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.

Morris Institute for Justice LogoEthics and justice combine in a seminar next Friday, May 31. I heard about it via a great colleague over at the Arizona Foundation for Legal Services & Education. Let me pass on some of the details.

The legal education seminar is being offered by the Morris Institute for Justice, and the presenter will be Geoff Sturr on the topic of ethics and conflicts.

Lawyer Geoff Sturr of Osborn Maledon

Geoff Sturr, Osborn Maledon

Geoff is a partner at Osborn Maledon, and I asked him to provide some more detail on what he’ll cover:

“Thanks for your interest. The seminar will focus on three areas:  conflicts, confidentiality and candor (which will include, among other things, conduct in negotiations). It will provide an update on recent decisions and opinions, and pending or anticipated rule changes. The primary target audience will be civil practitioners, but I hope to cover issues of interest to criminal and government lawyers.”

In case you don’t know them, the Morris Institute describes itself as “a non-profit organization dedicated to protecting the rights of low-income Arizonans.” Read more about them and their work here.

As you may surmise, CLE credit will be offered for the event, which will be delivered in person at the Phoenix office of Lewis and Roca, and in a live simulcast at their Tucson office.

RSVP by May 29 to Ellen Katz at eskatz@qwestoffice.net or 602-252-3432 ext. 2.

All the detail is provided below.

Morris Institute CLE flier

stale-fortune-cookie

Cookies may be stale, but the message may last.

Three weeks may be too far past an event to report much value—that is, for most events. But a few speakers I heard in March—and failed to report on in a timely way—still yielded insights I believe are worth sharing. This cookie, as they say, ain’t stale.

The first event to share—the one most distant in time—is the annual Learned Hand Awards luncheon. As always, the three honorees were well chosen. And, in a Learned Hand tradition, just as much was expected of the introducer’s speech as was of the honoree herself.

Justice Scott Bales emceed, and he hit exactly the right note by honoring the anniversary of Gideon v. Wainwright. In a ballroom full of lawyers, the reference was spot on.

Nicole France Stanton at the Learned Hand Awards luncheon, 2013

Nicole France Stanton at the Learned Hand Awards luncheon, 2013

The first award—called the Emerging Leadership Award—went to Nicole France Stanton. Andy Sherwood explained her talented background, as well as her commitment to fight bullying and cystic fibrosis.

Stanton urged all lawyers to find their ethical center.

“Finding your voice as a leader at a law firm does not have to wait until you’re an equity partner,” she concluded.

Terry Fenzl introduces Terry Goddard.

Terry Fenzl introduces Terry Goddard.

Terry Fenzl took a more humorous tack in his introduction of the next honoree, Terry Goddard. He displayed—with accompanying ribbing—a photo of a boyish Goddard being sworn in as Phoenix Mayor in 1984.

But like Learned Hand, Fenzl said, Goddard always spoke up for the rule of law, in the fight over polygamy in a Utah border town, in the use of methamphetamine, in mortgage fraud.

Goddard used his speech indicate his gratitude—a commonplace in remarks like these—but also to hurl some political barbs.

“I remember I got to discuss constitutional law with Russell Pearce,” he said. “Maybe not the highest point of my career, but memorable nonetheless.”

He criticized the efforts of legislators to alter the law regarding recall elections, including making the new law’s effects retroactive.

“They claimed it was the will of the people,” Goddard said, “and not just trying to save Joe Arpaio’s behind.”

“Respect for the rule of law is not common in Arizona,” he concluded.

Charles "Chick" Arnold, 2013 Learned Hand Awards

Charles “Chick” Arnold, 2013 Learned Hand Awards

The final honoree was Charles “Chick” Arnold, of Arnold v. Sarn fame. It was his lawsuit that led to massive changes in the way the State of Arizona addressed the needs of it mentally ill residents.

Arnold’s advocate was Judge James McDougall, and he provided eloquent testimony as to Arnold’s fitness for the award. He recalled how the then-Maricopa County Public Fiduciary filed a class action suit on behalf of his 600 wards, demanding that the state live up to its statutory obligations to provide a “continuum of services” for those who had been deinstitutionalized.

The Maricopa County Board of Supervisors were angered by the action and fired Arnold—only to have to reinstate him after a separate lawsuit.

The stories reflecting courage were touching and remarkable. And that pointed out a fact that I should have noticed in covering years of Hand lunches: The speeches tend to get better and better as the lunch goes on. Not because the speech drafters vary widely in skill level—they all tend to be excellent writers. No, the difference comes from the vastness of life stories that the (usually) older lawyers can marshall.

And so the day opened with ethics and then moved seamlessly to the rule of law, featured by both Goddard and Arnold. Terry Goddard reflected on his career through the prism of that rule, and Arnold did also, always believing that his obligation to his wards trumped his duty to his employer. And for that, all of Arizona should be grateful.

Terry Goddard congratulates Chick Arnold following the 2013 Learned Hand Awards

Terry Goddard congratulates Chick Arnold following the 2013 Learned Hand Awards

Getting some legal education over a great meal has always been a terrific combination. This Wednesday, lawyers and others will belly up to teppanyaki bars to hear about ethics, law and social media.

The lunchtime gathering is hosted by the Phoenix chapter of the Public Relations Society of America. (Follow them on Twitter here.)

I’ve enjoyed a good number of PRSA events in the past, and I appreciate the lawyer-filled panel they’ve created. The attorneys will sit at grill tables at Sapporo, where they will facilitate discussions among attendees—all while they are entertained and nourished by the creation of delicious food.

Here is more information about the event from the PRSA:

Have you wondered about the legal ramifications of posting news clips on your website or whether or not you need permission to re-use an image of a photographer you hired for an event? If so, do not miss our upcoming Ethics Luncheon.

Join us for an interactive discussion on copyright and social media law, and other common ethical dilemmas set around teppanyaki tables. The luncheon will feature small-table discussions with industry leaders while enjoying the entertainment of the teppanyaki chefs. Come hungry and prepared with your questions.

A social way to learn about social media law

This luncheon is also our annual membership meeting, so come hear the latest updates about our Chapter and meet this year’s board of director’s candidates.

The panel features the following professionals:

  • Matt Bycer, trademark and patent attorney at Bycer Law PLC and adjunct professor of intellectual property and economics for National Paralegal College.
  • Sean O’Hara, associate at Snell & Wilmer, focusing on intellectual property litigation and complex commercial disputes.
  • Lori Higuera, director in the Litigation Section at Fennemore Craig and a member of the Labor and Employment, School Law and Commercial Litigation practice groups.
  • Gregory Collins, attorney at Kercsmar & Feltus PLLC, focusing on trademark, copyright and patent infringement matters.

Register here.

When: Wednesday, Oct. 10 from 11:30 to 1 p.m. with discussions beginning at 11:45 a.m.

Where: Sapporo, 14344 North Scottsdale Rd., Scottsdale, Ariz. 85254, Thunderbird East Plaza (southwest side of Scottsdale Road & Acoma).

Phone: 480.607.1114

Cost: $45 all walk-ins

About the PRSA:

The Public Relations Society of America (PRSA) is the world’s most prominent organization dedicated to the professional development and advocacy of PR practitioners. The Phoenix chapter is among the largest and most respected chapters nationwide. Join us to gain access to career advancement opportunities, industry events, awards programs, accreditation and a variety of skill-building resources.

L to R: Roxie Bacon, ASU Law Dean Doug Sylvester, Hon. Patricia Norris

We all learned at law school that an oral promise may rise to the level of a binding contract.

So you’d think UA Law Dean Ponoroff would have paused before agreeing to the challenge leveled at him earlier this week.

If we give you an ASU Law School shirt later this week, will you wear it in public?

He sat at the Board of Governors meeting Tuesday, and a passing parade of civil procedure rule petitions may have blurred his thinking and weakened his resolve (or maybe that was just me). Whatever the case, Dean Ponoroff agreed. “Yes, yes I would,” he intoned to a roomful of people who are trained to never ever ever forget anything.

And so, comes the Law Dean long about a Thursday morning. He enters a Biltmore conference room to participate in the annual Ethics Game Show pitting him and his team against a similar squad from ASU Law School.

You know what’s coming. Yes, he had a 100% cotton shirt in his future, courtesy of Bar Governor Lisa Loo. And ethically (at the game show), the Don had no choice but to don it. Here are a few photos (click them; they get bigger).

Dean Ponoroff and ASU Law School Dean Doug Sylvester helped the crowd laugh and enjoy the morning. Here’s wishing U.S. News had a ranking for that.

Of course, they were only part of a rousing and hilarious panel at the Game Show. Besides a turnabout T-shirt, it also included ASU Law and UA Law teams, in costume. And, just to add to the hilarity, ASU’s mascot Sparky was present to rouse his team—and to do pushups when the ASU team nailed an answer.

If you’re interested in milk-out-the-nose laughs combined with legal education, the Game Show is the ticket.

Panelists were Dan Barr, Kurt Zitzer, Susan Kayler, Keith Swisher, Kim Demarchi, David Sandweiss, Roxie Bacon, Hon. Patricia Norris, State Bar CEO John Phelps, Steve Hirsch, and Deans Ponoroff and Sylvester.

Congratulations to all the speakers, as well as emcees Lynda Shely and Pat Sallen, and moderator Hon. Ruth McGregor, on another successful and laugh-filled program (and ethics credit!).

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.

An intriguing post was published today over at the Wall Street Journal Law Blog. (Haven’t bookmarked it yet? What are you waiting for?)

In it, reporter Joe Palazzolo examines a unique company structure and muses on the issue of “When a Company Sounds Suspiciously Like a Law Firm.” The companies are legal staffing firms.

As Palazzolo notes, many of these firms go so far as to tout the depth of experience and legal expertise available to customers (clients?). And if they do that, “And if they’re not law firms, then the question is this: What services can they provide without violating regulations that prohibit them from practicing law?”

The question is not a hypothetical one. He points out that a regulatory committee of the D.C. Court of Appeals—the District’s equivalent of a state high court—has drafted an opinion on the matter (“Applicability of Rule 49 to Discovery Services Companies”). You can read it here.

What do you think of the situation? Do you see similar activities in Arizona that give you pause?

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