PHOENIX — The State Bar of Arizona will not punish Attorney General Mark Brnovich over claims he acted unethically in his representation of two state agencies.
But a bar document shows this outcome is not a finding that Brnovich did nothing wrong in his dealings with Secretary of State Katie Hobbs and the Arizona Board of Regents.
On Friday, Brnovich’s press aide said he had “reached an agreement ... to resolve the bar complaints.” Katie Conner said both complaints will be dismissed “with no sanctions or findings of professional conduct.”
What Conner did not say, however, is that Brnovich and his attorneys have entered into a “diversion agreement.”
In a letter, James Lee, senior counsel for the bar, said the terms of that agreement are confidential.
But the bar’s document says, “Diversion is intended as an alternative to disciplinary sanction.” More to the point, it says the primary purpose is to identify lawyers who have violated the Rules of Professional Conduct “and whose cases involve minor misconduct.”
Hobbs said she believes this will prove critical to preventing the kind of problems she was having with Brnovich that caused her to file the complaint.
“Diversion is designed to remedy the lawyer’s problem and prevent recurrence,” Hobbs said in a prepared statement. “Although the terms of this diversion agreement are confidential, the State Bar is helping to prevent these ethical lapses from occurring again. And that is justice.”
There was no immediate response from the Board of Regents.
But Brnovich clearly was not pleased with the finding.
Conner said he will now seek a change in the ethical rules that Hobbs and the regents accused him of violating, to say that his duties as a constitutionally elected state official and the chief attorney for the state are different than for a private lawyer hired by a client.
The Brnovich spokeswoman took a swat at how Hobbs is describing the diversion agreement.
“The secretary of state is once again trying to spin a story,” Conner said. “We entered an agreement with the State Bar today that soon will result in the dismissal of each complaint with no finding of professional misconduct.”
“Cooperation is always the best approach for resolving difficult issues,” she added.
Lyndel Manson, chairman of the Board of Regents, made it clear she sees the resolution as does Hobbs.
“The State Bar of Arizona recognized that the attorney general’s professional conduct required corrective action by entering into a diversion agreement with the attorney general,” Manson said in a prepared statement. “Contrary to the attorney general’s assertion, the bar’s decision is not a vindication of the attorney general’s conduct.”
Both cases stem from complaints that Brnovich violated ethical rules by acting on one hand as the attorney for the two agencies while also taking action contrary to their interests.
Hobbs said the Attorney General’s Office, in its role representing her agency, had received confidential attorney-client communications and provided advice.
The problem, she said, is that the AG’s Office then withdrew from representing the Secretary of State’s Office — and then took a legal position “materially adverse to the secretary of state.”
In the other case, the main issue in the 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, still pending, involves claims that the deal amounted to an illegal gift of public funds.
Brnovich also publicly blasted the board over what he contends are overly high, and potentially illegal, tuition increases.
He has argued all along that he is different than other attorneys by virtue of his constitutional duties and powers.
While Brnovich did not address the diversion, he declared the outcome to be in his favor, and a slap at Hobbs and the regents.
“This is a victory for the rule of law and a rebuke for anyone attempting to weaponize the system for regulating lawyers for their own political purposes,” Brnovich said in his prepared statement.
“No one working for our office should have been subjected to these Bar complaints, which put their reputations and livelihoods in jeopardy merely for doing their jobs as public servants,” he said.
The finding came days after Sen. Vince Leach, R-Tucson, introduced legislation that would financially penalize anyone who files a bar complaint that is not borne out, making that person liable not only for the attorney’s legal fees but also for any damage to reputation.
