Preeminent Expert in the Nation Denounces Thomas Bar Investigation
Says Unprecedented Proceeding Is Illegal, Unconstitutional
PHOENIX, ARIZONA. JUNE 21, 2010 In a stinging rebuke to the Arizona State Bar and the Arizona Supreme Court, the leading expert in the nation on legal ethics and constitutional law has denounced the current, unprecedented State Bar investigations of former Maricopa County Attorney and candidate for Attorney General Andrew Thomas as illegal and an unconstitutional violation of due process of law.
Thomas released today an affidavit from Ronald Rotunda, a professor of law at Chapman University School of Law in Orange, California, who was retained by another attorney under investigation as part of the latest election-year investigation of Thomas by the State Bar. Among his many distinctions, Rotunda is the author of the most widely used legal ethics course book in the United States, the 11th most cited law professor in the United States, and an internationally recognized expert on legal ethics.
In his affidavit, Rotunda reviewed the facts surrounding the latest Bar investigation launched against Thomas and other Maricopa County prosecutors. Rotunda concluded that the proceedings are illegal because the Executive Director of the State Bar, John Phelps, misrepresented his authority to the Chief Justice of the Arizona Supreme Court, Rebecca White Berch, in requesting a special investigation of Thomas. The investigation falls outside the State Bar’s authority and violates the Supreme Court’s own rules for attorney discipline.
Rotunda concluded “that Mr. Phelps, without the benefit of any statute or rule, initiated and insinuated himself into an ethics investigation, usurping the lawfully delegated role of Chief Bar Counsel, who has the exclusive authority to initiate bar investigations.” As a result, the ongoing investigations are “illegal” and unconstitutional, he said.
“Based upon my forty years of experience as a practicing lawyer, legal scholar and law professor, concentrating in the areas of legal ethics and constitutional law, it is my opinion that the State Bar of Arizona’s reckless use and false representation of its authority to initiate investigations of attorneys is a denial of the fundamental right to due process applicable to disciplinary investigations.”
Rotunda also criticized the ruling of former Arizona Chief Justice Charles Jones, the probable cause panelist for these matters, saying his ruling upholding the ongoing investigations “is without merit and is not supported by law or fact.”
Finally, Rotunda noted that Chief Justice Berch lacked the authority to validate the illegally initiated investigations because her actions violated Rule 51 of the Arizona Supreme Court. “Even the Chief Justice must comply with Rule 51,” he noted.
Rotunda predicted that once these proceedings are completed in Arizona state court, the federal courts are likely to throw out any findings or adverse actions by the Arizona Bar or Supreme Court because of this violation of due process.
Rotunda’s opinion does not even address other violations of due process and irregularities in this election-year Bar investigation of Thomas. These include:
-Employees for one of the claimants against Thomas, Maricopa County Manager David Smith, essentially fired Thomas’ counsel, Ernest Calderon. This has prevented Thomas from adequately responding to questions from the investigator and otherwise defending himself.
-An official spokesperson for the Arizona Supreme Court dismissed Thomas’ complaints about the improper firing of Calderon by Smith’s employees, implying publicly these complaints are simply an improper “delay” tactic. (AZ Republic, 6/17/10). Such public attacks from an official judicial spokesperson are highly questionable and disturbing, coming from a court that makes final rulings in State Bar matters. Moreover, courts in other states have held that the right to an attorney in Bar proceedings is a basic constitutional right, and a denial of this right violates procedural due process of law.
-Chief Justice Berch and the Supreme Court improperly announced the investigation of Thomas through press releases. This was in violation of the confidentiality rules that govern attorney disciplinary actions in Arizona and all 50 states. These press releases by the Supreme Court, including Twitter notifications, actually seemed to invite additional Bar complaints against Thomas. Criminal defense lawyers and other political opponents of Thomas in this election year apparently accepted this invitation.
-In December 2009, in her Administrative Order appointing former Supreme Court Justice Ruth McGregor as special master for theMaricopa County Superior Court (an act that essentially replaced Presiding Judge Barbara Rodriguez Mundell in important respects), Berch’s order contained several misstatements of fact and law. Berch claimed the Sheriff’s Office had “taken control of a criminal justice computer system,” which was inaccurate. Berch complained that sheriff’s deputies “have conducted several interviews of superior court employees, both at work and at their homes.” In fact, it is standard law-enforcement practice to conduct such interviews at the homes of potential witnesses. Berch claimed Thomas had vowed publicly he would file more cases against various judges, an inaccuracy.
The implicit message of the Administrative Order was that the high court resented the legitimate criminal and civil actions brought against its members in Maricopa County, and Berch’s subsequent appointment of an investigator against Thomas, in violation of the Supreme Court’s own rules, was an attempt to retaliate. The order also implies that members and employees of the judiciary are entitled to special treatment and standards in law-enforcement investigations and criminal and civil litigation. Such double standards violate the Equal Protection Clause of the Constitution and are not the law in the United States.
In 2007, Thomas battled the leadership of the Maricopa County Superior Court for their refusal to enforce a voter-approved crackdown on illegal immigration (Prop 100, which denied bail to illegal immigrants accused of serious felonies, was passed by 78 percent of voters in 2006). Subsequently, and after a corruption investigation that involved several leading Superior Court judges in Maricopa County, the State Bar and members of the state judiciary have retaliated against Thomas and prosecutors involved in those efforts. Rotunda’s opinion makes clear these efforts are illegal and will not be upheld in the long run.
Thomas stated, “The State Bar and leading members of the judiciary have stacked the deck against me with yet another election-year investigation—this time in a manner that the most renowned expert in America has denounced as illegal and unconstitutional. I’m confident that should proceedings move forward against me and the other prosecutors improperly caught up in this dragnet, we will fully litigate and expose the facts at the heart of this retaliation and alleged corruption and see our rights vindicated ultimately in federal court.”
Thomas has promised to pursue judicial and State Bar reform if elected Attorney General to improve the accountability to the public of judges and attorneys. Thomas has stated that the State Bar, an arm of the state judiciary, targets critics of the judiciary and supports liberal causes with mandatory attorney’s fees, abuses he says he will seek to end.
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