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.

Robert Robb

Whenever a commentator starts with the “Truth is somewhere in the middle” scenario, you can be assured of one thing:

You’re going to have to work hard to excavate his real thesis, for it’s nearly certain that his preferences lie on one side of the argument over the other.

And that’s the case with Robert Robb’s lecture on merit selection in this morning’s Arizona Republic, titled in a moderation-is-all tone “Small Fix Is Best For Merit-Selection System.” Let’s see his fair-minded lede, shall we?

“Arizona’s merit-selection system for choosing judges isn’t as bad as critics maintain. On the other hand, it’s not as virtuous as defenders assert.”

Holy cow, who could disagree with that? His decades of reporting experience have revealed to him that humans and their positions are flawed.

Gosh darn it, that’s a fair-minded journalist, just telling it like it is, balls, strikes—you know the drill. And that opening prepares you to accept as reasonable the conclusions he draws at the end of his column—if you get there. For many readers, that milquetoast opening will cause them to say, “Nothing to see in merit selection. Sounds like some tweaks are in the works. All is good in the world.”

In that view, his conclusions are more a modest proposal than A Modest Proposal.

But when a polemicist uses that truth-is-in-the-middle rhetoric, it is in the middle—of his column—that you have to read carefully to see what’s up.

And it’s there that Robb goes after the courts with both barrels:

“In the 1990s and the early 2000s, however, there was a serious problem with an imperial state Supreme Court. During that period, justices decided that the state Constitution no longer would accept the system of funding school construction that had lived comfortably alongside it since statehood and that it somehow required the public funding of some abortions.

“They started tossing some propositions off the ballot. The only common theme among those that got tossed was that they promoted conservative causes.

“The justices even appointed themselves editors in chief of the ballot-publicity pamphlet, in one case censoring a warning from the legislative budget staff that expanding the Medicaid population might end up costing the state general fund big bucks. Which, of course, it did.

“There is no one left on the current court from those imperial days, and the current court is charting a much more circumspect role.”

Where, as they say, do we begin?

I think it was Henrik Ibsen who said that if a playwright has a rifle over the mantle in Act 1, it is certain that it will be taken down and used in Act 3.

Well, if we’re tossing around terms like an “imperial court,” we’re bound to think that a revolution is in order. We Americans are like that (think “Don’t Tread on Me”).

Robb usually writes with a pretty subtle understanding of what lawyers and judges really do—which is appreciated and pretty rare. But his examples from the “crazy” 1990s leave me underwhelmed. A few anecdotes don’t prove that the Supreme Court got any more “activist” in that time period. And if it was a busier court then, that would coincide with a time when the Legislature—and what it created—grew to be more partisan and imperial. Maybe they had to get active just to keep up with the increasingly active Lege. You know, checks, balances and all that.

And I had to smile when I saw some of Robb’s examples are in education. As we see our state’s race to the bottom of the country’s educational heap, it’s almost a laugh riot that he would spank the Court for its past efforts at equity and efficacy.

In fact, just pages before Robb’s column today, we hear how former Intel CEO Craig Barrett advised the Legislature that if that company were looking today for where to expand, “I hate to say it, but I think Arizona would not be in the top 10 locales to make that investment” (“Former Intel CEO Blasts Education in Arizona”).

Hmmm, it almost sounds like education is related to the economy or something.

On a related matter: As merit-selection issues develop here in Arizona, there is another question that I am interested in.

Thus far, the Arizona Supreme Court and the State Bar of Arizona have been strong partners in working to maintain the merit-selection system. They both are adherents of the maxim, “It’s not broke, so it doesn’t need fixing.”

But as bills get dropped at the Lege, distinctions in their positions may be necessary. For instance, some of the proposals maintain merit-selection with some small changes—one of which is a diminishment in or elimination of the State Bar’s role in choosing judges. That role is already modest, but some lawmakers want it gone, gone, gone.

As the bus rolls past, will the State Bar be under it? And will the Court support bills that save the bulk of the system, even if the Bar is marginalized? That would put the State Bar to a choice: Stand down, or advocate a position that is not on all fours with the Court.

And if the Bar does work to preserve its role, does it do that now, at the Lege, or wait until a ballot resolution is put to the voters?

Either way, the year grows more interesting by the moment.

Read Robb’s entire column here.

The Arizona coverage of a recent high-level attorney ethics investigation is pretty all-encompassing. So much so, that I doubted whether I would often have much to add in the media mix.

E.J. Montini

But the Arizona Republic’s drowsy coverage of the issue leaves so many open questions that a fella with his own keyboard has ample opportunity. Yesterday’s column by E.J. Montini continues in that vein. It may have been phoned in from some undisclosed location, but it sounds like it could have been written by his story subject.

It was just last week that John Gleason, the independent investigator named by the Arizona Supreme Court, announced the 34 ethics allegations that will likely form the basis for his formal charges, expected to come in January. Those charges will be leveled against former Maricopa County Attorney Andrew Thomas and deputy attorneys Lisa Aubuchon and Rachel Alexander.

The press conference was instructive, but Robert Robb’s Arizona Republic column not long after was even more eye opening. I wrote about it here.

In it, he argued that Gleason’s report detailing the allegations was an example of gross overcharging. He assured readers he was not defending Thomas’s actions, but come on. 34 allegations?

I wondered whether Robb would provide any evidence for his statement that elected county attorneys throughout Arizona “uniformly reject” the proposition that the Ethical Rules constrain them as they do private-side attorneys. To date, he hasn’t provided statements agreeing with his supposition that elected lawyers are “lawyers-plus.” And because he said “uniformly,” he must be speaking about every one of those county attorneys, right?

Well, Sunday’s column by Montini demonstrates that Robb will not be the only Republic writer dead set on “praising Thomas with faint damn” (yes, I mean as opposed to damning him with faint praise). As Robb did, Montini first establishes his cred by waving his pen toward the fact that he does not like all of Thomas’s past actions (“Solid balanced journo bona fides? Check!”). And then he goes on to muddy some waters — all to the benefit of Andrew Thomas.

It begins with the second graf, where Montini (or Thomas, or whoever wrote this) says that the three-person discipline panel “will be convened by the State Bar of Arizona.”

Not true. That will be the Arizona Supreme Court’s role. The State Bar has nothing to do with this investigation and eventual prosecution—except that it is footing the bill.

He then goes on for an odd bit about how those who investigate Thomas also “hate” him.

I’ve worked with a lot of prosecutors, and I think “hate” may be a strong word to use about them. And I have never heard the Republic bemoan a dearth of love in prosecutors’ hearts; usually that paper demands swift and firm justice. (Maybe this signals the paper’s adopting a new compassionate view toward defendants and lawyer respondents—but somehow I doubt it applies outside this case.)

Soon after, Montini writes, “Among other things Gleason concluded, ‘The allegations of misconduct committed by Thomas and (former Deputy County Attorney Lisa) Aubuchon, if proven, warrant disbarment.’”

We only will deduct a half-point for that statement. Gleason was not aimlessly and venomously musing; he was quoting the ABA Standards on lawyer discipline. And usually, defendants and respondents want to be informed of what liability they may be up against. But Montini is stunned that a prosecutor would do such a thing. And that shock provides Thomas the chance to claim Gleason “hasn’t been fair throughout the process.”

Montini may not know this, but Thomas’s “not fair” statement is a pretty common claim by lawyers charged with ethical lapses. But how about some evidence of unfairness? None is provided.

The column’s worst failing, though, is this whopper, spoken by Thomas.

“I’m concerned about the fact that I’m apparently not going to have a lawyer” (other than himself).

Whoa, Nelly. Montini’s column makes it sound like the Supreme Court discipline process does not allow Thomas to be represented by a lawyer. If that’s the situation, let’s have a front-page story about it, because that would be news.

Thomas doesn’t expound on that claim, because dissecting it might show that the only debate is about whether the public will pay for his lawyer—NOT whether he gets a lawyer, which he certainly is permitted to have.

(Montini ends his column with Thomas saying that the investigation of his transgressions threatens “the rule of law.” We award Montini’s failure to comment on that statement a half point for chutzpah and irony.)

Reading Rob Robb and E.J. Montini tells us two things: the budget cuts at the Arizona Republic may have eliminated telephones from columnists’ desks, which could be used to check a couple of these facts.

And it reveals the approach that may be taken in the next year of the Republic’s legal ethics coverage. I mean, it’s no crime to like the former county attorney; they’re entitled to their favorites. But the newspaper’s long-term love–like relationship with him is a bit much; maybe they should get a room (at the new court tower!).

Until then, some fact-checking would be nice.

Read Montini’s complete column here.

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?