PHOENIX — Saying the lawyer discipline process has been “weaponized” as a political tool, a veteran Republican lawmaker is moving to give people second thoughts before filing complaints against their attorneys.
And it all comes as Secretary of State Katie Hobbs and the Arizona Board of Regents each are asking the State Bar of Arizona to impose sanctions against Attorney General Mark Brnovich, contending he has violated the ethical rules that govern the conduct of lawyers and should be disciplined.
Senate Bill 1566, proposed by Sen. Vince Leach of Tucson, says if someone files a complaint with the Bar and any investigation does not result in discipline, both the Bar and the person who brought the complaint are responsible not just for the lawyer’s legal fees, but also any “loss of future earnings and damage to the attorney's reputation.”
That, however, isn’t Leach’s only attack on the process.
He also introduced Senate Bill 1565 that says the Arizona Supreme Court, which ultimately decides who gets to practice law in the state, cannot require a lawyer be a member of the State Bar or any organization to become or remain licensed as an attorney.
The efforts drew an angry reaction from Hobbs.
“This bill is par for the course for AG Brnovich and his enablers in the legislature,” she told Capitol Media Services. “He thinks the normal rules don’t apply to him. And when he’s held to account his go-to is to attempt to change the rules in extreme and dangerous ways.”
Leach, however, said he did not consult with Brnovich in crafting the measures. And Brnovich press aide Katie Conner said it would be “premature” to comment on the bills “until our office has a chance to carefully analyze and evaluate it.”
Jennifer Rebholz, president of the State Bar’s board of governors, said she could not comment on the legality of what Leach is proposing. But she said it is a bad idea.
“The proposed legislation is contrary to the mission and purpose of protecting the public with respect to the provision of legal services in Arizona,” Rebholz said in a prepared statement. “Proposing the imposition of fees and costs for those who report misconduct creates a serious deterrent and undermines the purpose of regulating legal services.”
Central to the fight are two separate complaints filed against Brnovich.
Hobbs says the attorney general's office had represented her agency, received confidential attorney-client communications and provided advice — “and then withdrew from representation and appeared in the same litigation on behalf of a different party asserting a position materially adverse to the secretary of state,” contrary to the ethical rules that govern the conduct of lawyers.
The other accuses Brnovich, who, strictly speaking, is the legal counsel for the board and the state’s three universities of actively criticizing and actually filing lawsuits against the board.
Leach said he understands it may be inevitable there will be disputes between Brnovich and state agencies and officials like Hobbs.
“These are two political organizations, headed up by two political people who are elected on a statewide basis,” he said. “There will be some boxing of gloves.”
Still, Leach said he believes the process is being abused.
“Yes, you’re harming Brnovich,” he said, referring to Brnovich running to be the Republican nominee for U.S. Senate. “But you’re also putting in jeopardy the function of a separate branch of government. And that’s my concern.”
What complicates it, he said, is that these complaints are supposed to be confidential.
“But, somehow, they manage to bubble out,” Leach said. “And everybody starts hearing about them, and they go to the press. And you guys publish them.”
Only thing is, it was Leach himself who disclosed Hobbs’ complaint last year when he put language in the budget stripping her of representation by the attorney general's office.
And it was Brnovich’s office who disclosed the regents’ complaint to Capitol Media Services following an inquiry on why his office withdrew from pursuing a case against the regents over a construction project at Arizona State University and farmed the legal work out to a private law firm.
What is still to be worked out, Leach said, is exactly what would trigger a financial penalty against those who file complaints. Investigations don’t always end with clear-cut action, such as an attorney being disbarred.
There are a whole range of actions, including things like reprimands, client restitution and requirements for continuing legal education classes.
“I don’t necessarily want to stop Bar complaints or replace complaints on attorneys that aren't functioning as they should as a member of the court,” Leach said, saying there “might be a fine line” on when complaints should be deterred or those who file them sanctioned.
“But not to weaponize it” to be used against the lawyer.
Leach said what he is proposing is no different than court rules that allow a judge to impose financial penalties on attorneys who file “frivolous cases.” He said attorneys know those rules — and act accordingly before going to court.
“How many times has a lawyer not taken a case because he knew it would be thrown out by the court and he'd be fined by the court?” Leach asked.
And then there’s the question of how long it takes for the Bar to determine if an ethical rule has been violated.
“Either it is, or it isn’t,” Leach said. “It doesn’t take forever to decide that.”
Whether Leach can succeed with his goal remains an open question, particularly as it is the Arizona Supreme Court that will get the last word on whether what he is doing is legal.
“Requiring a complaint to pay would deter individuals who believe they have a legitimate complaint against and attorney from filing a complaint,” noted Dave Byers, administrative director of the Arizona Supreme Court. And Capitol Media Services has found at least three prior state Supreme Court decisions which say, in essence, there is absolute immunity for people who file State Bar complaints.
Those cases did not go unnoticed by Hobbs.
“The longstanding policy is to protect, rather than penalize, those who report ethical violations by lawyers,” she said. “But, as with everything else, the AG wants to burn it all down in pursuit of his own interests in flouting the ethical rules with full impunity.”
Even if SB 1566 were to become law and is not overturned, it is an open question whether it could be applied to the two open cases against Brnovich, as both were filed long before Leach made his proposal.
Leach said he offered the State Bar an opportunity to discuss the issues but got no specific suggestions.
“That tells me that they either don’t want to do anything, don’t see a problem, and/or don't know how to handle it,” he said.
Rebholz acknowledged that point, saying her organization cannot discuss pending complaints because they are confidential. She said though, that Leach was provided “general information on how the lawyer regulation process functions.”
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