PHOENIX — Attorney General Mark Brnovich is asking the Arizona Supreme Court to adopt new rules spelling out that he can do what he’s already done: sue state agencies that are his clients.
The new legal filing is not entirely voluntary. Instead, it’s part of what Brnovich was required to do as part of a “diversion agreement’’ he reached with the State Bar of Arizona to end its investigation into his decisions to sue the Arizona Board of Regents and to take a different court position on a lawsuit over election laws than Secretary of State Katie Hobbs. The regents and Hobbs filed bar complaints against Brnovich.
The diversion agreement, obtained by Capitol Media Services, also required Brnovich to write a manual to explain to the agencies his office represents how he will handle situations when he thinks those agencies are doing something illegal.
Strictly speaking, Brnovich was never found to have violated the existing ethical rules governing the conduct of lawyers. But the State Bar, which investigated the separate complaints by the regents and Hobbs, maintained until the diversion agreement was signed that his actions did violate the ethical rules.
Brnovich continues to contend he never violated the rules. He said he did nothing different than predecessors have done for years. He said they all were able to perform the dual tasks of representing state agencies while having different divisions fulfill duties to enforce state laws and take legal positions in federal court cases.
“Until this got weaponized, politicized, it was a process that was working,’’ Brnovich, a Republican, said in an interview with Capitol Media Services, taking a slap at the regents and Hobbs, a Democrat, for filing complaints in the first place. “No one ever tried to use the bar process to try to intimidate or undermine someone’s ability to do their job,” he said.
But rather than fight it out, Brnovich and the bar decided to resolve the situation with the requirements for the attorney general to seek changes in ethics rules and to put together the manual. With both tasks now completed, the complaints have been dismissed and there is no danger he will face sanctions over either incident.
Permission at issue
The alterations Brnovich seeks to the ethics rules, if adopted by the high court, would eliminate the requirement he first get permission from the client — in this case, a state agency represented by the Attorney General’s Office — to turn around and investigate or prosecute it, or to take a contrary position in a court case.
There would, however, be restrictions, including that there be a “screen’’ erected between the lawyers in his office who have been representing the agency and those who are planning to take legal action against it.
Hobbs said the Attorney General’s Office, in its role representing her agency, had received confidential attorney-client communications and provided advice on election matters. She said the AG’s office then withdrew from representing her — and took a legal position “materially adverse to the secretary of state.’’
In the other case, the main issue in the bar complaint was that Brnovich filed suit against the regents over a deal made by Arizona State University for a hotel and conference center on university property. That lawsuit, which is still pending, claims the deal amounted to an illegal gift of public funds.
The regents also complained about Brnovich publicly blasting them over what he contends are overly high, and potentially illegal, tuition increases.
The complaints from Hobbs and the regents said that, as their attorney, it was unethical for Brnovich to take those actions. In both cases, he had not first obtained permission from them, as his clients, to take the actions he did.
Brnovich argued all along that he is different than any other attorney who represents a client — and has clear rules about conflicts of interest — by virtue of his constitutional duties and powers.
Task force set up
He isn’t the only one looking at the issue of the potentially inherent conflict of representing a government agency while also having certain investigatory and prosecutorial duties.
Last month Arizona Supreme Court Chief Justice Robert Brutinel formed a special tax force to look at all ethical rules governing the conduct of the state attorney general, county attorneys and other public lawyers.
“This has been an issue for a number of years,’’ Brutinel said in announcing the task force. “It’s time we take a serious look at addressing potential conflicts for public attorneys.’’
Brutinel told the panel to look at how other states deal with the issue and, if necessary, to recommend amendments to the rules.
Among the members are Yavapai County Attorney Sheila Polk, retired Attorney General Terry Goddard, ethics legal expert Pat Sallen and Chief State Bar Counsel Maret Vessela. Recommendations are due by December.
