Ted Simons: Former Maricopa County attorney Andrew Thomas faces an ethics hearing which could result in penalties up to and including disbarment. The hearing is scheduled to start September 12th. To learn more about this
particular attorney discipline process, I recently spoke with Karen Clark. She's a former ethics counsel for the state bar of Arizona. She teaches legal ethics at ASU law school and in her private practice, she specializes in representing lawyers and judges in disciplinary matters. Thanks for joining us tonight on "Horizon."
Karen Clark: You're welcome. Thank you.
Ted Simons: Give us an overview here. What is Andrew Thomas facing?
Karen Clark: Well, Andrew Thomas is facing formal sanctions and there was an investigation that was done and the investigator, John Glisan recommended a specific sanction in his investigative report N. a formal proceeding what that means is that the prosecutor is seeking either seven sure, suspension or disbarment.
Ted Simons: Ok. The investigation, how did that get started? Who decided to go with it and who did the investigation?
Karen Clark: It initially started with the state bar of Arizona. There was a initial set of complaints, many complaints over a period of year. The initial investigation done by the state bar of Arizona. Then later as things evolved in the underlying matters, there were more complaints and some of those complaints involved attorneys actually involved with the board of governors for the state bar and so the state bar decided it had a conflict of interest and going forward with the investigation, so they -- the Supreme Court of Arizona appointed John Glisan who is the chief bar counsel of Colorado bar, to do the investigation and now he's doing the prosecution. He had to, though, present the results of his investigation to a probable cause panelist and a special probable cause panelist was appointed to decide whether there was probable cause to go forward.
Ted Simons: With the disciplinary aspect.
Karen Clark: With the formal case.
Ted Simons: Yeah, a three-member panel?
Karen Clark: Yes, it's a brand new system for Arizona, never had it before and it is three people -- three-person panels. The presiding disciplinary judge has been handling everything up to this point. Up to the actual trial it's only the presiding disciplinary judge, William O'Neil who took the job when the new system took effect. But once it goes to trial, it's in front of the three-judge panel. A volunteer attorney and a member of the public, a Mr. hall, a priest and volunteer member of the panel.
Ted Simons: Who decide who's is on the panel?
Karen Clark: I believe that they were appointed by the Supreme Court.
Ted Simons: By the Supreme Court?
Karen Clark: I believe so.
Ted Simons: Ok. Will the evidence presented deal mostly if not entirely with the investigation?
Karen Clark: Yes, yes, the bar did a report about its investigation and had to ask for probable cause on specific ethical rules. E.R.'s and that's what they're going forward on, there's disclosure and discovery. The rules of the Supreme Court governing disciplinary proceedings, some of the rules incorporated, the rules about delivery discovery, showing your case to the other side. So only proceeding under what think disclose to the other side they're going forward on.
Ted Simons: And as far as it's presented as you would expect, a hearing, you would present to the panel and that's it? Is there cross-examination? What goes on here?
Karen Clark: Yeah, and it is like a trial. It's an administrative hearing so it's administrative law but it's akin to a trial. The rules of the Supreme Court specifically incorporate certain rules and the rules of evidence and the state bar has the burden of proving their case by clear and convincing evidence and the respondent has the private to put on a case and it looks for all intents and purposes like a trial.
Ted Simons: Define ethical violations. What are we talking about here?
Karen Clark: The ethical rules, the rules of the Supreme Court. Each state's Supreme Court has the inherent authority to regulate the practice of law. Within the jurisdiction of that state. And state of Arizona has adopted ethical rules, rules of the Supreme Court. Found at rule 42 and its E.R.s dealing with everything you can imagine about the practice of law and they're going to attempt to prove he violated certain ethical rules, it's a minimum standard for the conduct of attorneys.
Ted Simons: And he will be allowed to respond to the allegations?
Karen Clark: Absolutely. He's entitled to counsel and he has two representing him, as far as I understand, and they'll be questioning witnesses and making opening statements and cross-examining and presenting their side of the case. The state bar has the burden so they'll go first and then the respondent lawyers can go. And there are three of them.
Ted Simons: What sanctions does Andrew Thomas face? How far or shallow does it go? Either/or.
Karen Clark: These are serious allegations and the prosecutor is going to ask for disbarment, I'm sure.
Ted Simons: Really?
Karen Clark: I would think so, based on the report.
Ted Simons: Is that unusual?
Karen Clark: Disbarments are unusual in general. The evidence has to be pretty bad. The purpose of lawyer discipline is not to punish attorneys. The purpose is to protect the public. And so the ultimate sanction of losing your license is only required if protection of the public requires it. So not that many attorney, seven, eight, nine, 10, make may get disbarred in any given year in Arizona. It's a rare sanction, concerning we have around 20,000 practicing attorneys in Arizona. What's extremely storied is for a elect -- stream rare is a elected county attorney.
Ted Simons: Do we have a history of this in Arizona?
Karen Clark: There are several prosecutorial misconduct in Arizona. Those -- none of those as far as I know was the elected county attorney.
Ted Simons: And because with the county attorney, this is in connection with your official duties, correct? That has to be rare even of itself.
Karen Clark: That's very true, but the county attorney is not only an elected official but also a lawyer and subject to the ethical rules just as any other lawyer is.
Ted Simons: The appeals process, does he have the right to appeal?
Karen Clark: Absolutely, under the old system up to January 1st, there was an appeal to an intermediate appellate body, the disciplinary commission and also an appeal to the Supreme Court of Arizona. The new system provides it's a direct appeal to the Supreme Court and you have the right of direct appeal. It's no longer discretionary.
Ted Simons: And talking December 12th the hearing?
Karen Clark: Set to start on December 12th and run -- I've heard they've scheduled it anywhere 25 to 45 days. I imagine if they weren't done at 45, they'd keep going, but that's the park.
Ted Simons: Do they usually go that long?
Karen Clark: They don't normally go that long at all. Many simple matters can be handled in a one-day hearing; a week long disciplinary hearing is a long hearing. So 45 days is extraordinary.
Ted Simons: Some of the Andrew Thomas' critics says he stretches things and goes to every avenue possible. There really are a diminishing number of avenues for him to go, correct? If they find reason and agree to a disbarment, he only has the Supreme Court to go to, correct?
Karen Clark: Mostly, yes. The Arizona Supreme Court, as I said, each Supreme Court of each state has ultimate jurisdiction over the attorneys practicing within that state. There are some very rare exceptions. Constitutional protections. The United States Supreme Court --
Ted Simons: Sure.
Karen Clark: -- has issued opinions dealing with lawyer discipline matters if the attorney's constitutional rights were somehow infringed but that's a tiny fraction of cases.
Ted Simons: Interesting stuff. Thanks for joining us. We appreciate it.
Karen Clark: You're welcome.