andrew Thomas; it was right to take his license.”

L to R: Paul CHarlton, Bill Montgomery, Kelly Schwab

L to R: Paul Charlton, Bill Montgomery, Kelly Schwab

The whirlwind seminar included conversation about prosecutions of former Congressman Rick Renzi, Senator Ted Stevens, major league ballplayer Roger Clemens and others. And it extended beyond the practical challenges that prosecutors—especially elected prosecutors—face daily. It winded up with a discussion of possible changes to the Ethical Rules to accommodate the unique situations they may face. And at least one panelist recommended that young line prosecutors need a place to turn when challenges arise.

“We used to call them an ombudsman,” said Jim Walsh. “But whatever they’re called, we need someone in prosecutor offices that those attorneys can go to” when they develop the sense they are being asked to do questionable things to further political ends.

Today is not only Change of Venue Friday; it’s also Friday the 13th. Therefore, I will tread lightly and offer nothing but images for your easy viewing.

Here are a few photos from Tuesday’s hearing at the Supreme Court regarding the ethics charges against three lawyers: Andrew Thomas, Lisa Aubuchon and Rachel Alexander. The photos were mainly shot in the Court parking lot after the hearing. There, media interviewed, among others, independent counsel John Gleason, County Supervisor Mary Rose Wilcox, activist Randy Parraz and respondent’s counsel Scott Zwillinger.

John Gleason, independent investigator, interviewed. April 10, 2012

Maricopa County Supervisor Mary Rose Wilcox, April 10, 2012

You can read the Court’s complete ruling here.

Then, on Wednesday, Andrew Thomas and Lisa Aubuchon spoke at a press conference in downtown Phoenix.

Andrew Thomas, April 11, 2012

Lisa Aubuchon, April 11, 2012

All of the photos are at the Arizona Attorney Magazine Facebook page. Have a great weekend.

Independent investigators John Gleason (at microphone) and James Sudler address the media after the Court's ruling, April 10, 2012

From the State Bar of Arizona:

Attorneys Disciplined for Using Positions to Punish Adversaries

PHOENIX – April 10, 2012 – A three member disciplinary panel has ordered attorneys Andrew Thomas and Lisa Aubuchon be disbarred for violating the Rules of Professional Conduct. A third attorney, Rachel Alexander, will be suspended for six months and one day.

The panel found that Thomas and Aubuchon used their positions as Maricopa County attorney and deputy county attorney to target political enemies. A 247-page order details how they ignored conflicts of interest and used their positions to burden and embarrass targeted individuals. The order also states they violated the Rules of Professional Conduct relating to perjury and violating court rules. Alexander, who also worked as a deputy county attorney, was found to have filed a lawsuit without completing a proper factual investigation.

Hon. William O'Neil (left), Presiding Disciplinary Judge, issues the panel's ruling, April 10, 2012

The case was tried over nine weeks before a hearing panel comprised of the Presiding Disciplinary Judge and two volunteer panel members (one attorney and a member of the public). Forty eight witnesses testified and nearly 6,200 pages of exhibits were admitted.

In its ruling, the panel stated, “This case is replete with intentionally orchestrated malignant actions.” It went on to state there was an “absence of ethical behavior.”

The sanctions are scheduled to take effect May 10, 2012. Thomas, Aubuchon and Alexander have 10 days to decide whether they will appeal the rulings to the Arizona Supreme Court. If they choose to do so, they can also request the discipline be stayed until the appeal is heard.

The panel’s final order can be read here.

Presiding Disciplinary Judge William O'Neil, left, announces the disbarment and discipline ruling as panel members attorney Mark Sifferman and Rev. John Hall (on right) listen.

Yesterday, the State Bar of Arizona issued a helpful primer on a high-profile lawyer discipline case involving former Maricopa County Attorney Andrew Thomas and two deputies, Lisa Aubuchon and Rachel Alexander.

It would be helpful to read it before April 10, the day that the disciplinary panel’s ruling will be issued. Here’s the press release:

FOR IMMEDIATE RELEASE: March 27, 2012

Contact: Rick DeBruhl, Chief Communications Officer

Phone: (602) 340-7335, Mobile: (602) 513-6385

E-Mail: rick.debruhl@staff.azbar.org

PHOENIX – March 27, 2012 – The State Bar of Arizona issued a set of frequently asked questions (FAQ) today to provide an awareness and understanding of the process behind the investigation, hearing, and potential disciplinary action associated with the Thomas, Aubuchon, and Alexander case. The findings of the Discipline Hearing Panel will be released at a hearing on April 10, 2012.

The State Bar of Arizona serves the public and enhances the legal profession by promoting competency, ethics and professionalism of its members and enhancing the administration of Justice. The Arizona Supreme Court has oversight of the State Bar, however, the State Bar is not a government organization. It is supported through member dues and not taxpayer dollars. The Supreme Court adopts professional standards, which practicing attorneys in Arizona must adhere to and the State Bar investigates compliance with these standards.

The State Bar of Arizona does not sanction attorneys. The State Bar’s role in attorney discipline is investigation and prosecution. Sanctions come from the Supreme Court.

Frequently Asked Questions:

  • Why did the State Bar investigate Andrew Thomas, Lisa Aubuchon and Rachel Alexander? The Bar chose to initiate an investigation as a result of complaints it received from the public as well as information that came from a February 24, 2010 ruling by Arizona Superior Court Judge John Leonardo. In a letter dated March 2, 2010, Bar CEO/ED John Phelps asked the Supreme Court to consider an outside investigator to avoid any potential conflict of interest. As a result, Colorado Supreme Court Regulation Counsel John Gleason was appointed by Arizona Supreme Court Chief Justice Rebecca Berch to handle the case.
  • What are the charges? The formal complaint listed 33 separate ethical violations ranging from conflict of interest to prosecutorial misconduct and abuse of the RICO suit process in an effort to burden and embarrasses political adversaries.  Individually, Thomas faces 30 charges, Aubuchon 28 charges and Alexander 7 charges. The formal complaint, along with other documents related to this case, can be found here.
  • How long did the hearing last? The hearing, which started September 12, 2011, covered 26 court days and ended on November 2, 2011. It was held at the Arizona Supreme Court, located at 1501 W. Washington. Archived video of the hearing is available on the Supreme Court’s web site.
  • How much money has been spent on the investigation? As of March 27, 2012, the investigation has cost the Bar $577,467.78. By court rule, the State Bar is responsible for the cost of the investigation. That expense is covered by State Bar dues, no tax money has been used to pay for the investigation.  Depending on the outcome, a portion of the costs and expenses of the investigation may be recovered by the State Bar from sanctioned attorneys.
  • Who heard the case? Disciplinary hearings were presided over by a three -member hearing panel. One member is the Presiding Disciplinary Judge, who is an employee of the Arizona Supreme Court, and the other two members are volunteers from the community. Panel volunteers are not compensated for their participation as a hearing officer. This panel consists of Presiding Disciplinary Judge William O’Neil, Scottsdale attorney Mark Sifferman and the Rev. John C.N. Hall, who is the rector of an Episcopal church in Chandler. Sifferman and Rev. Hall are volunteers. The panel determines if there were violations of the Rules of Professional Conduct, and if so, it also determines the appropriate sanctions.
  • What are the possible sanctions? Should it be determined that the lawyers have violated the Rules of Professional Conduct, they could each face sanctions, including:

Reprimand – The attorney may continue to practice law.

Suspension – The attorney is prohibited from practicing law during the suspension period. Length of suspension may range up to five (5) years. Suspensions lasting six months and a day or greater require the attorney to apply for reinstatement to the Court and show rehabilitation. Suspensions generally take effect 30 days from the final discipline order and may be stayed until an appeal is complete.

Disbarment – The attorney is prohibited from practicing law. The attorney may apply for reinstatement after five (5) years. The attorney is required to pass the bar exam and show rehabilitation.

Less serious sanctions, such as admonition and probation, are also available.

Traditionally, the imposition of sanctions has been guided by the American Bar Association Standards for Imposing Lawyer Sanctions. An abridged version (lacking commentary) is available here.

  • Can the Disciplinary Panel’s decision be appealed? While the Disciplinary Panel’s decision is considered final, either side can choose to appeal the outcome. The appeal is heard and decided directly by the Supreme Court. In most cases sanctions are delayed until after the appeal; however, that is at the discretion of the court.
  • Did the State Bar’s Board of Governors influence the case? No, the State Bar’s Board of Governors has no direct involvement in lawyer regulation and cannot direct action on any case. The only way to initiate a formal case against a lawyer is by a probable cause order authorizing the filing of a formal complaint. At the time the Thomas/Aubuchon/Alexander case advanced through the system only one probable cause panelist was needed to make a determination about whether probable cause existed to move forward with a formal complaint. The Supreme Court appointed former Justice Charles E. Jones to act as the independent Probable Cause Panelist who ultimately entered an order authorizing the filing of a formal complaint against Thomas/Aubuchon/Alexander.

If you wish to view documents in this case, click here.

What is it about Andrew Thomas that causes arbiters to wax poetic? How powerful must his creative aura be that it extends beyond his own case, and lends its suggestive ability to those who encounter cases merely related to his own?

Andrew Thomas

The songs of the former county attorney were melodic enough to lure some of his deputies onto the rocky beach alongside him. But the tuneful prosecutor has planted the poesy plant in those now charged with reviewing the evidence of matters arising from his administration.

I wrote before about Harold Merkow, the man condemned to serve who served as the hearing officer in the Lisa Aubuchon merit commission matter. As he took testimony and reviewed evidence regarding Andrew Thomas’s chief deputy, he weathered a very long and contentious hearing. But when it came time to write his report, he definitely got jiggy with it.

The events of the Thomas matter had driven Merkow to levels of rhetoric typically reserved for battlefield proclamations and Bible-thumping church services.

Now, it’s Judge Bill O’Neil’s turn to put the blush on the rose. Ah, poetic justice!

O’Neil, the state’s Presiding Disciplinary Judge, released a series of orders yesterday pertaining to the disciplinary charges filed against Thomas, Aubuchon and Rachel Alexander.

They are all worth reading, but the one in which he deconstructs the respondents’ arguments demanding that electronic media not be permitted to cover their trial—that’s a keeper.

Below is a PDF of the order (as named by the court). Settle in and enjoy some reading.

JudgeO’Neil’sRulingonMedia’sRequestedCameraCoveragefiled5-02-2011

But in case you can’t get to it right away, a few snippets:

“Respondents speculate that the media may frame or prejudge the public through its power of an editorial disguised as reporting. If members of the press choose to wrongly prejudge, however, they will likely one day discover they cannot do wrong without suffering wrong. Biased reporting assures a tree without bloom or fruit and tragically assures a public’s lack of trust in the very institution of a free press. But this judge does not believe that will occur beyond a few.

“… The refusal to report pertinent news and the preclusion of an ability to report pertinent news are thorns of similar thistles.

“Despairing of the few who may be irresponsible cannot be a reason for drawing a shade on these proceedings.

“Few things are more certain to trigger an increase in public distrust than the removal of proceedings from public scrutiny. The best clarification to dark allegations is not more darkness but rather the light of informed reasoning.”

Here comes the light.

Harold Merkow (Photo by Kathryn Stafford, Peoria Times)

If there is any lesson to be learned from today’s news, it is this: More Harold Merkow!

No celebrity, Merkow is the Arizona lawyer who served as the hearing officer in the case of a Deputy Maricopa County Attorney. She had been fired and is in the process of appealing that termination. Arguing her case before the hearing officer was her first step (the decision ultimately will be made by the Merit Commission.)

The attorney in question is Lisa Aubuchon, who was part of the controversy surrounding that office under the leadership of Andrew Thomas. Both of them, along with Rachel Alexander, are the subject of bar complaints.

Today, Hearing Officer Merkow released his 96-page report. In it, he upheld the firing of Aubuchon.

But my chant of “More Merkow” has nothing to do with his conclusions; I leave the determination of their accuracy to others, and to the sands of history.

Lisa Aubuchon

What I enjoyed was Merkow’s prose. This guy (whom I don’t know) has a novelist’s familiarity with the English language. Among my favorite conclusions: “Appellant was a dervish that was unstoppable until reality set in and she was put on administrative leave, after which she was dismissed.”

You can read the complete report yourself here (thanks to KPHO.com).

And to preview things, here are some of today’s tweets from the Arizona Republic’s Yvonne Wingett, who has been covering the interminable merit hearings for weeks. (If you’re not following her on Twitter, you should start ASAP).

  • Merkow: Aubuchon’s duties “were discarded by her in favor of pursing vendettas against public officials who she openly disparaged.”
  • Merkow: Aubuchon was fired “bc she ignored and abandoned fundamental duties that every prosecutor owes to the public …”
  • Merkow: “…or for being David Hendershott’s sock puppet, or for being the self-styled poster child for political retaliation.”
  • Merkow: Aubuchon wasn’t fired “for being Andrew Thomas’s junkyard dog, or for being Joe #Arpaio‘s stalking horse …
  • Merko’s 96-page recommendation to uphold firing of Lisa Aubuchon contains some doozies. Snippets to follow.
  • Check @azcentral throughout the day for updates on #Aubuchon story.
  • The Republic’s Michael Kiefer and I will be following the Aubuchon story today. I filed story from home – have to get ready for work!
  • Merkow: (Aubuchon) abjured her role as a ‘gatekeeper’ for justice — the sentry who stands between the people and the weight of the law.
  • Merkow: Appellant was a dervish that was unstoppable until reality set in and she was put on adm leave, after which she was dismissed.
  • Merkow: The damage to the County Attorney’s Office reputation is recognized most immediately by the vocal excoriation of Sheila Polk.
  • Merkow on Aubuchon: Damage wreaked by her actions is inestimable.
  • Merkow on Aubuchon: The long shadow of appellant’s corruption of the concept of justice has been proven by the evidence in this appeal.
  • Hearing officer recommends to uphold firing of former #Maricopa Deputy County Attorney Lisa Aubuchon http://t.co/zzWGQsc via @azcentral

Phoenix Police Chief [sic] Jack Harris (right) accepts the flag from the honor guard that adorned the casket of Officer Travis Murphy, who was laid to rest during ceremonies at Phoenix Memorial Park, May 26, 2010. (Rob Schumacher, The Arizona Republic)

 

For anyone interested in the state of policing in Arizona’s largest city, today’s Arizona Republic has a Q&A with Jack Harris, the “Public-Safety Manager.”

Unfortunately, it will take you all of about eight minutes to read it. This interview with the most important cop in one of the state’s most beleaguered departments is about 30 column inches, and barely scrapes the surface of the Phoenix Police Department’s challenges.

I hesitate to nitpick the reporter who covered the story. William Hermann has reported on a wide variety of city topics over the years, and I’ve always appreciated his coverage. And there may have been all kinds of other factors that kept the published Q&A (too) short. Editors could have trimmed it (likely to fit more about Don Stapley’s lawsuit against Maricopa County, in regard to Andrew Thomas and the first-most-beleaguered law enforcement department in the state—the Maricopa County Sheriff’s Office).

In 2007, Jack Harris retired as chief of police. Two weeks later, he became public-safety manager. (Michael Schennum, The Arizona Republic)

Of course, it’s possible that Harris only gave Hermann 15 minutes for questions. Or—worst of all—that he demanded the questions be e-mailed to him. But I hope Bill Hermann would have mentioned that in the story.

One of the most troubling aspects of Harris’s tenure—unacknowledged in the Q&A—is evident in the conflict between the story’s headline and the cutline of the accompanying photo by Rob Schumacher.

The photo shows “Jack Harris, Phoenix’s chief of police …”

That’s inaccurate, which the Republic tacitly acknowledges in the headline half-an-inch farther south. That hed reads, “Public-safety manager vows he’ll keep serving.”

So Harris is not the Chief of Police. That was the position her formerly occupied, until he retired and began drawing his pension. Immediately rehired by a compliant Mayor and City Council, he has been ever since the Public Safety Manager. With a new salary and shot at a new pension.

The City has claimed that it’s not the same job, that Harris has “added duties.” Well, OK. But is it possible that the “agency chaos” in the department has something to do with a pension end-run that has become all too familiar?

The Republic has covered the Harris pension controversy before. Most recently, they reported that the City Council voted to pay Harris’s legal bills in the pension challenge. So how about some follow-up questions while Harris sits on the hot seat?

In addition, the Republic has covered Arizona’s public pension problems in depth this fall. The economic consequences may be severe (though we may ultimately discover, not as severe as the blaring headlines would suggest). But one of the unfortunate consequences of double-dipping goes beyond the merely fiscal; it is also ethical, a crisis in confidence.

Here’s hoping Bill Hermann asked the Chief—I mean the Manager—about the economic machinations that got him to keep his position. His response, if we get it, could go a long way toward proving Harris’s claim that his department “doesn’t put up with poor behavior. We’re not hiding anything.”

The Arizona coverage of a recent high-level attorney ethics investigation is pretty all-encompassing. So much so, that I doubted whether I would often have much to add in the media mix.

E.J. Montini

But the Arizona Republic’s drowsy coverage of the issue leaves so many open questions that a fella with his own keyboard has ample opportunity. Yesterday’s column by E.J. Montini continues in that vein. It may have been phoned in from some undisclosed location, but it sounds like it could have been written by his story subject.

It was just last week that John Gleason, the independent investigator named by the Arizona Supreme Court, announced the 34 ethics allegations that will likely form the basis for his formal charges, expected to come in January. Those charges will be leveled against former Maricopa County Attorney Andrew Thomas and deputy attorneys Lisa Aubuchon and Rachel Alexander.

The press conference was instructive, but Robert Robb’s Arizona Republic column not long after was even more eye opening. I wrote about it here.

In it, he argued that Gleason’s report detailing the allegations was an example of gross overcharging. He assured readers he was not defending Thomas’s actions, but come on. 34 allegations?

I wondered whether Robb would provide any evidence for his statement that elected county attorneys throughout Arizona “uniformly reject” the proposition that the Ethical Rules constrain them as they do private-side attorneys. To date, he hasn’t provided statements agreeing with his supposition that elected lawyers are “lawyers-plus.” And because he said “uniformly,” he must be speaking about every one of those county attorneys, right?

Well, Sunday’s column by Montini demonstrates that Robb will not be the only Republic writer dead set on “praising Thomas with faint damn” (yes, I mean as opposed to damning him with faint praise). As Robb did, Montini first establishes his cred by waving his pen toward the fact that he does not like all of Thomas’s past actions (“Solid balanced journo bona fides? Check!”). And then he goes on to muddy some waters – all to the benefit of Andrew Thomas.

It begins with the second graf, where Montini (or Thomas, or whoever wrote this) says that the three-person discipline panel “will be convened by the State Bar of Arizona.”

Not true. That will be the Arizona Supreme Court’s role. The State Bar has nothing to do with this investigation and eventual prosecution—except that it is footing the bill.

He then goes on for an odd bit about how those who investigate Thomas also “hate” him.

I’ve worked with a lot of prosecutors, and I think “hate” may be a strong word to use about them. And I have never heard the Republic bemoan a dearth of love in prosecutors’ hearts; usually that paper demands swift and firm justice. (Maybe this signals the paper’s adopting a new compassionate view toward defendants and lawyer respondents—but somehow I doubt it applies outside this case.)

Soon after, Montini writes, “Among other things Gleason concluded, ‘The allegations of misconduct committed by Thomas and (former Deputy County Attorney Lisa) Aubuchon, if proven, warrant disbarment.’”

We only will deduct a half-point for that statement. Gleason was not aimlessly and venomously musing; he was quoting the ABA Standards on lawyer discipline. And usually, defendants and respondents want to be informed of what liability they may be up against. But Montini is stunned that a prosecutor would do such a thing. And that shock provides Thomas the chance to claim Gleason “hasn’t been fair throughout the process.”

Montini may not know this, but Thomas’s “not fair” statement is a pretty common claim by lawyers charged with ethical lapses. But how about some evidence of unfairness? None is provided.

The column’s worst failing, though, is this whopper, spoken by Thomas.

“I’m concerned about the fact that I’m apparently not going to have a lawyer” (other than himself).

Whoa, Nelly. Montini’s column makes it sound like the Supreme Court discipline process does not allow Thomas to be represented by a lawyer. If that’s the situation, let’s have a front-page story about it, because that would be news.

Thomas doesn’t expound on that claim, because dissecting it might show that the only debate is about whether the public will pay for his lawyer—NOT whether he gets a lawyer, which he certainly is permitted to have.

(Montini ends his column with Thomas saying that the investigation of his transgressions threatens “the rule of law.” We award Montini’s failure to comment on that statement a half point for chutzpah and irony.)

Reading Rob Robb and E.J. Montini tells us two things: the budget cuts at the Arizona Republic may have eliminated telephones from columnists’ desks, which could be used to check a couple of these facts.

And it reveals the approach that may be taken in the next year of the Republic’s legal ethics coverage. I mean, it’s no crime to like the former county attorney; they’re entitled to their favorites. But the newspaper’s long-term love–like relationship with him is a bit much; maybe they should get a room (at the new court tower!).

Until then, some fact-checking would be nice.

Read Montini’s complete column here.

Andrew Thomas

Today’s Arizona Republic included a column by Robert Robb. He had what may be a unique take on Monday’s announcement of probable cause findings in the ethics violation probe of former Maricopa County Attorney Andrew Thomas and deputy attorneys Lisa Aubuchon and Rachel Alexander.

Robb says that what could have been an evenhanded proffer by the independent investigator John Gleason was marred by overkill. Or, as he calls it, “gross overcharging.”

As we reported Monday, Gleason and the Probable Cause Panelist Charles Jones allege 33 violations of the Rules of Professional Conduct. According to Gleason’s report, if proven, the charges are serious enough to warrant disbarment of Thomas and Aubuchon.

Are charges 33 a lot? Yes. But on the “overcharging charge,” I read Robb’s column looking for the evidence, for the context. But there wasn’t any.

Robb went on to make an interesting suggestion: that lawyers who are also elected public officials are recognized to have a different relationship, shall we say, with the Ethical Rules than do run-of-the-mill private attorneys. He said that these elected lawyers are different, and not required to abide by rules, for example, that they “cannot represent a client on one matter and be opposed to him in another.” He wrote that:

“Elected prosecutors … believe they have been elected independently to exercise independent judgment and action not characteristic of private attorneys. They have a dual responsibility to provide other government officials with the best legal advice they can but also to ensure that other officials follow the law. And, as independent elected officials, they have a right to speak out when private attorneys have to keep it zipped.”

His complete column is here.

Years of speaking with criminal-defense lawyers informs me that they might say Robb is right—to a degree: Prosecutors often speak vociferously about a pending case where other lawyers would follow the course of keeping mum. But that’s about speech. What about the gross overcharging, or the conflicts of interest? Do other prosecutors and public lawyers agree with Robb’s hypothesis?

I scanned the column for quotations from other elected county attorneys, supporting the proposition that they “uniformly reject” the proposition that the Rules constrain them as they do private-side attorneys. But there were no quotes.

Will they come in an upcoming column?

John S. Gleason, Regulation Counsel for the Colorado Supreme Court and independent investigator on certain Arizona lawyer matters, at the Arizona Supreme Court, Dec. 6, 2010

This afternoon came the announcement that 33 allegations of ethical violations have been filed against prominent bar members. Most noteworthy is Andrew Thomas, the former Maricopa County Attorney who waged legal battles against many in county government and on the bench.

Also named in Probable Cause orders were two of his senior deputies, Lisa Aubuchon and Rachel Alexander.

At a 2:00 press conference just ended, independent ethics investigator John Gleason spoke about his 76-page report as well as the orders themselves. As the Probable Cause Order for Thomas reads, “Ethical violations by Respondent … are far-reaching and numerous. Evidence thus far adduced portrays a reckless, four-year campaign of corruption and power abuse by Respondent as a public official, undertaken at enormous and mostly wasteful cost to the taxpayers.”

Arizona Supreme Court spokesperson Jennifer Liewer, Colorado Chief Deputy Regulation Counsel James Sudler, and John Gleason

His report indicates, “Pursuant to the American Bar Association Standards for Imposing Lawyer Sanctions, the allegations of misconduct committed by Thomas and Aubuchon, if proven, warrant disbarment.”

Gleason said that he expected to file the formal charges, largely based on his report, in January. (January being the month when the new discipline process, based primarily on the Colorado process, goes into effect.) He added that by early or mid-July, a hearing with new Presiding Disciplinary Judge William O’Neil, along with a panel, will consider the charges.

More records from the cases soon will be scanned and made available, according to the Supreme Court.

A few other items learned in the press conference:

  • Gleason mentioned that his report originally submitted to the Probable Cause Panelist—former Arizona Chief Justice Charles Jones—included 32 allegations. It was Justice Jones who insisted that an additional allegation be levied against all three lawyers: violations of Rules 53(d) and (f)(1), Ariz.R.S.Ct., “which are predicated on Respondent’s failure or refusal to cooperate or respond substantively to Bar Counsel’s requests.”
  • In response to a question, State Bar of Arizona spokesman Rick DeBruhl said that no one they had spoken with could recall a time in Arizona history when a sitting or former county attorney had had such charges levied against him or her.
  • John Gleason noted that throughout his long investigation, he had never met any of the three lawyers named in the allegations (though he did offer them the opportunity to be interviewed).

We will have more on this story as it progresses.

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