State Bar of Arizona SBA_Logo_ColorAn annual event, the report regarding lawyer discipline and admissions issues has just been released. The report covers multiple topics, including the types and amount of discipline meted out, the number of lawyers admitted to the State Bar of Arizona, trends in admissions, and more.

You can read the complete report here.

Arizona_Supreme_Court_SealAnd for some analysis, read what Patricia Sallen offers here. The former ethics counsel of the State Bar examines the lawyer-regulation data by the numbers.

State Bar of Arizona Chief Bar Counsel Maret Vessella interviewed by KPHO reporter Dave Cherry

State Bar of Arizona Chief Bar Counsel Maret Vessella interviewed by KPHO reporter Dave Cherry

If you’re a lawyer, you may not make it a habit to hire other lawyers (but who knows?). However, a recent news story sheds light on the topic. I found it fascinating, and I encourage you to share it with anyone who’s engaged in an attorney search.

In the story, titled “Research lawyers just like you would contractors,” reporter KPHO Dave Cherry interviews Chief Bar Counsel Maret Vessella. She discusses the importance of checking for a lawyer’s discipline history before you retain someone.

So far so good.

But then she relates a story about a lawyer who got into discipline trouble after a client had already retained him. How many of us think about checking whether our attorney is still admitted to practice after he has already done work for us?

Not often, I’m sure. But I can see how it could be vital.

Go here to see the whole video.

TX novel A Serious MistakeThose who work at publications get a lot of story pitches, and among them are a good number of books offered for review.

In Arizona Attorney Magazine, we occasionally run reviews of books, but they tend not to be of the murder-novel or bodice-ripping variety.

But what if those categories could be combined into one?

The other day, I got a pitch that made me rethink our resistance to the tawdrier side of the fiction aisle. Maybe lawyers want to read a ripping good yarn of legal intrigue and bloody retribution.

Even more interesting, the most recent pitch was for a novel that arose from … the lawyer discipline system.

Here is the background on a novel from a Texas attorney:

“Frank R. Southers’ new book A Serious Mistake is the second novel in his The Grievance Committee series. The series centers on the Grievance Committee of San Antonio, Texas, with each novel focusing on a slightly different storyline. A Serious Mistake focuses on criminal defense lawyer Scott Lonnigan, who takes his job very seriously.”

No, I’m the one who’s serious. I kid you not: A lawyer grievance committee. Despite my misgivings, I was drawn in to read more:

“Scott Lonnigan treats his appointment to the Grievance Committee in San Antonio, Texas just the same as his job as a criminal defense lawyer: with deadly seriousness. Many would go so far as to say that the job consumes Scott’s life. He throws himself into his work, always making sure to use common sense when judging the often heated and weighty complaints against lawyers. A lot hangs in the balance for members of both sides, and Lonnigan makes sure he respects the importance of his job. In his eyes, every accusation means at least one person, whether the lawyer or the client, made a serious mistake.”

TX novel The Grievance CommitteeOK, you’re interested right, but you want to hear more? How about another book by the same author, and with a description that provides some juicy tidbits? Here is an excerpt from The Grievance Committee, also by Frank Southers:

“Using his professional relationship as court-appointed attorney for beautiful Alexandra Jimenez, a serial shoplifter, Jose P. Quiroz has tricked her into sexual relations for months through deceit and dishonesty, and now has dumped her for another woman.”

Sounds familiar, doesn’t it? Ripped from the lawyer discipline pages, right? (Sorry I interrupted.)

“By showing that her made-up accusations are just spite from a broken love affair, Jose’s lawyer, Albert Hicks defeats her complaint with the Grievance Committee in San Antonio, Texas. Besides, he notes, sexual relations between a lawyer and the client are not prohibited.”

(I do not offer this as a synopsis of the state of the Ethical Rules in Arizona. Note that ER 1.8(j) maintains “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client–lawyer relationship commenced.” Proceed with your own client at your own risk.)

“With prayers to her patron saint, Alexandra finds Jose has also tricked two other female clients into sexual relations and she convinces them to file grievances. After losing at the second Grievance Hearing, Jose sues requesting a jury trial.”

Hmmm; it’s moving from a bodice-ripper into a civ pro procedural. Getting drowsy? Maybe your interest will be piqued if we then meet a judge (whom I’m guessing is steely-eyed) and a colorfully named stripper:

“Assigned from north Texas, Judge Horace Sawtelle visits for pre-trial matters and has a one-night stand with ex-stripper Missy Bubbles, who secretly has taken racy photos of the two. When the judge is ready the next night for round two, he finds Missy has been murdered.”

Oh, Missy Bubbles, how the attorney reading community will miss you. Your appearance on the scene was as effervescent as a … bubble, I suppose.

I kid, of course, because I tip my hat to all authors, even those focused on lawyer discipline. My prediction and wish for the author is that Judge Sawtelle, Scott Lonnigan and their cohort of fellow characters will grace quite a few stockings this holiday season. If you’re interested for yourself or for someone who needs a gift, head over to the author’s website.

Texas attorney-novelist Frank Southers

Texas attorney-novelist Frank Southers

John Jay College of Criminal Justice logo 2014In case you missed it, as they say: Reporter Michael Kiefer opened a four-part series yesterday about the prevalence (or its opposite) of prosecutorial misconduct.

That is bound to be a controversial issue, but I’m sure many will read this week’s Arizona Republic coverage closely.

His first piece is here.

That is certainly relevant to my legal audience, even if the topic will rankle some (if you want to see how much, just scroll down past his article to the reader comments beneath. Sheesh!). But besides the article’s substantive value, I also was intrigued by an acknowledgment included with it:

“This series was researched and written as part of a fellowship with The Guggenheim Foundation and the John Jay College of Criminal Justice in New York City.”

Arizona Attorney Magazine January 2012 cover criminal sentencingHey, I know the John Jay College—because I also had the opportunity to be named a Guggenheim Fellow a few years ago. As such, I traveled to New York for a targeted symposium on crime in America.

As a working writer, it is quite a luxury to have a trip dedicated to learning—especially when your expenses are paid. In an annual conference, the Guggenheim Foundation brings a parade of national experts before a group of 25 or so journalists to help dissect the criminal justice system. (I got to attend another Guggenheim workshop, in Reno, on incarceration and release issues, in 2008).

The repayment you make to that cutting-edge learning is that you commit to coverage of a related topic. My coverage—on criminal sentencing and the political possibilities for change—appeared in the January 2012 Arizona Attorney Magazine.

Kiefer’s a great reporter, and I can picture the Manhattan room he sat in; I wonder if it snowed during his East Coast trip too. I look forward to what he can accomplish this week (with the Gannett machine behind him!). Write to me at arizona.attorney@azbar.org and let me know what you think of the coverage.

Guggenheim acknowledgment

In the January 2012 issue, I thanked the John Jay College and Guggenheim folks for a terrific learning experience.

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.

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.