In a joint press conference with Sheriff Joe Arpaio, County Attorney Andrew Thomas announced that he has filed a complaint with the Arizona Supreme Court against the Arizona State Bar Association. Thomas stated the Bar has launched a retaliatory investigation against him due to his efforts to require Superior Court judges to enforce Prop. 100, No Bail for Illegal Immigrants Who Commit Serious Crimes, which passed with 78% of the vote. 

Supreme Court Asked to Intervene in Bar Matters
Legal Experts Cite Extensive Ethical Misconduct by Bar Officials
 

The County Attorney’s Office today filed a brief with the Arizona
Supreme Court asking the court to terminate or, at minimum, refer to an
independent special master all State Bar inquiries regarding the County
Attorney and other prosecutors in related matters due to serious
ethical misconduct by Bar officials and attorneys.

The petition for special action was filed after evidence has mounted
that former members of the Maricopa County judiciary improperly
enlisted the State Bar, which is an arm of the judiciary, to begin
retaliatory investigations of Thomas and other prosecutors due to their
criticism of several county judges last year. This sudden flood of
investigations occurred right after Thomas criticized members of the
county judiciary over their handling of Proposition 100, the ballot
measure approved by 78 percent of Arizonans that ended the right to
bail for illegal immigrants accused of serious felonies. Growing
evidence has made clear the Bar investigations, which legal experts
have unanimously concluded are frivolous, were intended to retaliate
for the Proposition 100 controversy, as well as to intimidate
prosecutors into not criticizing county judges.

Thomas stated, “Proposition 100 is the law of the land today because
I took on the judges who refused to enforce it. Now, some judges have
reportedly retaliated by encouraging the State Bar to launch improper
investigations of my prosecutors and me. Our office will not be
intimidated. And I will continue to speak out and defend the will of
the people.”

Accompanying the brief were affidavits from five esteemed experts in
legal ethics stating Thomas had acted properly in all areas being
scrutinized by the Bar and had committed no violations of the rules of
professional responsibility. These experts are: Thomas Zlaket, former
Chief Justice of the Arizona Supreme Court; Jack La Sota, former
Attorney General of Arizona; Ernest Calderon, former State Bar
President; Geoffrey Hazard, former Yale Law School professor and
perhaps the nation’s leading expert on legal ethics; and Michael Alan
Schwartz, former chief counsel at the State Bar of Michigan.
In addition, Hazard and Schwartz were asked to opine on the propriety
of actions by State Bar officials. Both concluded that senior Bar
officials and attorneys in Arizona have acted improperly in their
conduct of these inquiries.

Also released was an affidavit from Chief Assistant County Attorney
Sally Wells. She affirmed she had spoken to a senior official at the
State Bar who had said “retired judges” visited the State Bar last year
and urged the Bar to “do something” about Thomas. They made this
complaint because of Thomas’ public criticism of county judges and
judicial rulings, statements which Thomas had a clear constitutional
right to offer. They urged retaliatory action by the Bar in the absence
of any evidence that Thomas or any other prosecutor in his office had
violated any of the rules of professional responsibility.

Immediately after this visit by retired judges in the fall of 2007,
the Bar launched multiple investigations of Thomas and other
prosecutors and attorneys working for Maricopa County. The Bar
commenced six separate investigations of Thomas. It launched an
investigation of Barnett Lotstein, a long-time senior prosecutor in the
office, simply for writing newspaper columns defending Thomas from
inaccurate criticism related to Proposition 100 made by Presiding Judge
Barbara Rodriguez Mundell. The Bar also began an investigation of an
attorney with the Maricopa County Sheriff’s Office after he publicly
criticized rulings of Judge Anna Baca. Her rulings eventually were
overturned by the Arizona Court of Appeals.

In recent days, as Bar officials learned of the County Attorney’s
plans to file a special action with the Supreme Court, they abruptly
announced, without explanation, they would terminate three of the six
investigations of Thomas. However, those matters that remain are the
subject of serious and continuing misconduct by Bar officials.

Maricopa County taxpayers have had to pay more than $300,000 in
legal bills to defend against these inquiries. These bills continue to
mount for Bar matters that, diverse legal experts unanimously agree,
all lack merit.

The following misconduct by Bar officials and attorneys was
identified in affidavits and exhibits submitted to the Supreme Court
today:

After Superior Court judges urged the Bar to “do something” against
Thomas, State Bar President Daniel McAuliffe launched a public
relations campaign against the County Attorney intended to prejudice
all attorneys and judges against him and his office. This included
sending an article to every attorney and judge in Arizona in which
McAuliffe claimed falsely that Thomas had accused every Maricopa County
Superior Court judge of bias. There is strong evidence McAuliffe and
other outside parties are involved in the investigations, as he and a
public defender leaked news of these matters to the media weeks before
Thomas received notice of them from the State Bar.

Chief Bar Counsel Robert Van Wyck, a Maricopa County Superior Court
Judge Pro Tem, has admitted prejudice against the County Attorney’s
Office because of the County Attorney’s handling of “illegal alien”
criminal cases. He said he recused himself from all criminal cases
filed by the County Attorney’s Office because he saw a “conflict” due
to his disagreement with the office’s handling of cases against
“illegal aliens” and the office’s “plea policies.” Yet he has refused
to recuse himself from the Bar investigations.

In letters to former special prosecutor Dennis Wilenchik and a
second, currently employed county prosecutor, Van Wyck misrepresented
the ethical rules in an attempt to compel them to reveal privileged
information. Van Wyck has taken the position that attorneys may not
assert the attorney-client privilege or any other privilege in Bar
investigations. This position is plainly contrary to law and the
Supreme Court’s own rules. As a result of his efforts, Van Wyck
succeeded in violating the attorney-client privilege in the Wilenchik
matter.

When attorneys for Thomas complained to Van Wyck about these and
other actions by the Bar, Van Wyck retaliated. He sent them another
frivolous inquiry against Thomas that was three months old. This matter
was dismissed recently, but only after taxpayers were forced to spend
thousands of additional dollars to respond to it.

Van Wyck has pledged to give the privileged information he is
seeking to adverse parties in current or prior litigation against the
County Attorney’s Office or Maricopa County. Van Wyck is openly
coordinating his investigations with attorneys for the New Times in its
recent lawsuit against Maricopa County officials. As a result, the
State Bar is seeking to compel the production of privileged information
from Maricopa County attorneys to hand over to a plaintiff in active
litigation against the county. He is doing this even though legal
experts have unanimously agreed Thomas did not violate the rules of
professional responsibility in his handling of the New Times matter.

Thomas added that unless the Supreme Court intervenes, the
attorney-client privilege effectively will have been repealed in
Arizona. The Bar has taken the position that any third party can lodge
a complaint with the State Bar and misuse the Bar’s disciplinary
process to extract privileged information and material from
investigated attorneys. This includes complaints filed by plaintiffs or
defendants in active litigation. This arrangement will disadvantage all
individuals and businesses in Arizona that seek to rely on confidential
legal advice, as that advice no longer is confidential. Serving as
counsel for Thomas and the County Attorney’s Office in this matter are
Leo Beus and Dan Cracchiolo. They are two prominent Arizona attorneys
who co-founded two of Arizona’s leading law firms, Beus Gilbert and
Burch & Cracchiolo.

Appearing at the press conference and speaking in support of the
office’s actions today were Sheriff Joe Arpaio; Jack La Sota, former
Attorney General of Arizona; Beus; Michael Alan Schwartz, a former
prosecutor from Brooklyn, New York, who served as chief bar counsel for
the State Bar of Michigan; Wells and Lotstein.

Cracchiolo, who was out of the country and unable to attend the
press conference, provided a statement to the media: “I am a registered
Democrat, and I happen to disagree with a number of Mr. Thomas’
policies on illegal immigration. However, I am very troubled by the
actions of the State Bar towards him and his office. As a former
prosecutor myself, I believe these actions should be of great concern
to anyone who wants the Maricopa County Attorney’s Office to be able to
do its job effectively. I hope the Supreme Court will intervene and
correct these injustices.”

The State Bar reports to and is overseen by the Supreme Court, which
is why this special action was filed directly with the court.