State Bar Inquiry Of Thomas Illegal, Unconstitutional Expert Says

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.

Paid for by Thomas for AG

Barnett Lotstein


  1. That’s gotta hurt the State Bar. They’ve been going after conservatives for years now, it’s about time someone with some authority stepped in and shut down the politically motivated investigations.

  2. The Tea Bag Party are just “haters not debaters” or as others have dubbed them “screamers not dreamers”, with their failed attempts at stopping Healthcare reform, they say they respect the Constitution, the Bill of Rights and the Declaration of Independence but they do not mind passing laws, through weak Governors (no one voted for this crazy) who only cares about getting elected Governor, on the backs of undocumented workers, that will not pass Constitution muster.

    Brewer signed into law;

    1. S.B. 1070,
    2. No permit conceal weapons law,
    3. The famous Birthers law,
    4. Banning Ethnic studies law,

    5. Could she be behind the Mural in Prescott, Arizona, ordered to be whiten,
    6. On deck to pass, no citizenship to babies born to undocumented workers,

    7. If she can read she should look up Arizona’s House Bill 2779 from two years ago (which was un-constitution and failed when legally challenged),
    8. The boycotted Martin Luther King Day, what idiots don’t want another holiday? Yes, you guessed it Arizona.

    Well Arizona, you can boycott new holidays and keep passing crazy laws and the rest of us will continue to challenged them in a court of law and continue to add cities to our Boycott of your state.

    I real cannot believe anything that comes out of Brewer’s mouth, in an interview she first said her father had died in Germany fighting the Nazi in World War II (war ended 1945) but of course we find out the truth that father was never in Germany and died in California in 1955. But we are suppose to believe everything else she says, right! No one voted for you for Governor, yet you keep listening to the tiny brains of the crazies and signing into law everything that comes into their feeble minds, it only make you look dumb, stupid or racist, or maybe all three.

    As for the Tea Bag Party, their phony patriotism is sickening; they are just racists going by another name. We all know you are just itching to put a sheet on their head? Let’s face it the Republicans had eight years to deal with health care, immigration, energy (remember Cheney’s secret meetings with oil companies where loosening regulation and oversight were sealed), climate change and financial oversight and governance and they failed. It appears that the Republican Party is only good at starting wars (two in eight years, with fat contracts to friends of Cheney/Bush) but not at winning wars as seen by the continuing line of body bags that keep coming home. The Republicans party will continue turned inward to their old fashion obstructionist party (and their Confederacy appreciation roots) because they continue to allow a small portions (but very loud portion) of their party of “birthers, baggers and blowhards” to rule their party. I will admit that this fringe is very good at playing “Follow the Leader” by listening to their dullard leaders, Beck, Hedgecock, Hannity, O’Reilly, Rush, Savage, Sarah Bailin, Orly Taitz, Victoria Jackson, Michele Bachmann and the rest of the Blowhards and acting as ill programmed robots (they have already acted against doctors that perform abortions).

    The Birthers and the Tea Bag party crowd think they can scare, intimidate and force others to go along with them by comments like “This time we came unarmed”, let me tell you something not all ex-military join the fringe militia crazies who don’t pay taxes and run around with face paint in the parks playing commando, the majority are mature and understand that the world is more complicated and grey than the black and white that these simpleton make it out to be and that my friend is the point. The world is complicated and people like Hamilton, Lincoln, and Roosevelt believed that we should use government a little to increase social mobility, now it’s about dancing around the claim of government is the problem. The sainted Reagan passed the biggest tax increase in American history and as a result federal employment increased, but facts are lost when mired in mysticism and superstition. For a party that gave us Abraham Lincoln, it is tragic that the ranks are filled with too many empty suits and the crazy Birthers who have not learned that the way our courts work is that you get a competent lawyer, verifiable facts and present them to a judge, if the facts are real and not half baked internet lies, then, and only then, do you proceed to trial. The Birthers seem to be having a problem with their so called “Internet facts”. Let’s face it no one will take the Birthers seriously until they win a case, but until then, you will continue to appear dumb, crazy or racist, or maybe all three. I heard that Orly Taitz now wants to investigate the “Republican 2009 Summer of Love” list: Assemblyman, Michael D. Duvall (CA), Senator John Ensign (NV), Senator Paul Stanley (TN), Governor Mark Stanford (SC), Board of Ed Chair, and Kristin Maguire AKA Bridget Keeney (SC), she wants to re-establish a family values party, that is like saying that the Catholic Church cares about the welling being of children in their care, too late for that. Yee Haw!

  3. Jacklyn M. says

    Aren’t there experts though that say that what Thomas has done is unconstitutional?

    So he found an ‘expert’ that supports him… are judges experts? We shall see.

  4. Alicia Gegner says

    Montana reminds me of what happens when a sewer pipe springs a leak. The result is a torrent of unpleasantness, a messy swill of indeterminate sources.

    Just one point – wiht my own ears, I heard the Governor describe how her father worke for a defense contractor in Utah, and that his work with munitions led to his untimely death. Chemical contamination. He fought against Hitler in his own way, and paid the price.

    Montana’s broken sewer pipe gets it wrong.

    Montana labels Tea Party folks as racists. Based on what? On their love of the Consitition? What about the blacks, Latinos and Asians among Tea Partiers? Are they racists too, or are causcasians the only racists.

    Here is what I wonder – let’s say I disagree with some policy espoused by a person of color. Tell me Montana – what words of disagreement can I use that would not be construed by you as racist, or is that not possible?

    About Reagan – he lowered, not raised taxes. It is axiomatic that whatever you want less of, tax it. If that is not true, why the high taxes on cigarettes and alcohol?

    But this to NOTHING do with the ruling by Rotunda in favor of Andy Thomas. Rotunda is off in the weeds with a zillion oddball side stories that do not relate to the posted article. My observation in general – those of the leftward persuasion have limited abilities when it comes to discerning the relationship between cause and effect. Montana confirms my hypothesis.

  5. Jack Hammer says

    Alicia, you gotta realize that anyone who crosses Liberals or hinders their agenda will at one time or another be tagged as “racist”!

    I wouldn’t worry, it just reflects the fact that the Liberal lacks the intellect to carry on a candid, adult directed debate!

  6. Jack:

    And Andy has crossed liberal and RINO interests by enforcing immigration law!

    THAT is the basis for charges and counter charges concerning him and Joe Arpaio!

  7. Bill in AZ says

    SB1024, the AZ “birther” bill, passed the house but has not made it beyond the senate and has NOT been signed by Brewer. I have seen this on several blogs lately, probably from some lib talking points source, and it is inaccurate.

  8. Why hasn’t this affidavit been posted on Thomas’ campaign site?

  9. Montana is a typical liberal hatemonger, spewing untruths as often as he/she takes a breath. And when are we going to get rid of David Smith? This political thug belongs in Chicago or with Rham E. at the White House.

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