Ted Simons: Testimony in the ethics hearing for former Maricopa County attorney Andrew Thomas ended last week, but conclusion to the case may still be months away. Here to share her observations about the hearing is Karen Clark. She's a former ethics counsel for the state bar of Arizona, she teaches legal ethics at ASU's O'Connor College of Law and in her private practice she specializes in representing lawyers and judges in disciplinary matters. Good to see you again. Thanks for joining us.
Karen Clark: Thank you.
Ted Simons: General thoughts on the hearings. What did you hear, what did you expect to hear? Any surprises?
Karen Clark: There weren't I don't think any huge surprises. That was a case that was painstakingly investigated, hundred-page-plus complaint, and Mr. Thomas stood on the courthouse steps before the hearing many months ago and said that what his position was in his defense. And I think we pretty much saw those things play out in the courtroom.
Ted Simons: Did he defend himself well from what you saw? Or was his defense strong from what you saw?
Karen Clark: Was it strong in the sense of do I think it's going to prevail? I don't think so. I think there was some testimony that's really, really tough for him. I don't think any of us expected him to put on any different defense than what he did. And that defense was, I was doing the people's business, I still believe to this day Mr. Stapley for instance was corrupt and it was my job to root out that corruption. So he didn't acknowledge making any mistakes. The problem for him is if this panel finds that what he did violated the rules, then as their de-- as they're deciding the sanctions, it certainly was inconventional conduct because he's sticking by it.
Ted Simons: Someone suggested if you stick by it you may have made a wrong decision but there's no ulterior motives about which would really get the panel upset. You're saying not necessarily?
Karen Clark: Not necessarily in which sense?
Ted Simons: In the sense of sticking by and being defiant and holding on to your guns being a good thing, maybe you're thinking some contrition would have been wise?
Karen Clark: I don't think it was in his nature to do some kind of about-face and say, oh, gosh, I'm sorry this, was a terrible mistake. I don't think that's in his nature. And I also don't know that it really would have been a good defense for him. His position is right or wrong, this is what I believed at the time, if he tries to change what he believed at the time, he's going to have major problems with all the pretrial statements he made.
Ted Simons: OK. Impact of certain things. Impact of his defines, impact of judges breaking down on the stand. How does that silt with the panel?
Karen Clark: Again, discipline cases are sort of broken into two parts. First the panel’s going to be looking at whether he violated the ethical rules he's been charged with. The second part of it is the sanction. And that's where -- that's why the counsel is asking those questions of all those various lawyers, judges, and elected officials who were victims in this matter, because the injury to the victim is one of the factors that's used, that's real pivotal in deciding what kind of a sanction the attorney is going to get. So that's why that was important.
Ted Simons: Was that the most damaging you think as far as testimony?
Karen Clark: No.
Ted Simons: Oh, really? What was the most damaging?
Karen Clark: Again, that only goes to the sanction and it's only one of four factors the panel would take into account. I think the most damaging thing for Mr. Thomas, a couple of things. One being that some of the people with more experience in these specialized types of cases that they brought, the RICO case, the charges against judge Donohoe, were inside his office and telling him he didn't have a case. Number one. Number two, that then he passed to it an outside prosecutor agency that also thought he didn't have a case, and then he took it back and continued to go forward with it. I think those are the two most damaging pieces of evidence against him.
Ted Simons: What would be the strongest element of the hearing in his favor?
Karen Clark: In his favor? You know, if he messed up the statute of limitations on Stapley, that's sort of a technical defense, isn't it? It doesn't go to the issue of whether Mr. Stapley actually had committed some sort of wrongdoing. You had Ms. Polk testify that she wouldn't have gone forward with those charges and some folks have alleged that they should haven't been charged as felonies, but misdemeanors, but in the bigger picture, if Mr. Thomas's position is that there was corruption here, and we just mishandled how it got charged, that helps his case.
Ted Simons: All right. Lisa Aubuchon, most damaging testimony, most positive element for her. What did you see out there?
Karen Clark: The most damaging testimony was when you saw the independent bar counsel prosecutor taking her through these various pleadings that got filed, one after another, after another, asking did you authorize this, did you sign it, and then what was the basis for making that allegation? Because Mr. Thomas wasn't signing these things, Ms. Aubuchon was. And her answers were, ever less than convincing.
Ted Simons: Even so, she was according to some observers, even more defiant and even more sure of herself than Andrew Thomas was. Again, how does that play with a panel?
Karen Clark: Well, if they find the violations, it doesn't play well. It doesn't play well. Because the whole purpose of lawyer discipline, and that's important to remember, is not to punish the attorney, but to protect the public. So if the panel finds these were violations, and that this respondent lawyer doesn't understand that what they were doing was wrong, that's a harm -- a threat to the public. And that requires a greater sanction.
Ted Simons: We talked about this before, real quickly, how unusual is this to see prosecutors facing this kind of discipline?
Karen Clark: Well, as we talked about last time, there is a precedent for it, unfortunately in Arizona a case that I was a bar counsel on, where the chief deputy criminal attorney of Pima county was disbarred. It wasn't similar factually as far as what he had done, but unfortunately we do have that precedent before. However, that matter wasn't involving three prosecutors. It wasn't involving an elected county attorney. He was the chief deputy. It wasn't live webcast on the web, and it was in a case involving one particular murder that had happened, and not this years-long battle between one elected official and other elected officials being the board of supervisors.
Ted Simons: With everything you've seen, with everything you've heard, would you be surprised if Andrew Thomas and Lisa Aubuchon were disbarred?
Karen Clark: No.
Ted Simons: Would you be surprised if they weren't disbarred?
Karen Clark: At this point I think I would be surprised. Now, the panel has to weigh a lot of things in coming to the sanction, and I don't have everything in front of me. There's been written closing arguments have been requested, those will be lengthy documents talking not only about the facts and the rule violations, but also the other side of it which is what should the sanction be. What is the duty that was violated here, what was the lawyer's mental state, what was the injury, and then these aggravating and mitigating factors, and there are many of those. I'm not privy to those closing arguments, and you need to take a close look at those. But again, I think if you find the violations, there's such serious harm here, I would be surprised not to see a very serious sanction.
Ted Simons: And it sounds like early next year we should get something, both sides can appeal within 10 days and it could go on and on and on.
Karen Clark: Not on and on. It goes on to the court and there will be a timely review of it. You have under the new rules that took effect January 1st you have a right of direct appeal to the Supreme Court. They can issue a memorandum decision, affirming the panel's decision, they can issue an order, or they can take jurisdiction of the case and order oral arguments, and then we start with them.
Ted Simons: Very good. Always good to have you here. Thanks for joining us.
Karen Clark: You're welcome. Thank you.