Thursday, June 20th, 2013

The 2013 luncheon of the Arizona Foundation for Legal Services & Education once again recognized some of the finest lawyers in the state for their commitment to access to justice in Arizona.

Attorney Barbara Dawson accepting the Foundation's 2013 Walter E. Craig Award, June 20, 2013, Arizona Biltmore Resort.

Attorney Barbara Dawson accepting the Foundation’s 2013 Walter E. Craig Award, June 20, 2013, Arizona Biltmore Resort.

The following attorneys were honored:

  • Chief Justice Rebecca White Berch: Hon. Mark Santana LRE Award
  • Ellen S. Katz: Foundation for Justice Award
  • Stanley Friedman: William E. Morris Award
  • Barbara Dawson: Walter E. Craig Award

Congratulations to all the recipients.

The State Bar was also represented at the luncheon. Chief Communications Officer Rick DeBruhl led a conversation with CBS5 reporter Dave Cherry. They illuminated the audience on media and law.

And Incoming Bar President Whitney Cunningham brought the specifics when he urged five strategies on attendees who want to give back but are not sure how to begin:

  1. Take a pro bono case via one of the established legal aid organizations.
  2. When you cannot take on an entire case or matter, provide limited-scope representation.
  3. Ghost-write legal papers for an unrepresented person.
  4. Sign up for the Modest Means Program.
  5. Become a Foundation Fellow.

    Incoming State Bar President Whitney Cunningham, June 20, 2013.

    Incoming State Bar President Whitney Cunningham, June 20, 2013.

Cunningham included two fascinating statistics in his presentation:

  • If every lawyer in Arizona provided only half of the pro bono time recommended by Rule 6.1, its value would be greater than the $80 million cut from the Legal Services Corporation budget.
  • Becoming a Foundation Fellow (which nonlawyers may do too) will cost you $16.67 per month. That is approximately equal to one double-shot soy latter per day. Cunningham claims to have lost 20 pounds since he signed on.

The luncheon remains a high point in the Convention. Well done to all involved.

Dr. William Meinecke, Jr., State Bar of Arizona Convention, June 19, 2013.

Dr. William Meinecke, Jr., State Bar of Arizona Convention, June 19, 2013.

A seminar titled “What You Do Matters” challenged Arizona lawyers at Wednesday’s State Bar Convention to confront a disturbing history of an esteemed legal system. When German lawyers and judges bent to pressure and ultimately cooperated with the Nazi government, they essentially became collaborators in the horrors of the Holocaust. A distinguished panel of lawyers and scholars explored a profession’s culpability in state-sponsored murder.

How does a system of justice become that in name only?

William Meinecke, Jr., a historian from the United States Holocaust Memorial Museum, traced the stunning devolution of a system of laws that previously had enshrined personal freedoms and ensured a just society.

As German society faced numerous social and economic ills, the Nazi Party sprang up and provided radical commentary on the mainstream government led by President Paul von Hindenburg. Finally, as an attempt to wrangle and coopt the young and loud Nazis, Hindenburg named Adolph Hitler the nation’s Chancellor in 1933. Meinecke said that Hindenburg thought the Nazis would play the role of “junior partners,” and that the coopted group could not criticize the government anymore. A compromise would be forged, and Nazi radicalism could be kept in check.

That compromise crumbled in short order. A significant government building, the Reichstag, was burned in an arson. The new Chancellor asked for—and got—emergency powers to regain public control. The emergency decree extinguished substantial parts of the constitution in regard to individual rights and liberties.

Yavapai County Attorney Sheila Polk

Yavapai County Attorney Sheila Polk

Like Shakespeare’s Dick the Butcher centuries before, Hitler viewed lawyers and laws as an impediment. Meinecke quoted the dictator on the topic: “Lawyers are people who are faulty since birth or made that way thru usage.”

As a result, the legal system could stand wherever it propped up Hitler’s vision. When it offered resistance, it was subverted. In significant areas, there would be no judicial oversight. Police decisions that infringed on liberties were determined to be outside judicial review. And at important junctures, fearful judges and courts breathed a sigh of relief as their jurisdiction was stripped.

“Law gave him a blank check,” Meinecke said.

He then described in searing detail three example of the depth of the cooperation that helped lead to the murder of 6 million people. The three instances involved areas of focus reviewed by courts thousand times a day: a contracts case, a parenting matter, and an arson—of the Reichstag.

Using the words of the laws and the opinions of the court, the speaker provided a damning indictment of a system bent on self-preservation—at horrific cost.

In each case, Meinecke said, “The court followed the law and ended up with injustice.”

The afternoon’s other panelists revealed the pertinent lessons we can learn in the United States and in Arizona.

ASU Law Professor David Kader offered insights largely drawn from the Nuremburg war trials that followed the war. He ably described the “incremental progressive corruption” that gripped Germany and has done so around the world far more recently. The difference, he said, is that “We have international tools now. We just need the will to use them.”

Yavapai County Attorney Sheila Polk had brought to Arizona the coordinated training via the Holocaust Museum. That led to ethics training for prosecutors, judges and ultimately the National Conference of Chief Justices. As moderator Jerry Landau described it, “That training changed my life.”

On Wednesday’s panel, Polk described the training and read some of the feedback she’s received from attorneys, police officers and investigators, and detention officers. As one detention officer described it, the training gave “a wide angle view of personal responsibility in a bureaucracy”—similar to the situation lawyers faced in the Third Reich.

It fell to former Chief Justice Ruth McGregor to urge the attendees to make ethical connections to their own lives and their own government.

Forner Chief Justice Ruth McGregor, June 19, 2013

Forner Chief Justice Ruth McGregor, June 19, 2013

“It is important to ask if there was something lacking in German legal system. But we should be concerned when groups call the courts ‘just another interest’ that should follow popular opinion,” or when politicians suggest jurisdiction stripping. She added that there is current pressure in some quarters to remove the judicial power of review.

“We must remain informed and concerned about things that may reduce the adherence to the rule of law.”

Thankfully, McGregor brought the rule of law question forward to meet facts that Americans learned only in the past month. She suggested that the acquisition of personal data by the American government via the NSA should be a matter of broad dialogue.

“I should know where our government has struck the balance between privacy and security. And do we truly understand the FISA court? As legal professionals, we should be able to consider and answer those questions.

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.