Arizona lawmaker seeks to curb judges' discipline of lawyers

PHOENIX — A state senator who calls reports of a Jan. 6 riot “a sham’’ is now going after judges who sanction attorneys for filing what he says are “good faith’’ claims on behalf of clients.

But the senator, Glendale Republican Anthony Kern, insists it has nothing to do with his own lawyers being ordered to pay $75,000 in legal fees. Those sanctions came after he and two other lawmakers filed what a judge concluded was a frivolous lawsuit against another legislator over Kern’s role in the Jan. 6, 2021 event at the U.S. Capitol.

The only example Kern cited of problems when the House Judiciary Committee approved his SB1092 on Wednesday was the 2021 decision by the New York State Bar to suspend the law license of Donald Trump attorney Rudy Giuliani for making false claims about the 2020 election.

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Still, Kern insisted that lawyers in this state are subject to pressure not to take certain kinds of cases or to make public statements on certain topics, like “the mutilation of children and the transgender issues and the fact that our public schools are hiding this from parents.’’

“To my recollection, the (Arizona) State Bar has sent out an email stating that attorneys should be quiet on that and should not be representing clients on that issue,’’ he told colleagues.

“That’s very interesting,’’ responded Rep. Analise Ortiz, D-Phoenix. “I would love to see that email.’’

But a spokesman for the State Bar called Kern’s allegation “as patently untrue as it is offensive.’’

“This isn’t even a subject that would be a discussion in this organization,’’ said the spokesman, Joe Hengemuehler. “It’s irresponsible to make such a baseless claim.’’

Kern did not respond to a request to produce the email.

Hostile to conservative issues?

He and and some other conservatives contend the judicial system — and the State Bar, which handles attorney discipline, subject to Supreme Court review — is hostile to their issues.

This has come into sharp focus in the wake of state and federal judges slapping financial penalties on litigators and their clients who have filed various actions, found to be unfounded, challenging election results.

In 2021, a judge ordered the Arizona Republican Party and its attorneys to pay $18,000 in legal fees for filing what he called a groundless lawsuit brought in bad faith done possibly to undermine the legitimacy of the 2020 election.

More recently, a federal judge said attorneys hired by Kari Lake and Mark Finchem are on the hook for the legal fees incurred by Maricopa County, after he tossed their lawsuit that claimed it is illegal to use machines to count ballots.

Still pending is whether Lake may be forced to pay the legal fees of those she is continuing to sue in her bid to overturn her loss in the 2022 gubernatorial race.

‘Free speech’ of attorneys

State Rep. Alexander Kolodin, R-Scottsdale, an attorney, noted SB1092 goes beyond legal fees and also would penalize the State Bar of Arizona for disciplining lawyers for filing what the legislation says are “meritorious’’ lawsuits.

“As is well known, our firm engages in many politically charged cases,’’ said Kolodin, who sits on the Judiciary Committee and voted to advance Kern’s measure to the full House. Those cases include ongoing litigation he filed on behalf of the Arizona Republican Party that a 1991 law allowing anyone to vote early is unconstitutional, a claim that has so far failed to gain traction with the courts.

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“We always have random people file Bar complaints against us,’’ Kolodin said. “It’s just random people who are pissed off that conservatives are getting a voice — or at least the conservatives they don’t like are getting a voice in court,’’ he said. “And so it does, indeed, make it a very aggravating situation.’’

Kern said SB1092 protects the “free speech’’ of attorneys.

“This is a good bill to stop the State Bar from bringing discipline regarding political speech,’’ he said.

High court could also be penalized

But the measure isn’t aimed only at the Bar. It also says if the Arizona Supreme Court disciplines an attorney over filing a claim, it would lose 10% of its budget — a figure an attorney for the court said would equal $5.8 million.

Ortiz asked Kern whether the $75,000 in sanctions imposed on his lawyers over his lawsuit against Charlene Fernandez, then a state representative from Yuma, “inspired’’ him to propose this measure.

“Absolutely not,’’ he responded. Kern said he has been doing battle with the State Bar for years and what he sees as its policies of going after attorneys who handle unpopular issues.

Ortiz pursued the issue.

“I guess I’m just trying to understand in which case we would determine the attorney was targeted because of political speech versus the fact that it was a frivolous lawsuit or the claim should not have been brought, which I believe may have been the basis of why your attorney was forced to pay $75,000,’’ she said.

All that stems from the claim by Kern, former state Rep. Mark Finchem and U.S. Rep. Paul Gosar that Fernandez defamed them by sending a letter to federal law enforcement officials asking them to investigate the activities of the trio in connection with the events around the Jan. 6 riot and breach of the U.S. Capitol.

Yuma County Superior Court Judge Levi Gunderson, in tossing the case and assessing the fees, said Fernandez had an absolute constitutional right to send the letter. Gunderson said the lawsuit “was brought for an improper purpose, having been filed against a political opponent primarily for the purposes of harassment.’’

Kern defends Jan. 6 events

On Wednesday, Kern, who was at the Capitol on Jan. 6, 2021, launched into a defense of what happened there.

“The Jan. 6 thing, as you know, you’ve probably seen Tucker Carlson and Fox News, it’s all a sham,’’ he said. That refers to Carlson airing selected security tapes from the Capitol that day and at one point calling it “mostly peaceful chaos.’’

The 5-3 party-line vote to advance Kern’s legislation came despite testimony from attorney Liana Garcia, who lobbies for the Arizona Judicial Council, an arm of the Arizona Supreme Court.

She pointed out that any move to financially penalize the court system over what Kern’s bill considers unacceptable discipline would not affect the judges involved, as their salaries are set by state law. Instead, Garcia said, the only ones who would be hurt are those who seek the services of the court.

There’s also a more practical question.

Kolodin said the measure would essentially require the Supreme Court to determine if it had violated the terms of SB1092 in disciplining an attorney. He said that is likely unworkable, suggesting that if the legislation goes forward there might need to be a mechanism for something like a “special master’’ who would have the final say.