Legal ethics attorney Karen Clark discusses the decision by a three-member disciplinary panel to disbar former Maricopa County Attorney Andrew Thomas.
Ted Simions: Good evening and welcome to "Arizona Horizon." I'm Ted Simons. Former Maricopa County attorney Andrew Thomas today was stripped of his license to practice law in Arizona. The punishment was based on nearly three dozen ethics violations. A judge read the penalties issued against Thomas and two of his former aides, Lisa Aubuchon and Rachel Alexander.
Judge William O'Neil: For the reasons stated in our order, we issue the following sanctions. For Ms. Alexander, it is our order that she be suspended from the practice of law for six months and one day effective May 10th, 2012. For Ms. Aubuchon, it is the order that she be disbarred effective May 10, 2012. For Mr. Thomas, it is our order that he be disbarred effective May 10, 2012. Our order has now been signed and filed. Thank you.
Ted Simons: Two years ago Andrew Thomas appeared here on "Horizon" to talk about the cases he was pursuing against county officials.
Andrew Thomas: There is serious evidence of serious corruption. And we cannot have a situation in which political officials are able to use the power of their office, use their subordinate employees to retaliate against law enforcement as happened in our office to work the media, to do all the things that happened in order to avoid prosecution. It's not right. And all the smears being taken against our office, against me personally, every, at every level they are wrong and I look forward to fully, to handing these things over as I have and to fully upholding the integrity of our office and me personally.
Ed Simons: The civil racketeering suit against the Board of Supervisors, judge, a whole lot of folks, you talk about serious charges. That's serious stuff and when you say there's a vast criminal conspiracy in county government, that's no fooling and either. Is there a vast criminal conspiracy?
Andrew Thomas: That is not something we have alleged. What we have alleged is that there are three actors in county government and we believe they have worked together to stymie investigations and prosecutions. And rather than just throwing out allegations, we filed a very detailed complaint in Federal court that outlined what had gone wrong. And what you have, if I can just take a couple minutes to explain this, Ted, is you have the board of supervisors funding a $341 million new court tower for the superior court in the middle of a terrible recession, paying for it in cash, and then you have the superior court the on the other end receiving this and then you have the superior court hiring a law firm that represents simultaneously the board and the superior court and all three hide that relationship. It turns out that law firm has been paid over $1 million for lawyers to attend meetings and basically just take minutes, not provide meaningful legal work from what we can tell. And that is very serious. And so we have tried to investigate those three actors work to shut down the investigations. We believe to retaliate against our offices. And what else were we supposed to do? We have gone to Federal court. We are seeking relief there. We will continue to seek relief from Federal authorities. I don't know what else to do. We have effectively been shut down in prosecuting and investigating corruption. And the people of this community need to know that. This is very serious. But we are in an unprecedented situation here.
Ted Simons: And here now to give us a legal analysis of the state bar's punishments for Andrew Thomas and his two former aides is Karen Clark, a former ethics counsel for the state bar of Arizona. She also teaches legal ethics at ASU's O'Connor College of law and in her private practice she focuses on representing lawyers and judges in disciplinary matters. Good to see you again. Thanks for joining us.
Karen Clark: Thank you. You are welcome.
Ted Simons: We have had you on many times about this because it's been a long and winding road. Very early on in the process you said you will be surprised, and I think you are the first person who really on this program at least who said this, you would be surprised if Andrew Thomas were not disbarred. You are not surprised by today's action, are you?
Karen Clark: No. No, I am not. I think the conduct that he engaged in was fairly provable. A lot of what he did, he fully admitted. He held press conferences declaring what he had done and why. It was so beyond the pale that once you found that conduct, there was really only one sanction that was going to happen and that was disbarment.
Ted Simons: So take it, let's get back to basics here. What did he do?
Karen Clark: And it's so difficult to distill down into one thing. There were 33 counts, claims against him, and he was found to have engaged in misconduct in all but I think three or four of them. There were so many phases to it, from the very beginning of his animosity with the board and acting against his clients' interest, disclosing things about his client, the board, right on through Stapley 1, charging Mr. Stapley when there wasn't sufficient basis, doing it after the statute right on through the court tower, Stapley 2 and then the Rico suit. And I think the height of it all charging judge Donahoe just before a hearing in order to have judge Donahoe knocked off that hearing when he was in the process of ruling against Mr. Thomas on several matters. It's all a question of how bad, what's the worst of the bad misconduct? It's all bad.
Ted Simons: You mentioned the judge situation. That does seeming to the biggie there. As you mentioned we can go through this thing for the next 40 days but that really did get the attention of this panel.
Karen Clark: Absolutely. Well, he didn't have a good basis for charging judge Donahoe. He even held a press conference afterwards and when he was asked, what was the support for your probable cause determination as the basis for filing this direct complaint, he said, you guys tell me. Turning to the press. I mean, it was just so obvious that he didn't have what he needed to have to charge him. And there's just nothing more serious that a prosecutor can do than to criminally charge someone for anything other than probable cause, a rational basis for doing it. Having your investigation complete, having the evidence. Doing it for the reasons that he did, it's just beyond the pale.
Ted Simons: It seemed at the time, you could almost joke about this in a sense that he had so much going against so many people, that you couldn't avoid a conflict of interest. You would have to go to Wyoming to avoid a conflict of interest because everyone was being targeted by the county attorney's office.
Karen Clark: That's part of what it was. The report that's been issued today by the hearing panel is 247 pages long. That's not with exhibits. That's the report. And it just describes in rather fanciful language, elaborate language, theatrical language just how bad and widespread this misconduct was. Going back basically to the time that he assumed office. So it was not only very wide but it was also very deep. And, yes, I think the conflicts of interest are probably the least of it. Again, it's how bad is the worst misconduct? Conflict of interest lied under the whole thing.
Ted Simon: The theatrical language, is that to better explain to the public what's going on? Again, we are talking about disbarring a county, former county -- an elected official here. That's got to be rare.
Karen Clark: It is extremely rare. And Judge O'Neal, this is a panel decision, but I see a lot of Judge O'Neal's fingerprints all over this. And I do practice in this area, and it's not the first time I have seen him use that kind of language. I think it's in his nature to write in that kind of way. Part of what the discipline process is, you know, the primary purpose of it is to protect the public. It's not to punish the attorney. But one of the things that the presiding disciplinary judge is trying to do is make an impression on the lawyer of why they are being sanctioned, if they are. And I think he used some of that language to try and impress on Mr. Thomas just how wrong he had gone.
Ted Simons: Is that the message you think from this report, is that the message from these penalties? What is the message here?
Karen Clark: Well, as I said, the message is that the court, the discipline system is going to hold everyone accountable, whether you are the elected county attorney, right on down to just a solo practitioner practicing in your own office. Nobody is above the law. I described a couple of the purposes of lawyer discipline. Another is to deter other lawyers from engaging in similar misconduct and also to preserve the integrity of the system. In the eyes of the public. And so I think all those purposes were met by the way he wrote this report, and it's also just the way that Judge O'Neal issues these kinds of decisions.
Ted Simons: If that were the message, after today's decision was announced, Andrew Thomas was quoted as saying, corruption has won and justice has lost. It sounds like he's not getting the message.
Karen Clark: No. I don't think he has gotten the message. If Mr. Thomas understood how what he was doing was wrong, he never would have done these things in the first place. He would have listened when folks were trying to tell him that he might want to reconsider what he was doing. I just don't think it's in his nature to back down. He still believes he's right.
Ted Simons: I don't want to go too far afield, get too psychoanalytical here but because he believes he's right to this extent and took it this far and apparently is going to take it even further, I don't know how you appeal something when you say the whole process was a travesty but even though, is that, does that make him more of a hazard to the public than someone who might have been a little sneaky, maybe a little equivocal on some things, maybe kind of bends and shapes. He doesn't bend. He stays one way and so you almost have to say, if that's wrong, that's a hazard.
Karen Clark: Absolutely. I think that you see several times in the report, you see the panel mentioned that there's no remorse. Because again if the purpose is to protect the public and not to punish the attorney, an attorney who has realized they have done something wrong and has learned from and it there's case law that says they can't show their remorse just when they are being going through a discipline process and about to be punished, they have to show the remorse at the time of the events. There's case law that say that. If you don't, then, you don't get it. And then it's somebody that needs a stronger sanction so that you will get it. Remorse can either be a mitigating factor when you show it, or it can be an aggravating factor under the American bar association standards for imposing lawyer sanctions. It can be an aggravating factor where you don't show it and clearly that's front and center why the sanction was what it was.
Ted Simons: Former aide Lisa Aubuchon also disbarred. Not much of a surprise there?
Karen Clark: No, not much of a surprise there either. She was sort of the one in the trenches doing Thomas's bidding, signing the pleadings, meeting with Hendershot and so she was right there with him. There was no doubt she was going to be disbarred as well.
Ted Simons: Yet another aide was given, what, six months and one day. That one day is very important, isn't it?
Karen Clark: Yes, it is. Under case law in the ABA standards any sanction against an attorney, any suspension that's longer than six months requires the attorney to go through what's called a reinstatement proceeding. It means they have to apply to be a lawyer all over again. Sanctions up to six months you simply file an aft and you are back into the practice of law. A reinstatement proceeding is extremely difficult for a disciplined attorney. I would say harder than becoming a lawyer in the first place. There's a case, Supreme Court case that says what you have to do to get reinstated. Basically it says you have to identify the weakness that led you to engage in the misconduct. Then you have to show that you have overcome that weakness, and then you also have to show a sustained period of what's called rehabilitation. Again, with Ms. Alexander, during the course of the discipline case she was throwing pot shots at the panel as well. And saying it was a travesty, and obviously not showing remorse. So unless she again completely changes her perceptions about this discipline process, I think she is going to have a very difficult time getting reinstated.
Ted Simons: Will any -- OK. Disbar from the Arizona. Disbarred from Arizona. Six month and difficult reinstatement for Alexander. Will any of these folks, can any of these folks practice law elsewhere?
Karen Clark: Well, if they are licensed elsewhere, there would be a reciprocal discipline case. Again, the hearing panel decision. It can be appealed. So while it's final, unless appealed, it could be appealed. But once it becomes truly final, there's reciprocal discipline. When you are licensed in one state and you are disciplined the other state you are licensed in or number of states, they get to decide whether that sanction against your license in Arizona should be imposed in those other states that you are license the in. So they might have licenses now, but there will be a process by which the decision today is reviewed in those states.
Ted Simons: If they don't have a license to practice in Washington or Oregon, can they go up there, go through the process or again is this on their permanent record?
Karen Clark: They could apply to be lawyers there but they would go through what's called a character and fitness proceeding where this disciplinary sanction would be front and center. I think it would make it very difficult especially while they are serving it.
Ted Simons: So last question. What can be learned from all this? Can the public look at this and say, the system eventually worked?
Karen Clark: I hope that the system, that the public will see that the system worked in this case. I mean, our prosecutors, whether they be state, city, county, as in this case, have a tremendous amount of power. It's an awesome responsibility that a prosecutor has. And when you have this kind of abuse of that power, not by one elected county attorney but by two deputies at the same time, it can do so much harm. And I think lesson to be learned is that this is a democracy. We have control at the ballot box. Mr. Thomas wasn't successful in his run for attorney general. I think the public can breathe a sigh of relief about that but know the Supreme Court has a discipline system that's in place that's going to treat people according to the facts as Mr. Thomas did not.
Ted Simons: You have given us great insight over the many months on this. It's good to have you here again. Thank you so much for joining us. We appreciate it.
Karen Clark: You are very welcome.
Karen Clark:Legal Ethics Attorney
