February 2011

Last week, I reported that the State Bar of Arizona has issued an ethics opinion that guides Arizona lawyers who may advise clients in regard to the recently passed Medical Marijuana Act.

The complete opinion is here.

The path here has been rocky, to say the least. First, there was some misunderstanding about whether the Bar had taken a position on whether lawyers could assist clients when there was a conflict between a new state law and federal prosecution. Many in the media and the public were dazed and confused. It even led one news outlet to say the Bar’s position obstructed justice.

Following that, the Bar clarified its stance, saying it had not taken a formal position.

Of course, now it has, through its newest ethics opinion.

To add to the education, the Bar will hold a seminar this Thursday on the topic. It’s titled “The Arizona Medical Marijuana Program – Proposition 203 and Beyond.”

According to the preview, “The program will discuss Prop 203, the draft rules, issues related to zoning and employment law and the ethical and criminal issues of the proposition.”

Speakers and their topics will include:

  • Will Humble, Director of the Arizona Department of Health Services: Medical Marijuana: Recreation or Medicine?
  • Karen Clark, Esq., Partner, Adams & Clark, PC: Issues related to Prop 203 from an ethics defense perspective
  • Christopher Mason, Esq., Partner, Fisher & Phillips, LLP: How the new law impacts employment
  • Ryan Hurley, Esq., Partner, Rose Law Group pc: Prop 203 and the draft rules and related zoning issues
  • Patricia Sallen, Ethics Counsel, State Bar of Arizona: Ethical issues (including the State Bar’s position) related to Prop 203
  • Theron M. Hall, III, Esq., The Hall Law Firm: Potential criminal issues related to the proposition

Before the CLE, here is a radio news interview (via KJZZ) with Arizona lawyer Christopher Mason regarding workplace aspects of the new law.

A week ago today, The Rehnquist Center at the University of Arizona Law School hosted a program on courts and New Media. The full title was Public Understanding of the Courts in the Age of New Media. 

Russell Wheeler, Brookings Institution, and John Davidow, WBUR.org

The panels were packed with judges, policy experts and some journalists. (The full agenda is here.)

(More photos are available on the Arizona Attorney Magazine Facebook page.)

I was able to attend the morning sessions. Here’s who presented:

New Media – Is it Changing the Coverage and Conduct of Trial Court Proceedings?

Anonymous No Longer? The Federal Courts of Appeals and the New Media

The afternoon panels include a lunch keynote by Hon. Sandra Day O’Connor, which I was disappointed to have to miss.

The presentations I saw were quite good. But they also put me in mind of how advanced Arizona already is in terms of some of the topics addressed. For instance, while other jurisdictions wrestle with media in the courtroom and developing media-use policies for jurors, many of our courts have had such policies in place for years.

And can we stop calling it “New Media”? Do we really have to wait until our younger cohorts openly smirk as we ramble on about “logging on” to the World Wide Web, or the “Internets”?

It’s just media, folks, which happens to be new. And not even so new anymore. I mean, when was the last time you marveled about your fax machine, or the scanner at the supermarket? (Apologies to George Bush I).

But as long as I’m on a social media tear, here are some of the tweets (mine and others’, raw and unmediated) from the conference. (the hashtags were #barmedia and #newmediaconf):

#newmediaconf on courts, the public and new media at DT Phoenix J school hosted by @UofAZLaw Rehnquist Ctr http://tinyurl.com/4tdfwtu

ABA President-elect William Robinson at #newmediaconf – surprised how many in public don’t understand courts

ABA President-elect William Robinson at #newmediaconf – Legal profession needs journalists to collaborate on telling public re courts

San Jose Mercury News rptr @hmintz at @newmediaconf – days of reporters going to court just w/ pen and spiral pad are over

Access to court records good, but risks: child and DV protection, data mining, “outing” plea agreements on “Who’s a Rat” sites #newmediaconf

Trying to figure out the types of people that are at this seminar. Are we lawyers? Journalists? Joe schmoes? #barmedia

“Lost art”: Reporters going to the courthouse and chatting with the clerk @hmintz #barmedia

Important to determine when cameras should be on in courtrooms. Maybe judge can say turn off but must state a reason @JohnDavidow #barmedia

Judges need to impose firm instructions to try to minimize the “Google tendencies” of jurors #barmedia

Judge Virginia Kendall at #barmedia – Instinctively we are Googlers, jurors too. It’s all about instruction and control.

Panel at #barmedia discuss court changes to improve juror understanding (some of which Arizona courts have been doing for decades!)

Fact that info will be “out there” should not alter the principle that court info generally should be public @hmintz #barmedia

Awesome that this panel has adopted the phrase “nutty blogger”, and that everyone understands who they’re talking about. #barmedia

#BarMedia My old friend Ben Holden suggests jurors are routinely ignoring judicial instructions re new media tools. judge on panel disagrees

Audience Q at #barmedia – Use of term “nutty blogger” suggests mainstream media are not nutty.

It’s fascinating in #barmedia session how decline of mainstream media is accepted as a given. The struggles are no secret.

Is it time for national standards on court approach to social media reporting and juror issues, or just leave up to each judge? #barmedia

Ok, it is FREEZING in this seminar room. Do you think they’re trying to be ironic in freezing our fingers off so we can’t tweet? #barmedia

The phrase “judicial discretion” = nightmare for reporters, in regard to cameras in courtroom and many other things @hmintz #barmedia

Public cmt reveals misunderstanding of courts: “You must be tired, riding the circuit & being a night court” (Ninth ! Circuit) #barmedia

At #barmedia @TonyMauro says as written, appellate court rulings are not “a grabber.” “My suggestion: Write them better.”

For years, many judges said court reporting got it wrong. Now, judges bemoan lack of reporters in the courtroom. #barmedia

#barmedia Numerous poignant tributes to Judge John Roll at this conference. He was obviously loved and respected.

Sandra Day O’Connor is speaking to #barmedia conf. She is funny, spunky and practical. Decrying lack of Civics classes. Straight-talker!

#barmedia Judge says tbere are 4 kinds of high profile cases. Celebrity, issues, sensational and political.

“Citizen journalist, citizen brain surgeon, whats the difference?” Pete Williams making fun of the characterization of bloggers #barmedia

Had a wonderful time at a conference today #barmedia. Went old school & took handwritten notes. 🙂


Contact: Rick DeBruhl, Chief Communications Officer

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

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

State Bar Releases Ethics Opinion on Medical Marijuana Act

PHOENIX – The State Bar of Arizona’s Committee on the Rules of Professional Conduct has issued an opinion that says lawyers may assist clients in complying with the state’s new Medical Marijuana Act.

The issue arose because of a conflict between state and federal law, and that conflict’s intersection with legal ethics. Although Arizona’s new law legalizes medical marijuana in the state, federal law still prohibits the manufacture, distribution or possession with intent to distribute. An ethical rule prohibits a lawyer from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent.

However, the newly released ethics opinion says that Arizona lawyers may assist clients under the following circumstances:

  • The client requests assistance for actions expressly permitted by the Arizona Medical Marijuana Act;
  • The lawyer advises the client about the potential implications and consequences of federal law (or recommends client seek proper guidance); and
  • The client knowingly decides to move forward with full knowledge of conflicting federal law.

The opinion notes that no court opinion has held that Arizona’s law is invalid or unenforceable and that the federal government has essentially carved out a safe harbor for some conduct that is in “clear and unambiguous compliance” with state law.

“In any potential conflict between state and federal authority, such as may be presented by the interplay between the Act and federal law, lawyers have a critical role to perform in the activities that will lead to the proper resolution of the controversy,” according to the opinion.

The opinion is strictly limited to the unusual circumstances created by the adoption of Arizona’s new Medical Marijuana Act. Any court ruling that affects the Act may also affect the opinion.

The full opinion is available here.

State Bar ethics opinions are advisory in nature only and are not binding in any disciplinary or other legal proceedings.

Hon. Sarah "Sally" Simmons

News from the Arizona Supreme Court:


Thursday, February 24, 2011 – The Arizona Supreme Court has appointed the Honorable Sarah R. (“Sally”) Simmons as the new Presiding Judge in Pima County.  She will replace Judge Jan Kearny, who will leave the post as presiding judge on May 13, 2011.

Judge Simmons is currently presiding judge of the Pima County Juvenile Court and served as presiding judge of the Family Law bench in Pima County from January 2007-March 2009.  She is also chair of the Supreme Court’s Committee on Juvenile Courts, is a member of the Arizona Commission on Judicial Performance Review and has served on the Domestic Relations Committee and the Child Support Guidelines Review Committee. 

She currently is a member of the Children’s Action Alliance Juvenile Justice Committee and is co-lead judge for the Pima County Juvenile Court Model Court Work Group and the Pima County Juvenile Court Juvenile Justice Executive Board.

Judge Simmons was raised in Miami, Arizona and graduated from the University of Arizona with high honors in 1970 with a degree in history.  She attended the University of Arizona College of Law for two years and then transferred to the University of Denver, where she received her J.D. with high honors in 1973.

Judge Simmons practiced in Denver for a short time before coming to Tucson to work at the law firm of Molloy, Jones and Donahue, P.C.  She worked at that firm as an associate from 1974-1977 and as a shareholder from 1978-1992.  She was employed at the law firm of Brown & Bain, P.A. from 1993-94 and was a shareholder in that firm from 1994-2002.  In 2002, Judge Simmons became a partner at the law firm of Lewis and Roca LLP, and she served in that capacity until her appointment to the bench in January 2006. 

Judge Simmons has been active in both bar association and community activities.  She was president of the State Bar of Arizona in 1993-94, having served as a member of the Board of Governors from 1987-95.  She was a member of the Pima County Bar Association Board of Directors from 1985-95.  Judge Simmons was the first chair of the State Bar of Arizona’s Committee on Persons with Disabilities in the Legal Profession, serving in that capacity from 2000-2005. 

Sally Simmons as a panelist at the State Bar Convention's Ethics Game Show, June 2010

In the Tucson community, Judge Simmons currently serves as an emeritus member of the DM-50 Board of Directors.  She is a member of the University of Arizona James E. Rogers College of Law’s Law College Association Board of Directors and Board of Visitors, having been president of the former and co-chair of the latter.  She has also been president of the Tohono Chul Park Board of Directors, the Metropolitan Tucson Convention and Visitors Bureau, a member of the Tucson Airport Authority and its Board of Directors, and has served on numerous other charitable or civic boards, including the Arizona Town Hall and the United Way.

Judge Simmons was the Tucson Chamber of Commerce Woman of the Year in 1994, and she was a recipient of the YWCA Women on the Move Award in 1995.  She received the Women’s Studies Advisory Council Women Who Lead Award in 2003, the Southern Arizona chapter of the Arizona Women Lawyers Alice Truman Award in 2003 and an Inside Tucson Business Woman of Influence designation in 2005.  Judge Simmons was named one of the 100 Minorities and Women in the Law by the State Bar of Arizona/Maricopa County Bar in 2001, was the co-member of the year for the State Bar in 2004, and was named one of the top 50 pro bono attorneys in Arizona by the Arizona Foundation for Legal Services and Education in 2004.

For information about the Arizona Judicial Branch, visit here. For information about the Pima County Superior Court, visit here.

Arizona Attorney Magazine, March 2011

Sometimes you plan. And sometimes you’re lucky.

This week, the latter strategy benefited us here at the State Bar of Arizona. And I think it benefits Arizona lawyers too. It is the wonderful coincidence of Arizona Attorney Magazine articles and a pending CLE on the identical topic.

My confession of fortune’s guiding hand has to do with what looks like a terrific CLE tomorrow (yes, tomorrow!). It is on the topic of the economic loss rule.

Wait, WAIT! Don’t hit the Back button. Bear with me. The ELR is seriously cool stuff, especially here in Arizona. And especially when it is illustrated by experts.

The CLE comes on the heels of our March issue coverage of the ELR case that arose in Flagstaff and went all the way to the Arizona Supreme Court: Flagstaff Affordable Housing LP v. Design Alliance Inc. The CLE panelists will be:

  • Arizona Vice Chief Justice Andrew Hurwitz
  • Hon. John Gemmill, Arizona Court of Appeals
  • Hon. Eddward Ballinger, Superior Court for Maricopa County
  • Hon. Sam Thumma, Superior Court for Maricopa County
  • Professor Ellen Bublick, Univ. of Arizona James E. Rogers College of Law

Here is the link to the seminar. Click it now, while the ELR rapture has you in its talons. To hesitate and perhaps surf away would be to condemn yourself to forever misunderstanding the odd admixture of tort and contract that the Supreme Court had to address. Don’t do that to yourself. Click. Click. Click.

Our magazine stories were not written by any honorables, just by practicing lawyers: Tom Lordan and Craig LaChance. But I still urge you to read their take on the ELR. I think their articles are the kind that you rip out of the magazine and save for a rainy, ELR day, when your client is faced with a similar situation. They are just that good.

(I can hear you asking now: Which came first—the magazine articles or the CLE? Tsk tsk; that is not the point. This is not a competition. We are not engaged in a ragtag dash to an educational finish line. Sure, I could note that our articles’ genesis was long ago, back to last summer or fall. And that our authors drafted and redrafted until their work achieved a certain gem-like quality. And only then were we agreed that publication would serve Arizona’s legal profession. I’m sure the CLE Department could say the same about Friday’s blockbuster program. So please, do not sow rancor between a record-breaking CLE Department and an award-winning magazine. It’s unseemly.)

To help you understand the ELR, here is our introduction to our March issue special feature. And don’t forget to CLICK.

Contract 1, Tort 0

Flagstaff Affordable Housing and Certain Design Defects

An Arizona city was the location for last year’s noteworthy development in how courts will construe the economic loss rule. 

When a unanimous Arizona Supreme Court decided Flagstaff Affordable Housing Limited Partnership v. Design Alliance, Inc.  last February, it applied the economic loss rule to bar a construction-related claim for the first time. 

In the case, an owner set out to construct affordable residential housing that would comply with accessibility guidelines established in the Fair Housing Act. The owner hired an architect to develop plans that met the guidelines. Upon review, the U.S. Department of Housing and Urban Development determined that it failed to comply, and sued the owner. 

HUD and the owner eventually settled—which is when the owner sued the architect for negligent design, seeking recovery of its costs in complying with HUD’s requirements.

Ultimately, the Supreme Court remanded the case to the Superior Court to determine whether the contract preserved tort remedies. The Court reasoned that in construction defect cases involving only repair and replacement of the construction work itself—not personal injury, death or other property damage—there are no strong policy reasons to impose common law tort liability in addition to contractual remedies.

The following articles describe the case in more detail, and they point to business consequences that may flow from it.

Professor Carissa Hessick and Maricopa County Attorney Bill Montgomery debate criminal sentences, Feb. 14, 2011, Arizona State University

Last week, I attended a debate on criminal sentencing reform, hosted by the ASU Law School. I already posted one photo from the event.

The April issue of Arizona Attorney Magazine will contain a roundup of the debate. If you’re curious, here is the lede:

Those seeking a preview of future Arizona-centric battles over criminal sentencing reform gained some insight at a February 14 event. At the ASU Sandra Day O’Connor College of Law, a debate—of sorts—was waged between law professor Carissa Hessick and Maricopa County Attorney Bill Montgomery.

The two advocates—Hessick resisted calling them “adversaries,” at least during the debate’s first half—came to the topic following an ample and growing history of sentencing reform struggles, both national and local.

As one state after another finds itself pinching even the slimmest of pennies, the cost of long prison incarceration has come under fire.


What was most struck me at the event—and likely struck many people who packed the classroom that day—was the veto power held by one person over the topic. Or, rather, by one position.

Maricopa County Attorney Bill Montgomery, Feb. 14, 2011, at ASU

As Professor Carissa Hessick herself said, County Attorney Bill Montgomery, an ASU Law graduate, is now one of the most powerful attorneys in the state. And there he was, in a debate on proposals to alter our sentencing structure in ways that may save the state millions of dollars, and, according to some, be more effective than our current regime.

Of course, intelligent minds may differ on matters of policy. But some minds are more crucial to a debate than others.

Even in a state where there are lead prosecutors in every county, the Maricopa County Attorney is the lion at the party. His office handles far more criminal matters than does any other county. Therefore, the beliefs held by that elected official are always at the center of any dialogue about criminal law in Arizona.

Given that, I know many were curious about the approach and the tone he would take at the debate, a debate he had proposed. Out of the gate, he found no value to the report that came out of the law school’s Public Policy Incubator Program. In fact, he gave short shrift to any lessons offered up by other jurisdictions, saying that Arizona’s border-state status makes it difficult to compare and apply other states’ methods.

That may be an entirely defensible position. But it means that the coming year or so in the sentencing dialogue will be a hard slog, rather than a collaborative effort.

But why should any topic in Arizona be otherwise?

More photos from the event are on the Arizona Attorney Magazine Facebook page.

Goofy and committed to service: The staff of the State Bar of Arizona

Yes, I know I just posted the State Bar’s first-ever staff photo (originally written about here). But what was I thinking when I omitted the fun version?

Moments after the first photo was snapped, a variety of embarrassment-inducing items were produced, and many of us adorned ourselves, slaves to fashion that we are.

Among our choices: clown nose, Mardi Gras beads, pirate eye patch, and the classic eyeglasses-with-nose-with-moustache.

Enjoy (click on the image for a larger version). And I’m the one with the red nose.

Smile ... I said SMILE!

Recently, I told you about a new tradition that the State Bar of Arizona has launched: the staff photo.

Sure, we already have an inside-the-group online headshot of everyone. That is helpful if you cannot recall who Buddy in Accounting is, or whether Trent in Lawyer Discipline is the bald one or the balder one.

But we’ve never had a full-blown all-staff, stand-up-and-look-Bar-ish photo.

Until now.

Here is the official 2011 staff shot of the State Bar of Arizona (click for a larger image). As people come and go, there may be Kremlin-esque airbrushing of the dearly departed. But until then, here we are, standing up and serving (when we’re not being posers). I’m the one with the glasses.

Ronald Dworkin, a law and philosophy professor at New York University, speaks at the Sandra Day O’Connor College of Law at Arizona State University, Feb. 10, 2011. ASU photo.

In early February, philosopher Ronald Dworkin spoke at the ASU Law School. I was sorry to have missed him, for I enjoy a thoughtful conversation about law and policy.

Besides enjoying his name, the extent of my Dworkin knowledge extends to this quote of his:

A judge’s discretion, like the hole in the doughnut, does not exist except as an area left open by a surrounding belt of restriction.”

Any professor who can combine law and pastry is worth examining. And that’s why I was pleased that a journalism student from the ASU Cronkite School wrote a news story on the event. Thanks to Staci McCabe, and the law school.

Here is her story.

Dworkin Discusses International Law’s Inadequacies at Sandra Day O’Connor College of Law

By Staci McCabe

Ronald Dworkin, Professor of Philosophy and Frank Henry Sommer Professor of Law at New York University, spoke about the conventional view of international law during a lecture on Thursday, Feb. 10, in Armstrong Hall at the Sandra Day O’Connor College of Law at Arizona State University.

Dworkin is regarded as a leading legal and constitutional law philosopher. His lecture at ASU is considered the first time he has publicly addressed international law specifically.

Before an audience of more than 350 people, Dworkin argued that the conventional view, which relies on the consent of sovereign national states, is an inadequate way to look at international law. To view a video of the lecture, go to online.law.asu.edu/events/2011/dworkin_lecture.

“I think there are some serious, fatal flaws in the consent theory, and that we have to begin again,” he said.

Instead, Dworkin contends that the international community must realize that law is an interpretive concept, and in turn, that international law is much richer and more important to the world’s problems than it has been conceived in the past.

“We need to go back and reinvent the foundations of international law,” he said.   

In particular, the current consent-based international system is not sufficient for the significant challenges the international community faces including terrorism, genocide and climate change, which all require international cooperation, Dworkin said.

In order to deal with these significant issues, the international community must act as a cohesive unit as opposed to the current system that divides the international community into separate states, Dworkin said.

“I think that the need for international law in this particular century is profound,” he said. “We face danger of dramatic sorts.”

Despite that, Dworkin said, the development of international law is at a low point.

The division within the international community can be seen again and again as conference after conference fails, he said.

“The international system is disabled from solving coordination problems of that massive scale entirely because we are divided into separate nations,” he said.

Dworkin also proposed that the international community create a duty of salience, essentially a state’s duty to promote international legitimacy.

If there is a practice, doctrine or institution whose general acceptance would improve legitimacy of the international system, then states have a duty to join, support, respect and advance that practice, he said.

Dworkin conceded that it is unlikely that powerful states will accept the restrictions that come from his proposed international system. However, he doesn’t believe that the time for such an international system is far off.

“The time will come, I believe, the pressures are already building, when a stronger, more realistic international law will be in the interest of so many nations,” Dworkin said.  “Climate threats alone may do this.”

“It is time now to plant and nourish the roots of international law and leave counting the twigs til later,” he said.

Dworkin, author of the new book, Justice for Hedgehogs, is also an Emeritus Professor of Jurisprudence and a Fellow of University College at Oxford. He received bachelor’s degrees from Harvard College and Oxford University, and an LL.B. from Harvard Law School. Dworkin has clerked for Judge Learned Hand and was associated with Sullivan and Cromwell in New York.

Alan Korwin

It’s Change of Venue Friday, and I considered a variety of material to offer on our off-kilter weekday. Finally, though, I thought I would bring you some cutting-edge material from the field of mental illness.

In its “Live Talk Forum,” the Arizona Republic sits down with newsmakers, tosses softballs, asks the hard questions, and reveals something new to illuminate the news.

It’s a small column in the paper, and I was worried you may have missed this week’s. It was with gun advocate/expert Alan Korwin. He wrote “The Arizona Gun Owner’s Guide.”

It’s worth reading the entire exchange. But steer your attention to his response to question number 2.

2. What would you anticipate would be the biggest objections from opponents to allowing any person with a valid concealed firearm carrying permit or license to carry a concealed firearm?

Many of the anti-rights positions stem from hoplophobia, morbid fear of weapons, a medical condition whose undiagnosed sufferers need treatment. Unfortunately, they often get involved in efforts to deny the civil rights of others instead of seeking help for themselves. They fail to distinguish between legitimate gun ownership and use, and homicidal maniacs and crime, indicative of their problem.

Whatever you may think of Korwin’s underlying positions on gun ownership, we all can learn a lesson here about argument and persuasion.

Have you ever come across someone who thinks differently than you? No, intelligent minds cannot differ. It’s mental illness.

Read the complete interview here.

Have a great weekend. And try not to get mental.

Next Page »