There can be no argument about this:
Maricopa County Attorney Andrew Thomas has been a courageous fighter against illegal immigration since his election in 2004.
When Arizona voters overwhelmingly approved Proposition 100, an amendment to the Arizona Constitution making bail no longer available to persons who are charged with serious felony crimes and who also entered or were remaining in the United States illegally, it is no surprise that Thomas took that 2007 mandate seriously.
It is also no surprise, that the left-leaning Arizona judiciary, did not.
Incredibly, the courts chose to ignore the new law – with specific instructions to court employees that defendants should NOT be asked “any questions regarding their citizenship.”
Not until County Attorney Thomas objected did Chief Justice Ruth McGregor feel compelled to issue an unsatisfactory Administrative Order about the issue. But, the Legislature subsequently made abundantly clear its intentions with the passage of Senate Bill 1256 that set a specific standard for determining whether illegal immigrant defendants accused of serious felonies are entitled to bail or release (under Proposition 100).
The Arizona judiciary then retaliated through a hostile environment established by Maricopa County Superior Court Presiding Judge Barbara Rodriguez Mundell and a series of harassing State Bar complaints filed against Thomas, the potential consequence of which could lift Thomas’ license to practice law, and, therefore the right to serve as Maricopa County Attorney.
Do the complaints against Andrew Thomas have merit? They do not.
Ernest Calderon, a former Bar President, says, “I do not believe that any of the complaints have merit.”
Jack LaSota, a former Attorney General of Arizona, says, “[b]ased on my thorough review of these complaints, I do not believe that any of them have merit.”
Thomas Zlaket, a former Chief Justice of the Arizona Supreme Court and former Bar President, says, “I see no evidence of ethical violations in connection with any of these matters.”
Professor Geoffrey Hazard, who served as the draftsman for the American Bar Association Model Rules of Professional Conduct, promulgated in 1983 and on which the Arizona Rules of Professional Conduct are modeled reviewed the so-called bar complaints and found no ethical violations.
The County Attorney has now petitioned the Supreme Court to intervene and put an end to these mindless and purely vindictive Bar investigations (see below).
If they are not ended, we will know in Arizona we are headed toward a black-robed oligarchy, and who, really, will be able to stop it?
IN THE
SUPREME COURT OF ARIZONA
In the Matter of a Member of the State Bar of Arizona,
ANDREW P. THOMAS, Maricopa County Attorney (SBA #014069)
And
THE MARICOPA COUNTY ATTORNEYS OFFICE
Petitioners,
v.
STATE BAR OF ARIZONA,
Respondent. Case No.:
PETITION FOR
SPECIAL ACTION
SBA File Nos. 07-0093
07-0186
07-1693
07-1762
07-1793
07-1952
07-1692
07-1761
(Oral Argument Requested)
I. Introduction
On October 2, 2007, attorneys representing the Maricopa County Attorney’s Office (”MCAO,” together with Andrew Thomas, “Petitioners”) filed a motion to recuse Maricopa County Superior Court Judge Timothy Ryan because “the public dispute over Proposition 100 has affected Judge Ryan’s ability to be fair and impartial in Proposition 100 cases and this disability has now expanded to include other matters involving the Maricopa County Attorney’s Office.” Appendix A at 24, p. 2. Twenty-one days later, Robert Van Wyck (”Van Wyck” or “Bar Counsel”), Chief Counsel for the Bar, sent the first so-called bar complaint to County Attorney Andrew Thomas (”Thomas”) on October 23, 2007. Appendix B at 3.
In fact, after that challenge to Judge Ryan’s handling of Proposition 100 cases, County Attorney Thomas and five of his prosecutors received a total of thirteen so-called bar complaints from Van Wyck asking them to respond. Appendix B at 1-10. These so-called bar complaints targeting the MCAO made demands for information that struck at the core of independent prosecutorial decision-making, e.g.: “Specifically, who framed, or assisted you in framing, the issues in the motion [Motion to Recuse]?” Appendix C at 2 (under seal). ” From whom did you gain the information on which you based your recusal motion?” Id. “Who, specifically, believed that it would be necessary and/or appropriate to ask Judge Ryan to recuse himself from all criminal cases involving the County Attorney’s Office?” Id.
Apparently, in Van Wyck’s opinion, the power of the Bar to obtain confidential information from prosecutors was absolute and without limits. He even asked questions like, “Do you have a social relationship with either Andrew Thomas or Sheriff Arpaio?” Id. “Have you socialized with either or both of them outside of a working, professional context?” Id.
That power of the Bar was not confined to issuing so-called bar complaints. On October 5, 2007, eighteen days before issuance of the first so-called bar complaint, Bar President McAuliffe addressed the Proposition 100-related motion to recuse Judge Ryan by issuing a press release stating, “We at the Bar are extremely concerned at what appear to be extra-judicial attempts to resolve issues that our system of justice commits to an independent judiciary.” Appendix A at 34. On October 10, 2007, thirteen days before issuance of the first so-called bar complaint, McAuliffe’s “Letter to the Editor” appeared in the Arizona Republic stating, “these attacks appear to be transparent attempts to cow the judiciary into rulings that are acceptable to the source of these attacks. The prospect of having a decision vilified on the front page of your newspaper cannot help but have a chilling effect on the ability of a judge to evaluate independently the legal merits of an issue that has been presented for a decision.” Appendix A at 35. Also on October 10, 2007, McAuliffe told the Yellow Sheet, a local news service related to the Capitol Times, that “[a] State Bar of Arizona complaint has been filed against Andrew Thomas.” Appendix A at 36. Finally, on October 22, 2007, just one day before the issuance of the first so-called the bar complaint, McAuliffe again spoke with the Yellow Sheet and reported that “both Thomas and Wilenchik are targets of bar ethics investigations for their attempt to stop Maricopa County Superior Court Judge Timothy Ryan from hearing any case brought by the county attorney.” Appendix A at 37.
After McAuliffe’s statements to the Arizona Republic and the Yellow Sheet, MCAO Chief Assistant Sally Wells spoke with the Secretary/Treasurer of the Bar Board of Governors (“BOG”), Joe Kanefield, about the media releases and the so-called bar complaint that McAuliffe publicly disclosed to the media before any letter had been received by County Attorney Thomas. Appendix A at 10. Mr. Kanefield knew about the “Letter to the Editor” that appeared in the October 10 edition of the Arizona Republic. Id. He told Ms. Wells that retired judges and others had approached the Bar to “do something” about Thomas and that, as a result, Bar President McAuliffe sent the “Letter to the Editor” opining that “[r]egarding recent attacks on judges of the Maricopa County Superior Court: The State Bar of Arizona has a deep concern that these attacks will serve to undermine the legal process.” Id. Mr. Kanefield related that the “Letter to the Editor” was approved by members of the Scope and Operations Committee, a subcommittee of the BOG made up of the executive officers: Daniel McAuliffe, President, Edward Novak, President-Elect, Raymond Hanna, First Vice President, Alan Bayham, Jr., Second Vice President, and Joseph Kanefield, Secretary/Treasurer. Id. All of McAuliffe’s media communications described above occurred before County Attorney Thomas received the first so-called bar complaint on October 23, 2007.
Van Wyck issued the first so-called bar complaint to Thomas on October 23 and he issued two others on the same date. He then issued seven more over the course of November 6, November 8, and November 14, 2007. Starting two months later, Van Wyck added three additional investigations in January, February, and May 2008.
County Attorney Thomas denied any ethical violations and sought expert opinions on the merits of the so-called bar complaints. Ernest Calderon, a former Bar President, stated in his affidavit, “I do not believe that any of the complaints have merit.” Appendix A at 2. Jack LaSota, a former Attorney General of Arizona, opined, “[b]ased on my thorough review of these complaints, I do not believe that any of them have merit.” Appendix A at 3. Finally, Thomas Zlaket, a former Chief Justice of the Arizona Supreme Court and former Bar President, stated in his affidavit, “I see no evidence of ethical violations in connection with any of these matters.” Appendix A at 4.
Geoffrey Hazard, a nationally recognized expert in the area of legal ethics, also reviewed the so-called bar complaints and found no ethical violations. Professor Hazard served as the Reporter (draftsman) for the American Bar Association Model Rules of Professional Conduct, promulgated in 1983 and on which the Arizona Rules of Professional Conduct are modeled. Appendix A at 1.
Michael Schwartz, a lawyer for thirty-five years who served as disciplinary counsel to the Committee on Grievances of the Association of the Bar of the City of New York and Grievance Administrator of the Michigan Attorney Grievance Commission, also reviewed the so-called bar complaints from Van Wyck. Mr. Schwartz opined that “several of those matters, on their face, indicate that there is no misconduct and thus no basis for engaging in any ‘investigation.’ Thus, in my opinion, under Ariz.Sup.Ct.R. 54(b)(1)(B), some of these grievances should have been closed by Bar Counsel during screening. In other matters, the answer provides information which reveals that there is no misconduct by Mr. Thomas.” Appendix A at 5, p.19.
In addition to seeking expert opinions, County Attorney Thomas and the MCAO sought protective orders to prevent disclosure of confidential information demanded by Van Wyck. Appendix A at 53, 57, 58, & 59. The requests for protective orders were denied, with certain exceptions, by Bar Panelist Alan Bayham, a current member of the Bar BOG and the Scope and Operations Committee (Appendix A at 74) that approved McAuliffe’s October 10 “Letter to the Editor.” Appendix A at 55, 64-67. Bar Panelist and Scope and Operations Committee member Bayham did, however, grant the County Attorney’s request to stay disclosure of the information to pursue appellate relief. Appendix A at 13-17. Efforts to resolve the protective order issue with Bar Counsel without involving this court have so far been unsuccessful. Appendix A at 12.
In January of 2008, McAuliffe again made public comments in the Ryan matter. He addressed the Ryan matter in the Arizona Attorney, a magazine published by the Bar that is distributed to all its members. In his “President’s Message,” McAuliffe wrote, “For the past several weeks, we here in Phoenix have been treated to the spectacle—and that’s the right word for it—of an elected prosecutor characterizing the decisions of a judge as a threat to the public safety and accusing all the judges of the Maricopa County Superior Court of bias.” Appendix A at 38. Also in the January edition of the Arizona Attorney, in the section entitled “Board of Governor’s October Meeting Review – President’s Report,” McAuliffe reported that “on Oct. 9, 2007, he wrote to the editor of the Arizona Republic. The letter, which President McAuliffe had previously shared with the board, expressed ‘the concern of this organization with recent attacks on Judges of the Maricopa County Superior Court and the manner in which they have been conducted.’” Appendix A at 39 (emphasis added).
At this point, in an effort to resolve the investigations and discuss the involvement of McAuliffe and certain other members of the Bar in the pending so-called complaints, attorneys Dan Cracchiolo and Leo Beus met with Van Wyck on May 13, 2008. Appendix A at 12. During the course of that meeting, Van Wyck commented, “you know, I’m not – I stopped doing pro tem matters as soon as I began conducting these investigations because I perceived a conflict. While I was handling matters as a pro tem I handled tons and tons of those probation cases involving, you know, illegal aliens, and they were making stupid plea offers and stupid agreements, and after I got these files, I stopped doing pro tem cases because I thought there might be a conflict.” Appendix A at 12. Then he indicated to attorneys Cracchiolo and Beus that they may be able to dispose of the “minor cases,” but not the “major cases”, i.e., not the complaint involving Proposition 100 and Judge Ryan. Id. Further, Van Wyck indicated that he was unwilling to do work on the matters until the privileged information, including information about prosecutor thought processes, was fully disclosed. Appendix A at 12. On May 16, 2008, Van Wyck did send a letter stating, “We have decided to dismiss the matters of 07-0093 (Goudeau), 07-0186 (Bandy) and 07-1952 (Basta). I will send you formal letters of dismissal next week when I return to the office but wanted to advise you of our intentions now.” Appendix B at 20.
Notwithstanding the proposed (but not yet accomplished) dismissal of three of the so-called bar complaints, McAuliffe’s media comments about the Ryan matter, the involvement of the BOG Scope and Operations Committee in the “Letter to the Editor,” Bar Panelist Bayham’s membership in the Scope and Operations Committee, and the role of Novak as defense counsel in the Bandy case, all have created a situation that cannot be remedied without the intervention of the Arizona Supreme Court to ensure a prompt and fair outcome, including dismissal of the remaining complaints, as they all lack merit and were improperly commenced.
II. Jurisdictional Statement
The relief requested here, mandamus or prohibition with respect to the pending Bar investigations and appellate review of the Bar Panelist’s denial of protective orders, invokes the special action jurisdiction of this court. “Our jurisdiction over bar discipline is based on provisions of the Arizona Constitution, inherent authority, and procedural rules.” In re Hoover, 161 Ariz. 529, 530, 779 P.2d 1268, 1269 (1989) (citing inter alia, Ariz. Const. art. 3, art. 6 §1 & §5(5), and Arizona Rules of the Supreme Court). See also Matter of Smith, 189 Ariz. 144, 939 P.2d 422 (1997); In the Matter of Hoover, 155 Ariz. 192, 195, 745 P.2d 939, 942 (1987).
The MCAO prosecutes almost two-thirds of all felony cases in Arizona. Supreme courts in other states have intervened in bar proceedings which carried far less serious consequences for the community than the matters presently before this court. See, e.g., Breiner v. Sunderland, 112 Hawaii 60, 143 P.3d 1262 (Haw. 2006) (Hawaii Supreme Court “will not hesitate to exercise our responsibilities and duties” in striking down “abusive investigative tactics” by bar counsel); Clary v. Mathews, 224 Ga. 82, 160 S.E.2d 338 (Ga. 1968) (supreme court may enjoin probable cause hearing because attorney has right to “an impartial tribunal at all stages of the proceedings”).
Also, “the exercise of special action jurisdiction is appropriate to review an order compelling discovery over the objection of a party asserting privileges because that party has no equally plain, speedy, or adequate remedy by appeal.” Arizona Independent Redistricting Commission v. Fields, 206 Ariz. 130, 136, 75 P.3d 1088, 1093 (Ct. App. 2003). The Petitioners have no equally plain, speedy, or adequate remedy by appeal because once disclosure is made, the legal protections and privileges designed to protect it have no effect.
The Bar Panelist has imposed a stay of release of certain privileged material to allow for the appeal of his rulings. Appendix A at 13-17. Although, when asked, Bar Counsel did not know the proper appellate remedy for these matters, Bar Counsel did confirm in writing that a special action is the only route of appeal they are aware of under the rules. Appendix A at 46.
III. Statement of Issues Presented
1. Should this court exercise its original jurisdiction of supervision of the Bar and either direct a termination of the so-called bar complaints or, alternatively, disconnect Bar officials from the so-called bar complaints and assign them to an independent person selected by this court (and mutually acceptable to the Bar and the charged attorneys) subject to the superintending control of this Court?
2. Should this court direct the Bar to return the improperly obtained privileged information to MCAO and take other affirmative steps to protect the attorney-client privilege and other applicable privileges?
IV. Factual Background
A. Proposition 100 and Relationship to Investigations
On November 7, 2006, 78% of Arizona voters approved the amendment to the Arizona Constitution added by Proposition 100. Appendix A at 19. On December 7, 2006, the provisions of Proposition 100 took effect and bail was no longer available to persons who were charged with certain serious felony crimes and who also entered or were remaining in the United States illegally. Appendix A at 18. County Attorney Thomas supported Proposition 100 and carried out his duty to enforce it once it had been passed by the voters.
The implementation of Proposition 100 in Maricopa County, however, catalyzed a period of tension and frustration between the executive branch (MCAO) and the judicial branch (Maricopa County Superior Court). On November 17, 2006, ten days after the voters approved Proposition 100, Court Pretrial Services Agency (PSA) Director Penny Stinson gave specific instructions to the employees who prepared reports for judicial officers who made bail decisions: “Effective Immediately – Due to recent changes in legislation and the liberty interest implications, we will no longer be asking defendants any questions regarding their citizenship. Thank you for your attention to this matter.” Appendix A at 19. On March 19, 2007, Ms. Stinson sent a similar email: “Reminder – Please remember that we do not ask defendants any questions regarding their citizenship and that question should not have any response listed on our PSA paperwork.” This new practice led to objections by the MCAO and to much media coverage concerning the proper enforcement of Proposition 100. Appendix A at 19.
Finally, on April 3, 2007, Chief Justice Ruth McGregor issued Administrative Order 2007-30 to address questions “that have arisen concerning the procedures to be followed in making a determination whether bail should be allowed, the standard of proof applicable to evidence offered to show that the person has entered or remained in the United States illegally, and the roles of the various participants during the Initial Appearance (IA) hearing and subsequent proceedings.” Appendix A at 21. That order remained in effect until July 3, 2007, when Chief Justice McGregor issued a press release noting that “Governor Napolitano has now signed Senate Bill 1265 into law. Acting in accord with the statute, the Supreme Court has adopted court rules that go into effect immediately. The rules direct Arizona courts to use the statutory ‘probable cause’ standard. Because the burden of proof level has been further clarified, Administrative Order 2007-30 is no longer in effect.” Appendix A at 22. In a difficult situation, the Arizona Supreme Court took a leadership role and provided a remedy.
First So-Called Bar Complaint: Ryan 07-1693
Maricopa County Superior Court Judge Timothy Ryan was one of the judges assigned to preside over bail hearings in April and May of 2007 after Proposition 100 and Administrative Order 2007-30 took effect. Appendix A at 24, Exhibit 1(“Status Hearings Clog Valley Courts”). Judge Ryan’s viewpoint on what Chief Justice McGregor had characterized as the “procedures to be followed in making a determination whether bail should be allowed, the standard of proof applicable to evidence offered to show that the person has entered or remained in the United States illegally” and his conduct in certain other cases led the MCAO to file a motion on October 2, 2007, requesting that Judge Ryan voluntarily recuse himself from all matters involving the MCAO. Appendix A at 24. On October 3, 2007, Judge Ryan conducted a hearing on that motion and denied it, declining voluntary recusal. Appendix A at 26. Thereafter, on October 4, 2007, the MCAO filed a motion to involuntarily remove Judge Ryan from MCAO cases on grounds of bias pursuant to Ariz. R. Crim. P. 10.1 (Appendix A at 28) and requested that it be heard by an out-of-county judge. Appendix A at 27. County Attorney Thomas discussed the filing at a press conference the same day. Appendix A at 29.
On October 5, 2007, before the ruling on the Rule 10.1 bias motion or the request for an out-of-county judge, McAuliffe issued a press release stating, “[r]ecent attacks on the judiciary, in the manner in which they are currently being conducted, undermine the legal process.” Appendix A at 34. On the same day that Presiding Judge Barbara Mundell denied the Motion for an Out-of-County Judge (Appendix A at 30), McAuliffe’s “Letter to the Editor” appeared in the Arizona Republic, (Appendix A at 35) and McAuliffe made a statement to the Yellow Sheet that “a State Bar of Arizona complaint has been filed against Thomas” and “he could not comment further on the complaint, who filed it and what, if any, sanctions against Thomas could arise.” Appendix A at 36.
McAuliffe drafted the “Letter to the Editor” after retired judges and others had approached the State Bar to “do something” about Thomas. Appendix A at 10. Retired Judge Kenneth Fields had been quoted in an October 5, 2007 Arizona Republic article as saying, “The ethics of an attorney attacking the court on very reckless grounds: There may be some Bar issues here. . . . An attorney such as Mr. Thomas, although an elected public official, is still an attorney admitted to practice in the state, and has to be very careful about statements and representations to the court.” Appendix A at 48.
The pending Rule 10.1 bias motion was then assigned to Judge Edward O. Burke, who denied it on October 18 after an earlier evidentiary hearing. Appendix A at 33. The bias motion was supported by exhibits attached to the original motion (Appendix A at 28), a bench memorandum (Appendix A at 31), and the testimony of two DCAs (Appendix A at 32).
In the October 22, 2007 edition of the Yellow Sheet, McAuliffe again discussed the Ryan matter. “[B]oth Thomas and Wilenchik are the targets of bar ethics investigations for their attempt to stop Maricopa County Superior Court Judge Timothy Ryan from hearing any case brought by the county attorney.” Appendix A at 37.
McAuliffe’s comments about the Ryan bar matter did not end on October 22, however. The December 2007 issue of the Arizona Attorney included an article by McAuliffe. Appendix A at 38. The article commented, “For the past several weeks, we here in Phoenix have been treated to the spectacle – and that’s the right word for it – of an elected prosecutor characterizing the decisions of a judge as a threat to the public safety and accusing all the judges of the Maricopa County Superior Court of bias.” Id. Even more recently, in the March 2008 issue of the same Bar publication, former Bar President Roxana Bacon described conduct by a Virginia prosecutor in securing the conviction of a mentally retarded defendant. Appendix A at 40. Despite being unrelated to anything here in Arizona, she then segued to a reference to the Ryan investigation: “Here in Arizona, it is not beyond belief that we could have county attorneys and their private contract attorneys with a similar mindset: convictions at any cost, without regard to the overall purpose of the ethical rules – to protect the public from lawyer misconduct so the justice process can operate fairly . . . . [The public] is never served by attacking judges or measured decisions, whether deemed right or wrong.” Id.
Upon requesting an opportunity to provide a rebutting view to the McAuliffe/Bacon columns, the response from the Bar was that the Arizona Attorney reserves that space on a rotating basis among McAuliffe, Bacon, and Grant Woods. Even to purchase space in the Arizona Attorney required such a lengthy waiting period as to delay any response by a couple of months. Appendix A at 41.
The Other So-Called Bar Complaints
On the same date that Van Wyck sent the so-called bar complaint (Ryan 07-1693) to County Attorney Thomas, October 23, 2007, Van Wyck also sent a so-called bar complaint (Lotstein 07-1700) to Barnett Lotstein, Special Assistant Maricopa County Attorney. Appendix B at 1. The letter asked for a response and attached three news articles: “Ex-lead judge OK’d citizenship record ban” published on April 18, 2007; “Courts are dodging Prop. 100” published on June 19, 2007; and “When you have no defense, attack the prosecutor” published on June 25, 2007. Id.
Contract attorney Dennis Wilenchik also received a so-called bar complaint (Wilenchik New Times 07-1692) from Van Wyck sent on October 23, 2007. Appendix B at 2. The letter asked for a response and attached critical letters from two citizens, a pleading filed by opposing counsel in a matter involving the New Times, a transcript from a hearing in the same New Times matter, and several statutes: A.R.S. § 13-2401 Personal Information on the world wide web; A.R.S. § 13-2812 Unlawful grand jury disclosure; and A.R.S. § 13-2810 Interfering with judicial proceedings. Id.
About two weeks later, on November 6, 2007, attorney Wilenchik received another so-called bar complaint (Baca 07-1761) from Van Wyck. Appendix B at 4. That inquiry included a letter from Kenneth Fields, a retired Maricopa County Superior Court judge who had already made negative comments about the motion to recuse Judge Ryan that Wilenchik filed on behalf of the MCAO: “The ethics of an attorney attacking the court on very reckless grounds: There may be some Bar issues here.” Appendix A at 48. Judge Fields, in the attached letter, made his complaint “[a]fter reading the news reports in the Phoenix, New Times of the conduct of a fellow member of the State Bar of Arizona, Mr. Dennis I. Wilenchik.” Appendix B at 4. Later in the letter, Judge Fields referred Van Wyck “to the news story appearing in the New Times on Oct. 18, 2007 which reports a hearing before Judge Baca on Oct. 11, 2007 during which she questioned the appropriateness of Mr. Wilencheck’ conduct.” Id. Neither Judge Fields nor Van Wyck included the article in their materials. Id. On November 9, 2007, Van Wyck sent another letter in the same matter claiming to be “a copy of correspondence supplementing the earlier allegations.” Id. Rather than correspondence, however, the letter included only an October 25, 2007 New Times article encaptioned “Who’s Sorry Now” by Stephen Lemons. Id.
Also on November 6, 2007, Van Wyck sent a so-called bar complaint (Goudeau 07-0093) to Thomas requiring a response and attaching a single article entitled “Baseline Killer suspect is indicted.” Appendix B at 5. The article appeared nearly eleven months earlier in the January 17, 2007 edition of the Arizona Republic. Id.
Two days later, on November 8, 2007, Van Wyck sent a third so-called bar complaint (New Times 07-1793) to County Attorney Thomas. Appendix B at 6. The letter asked for a response and included the “Who’s Sorry Now” article from the New Times, the same letter from retired Judge Kenneth Fields including the reference to the October 18, 2007 New Times article, and two transcripts from grand jury hearings. Id.
Almost a week later, on November 11, 2007, another so-called bar complaint (Conditional Hires 07-1762) arrived for County Attorney Thomas from Van Wyck. Appendix B at 7. That inquiry asked for a response, but the enclosures were an ethics opinion request to the Bar from a Deputy Maricopa County Public Defender, an email to Bar staff from the same public defender, and copies of several calendars from the Downtown Regional Court Center.
After a hiatus of a little over two months, Thomas learned that Van Wyck was investigating him in another matter (Bandy 07-0186) and had sent a letter to DCA Daniel Strange at the MCAO on January 22, 2008, demanding confidential information. Appendix B at 8. The letter from Van Wyck included the caption “RE: File No. 07-0186, Andrew Thomas, Respondent,” but gave no indication of the genesis or initiation date of the investigation other than the fact that the file number was closer to the low file number in the Goudeau matter (Appendix B at 5) – a matter that occurred eleven months before the related so-called bar complaint was sent. Id. Despite the fact that County Attorney Thomas himself had not received any notice of the investigation and, in fact, still has not received any Bar requests in the matter, his attorneys responded with comments about Van Wyck’s request to the DCA for “an explanation of how and why you decided to continue the prosecution of Matthew Bandy, and the specific reasoning for continuing through with the plea entered and offered.” Appendix A at 70. Four months later, on May 16, 2008, Van Wyck sent a letter to attorneys for Thomas indicating an intent to dismiss the Bandy matter. Appendix B at 20.
Still to come was another so-called bar complaint (Basta 07-1952) from Van Wyck on February 25, 2008. Appendix B at 9. That letter requested a response and attached a letter from the Maricopa County Legal Defender, Robert Briney. Id. Mr. Briney’s attachments included a news release quoting County Attorney Thomas, an Arizona Republic article with the same information, Blogs by E. Lucas Taylor mentioning the matter, and the Defendant’s Motion for Mistrial of Sentencing Proceeding, or, Alternatively, Motion to Dismiss Allegation of Death Penalty: Prejudicial Statements by Prosecutor. Id. Although the state’s response and Judge Thomas O’Toole’s denial of the motion were public records, those documents were not attached. Appendix B at 16.
Finally, on May 1, 2008, Van Wyck sent the most recent so-called bar complaint (New Times 07-1793) to Thomas. Appendix B at 10. The letter consolidated the inquiry with the earlier New Times matter, but required a response to a new charge leveled by Mr. Steven Suskin, legal counsel to the New Times. Id. Mr. Suskin included a Notice of Claim letter that had been served on County Attorney Thomas on February 20, 2008. Id. In addition to a response, Van Wyck asked for materials that would be of interest to the plaintiffs in the civil lawsuit: “any paperwork, external correspondence and other materials generated by the Maricopa County Attorney’s Office or received from Mr. Wilenchik and his associates in their role as special prosecutors; any minutes or other documentation of any incident review board meetings; any record of interviews, including but not limited to transcripts, audio recordings or written records, conducted by the Maricopa County Attorney’s office.” Id.
In summary, since the filing of the Proposition 100-related motion to recuse Judge Timothy Ryan on October 2, 2007, Van Wyck has sent seven so-called bar complaints targeting County Attorney Thomas, three so-called bar complaints targeting three MCAO training prosecutors, two so-called bar complaints targeting contract attorney Wilenchik, and one so-called bar complaint targeting Special Assistant Lotstein. All but the three training prosecutors were MCAO representatives who received public attention in the controversy over Proposition 100. Appendix A at 20. All recipients were required to provide responses to each inquiry. In at least three of the so-called bar complaints, Van Wyck replied to the responses by writing, “[t]his process may be protracted.” Appendix B at 17 -19. He later told attorneys for County Attorney Thomas, referring to the Ryan and New Times matters, that the reason there had been such a long delay in dealing with these investigatory files was because he had not received all of the information he had requested. Appendix A at 12. He further indicated that he was unwilling to do work on the matters until the privileged information he had requested was fully disclosed. Id. Van Wyck referred to the privilege and the assertion of the privilege as “BS.” Id.
The so-called bar complaints from Van Wyck all followed a similar format which made dealing with them especially difficult. Appendix B at 1-10. None of the letters identified particular acts or omissions to be addressed. Each letter simply enclosed one or more attachments and then demanded a response to an unparticularized charge with reference to a string of various ethical rules.
The genesis of the so-called bar complaints also made responses difficult. Many of the inquiries were initiated from media articles alone. See, e.g., Appendix B at 1. Others were initiated by complainants whose only source of information came from media articles. See, e.g., Appendix B at 4. In some cases, the gap in time from the media article to the so-called bar complaint was significant. For example, in the Goudeau matter, eleven months passed before Van Wyck sent his letter with the January 17, 2007 article attached. Appendix B at 5. Finally, at least one so-called bar complaint resembled preparation for an ongoing civil lawsuit involving the same media outlet, the New Times, that generated the articles supporting the other inquiries. Appendix B at 17.
Finally, attempts to resolve the inquiries were difficult. On February 13, 2007, counsel for County Attorney Thomas wrote a letter to Van Wyck. Appendix A at 70. The letter requested a meeting in a good faith effort to resolve discovery/privilege issues and some of the other difficulties in handling the responses. Id. The letter also detailed the numerous concerns Thomas’ counsel had regarding the lack of due process and apparent attempt to chill the free speech rights of prosecutors. Id. Instead of agreeing to a meeting and responding to the questions raised about his handling of these multiplying matters, Van Wyck reacted by sending another form letter detailing yet another so-called bar complaint (Basta 07-1952). Appendix B at 9.
Eventually, Van Wyck agreed to meet with Thomas’ attorneys, Leo Beus and Daniel Cracchiolo. In the course of those meetings, which did not yield results, Van Wyck stated that he would be forwarding yet another matter for a response, this one an inquiry prompted by the New Times. Appendix B at 10. This demand for yet another response by Thomas and the MCAO was made only a week after the New Times filed a lawsuit against Maricopa County Sheriff Joseph Arpaio, Thomas, and Wilenchik and it actually included the plaintiff’s letter of claim. Id. On May 15, 2008, Van Wyck sent a letter to Cracchiolo and Beus stating, “[f]rom now on our communications shall be in writing.” He also informed them that the Ryan and New Times matters would “take significantly greater investigation.” Appendix A at 72.
B. Attorney-Client Privilege, Deliberative Process, and Work Product.
From the outset, Wilenchik, representing himself, raised concerns with Bar Counsel regarding the disclosure of the MCAO’s privileged materials and work product in response to the so-called bar complaints directed against him. He stated in his November 12, 2007 response, “[h]owever, I am not at liberty to invade the attorney-client privilege and cannot waive it. I have been so advised by the County Attorney’s Attorney.” Appendix C at 1(filed under seal).
On December 3, 2007, Van Wyck referred to ER 1.6(d)(4) and urged that Wilenchik could choose to waive client confidentiality because the purpose was to defend himself. Appendix A at 51. Van Wyck stated, “The consent of the client is not necessary, and therefore any objection Mr. Thomas may have to your disclosure should not prevent you from providing full and complete information to the extent you believe necessary.” Id. To further encourage Wilenchik to disclose privileged matters, Van Wyck also proposed a motion for a protective order to seal the disclosures once made. “[S]hould you feel it necessary to reveal information you believe is privileged or confidential, I refer you to Rule 70(g), Ariz. R. Sup. Ct., which contains the provisions by which you may request that your response, or certain information in your response, be sealed from the public.” Id.
Immediately upon receiving Van Wyck’s letter on December 3, 2007, Wilenchik, still representing himself, filed the invited motion for a protective order. Appendix A at 52. Meanwhile, Van Wyck continued his requests by a subsequent letter dated December 10, 2007. Appendix C at 2 (filed under seal). The 6-page letter contained 42 detailed interrogatories in follow-up to Wilenchik’s original 47-page response. Id. The 6-page questionnaire again “referred” Wilenchik to “the section that permits you to reveal what might otherwise be confidential client information in responding to a bar complaint.” Id. The questionnaire then went on to demand detailed information on the discussions, decision-making processes, and documents prepared in the Ryan and New Times matters. By way of example, one of Van Wyck’s questions requested disclosure of the following (emphasis added):
Referring to page 10, the last paragraph on that page, when did the discussion with the County Attorney and his “chief administrative staff” of lawyers occur? In addition to Mr. Thomas and you, who was present. Please recount the discussion that ensued, and state who made the decision that you should file a motion to recuse Judge Ryan. . . . who else reviewed this motion?
Id. (emphasis added).
Wilenchik responded to Van Wyck’s December 10 letter with a letter on December 11. Appendix C at 3 (filed under seal). Wilenchik declined to provide additional confidential information because he did “not feel providing any additional information as to any specific communications that I have had with my client should be necessary.” Id. Earlier in the letter Wilenchik stated, “[n]otwithstanding, this rule [ER 1.6(d)(4)] does not appear to require a lawyer to reveal confidential information, but rather it permits a lawyer to reveal such information in the course of responding to a complaint from the State Bar.” Id.
Van Wyck responded with a letter dated January 3, 2007 [sic 2008]. Appendix A at 53. In this letter, Van Wyck directed Wilenchik to rule 53(f), citing its admonishment that the “failure to furnish information to respond promptly to any inquiry from Bar Counsel relevant to matters under investigation is grounds for discipline.” Id. Notably, Bar Counsel omitted from his letter the portion of the rule permitting discipline for lack of disclosure only if accompanied by a “failure to assert the ground for refusing to do so.” Id. Under the rule, as fully cited, Wilenchik could not have been subject to discipline for failing to furnish Bar Counsel with the requested information because he had already, on several occasions, asserted the grounds for his refusal to make the requested disclosures. Whether due to the misleading, partial citation to rule 53(f) or not, Bar Counsel’s threat was effective. Wilenchik’s attorney eventually submitted a 16-page response in answer to the follow-up questions at the end of January. See Appendix C at 4(filed under seal).
On January 14, 2008, Wilenchik’s pro per motion for a protective order was denied (Appendix A at 54) by Bar Panelist Alan Bayham, a member of the BOG Scope and Operations Committee that approved McAuliffe’s “Letter to the Editor” published on October 10, 2007. Appendix A at 10 & 73. On January 17, 2008, Van Wyck sent a letter enclosing Bar Panelist Bayham’s order and explaining the denial by asserting that the motion “was over-inclusive.” Appendix A at 55. Van Wyck then offered Wilenchik’s newly retained counsel, David Dodge, another opportunity to file an amended motion on or before January 30, 2008. Id.
By that time, Pamela Overton, an attorney representing County Attorney Thomas, had already filed a motion for a protective order on January 22, 2008, addressing the inquiries directed at Thomas and the inquiries directed at Wilenchik. Appendix A at 57 & 61. On the same date, separate counsel for the MCAO, Georgia Staton, filed a similar motion (Appendix A at 56 & 62) and David Dodge, Wilenchik’s attorney, joined. Appendix A at 58. Van Wyck responded by opposing the requests for protective orders (Appendix A at 59 & 60) and asserting that the MCAO and County Attorney Thomas had no standing to object to disclosure. Appendix A at 60. Ultimately, Scope and Operations Committee member Bayham granted the motion for a protective order in Goudeau (Appendix A at 63) and partially granted the motion for a protective order in Conditional Hires (Appendix A at 64). He denied the other motions for protective orders (Appendix A at 65 & 66), but did grant stays to seek appellate review in all but the MCAO’s request for protective orders in the Wilenchik matters (Appendix A at 13-17).
V. Argument
A. The So-Called Bar Complaints Have Prejudiced Respondent Attorneys, Infringing Upon Their Free Speech and Due Process Rights So That a Full and Fair Disposition Is Precluded.
1. The Right of Attorneys to Criticize Judges or Judicial Rulings Is Well Settled.
All of Van Wyck’s investigations began either immediately or shortly after County Attorney Thomas commented upon the rulings of Maricopa County Superior Court judges in Proposition 100 cases and supported the motion to recuse one particular judge, Judge Timothy Ryan. The investigation of Barnett Lotstein was based purely on newspaper articles and statements defending the County Attorney in the same Proposition 100 controversy.
This volume of so-called bar complaints against public prosecutors is unprecedented and is plainly an attempt to intimidate attorneys into not criticizing members of the county judiciary. Immigration issues, including enforcement of Proposition 100, are political issues as to which the executive branch (MCAO) and the judicial branch (Maricopa County Superior Court) have been in conflict. The attempt to use the Bar, the regulatory arm of the judiciary, to chill criticism of judges or the judiciary strikes at the heart of political speech:
Political speech – speech about government issues or government officials – is “at the core of what the First Amendment is designed to protect.” Morse v. Frederick, ___ U.S. ___, 127 S. Ct. 2618, 2626 (2007)(citation omitted).
Since the judiciary is one branch of government and because “the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment,” it follows that attorney speech concerning a court’s actions in a case is political speech. Shelley v. Kramer, 334 U.S. 1, 14 (1948).
Fieger v. Michigan Supreme Court, ___ F. Supp. 2d ___, 2007 WL 2571975 at *2-3 (E.D. Mich. 2007) (emphasis added) (declaring unconstitutional Michigan courtesy and civility rules of professional conduct).
In Standing Committee on Discipline v. Yagman, 55 F.3d, 1430, 1434 (9th Cir. 1995), the Ninth Circuit upheld the right of an attorney to accuse a judge of “anti-semitism,” and to describe him separately as “drunk on the bench,” “ignorant, dishonest, ill-tempered, and a bully,” as well as a “sub-standard human,” “right-wing fanatic,” and “buffoon.” Id. Even such extreme and outlandish statements were not a proper basis for discipline because they were protected by the First Amendment. Id.
Although County Attorney Thomas did not, and would not, make such statements, Yagman recognizes attorneys’ broad rights under the First Amendment. Thomas, Lotstein, and Wilenchik did no more than follow the wise and time-honored prescription of Justice Hugo Black in Bridges v. California, 314 U.S. 252, 270-71 (1941): “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. . . . And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” Id.
2. Due Process Concerns.
According to the Bar’s website, there is a discipline screening process before a subject attorney is asked to undertake the burden of a response. “Written complaints are screened under Rule 53(b)(1), Ariz. R. S. Ct., which requires that bar counsel conduct a screening investigation if the complaint alleges facts that, if true, would constitute misconduct or incapacity.”
Nowhere does the Bar describe as part of the process that the Bar President will make a media announcement of a so-called bar complaint two weeks before a subject attorney first receives notice of its existence. Nor does the procedure described state that Bar officials may publically denounce the conduct of the subject attorney while the investigation is pending. To the contrary, the Bar’s website (addressing whether files are confidential) states that:
If an investigation is performed, complaints and subsequent correspondence between those involved generally become open to the public when the investigation is concluded and a decision made whether to pursue the lawyer in formal proceedings, unless the respondent specifically waives confidentiality earlier in the proceedings.
At the time McAuliffe made his statements to the media, no respondent attorney had waived confidentiality. McAuliffe disclosed the existence and basis for the so-called bar complaints to the media well before County Attorney Thomas received any notice from Bar Counsel. These matters were all still in the screening phase, yet McAuliffe, on behalf of the Bar, publicly and repeatedly condemned Thomas’ and Lotstein’s exercise of their free speech guarantees.
Michael Schwartz has opined as to the conduct of McAuliffe’s public relations campaign against Thomas. Appendix A at 5, p. 21-25. Schwartz notes, “The President of the State Bar of Arizona, Daniel McAuliffe, appears to have engaged in conduct which (a) appears to have violated Ariz.Sup.Ct.R. 70; and (b) may have prejudiced the investigation against Andrew Thomas.” Id. at p. 21. This “public condemnation” of Thomas by the Bar President was “most troubling” for a variety of reasons. Id. at pp. 21-25
According to Ariz. R. S. Ct. 48(j) and 81, Bar officials are obligated to recuse themselves from matters due to bias, prejudice, and/or appearance of impropriety. Van Wyck admitted his hostility to the plea practices of the MCAO involving illegal aliens and, consequently, in Proposition 100 cases. Appendix at 12. McAuliffe made statements in the Arizona Republic, Yellow Sheet, and the Arizona Attorney (in two issues) that indicate bias toward County Attorney Thomas. Novak, a member of the BOG Scope and Operations Committee, was the criminal defense attorney in the Bandy case. Bayham, also on the Scope and Operations Committee that approved the Arizona Republic “Letter to the Editor,” currently serves as the Bar Panelist in the pending investigations.
Moreover, Van Wyck has already been privy to privileged communications that should disqualify him from continuing as Bar Counsel in these matters. He obtained privileged communications improperly from Wilenchik under the duress of Van Wyck’s threatening discipline and misstating the interplay of ER 1.6(d)(4) and rule 53(f). Accordingly, Van Wyck cannot properly adjudicate these matters. See State v. Davis, 165 Vt. 240, 683 A.2d 1 (1996)(trial judge who viewed privileged material was required to recuse himself unless, inter alia, judge returned and sealed privileged material).
Finally, the Bar’s posture carries deeply disturbing implications for law enforcement and separation of powers. State v. Morse, 127 Ariz. 25, 32 617 P.2d 1141, 1148 (1980)(Arizona’s courts recognize that “[o]ur country’s legal system vests broad discretion in prosecuting attorneys,” including which charges to file and which plea offers to make). In the Bandy matter, the Bar effectively has taken the position that it can disregard the doctrine of separation of powers and become the ultimate reviewer of the reasons behind the charging or disposition decisions in any of the approximately 40,000 felony cases handled every year by MCAO. State v. Jones, 142 Ariz. 302, 304, 689 P.2d 561, 563 (Ct. App. 1984).
In light of the apparent facts that:
• the Bar Panelist had undisclosed ex parte communications before or during the time that he ruled on motions for protective orders,
• that the Bar President engaged in repeated public castigation of County Attorney Thomas even before the so-called bar complaints had been sent to Thomas, and
• that Chief Bar Counsel threatened discipline if protected, privileged information was withheld and absolutely refused to proceed with certain of the matters until such disclosure occurred,
it is certain that a fair and impartial adjudication process is impossible.
B. The Privileged Material Extracted from MCAO Attorneys Should be Returned to MCAO. Further Demands for Privileged Material Should Be Quashed by This Court.
1. The Files at Issue Are Protected by the Attorney-Client, Work Product, and Executive Privileges.
The attorney-client, work-product, and executive privileges are all well established in Arizona and throughout the United States and a protective order sealing the portions of the files requested in this pleading is justified until the privileged material already compelled is returned to the MCAO. See Carr v. Monroe Mfg. Co., 431 F.2d 384, 390 (5th Cir. 1970) (cited with approval in State ex rel. Babbitt v. Arnold, 26 Ariz. App. 333, 335, 548 P.2d 426, 429 (1976). Otherwise, the unintended result will be that any party may initiate a bar action for the purpose of obtaining privileged information compelled from an attorney under threat of professional discipline even if the information could not be obtained otherwise and even if both the attorney and the holder of the privilege object. See Lipschultz v. Superior Court, 128 Ariz. 19, 623 P.3d 805 (1981) (doctors being sued for medical malpractice had right to invoke privilege against disclosure of information compiled by Board of Medical Examiners in its investigation of claim, even though discovery order was not directed at them.)
(a) Attorney-Client Privilege
Arizona courts have long recognized the importance of protecting information to which the attorney-client privilege has attached. “It is a privilege of the client, and not of the attorney, and one which the attorney is bound to assert unless authorized to testify by his client or his client’s legal representative.” Buell v. Superior Court, 96 Ariz. 62, 68, 391 P.2d 919, 923-24 (1964), and State v. Sucharew, 205 Ariz. 16, 21, 66 P.3d 59, 64 (Ct. App. 2003).
Government officials conferring with government attorneys also enjoy the attorney-client privilege. State ex. rel. Thomas v. Schneider, 212 Ariz. 292, 130 P.3d 991 (Ct. App. 2006). In requesting supplemental disclosures from Wilenchik, Bar Counsel specifically demanded and was provided with, over County Attorney Thomas’ and the MCAO’s objection, the details of conversations held between the County Attorney, his executive staff, and Wilenchik. Appendix C at 1 & 4 (filed under seal). Therefore, an order requiring that all copies of these materials be returned to MCAO, and requiring that the Bar retain or distribute no other copies, is appropriate to preserve the integrity of the attorney-client privilege in Arizona.
(b) Work Product Privilege
The work-product privilege is designed to protect mental impressions and theories of attorneys or other client representatives concerning actual or prospective litigation. State ex rel. Corbin v. Weaver, 140 Ariz. 123, 129, 680 P. 2d 833, 839 (Ct. App. 1984). As early as 1956, the Arizona Supreme Court recognized the “work product” protection for prosecutors in criminal cases:
In no case is there any suggestion that jurisdiction to compel production for inspection of papers or documents can properly be extended to notes or memoranda in possession of the prosecutor which are inadmissible as evidence either for the prosecution or for the defense or of any other papers and documents that are not admissible as evidence in the prosecution of the accused.
State ex rel. Polley v. Superior Court, 81 Ariz. 127, 132-33, 302 P.2d 263, 266-67 (1956).
The privilege is memorialized in Arizona Rule of Criminal Procedure 15.4(b)(1) and may be asserted by either the attorney or the client. See In re Grand Jury Proceedings, 43 F.3d 966, 972 (5th Cir. 1995). In the pending bar investigations, the attorneys and their prosecutor clients have asserted the work product privileges.
The litany of intrusive questions submitted to attorney Wilenchik in Van Wyck’s 42-question, supplemental inquiry sought the County Attorney’s and the MCAO’s work product, particularly with respect to questions directed toward the Judge Ryan matter. Appendix C at 2(filed under seal). One of the clearest examples of this abuse was Van Wyck’s request in the Bandy matter. In that inquiry, Van Wyck demanded to know the thought processes of the prosecutor assigned to the case and required “an explanation of how and why you decided to continue the prosecution of Matthew Bandy, and the specific reasoning for continuing through with the plea entered and offered.” Appendix B at 8.
(c) Executive (Deliberative Process) Privilege
The deliberative process privilege is a recognized confidentiality privilege asserted by government officials that protects internal deliberations. The purpose of the privilege is to promote frank and honest discussion between those people who are responsible for the government’s operations. Times Mirror Co. v. Superior Court, 53 Cal.3d 1325, 1340, 813 P.2d 240, 249 (1991)(citing cases from other states recognizing executive privilege); NLRB v. Sears, Roebuck, 421 U.S. 132, 95 S.Ct. 1504 (1975); United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090 (1974); In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). The United States Supreme Court, echoed these sentiments by recognizing “the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties,” and that “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.” 418 U.S. at 705.
Arizona has long supported the basis for keeping government decision making processes confidential. The proper way to view all requests for information is to determine if the release of the information would have a chilling effect or an important and harmful effect upon the official duties of the official or agency. Church of Scientology v. City of Phoenix Police Dept., 122 Ariz. 338, 339, 594 P.2d 1034, 1035 (Ct. App. 1979) (citing 76 43 Ariz. Op. Att’y Gen. (1976)). Arizona courts also have applied a common law rule preventing the disclosure of government records deemed confidential when such disclosure would go against the best interests of the state. See Carlson v. Pima County, 141 Ariz. 487, 490, 687 P.2d 1242, 1245 (1984); Mathews v. Pyle, 75 Ariz. 76, 79, 251 P.2d 893, 896 (1952).
The Maricopa County Attorney is a constitutional officer of Arizona’s executive branch charged with the responsibility of enforcing the laws of this state. A.R.S. Const., art. XII, § 3. In fact, the primary responsibility for prosecuting criminal actions is vested in the County Attorney. Smith v. Superior Court, 101 Ariz. 559, 422 P.2d 123 (1967). Accordingly, the discretion of county attorneys to determine who is to be charged, which offense to charge, or whether any charges are to be filed must not be supplanted by the opinion of Bar Counsel. State v. Lopez, 174 Ariz. 131, 847 P.2d 1078 (1992); State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992). To ensure that independence, executive privilege protects against public disclosure of the County Attorney’s decision making processes, including consultations with his deputies. See, e.g., Gipson v. Bean, 156 Ariz. 478, 483, 753 P.2d 168, 173 (Ct. App. 1987) (declining to order county supervisors to testify as to discussion and decisions of executive session where privileged matters were discussed).
Experts Geoffrey Hazard and Michael Schwartz have opined that Van Wyck acted improperly in compelling privileged material from MCAO attorneys and that Bar Panelist Bayham acted improperly in refusing to seal and return the privileged material extracted from Wilenchik. Appendix A at 5, 7, & 8. Former director of the American Law Institute and a former professor of law at Yale Law School, Hazard is one of the premier experts on legal ethics in the nation. Hazard concluded that Wilenchik “was inaccurately led to make multiple disclosures of confidential or otherwise privileged information . . . in response to a demand for such information by Bar Counsel.” Appendix A at 8, p.1. He noted:
Bar counsel misinterprets Rule 53(f) by suggesting that it unqualifiedly requires the target attorney to provide a full and complete response. In fact Rule 53(f), as stated above, provides the target attorney the alternative of asserting the grounds for a refusal to respond. Bar Counsel omitted that important alternative from his letter to Mr. Wilenchik wherein he demanded answers. That omission could be construed as deliberate.
Appendix A at 8, pp. 2-3 (emphasis added).
Hazard concluded that “Bar Counsel’s failure to cite Rule 53 in its entirety is surely unprofessional on the part of a lawyer exercising important and sensitive public authority.” Id. p.8. Hazard noted also that the letter from Van Wyck to the prosecutor in Bandy “also has an incomplete citation of Rule 53.” Id. p. 3. The threat of further discipline if the prosecutor failed to provide the information demanded about charging and plea bargaining “is a very heavy menace given the legally dubious foundation for Bar Counsel’s peremptory demand.” Id.
Similarly, Schwartz observed that “Chief Bar Counsel apparently has sent letters to persons seeking to have them provide information to him which, if they had done so, would subject them to suspension from the practice of law for violating ER 1.6.” Appendix A at 5, p.12. By partially quoting the language of the applicable ethical rules in an attempt to elicit privileged material from Wilenchik, Van Wyck’s statements to Wilenchik were “at best, incomplete and an inaccurate statement by omission.” Id. at p. 16. He adds, “The use of artificial investigations in an attempt to destroy the attorney-client privilege is a tactic which, rather than strengthening the rule of law, invites scorn and disrespect for the rule of law.” Id. at p. 15.
Finally, in the opinion of Peter R. Jarvis, another nationally recognized expert on legal ethics, Van Wyck’s interpretation of the privilege laws and rules would make Arizona the only state to abolish attorney-client, work product, and executive privileges upon the whim of Bar Counsel. Appendix A at 9. “To the best of my knowledge, no disciplinary body in the United States has held that Bar Counsel has the unilateral right to reject or disregard privilege claims simply because he wishes to.” Id.
2. MCAO and County Attorney Thomas Have Standing to Assert Privilege In the Wilenchik Files.
With respect to the Wilenchik matters, Bar Panelist Bayham ruled that Thomas and the MCAO lacked standing to assert their privilege in the Wilenchik files. Appendix A at 66. On the contrary, a privilege may be asserted by intervention even where the client (who the privilege belongs to) is a non-party. When someone other than the person from whom the information is requested has a “personal right to privilege . . . [that person] has a right to contest” the request. Lipschultz v. Superior Court, 128 Ariz. 16, 20, 623 P.2d 805, 809 (1981); see also MacDonald v. Hyder, 12 Ariz. App. 411, 417, 471 P.2d 296, 302 (Ct. App. 1970) (a party has standing to object to subpoena served on third-party witness when that party “can make claim to some personal right or privilege in respect to the subject matter of a subpoena.”). See also D. McAuliffe, Ariz. Civ. R. Handbook, at 996 (2007 ed.) (“others may raise the issue of privilege, or at least call it to the Court’s attention, where the holder of the privilege is not a party or is not present to protect it.”) (citations omitted). County Attorney Thomas and the MCAO have a right to assert their privileges, they have asserted their privileges, and, therefore, they have a right to contest production of privileged material and to demand its return.
VI. This Court’s Authority to Provide Relief
The investigative abuses by Van Wyck and the tainting of the process by various interested Bar officials have damaged these investigations beyond repair. See Ohio State Bar Ass’n v. Stern, 103 Ohio St. 3d 491, 817 N.E.2d 14 (2004)(Bar improperly investigated elected prosecutor following his dispute with an Ohio judge); The Florida Bar v. Rubin, 362 So. 2d 12 (Fla. 1978)(press release by State Bar denouncing attorney under investigation “inexcusable”). In such a situation, this court should take superintending control and dismiss the remaining so-called bar complaints, as they all lack merit and were improperly commenced. See Clary v. Mathews, 224 Ga. 82, 83, 160 S.E.2d 338, 339 (1968) (attorney entitled to impartial tribunal so special action relief may be available where member of disciplinary body has expressed preformed opinion of guilt). This court has made clear, “We will intervene in a pending disciplinary proceeding to correct error.” In re Hoover, 155 Ariz. 192, 195, 745 P.2d 939, 942 (1987), following remand, 161 Ariz. 529, 779 P.2d 1268 (1989).
Should this court choose not to terminate the remaining investigations, this court should disconnect Bar Counsel and other Bar officials from any further involvement in these matters. In Breiner v. Sunderland, 112 Hawai’i 60, 66-68, 143 P.3d 1262, 1268-70 (2006), the Hawai’i Supreme Court recognized that a bar investigation had become so unprofessional and so oppressive that the abusive investigative tactics warranted removal of investigative counsel and assignment of a successor with directions to expedite a conclusion to the investigation. See also Whitehead v. Nevada Commission on Judicial Discipline, 110 Nev. 874, 890, 878 P.2d 913, 923(1994) (approving removal of judicial discipline case from disciplinary commission and appointment of a special master on various grounds).
VII. Conclusion.
This is a matter of statewide interest affecting all attorneys, all clients who share privileged information with their attorneys, and all public lawyers who work for a governmental entity. Protection of the attorney-client, work product, and executive privileges, core operations of the MCAO and other prosecutors’ offices, and preservation of the separation of powers and other issues of great importance all warrant this court’s intervention and the granting of special action relief.
For all the reasons stated herein, Petitioners request that this court:
• direct the immediate termination of all Thomas/MCAO prosecutor Bar investigations or, at a minimum, assign them to a mutually acceptable independent investigator to promptly bring them to a proper conclusion;
• direct the Bar to return the privileged Wilenchik material to MCAO
• direct the Bar to cease attempts to obtain privileged material;
• direct the sealing of the Bar files containing privileged information until this court completes the investigation and can provide for appropriate protections;
• appoint a special master to investigate the conduct by Bar Counsel and Bar Officials in these matters;
• grant such other relief as this court deems just and proper.
The right-of-center website Seeing Red AZ notes, via the Corruption Chronicles judicial watch blogsite, yet another threat to freedom of speech and the First Amendment, this time taking the form of a letter from one Lizzette Zuby and Salvador Ongaro of the Arizona Hispanic Bar Association sent to Arizona Supreme Court Chief Justice Ruth McGregor.
