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?