Andrew Thomas, Deputies Disciplined for Using Positions to Punish Adversaries

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.

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Frequently Asked Questions on Thomas, Aubuchon and Alexander Ethics Hearing

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.

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Recall Election Appeal Filed – in Wrong Court

Ariz. Senate President Russell Pearce

Mistakes are made in the heat of battle. And that is never more true than in lawsuits regarding pending elections (see Bush v. Gore).

That may be the most generous analysis we can make in the latest turn in the battle over a recall election for State Senate President Russell Pearce.

You may recall (get it?) that sufficient petition signatures were gathered to force a recall election of the engineer of the immigration law dubbed SB1070. But a lawsuit was filed immediately by Pearce backers to disallow the signatures, the petitions and the entire election.

Last week, an Arizona court in Maricopa County ruled against the suit, which would allow the recall to proceed. An appeal was expected.

What wasn’t expected was that the Pearce supporters filed the appeal directly to the Arizona Supreme Court. On Tuesday, the Court—ever so kindly—pointed out that the appeal came to the wrong bench.

As Justice Scott Bales wrote:

“The Court has received Appellant’s Rule 8.1 Statement in Expedited Election Matter, filed August 15, 2011. Because pursuant to Rule 8.1(h), Arizona Rules of Civil Appellate Procedure (ARCAP), ‘[e]xpedited election appeals involving recalls … shall be filed in the Court of Appeals’ rather than this Court, IT IS ORDERED transferring this matter to the Arizona Court of Appeals, Division One.”

Every lawyer may make an error, Justice Bales seemed to acknowledge. And so he concluded, “IT IS FURTHER ORDERED that Appellant not be charged a second initial filing fee.”

Other coverage of the matter made the event seem like a technicality. As FOX10 News reported:

“The Arizona Supreme Court is sidestepping an appeal of a judge’s ruling to keep a scheduled recall election for state Sen. Russell Pearce on track, but it may be only a temporary move.”

Here is their complete story.

True, I suppose, that all court rules are “technicalities.” But those are technicalities that lawyers live with every day. It’s nice that the Court won’t levy a second fee on the plaintiff when the matter is inevitably filed in the proper court. But given the very public nature of this Court order, I suppose the lawyers involved have already paid enough.

Below you’ll find the two-page order from the Supreme Court.

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Constitution Quiz Answers

The September issue of Arizona Attorney Magazine includes a short article titled “Civics Lesson.” Written by Supreme Court Justice Scott Bales and Court of Appeals Judge Larry Winthrop, it describes some initiatives that have been launched to honor the state’s centennial, and it urges lawyers to get involved and to donate their experience to the effort.

The article ended with a quiz. Social creatures that we are, I opted to have readers come online to this blog to see the answers.

No cheating—take the quiz before looking at the answers! (The questions and answers are below.) 

Testing Arizona

Think you know your Arizona history? Pretty sure you understand how our state’s legal past stacks up against the national past? Take our 5-minute quiz to discover if you’re a Grand Canyon Guru.

Q1: When was school segregation abolished in Arizona?

A1: In 1953, when the Arizona Superior Court for Maricopa County ruled that segregation in elementary and high schools was unconstitutional.

Q2: When was school segregation determined nationally to be unconstitutional?

A2: In 1954, when the U.S. Supreme Court held in Brown v. Board of Education that school segregation is inherently unequal, and therefore illegal.

Q3: When did women in Arizona win the right to vote?

A3: In 1912, by initiative measure.

Q4: When did women nationally obtain the right to vote?

A4: In 1920, by constitutional amendment.

Q5: When did Native Americans win the right to vote?

A5: In 1948, the Arizona Supreme Court held in Harrison v. Laveen that Native Americans were eligible to vote in Arizona elections.

Q6: Who was the first woman to hold public office in Arizona?

A6: Sharlot Hall, appointed territorial historian in 1909.

Q7: Who was Arizona’s first Congresswoman?

A7: Isabella Greenway, a Representative from 1933-1937.

Q8: Which Arizonan served in the U.S. Congress for 57 years?

A8: Carl Hayden, a Representative from 1912-1927 and a Senator from 1927-1969.

Q9: How many times has the United States Constitution been amended?

A9: 27 times.

Q10: How many times has the Arizona Constitution been amended?

A10: More than 100 times.

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Volunteers Sought

An opportunity to serve the justice system is available for members of the public. Yesterday, the State Bar of Arizona issued the following press release about openings on the Character & Fitness Committee.

Here it is: 

Public Members Sought for Supreme Court Committee

PHOENIX – Aug. 1, 2011 – The State Bar of Arizona is supporting the Supreme Court of Arizona in its effort to recruit two public/non-attorney members for its Committee on Character and Fitness. Applications are available now.

This Committee is responsible for recommending applicants for admission to the practice of law in Arizona.  The Supreme Court then considers the recommendations and either grants or denies admission.  On a yearly basis, the Committee reviews and evaluates approximately 1,200 applications.

The Committee conducts at least one formal hearing monthly in either Phoenix or Tucson.  Members are expected to participate in each formal hearing, and in informal hearings held throughout the state on a voluntary participation basis.  In addition, membership requires independent review of applicant files amounting to approximately 25-40 hours per month.   

Expenses are paid for all meetings/hearings, but there is no other compensation for service as a Committee member.

Application forms to become a public member are due by Monday, Aug. 22, 2011, and can be obtained by contacting Nina Benham at the State Bar of Arizona at 602-340-7329 or at nina.benham@staff.azbar.org.  Interactive application forms may also be downloaded from the Bar’s web site at www.azbar.org.  Interviews of selected candidates will occur in September.

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