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

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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