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?

Just last month, I took a moment to wish Dan McAuliffe a happy birthday. Though he passed away a year ago, he is still on the minds of many in the Arizona legal community.

That was clear yesterday, as a remarkable CLE commemorated his life—and his love for the intersection of media and ethics.

Throughout the morning, a packed audience sat in the State Bar of Arizona CLE Center—named in honor of McAuliffe—and watched selections of the man’s favorite legal movies and TV shows. All of the clips were taken from his own collection, some of which, the moderator told us, appear to have been videotaped with a handheld device while the TV broadcast a show.

Peppered among the clips, of course, was discussion about what was professional or, more likely, unprofessional, in the clips.

Shirley Wahl McAuliffe speaks as Pat Sallen (center) and Ed Novak listen, April 27, 2011

Panelists were selected for their knowledge of ethics and of Dan.

Larry Cohen recalled how he had offered his own version of ethical lessons from the movies, only to be heckled by a fellow he later came to know was Dan. They met and “agreed it would be a lot more fun to do the programs together.” All that Dan required, Larry said, was that programs had to contain clips from “My Cousin Vinny” and the opening statement from “And Justice for All.”

“Dan made ethics accessible to people by making it fun,” Larry added.

Also on the panel were lawyers Lynda Shely, Ed Novak and Jim Lee. It was moderated by the State Bar’s Ethics Counsel, Pat Sallen. Each was adept at seasoning their ethical lessons with stories of Dan and his influence on the profession.

The event opened with clips from McAuliffe’s favorite lawyer movie: “My Cousin Vinny.” As Dan’s widow Shirley Wahl McAuliffe said, “Any movie that can take a pro hac vice application and turn it into a running joke” would earn Dan McAuliffe’s love.

If you haven’t seen it, get out there and rent it. But until then, enjoy this clip from a courtroom scene.

 

City councilman Michael Carrigan of Sparks, Nev., poses for a portrait at the site of a proposed casino in his ward. His ethics case, Nevada Commission on Ethics v. Carrigan, is set for argument with the Supreme Court on April 27. (David Calvert/FOR THE WASHINGTON POST)

Here in Arizona, we are used to strange interactions between ethics and politics (yes, dear reader, they do intersect).

But when we feel we may have things somewhat well in hand, all we need to do is gaze northwest, where the State of Nevada reminds us that all is odd in the universe.

The question posed in the latest Silver State brouhaha: Whether an elected official’s vote is an exercise of free speech.

Sparks City Councilman Michael Carrigan (and the Washington Post) convey the basis for the debate, which will be argued at the U.S. Supreme Court this Wednesday, April 27:

“I have the distinction of being the only elected official in Nevada to ever be brought up on ethics charges for losing a vote,” Carrigan said.
“The question is whether Carrigan should even have participated in an application for a new casino in this boomtown near Reno. It has turned into a major constitutional showdown with national implications for how states may police public officials who face a potential conflict of interest in conducting the people’s business.”

The state ethics commission had determined that Carrigan “crossed the line when he voted on the casino issue after his longtime friend and volunteer campaign manager was hired by the developer.”

“Nevada’s law forbids a public official from voting on an issue when a ‘reasonable person’ would suspect a conflict because of financial ties or the interest of a spouse or family member. It also includes a catch-all category for ‘any other commitment or relationship that is substantially similar to a commitment or relationship’ like those spelled out.”

Read the whole story here.

For more information on the Supreme Court case (Nevada Commission on Ethics v. Carrigan, Docket No. 10-568), click here.

An Arizona story that may only rate B-section coverage today in the newspaper and among readers’ attention is one that tells a variety of tales about the state’s legal community.

The story reports that the State Bar of Arizona has filed a formal complaint against the Apache County Attorney and his former chief deputy attorney. The allegations stem from inappropriate conversations with and pressure on a defendant in custody, out of the presence of his lawyer. According to the Bar’s allegations, the interview was ordered by County Attorney Michael Whiting and his chief deputy Martin Brannan.

So egregious was the conduct, Superior Court Judge Donna Grimsley found, that she dismissed the first-degree murder charges with prejudice.

Here is the story about the Bar complaint.

But there is far more to it than that. And to know that, you need only search the White Mountain Independent—or even the pages of the Arizona Republic.

There, you will find that the prohibited interview was performed by two investigators, including Brian Hounshell.

Apache County Attorney Michael Whiting outside the courthouse in St. Johns, Ariz., June 16, 2009. (AP Photo/Felicia Fonseca)

Does his name sound familiar? That may be because he is the former Apache County Sheriff. He eventually lost his job after being indicted in 2005 by the Arizona Attorney General for misuse of public monies, as well as “fraudulent schemes and artifices” and theft. He ultimately pled guilty and was sentenced to three years’ probation and a one-year deferred jail sentence.

Grant Woods had been brought in as a special prosecutor to try the case against the sheriff. He argued, successfully, that, “This sheriff, for all the good he did, ended up being a two-bit thief, day after day, month after month.”

No matter. Hounshell’s eventual conviction did little to reduce him in the eyes of County Attorney Whiting, who hired him as an investigator.

At the time, Attorney General Terry Goddard said he was “concerned” about the ex-felon’s hiring, saying that it may violate portions of Hounshell’s plea agreement.

No matter. Whiting went ahead with the 2009 hiring. And by early 2010, Hounshell and another investigator had visited the defendant in jail “and pressed him to plead guilty or face a possible death penalty.” For good measure, Hounshell also allegedly threatened charges against the defendant’s wife.

Now the Bar is looking into what went on up there in Apache County. But there is one more part of the story that tells us something about Arizona’s changing legal community.

Brian Hounshell

That judge who got the ball rolling? She is Presiding Judge Donna Grimsley. And she is the first woman ever elected to the position of Superior Court Judge for Apache County. And now she has placed herself in the center of a firestorm—which is sometimes what a judge has to do.

I do not know the judge, and it’s always best to avoid simplistic psychoanalysis. But a judge setting aside a murder conviction, with prejudice, for prosecutorial misconduct? That is a thunderclap. If there is a definition for “good-‘ol-boy network,” it probably includes the rehiring of a sheriff with a felony conviction, and a sense of hubris and untouchability that would lead to a jailhouse interview that a second-year law student could spot as a constitutional violation.

And after what may prove to be years of odd goings-on in the White Mountains, the statement that “this will not stand” came from a woman who pioneered her way into a historic position.

Donna Grimsley, Presiding Judge for Apache County

On the White Mountain Independent’s comments section, there are already calls for her recall. That’s a battle for another day. But her ruling has signaled a new way of doing business. We’ll see if it’s a way that is preferred by the people who elect judges.