Thomas Allegations

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Former Maricopa County Attorney Andrew Thomas and one of his former deputies are facing serious ethics allegations in an investigation commissioned by the Arizona Supreme Court. Phoenix School of Law Associate Professor Keith Swisher talks about lawyer ethics and the attorney discipline process as they relate to the alleged ethical lapses by Thomas.

Ted Simons: An independent investigator says alleged ethics violations by former Maricopa County attorney Andrew Thomas justify disbarment. Here to talk about lawyer ethics and the attorney discipline process is Keith Swisher, a professor for the school -- the Phoenix school of law. Keith, good to have you here. Thanks for joining us. Give me an overview here of what is facing -- what Andrew Thomas is facing.

Keith Swisher: Sure. The probable cause panel of the state bar of Arizona called it a reckless four-year campaign of corruption, ultimately with significant cost to the taxpayers. In short, he's facing over 30 different ethics charges, which can lead to disbarment. In other words, he would be prohibited from practicing law, his livelihood.

Ted Simons: Let's get to the process here. Who initially decided to go ahead and investigate this?

Keith Swisher: What happened for a lawyer discipline is there a complainant at some level. It can be one of many people. Often times it's a client, but it could be another lawyer. In this case there were numerous complaints being made about Andrew Thomas. Ultimately what happened was the Supreme Court of Arizona appointed an investigator. It's unusual case in that the investigators actually from Colorado, a respected investigator under the auspices of the Colorado Supreme Court. We've for a couple years now been thoroughly impressed by Colorado because its lawyer discipline system tended at least before to be faster and more effective than ours, so we've been trying to model it. Anyway, we appointed this independent investigator, and just last week we were -- the report -- his independent report was made public. It's an 80-plus-page document detailing numerous alleged instances about the impropriety on Mr. Thomas's behalf.

Ted Simons: I want to get more on the report in a second here, but as far as the initial steps, what the bar asked the Supreme Court, the Supreme Court goes ahead and investigates and decides, what, there's something here, a three-person panel is convened? Correct?

Keith Swisher: That's right. It hasn't been convened yet. It's interesting in that we are right on the cusp of changing our system a little bit. Had this transpired say a year ago, Thomas would have had a hearing before one person, one lawyer in the community typically randomly selected from a pool. Because now in the changes to our process, he'll have three people on this panel presumably, he'll have our new presiding disciplinary judge, judge O'Neill, he'll have one lawyer randomly selected, and one member of the public. And by member of the public I mean someone who is a non-practicing lawyer or a -- not a judge either.

Ted Simons: Who selects those folks?

Keith Swisher: It's volunteer. Application process is going on right now, and there will be a pool, and it will be randomly selected. Although some of this process is fresh.

Ted Simons: We've got our three-person panel, we'll get that three-person panel going here, how will evidence in this case be presented?

Keith Swisher: It's similar to a trial. Generally speaking the rules of evidence apply. It won't be in a courthouse, it will be presumably in a conference room not too much unlike what we're in right now. And he'll have a chance to present evidence and the bar will present evidence of its own.

Ted Simons: Will the bar's evidence be mostly entirely surrounding or including the report, the aforementioned report from the independent investigator from Colorado?

Keith Swisher: I'm assuming that will form the primary basis. My understanding is the same independent investigator namely John Gleason from Colorado will continue on as the primary prosecutor in the bar case that will take place here in Arizona. And certainly what's in the report, the gist of it will form the basis of his evidence. But I predict live testimony, etc.

Ted Simons: Why didn't the bar, you kind of touched on this earlier, to clear things up, why isn't the bar doing this themselves?

Keith Swisher: It's a good question. Some field of the bar just should do it themselves. Instead, the Supreme Court appointed as I mentioned, the Colorado investigator, thought that he would be even more independent than a state bar investigator. Earlier on in the process Mr. Thomas mentioned alleged various conflicts of interest on the bar's part, and indeed a former -- the previous independent investigator. So I think eventually my guess, I'm reading from the tea leaves, the Supreme Court said, Wall Street go out of state, which should alleviate the conflicts of interest, if any.

Ted Simons: You referred to this earlier that Andrew Thomas will be allowed to answer the charges and present his own information. How does he do that, because I've read somewhere that he feels as if he will not be able to have legal counsel with him. What's that all about?

Keith Swisher: Yeah, it's -- I saw that too. And I think it's -- it can be misinterpreted. The only way it could be accurate would be if he means that the state bar or the taxpayers won't be paying for his attorney. That said, he's still plenty free to hire a private counsel, or to have counsel represent him pro bono.

Ted Simons: So -- and he is an attorney himself, he can represent himself if he so chooses.

Keith Swisher: You know the saying --

Ted Simons: Yes. So we got -- this is pretty serious business here as far as the practice of law is concerned. Give us the range of sanctions he is facing.

Keith Swisher: Sure. So in ascending order of importance, we could have the reprimand, which is essentially the boo, lawyer, you did a bad job, don't do again were watching. A censure, which is sort of a public reprimand in the sense of you've committed professional misconduct, and it's sort of announced to the public. Then you have suspension, which is quite serious. He can't practice law within whatever the set period of time is, typically one year. Typically you have to notify clients, courts, it's very embarrassing and detrimental to livelihood. And finally you have disbarment, which is similar to the as I believe you've mentioned -- it's sort of like the death penalty of professional discipline. He can't practice law at all. My understanding is that he is practicing law right now, and that would obviously completely cut off the livelihood.

Ted Simons: What kind of appeals process can he take?

Keith Swisher: After this three-member panel --

Ted Simons: let's say something happens, what can he do?

Keith Swisher: His recourse after that under the new system would be to the Arizona Supreme Court. And he can petition for review to the court if he feels that the panel has errored, either in its findings that he committed ethical misconduct or in its sanction, disbarment perhaps. He could say, even if true, I don't deserve disbarment, I maybe a censure.

Ted Simons: How rare is it for an elected official to be facing this kind of disciplinary hearing, investigation, possibly even sanctions, from a state bar? It seems pretty rare.

Keith Swisher: It's fairly rare. It's tough for me to say that it's -- it's not unheard of. It's tough for me to say that it's rare. Lawyer discipline historically has been under enforced. I think as a profession we've been doing a better job lately about bringing to justice those in our ranks, and if Thomas is one of them, to call to count, whether it's hurting clients or corruption, etc. So enforcement -- the idea is that if someone is committed serious misconduct, we bring the profession would bring the case against them. Unfortunately that hasn't been regularized in the past, but it -- we're doing a better job. So I think you might be seeing at least in Arizona, you know if an elected official happens to be an attorney, the ethical rules still generally speaking apply if you're representing a client.

Ted Simons: Yet there's some who would say because you're an elected official and you represent so many different aspects of society, the dynamic is so different than a private attorney who has one or at least a more focused group of people that he or she represents. And a valid concern there?

Keith Swisher: I do I would agree that it gets a more complicated in a position like his. According to investigator -- investigative report and what the probable cause panelist, former chief justice of the Supreme Court of Arizona, many if not most of those allegations transcend this complication that we have about who exactly is a client of an elected county attorney. Is it the people, is it justice, is it in this case the board of supervisors, or them individually? So there's a lot of different points there. But the allegations here transcend that in the sense of that what he was doing in some of his deputies had no merit to them. So regardless of who we exactly pinpoint client, that's problematic under the ethical rules.

Ted Simons: Real quickly, what kind of timetable are we looking at here?

Keith Swisher: Give or take a year. I mean that in a more or less sense. In part because some of this process is new, as I mentioned, also if the past is any judge of the future, there were a lot of -- he's lodged a lot of motions before challenges to the process, and those slow them down. Barring a lot of those types of considerations, perhaps this summer this next summer we could have a hearing.

Ted Simons: Very good. Keith, good information. Thanks for joining us. We appreciate it.

Keith Swisher: My pleasure.

Keith Swisher:Phoenix School of Law Associate Professor;

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