An attorney involved in the overall dispute is asking the State Bar of Arizona to sanction the county attorney who told Cochise County’s supervisors it would be illegal to do a full hand count of ballots.
In a complaint filed Monday, Alexander Kolodin said Cochise County Attorney Brian McIntyre publicly shared that he gave legal advice to the supervisors, telling them that ordering a full hand count would be illegal. That disclosure then became part of the basis for the legal challenge by an outside group to the Board of Supervisors’ decision, Kolodin said.
In fact, he said McIntyre sent a letter to the group that filed suit, detailing criminal laws he believed that the supervisors, his clients, had broken by going ahead and voting for a full hand count.
Kolodin, now a Republican state representative from Scottsdale, said that violated rules that prohibit an attorney from revealing information about a client unless that client has given approval.
Kolodin, who represented Cochise County Recorder David Stevens in the dispute — Stevens supported a full hand count — acknowledged that the rule does allow a lawyer to violate the attorney-client privilege “to prevent wrongdoing under certain circumstances.’’ But he said that was not the case here.
“This revelation was not a necessary preventative for many reasons, not the last of which was that the permissibility of the board’s proposed action was already in litigation,’’ Kolodin wrote to the State Bar. “In addition, Mr. McIntyre’s letter consisted almost entirely of legal analysis and, upon information and belief, contained no assertions of non-public fact.’’
McIntyre’s letter became public through the media.
McIntyre called the complaint by Kolodin “interesting in light of his recent matters with the Bar.’’
That refers to this month’s decision by the Bar to place Kolodin on probation for 18 months for his role in three unsuccessful lawsuits challenging the results of the 2020 election and in representing Republican lawmakers in an ill-fated defamation claim against a Democratic lawmaker. Kolodin was ordered to complete five legal programs, most of them relating to the ethical requirements for lawyers.
“I should probably refrain from further comment, though, while the process plays out,’’ McIntyre said of the complaint against him. “This isn’t exactly the Christmas present I was hoping for,’’ he quipped.
The complaint against McIntyre has its roots in a bid by Peggy Judd and Tom Crosby, the two Republicans on the Board of Supervisors, to do a hand count of the 2022 election ballots. That was an outgrowth of unsubstantiated claims by former President Donald Trump and others that the tabulating machines were not certified and could not be trusted.
McIntyre, also a Republican, was opposed to the move, citing state laws that limit hand count audits to a small subset of all ballots.
“Because I have advised you that there is no legal basis for this, I cannot ethically defend you against any claims over this action,’’ he told the board at a public meeting when the proposal was discussed. “I implore you, do not do this separate hand count,’’ he said.
The board went ahead and voted for the plan. That resulted in a lawsuit by the Arizona Alliance of Retired Americans and an individual Democrat, one the county eventually lost.
Kolodin noted that Republican Mark Brnovich, then the attorney general, already had issued an informal opinion saying counties can do a hand count of all ballots in at least five races.
“Nonetheless, when the board was sued in connection with the matter, the allegation that defendants had acted in contravention of their attorney’s admonition that there was no food faith legal basis for their proposed action became a focal point of plaintiffs’ arguments,’’ Kolodin said. He said McIntyre effectively undermined the legal position of the supervisors.
“Mr. McIntyre sent a letter to counsel for the plaintiffs (the adverse party) stating he was writing ‘out of a concern as the public prosecutor of Cochise County of the potential criminal acts that would be inherent in proceeding with the expanded hand count,’ ‘’ Kolodin wrote in his complaint to the State Bar. “His letter then went on to outline a list of laws that he believed his clients might be violating.’’
He said that was a violation of the ethical obligations McIntyre had to the supervisors.
The informal Brnovich legal opinion allowing a hand count — the one Kolodin mentions in his complaint that he said contradicted McIntyre’s analysis — it was rescinded in May by Democratic Attorney General Kris Mayes, Brnovich’s successor.
Mayes replaced it with a formal legal opinion saying existing election laws bar counties from implementing full hand counts of ballots cast on Election Day and those cast early by mail.
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That opinion also tracks closely with a judge’s ruling that blocked Cochise County officials from doing the full hand-count that the two Republicans on the three-member member board ordered following the November election.
