Hobbs-Brnovich spat could lead to new rules on ethics complaints vs. lawyers

PHOENIX — A veteran Republican lawmaker wants to penalize people who file complaints against attorneys that turn out to be unfounded. The reason: He says the lawyer discipline process has been “weaponized” as a political tool.

This comes as Secretary of State Katie Hobbs and the Arizona Board of Regents each are asking the State Bar of Arizona to impose sanctions against Attorney General Mark Brnovich, contending he violated ethical rules that govern the conduct of lawyers and should be disciplined.

Senate Bill 1566, proposed by state Sen. Vince Leach of Tucson, says that if someone files a complaint with the Bar and any investigation does not result in discipline, both the Bar and the person who brought the complaint would be responsible not just for the lawyer’s legal fees, but also for any “loss of future earnings and damage to the attorney’s reputation.’’

That is not Leach’s only attack on the process. He also introduced SB 1565. It says that the Arizona Supreme Court, which ultimately decides who gets to practice law in the state, would not be allowed to require that a lawyer be a member of the State Bar or any organization to become or remain licensed as an attorney.

The efforts drew an angry reaction from Hobbs.

“This bill is par for the course for AG Brnovich and his enablers in the Legislature,’’ she said. “He thinks the normal rules don’t apply to him. And when he’s held to account, his go-to is to attempt to change the rules in extreme and dangerous ways.’’

Leach, however, said he did not consult with Brnovich in proposing the measures.

Brnovich press aide Katie Conner said it would be “premature’’ to comment on the proposed legislation “until our office has a chance to carefully analyze and evaluate it.’’

The president of the State Bar’s board of governors, Jennifer Rebholz, said she could not comment on the legality of what Leach is proposing. But she said they are bad ideas.

“The proposed legislation is contrary to the mission and purpose of protecting the public with respect to the provision of legal services in Arizona,’’ Rebholz said in a prepared statement. “Proposing the imposition of fees and costs for those who report misconduct creates a serious deterrent and undermines the purpose of regulating legal services.’’

Central to the dispute are two separate complaints filed against Brnovich.

Hobbs says the Attorney General’s Office had represented her agency, received confidential attorney-client communications and provided advice — and then withdrew “from representation and appeared in the same litigation on behalf of a different party asserting a position materially adverse to the secretary of state,’’ contrary to the ethical rules governing the conduct of lawyers.

The other complaint, by the Board of Regents, accuses Brnovich, who, strictly speaking, is the legal counsel for the board and the state’s three universities, of actively criticizing and actually filing lawsuits against the board.

Leach said he understands it may be inevitable there will be disputes between Brnovich and state agencies and officials like Hobbs. Brnovich is running to be the Republican nominee for U.S. Senate and Hobbs is a candidate to be the Democratic nominee for governor.

“These are two political organizations, headed up by two political people who are elected on a statewide basis,’’ Leach said. “There will be some boxing of gloves.’’

Still, he said the process is being abused.

Back to homepage

Subscriber Login

Keep reading with a digital access subscription.

Subscribe now

“Yes, you’re harming Brnovich’’ by filing complaints against him, Leach said. “But you’re also putting in jeopardy the function of a separate branch of government. And that’s my concern.’’

These complaints are supposed to be confidential, “but somehow they manage to bubble out,’’ Leach added.

Only thing is, it was Leach himself who disclosed Hobbs’ complaint last year when he put language in the state budget stripping her of representation by the Attorney General’s Office.

And it was Brnovich’s office that disclosed the regents’ complaint to Capitol Media Services following an inquiry on why his office withdrew from pursuing a case against the regents over a construction project at Arizona State University and farmed the legal work out to a private law firm.

Still to be worked out in his proposals, Leach said, is exactly what would trigger a financial penalty against those who file complaints.

These investigations don’t always end with a clear-cut action like an attorney being disbarred. There are a range of results possible, including reprimands, ordering restitution for clients, and requiring that lawyers take continuing legal education classes.

“I don’t necessarily want to stop Bar complaints or replace complaints on attorneys that aren’t functioning as they should as a member of the court,’’ Leach said, saying there “might be a fine line’’ on when complaints should be deterred or those who file them sanctioned.

“But not to weaponize it’’ against the lawyer, he said.

Leach said what is is proposing is no different than court rules that allow a judge to impose financial penalties on attorneys who file “frivolous cases.’’ He said attorneys know those rules and act accordingly before going to court.

Whether Leach can succeed remains an open question, particularly as the Arizona Supreme Court will get the last word on whether his proposals are legal.

“Requiring a complainant to pay would deter individuals who believe they have a legitimate complaint against an attorney from filing a complaint,’’ noted Dave Byers, administrative director of the Arizona Supreme Court.

Capitol Media Services has found at least three prior state Supreme Court decisions that say, in essence, there is absolute immunity for people who file State Bar complaints.

Those cases did not go unnoticed by Hobbs.

“The longstanding policy is to protect, rather than penalize, those who report ethical violations by lawyers,’’ she said. “But, as with everything else, the AG wants to burn it all down in pursuit of his own interests in flouting the ethical rules with full impunity.’’

Even if SB 1566 were to become law and was not overturned, it might not apply to the two open cases against Brnovich, both filed long before Leach made his proposal.