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Scottsdale attorney, legislator seeks sanctions against Cochise County attorney in hand count case

Posted 12/18/23

PHOENIX — An attorney involved in the legal dispute over whether Cochise County could do a full hand count of ballots now is seeking to have the State Bar of Arizona sanction the county attorney who had told the supervisors the move would be illegal.

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Scottsdale attorney, legislator seeks sanctions against Cochise County attorney in hand count case


PHOENIX — An attorney involved in the legal dispute over whether Cochise County could do a full hand count of ballots now is seeking to have the State Bar of Arizona sanction the county attorney who told the supervisors the move would be illegal.

In a complaint filed Monday, Alexander Kolodin said Brian McIntyre publicly shared he had given legal advice to the supervisors telling them the action would be illegal. That disclosure, Kolodin said, became part of the basis for the legal challenge by an outside group to the board’s decision.

In fact, he said, McIntyre actually sent a letter to the group that filed suit detailing criminal laws he believed that the supervisors, his client, had broken the law. That, said Kolodin, now a Republican representative from Scottsdale, violated rules that prohibit an attorney from revealing information about a client unless that client has given approval.

Kolodin, who represented Cochise County Recorder David Stevens in the dispute, acknowledged that rule does allow a lawyer to violate the attorney-client privilege “to prevent wrongdoing under certain circumstances.” But he said that was not the case here. Stevens supported a full hand count of the ballots.

“This revelation was not a necessary preventative for many reasons, not the last of which was that the permissibility of the board’s proposed action was already in litigation,” Kolodin wrote to the State Bar. “In addition, Mr. McIntyre’s letter consisted almost entirely of legal analysis and, upon information and belief, contained no assertions of non-public fact.”

And then there was the fact McIntyre’s letter became public through the media.

McIntyre called the complaint by Kolodin “interesting in light of his recent matters with the Bar.”

That refers to a decision by the organization this past week to place Kolodin on probation for 18 months for his role in three unsuccessful lawsuits challenging the results of the 2020 election and in representing Republican lawmakers in their ill-fated defamation claim against a Democratic lawmaker. Kolodin was ordered to complete five legal programs, most of them relating to the ethical requirements for lawyers.

“I should probably refrain from further comment, though, while the process plays out,” McIntyre said of the complaint against him. “This isn’t exactly the Christmas present I was hoping for,” he quipped.

The complaint against McIntyre has its roots in a bid by Peggy Judd and Tom Crosby, the two Republicans on the board of supervisors, to do a hand count. All that was an outgrowth of unsubstantiated complaints by former President Trump and others that the tabulating machines were not certified and could not be trusted.

McIntyre, also a Republican, was opposed to the move, citing state laws that limit hand count audits to a small subset of all ballots.

“Because I have advised you that there is no legal basis for this, I cannot ethically defend you against any claims over this action,’’ he told the board at a public meeting when the proposal was discussed.

“The board will pay its own attorney’s fees, and when opposing parties prevail in their claim, the board will pay those parties’ attorney fees,” McIntyre said. “I implore you, do not do this separate hand count.”

The board went ahead and voted for the plan. That resulted in a lawsuit by the Arizona Alliance of Retired Americans and an individual Democrat, one the county eventually lost.

Kolodin noted Republican Mark Brnovich, then the attorney general, already had issued an informal opinion saying counties can do a hand count of all ballots in at least five races.

“Nonetheless, when the board was sued in connection with the matter, the allegation that defendants had acted in contravention of their attorney’s admonition that there was no good faith legal basis for their proposed action became a focal point of plaintiffs’ arguments,” Kolodin said, with McIntyre effectively undermining the legal position of the supervisors.

Kolodin also alleges McIntyre apparently tried to justify his actions in disclosing he had advised the supervisors that what they were doing is illegal.

“Mr. McIntyre sent a letter to counsel for the plaintiffs (the adverse party) stating he was writing ‘out as a concern as the public prosecutor of Cochise County of the potential criminal acts that would be inherent in the proceeding with the expanded hand count,’” Kolodin wrote in his complaint to the State Bar. “His letter then went on to outline a list of laws that he believed his clients might be violating.”

That, he said, also was a violation of the ethical obligations McIntyre had to the supervisors.

The complaint alleges more than a violation of rules about confidentiality of a client’s information.

Kolodin cited another rule he said requires lawyers to provide “competent representation” to their clients.

“If Mr. McIntyre’s actions were influenced by a lack of understanding or disregard for the importance of client confidentiality, this may constitute a serious breach of the rule,” the complaint states.

Kolodin also said there would be another violation “if Mr. McIntyre’s actions were motivated by personal or external interests conflicting with the board’s interests.” But his complaint does not spell out what he believes were those conflicting interests.

And Kolodin said another rule says McIntyre, as a public legal officer, “has an enhanced duty to act in a manner that promotes public confidence in the integrity and impartiality of the legal system.”

As to that informal Brnovich legal opinion allowing a hand count — the one Kolodin mentions in his complaint that he said contradicted McIntyre’s analysis — that was rescinded in May by Kris Mayes, his successor. She replaced it with a formal legal opinion saying existing election laws bar counties from implementing full hand counts of ballots cast both on Election Day and those cast early by mail.

That opinion also tracks closely with a judge’s ruling that blocked Cochise County officials from doing the full hand-count that the two Republicans on the three member member board ordered following the November election.