Time for change regarding State Bar

As legislators, we are very concerned about continuing reports of retaliatory actions against Maricopa County Attorney Andrew Thomas by the State Bar of Arizona.

We are also concerned by the State Bar’s action against a respected attorney, and former State Bar president, who has supported Thomas’ claims that the organization is unfairly targeting him.

The State Bar has taken the very interesting step of initiating its own complaints against Thomas, reportedly after an initial complaint by a group of mostly retired judges approached a bar committee because they had to “do something about Andrew Thomas.”

According to some, members of the judiciary were upset Thomas was willing to go to the public with information that the Maricopa County judiciary was not enforcing Proposition 100, which requires illegal immigrants charged with serious felonies be held for trial without bond.

After a long legal struggle, Prop. 100 was finally being enforced by July 2007.

There was a price to be paid for taking on the courts. Within six months, more than a dozen State Bar complaints had been initiated against a sitting county attorney or his employees. The primary source of the complaints: not angry citizens, but the State Bar itself.

After learning the State Bar was demanding privileged information on criminal prosecutions that would become available to criminal defense attorneys and other violations of basic principles of law, Thomas was forced to take the unprecedented step of asking the Arizona Supreme Court to intervene and halt the State Bar witch hunt that threatens him and his prosecutors with discipline for exercising their First Amendment rights to criticize judges on matters of public policy.

Former State Bar President Ernest Calderon is among a list of respected members of the legal profession who are on record as having examined the complaints in detail and publicly condemned the activities of the State Bar in these cases.

The list also includes former state Chief Justice Thomas Zlaket, former Arizona Attorney General Jack La Sota, former Yale Law School Professor Geoffrey Hazard, and Michael Alan Schwartz, one of the nation’s acknowledged experts on legal ethics. When this group goes on the record against the State Bar, people will take notice.

Regrettably, the State Bar took notice by taking an important and prestigious title from Calderon. He is a Democrat and does not support Thomas on many issues, including illegal immigration. Calderon is a respected attorney and a member of the Arizona Board of Regents.

As the Tribune was first to report, Calderon was expected to be reappointed to the American Bar Association’s House of Delegates. After he spoke out against what the State Bar is doing with regard to Thomas, the Bar’s governing board stripped him of the title.

As quoted in the Tribune, “Maybe he shouldn’t have filed the affidavit,” said State Bar President Dan McAuliffe, referring to Calderon’s sworn document stating there was no merit in the complaints against the county attorney.

If this is how the State Bar treats those whose politics they agree with, imagine how they treat attorneys who hold opposing political views.

The right of all Americans to exercise free speech and to criticize their officials is an important check and balance in our democratic system. In essence, the State Bar has all the trappings of a trade union whose leadership takes political positions and then disciplines attorneys who may disagree with their political agenda.

Model Rule 2 of the American Bar Association Model Rules for Disciplinary Enforcement states that State Bar Associations should not be in charge of discipline because of potential conflicts of interest. It recommends a separate structure housed within the highest court in the state. Arizona has failed this test and it has become a poster child for the reasoning behind the model rule.

We legislators, some of whom are attorneys, trust the Supreme Court will judge fairly. We also need to consider enabling legislation to adopt language from the Model Rule 2, or finally abandon the attorney “good old boy” system altogether and adopt a professional regulatory board such as the ones we use for doctors, dentists, accountants and other licensed professionals. Something needs to change and change quickly.

This commentary submitted by Reps. Eddie Farnsworth, R-Gilbert; Andy Biggs, R-Gilbert; Judy Burges, R-Skull Valley; Warde Nichols, R-Gilbert; Doug Clark, R-Phoenix; John Kavanagh, R-Fountain Hills; Steve Yarbrough, R-Chandler, and Russell Pearce, R-Mesa; and Sens. Karen Johnson, R-Mesa; Linda Gray, R-Phoenix; Jack Harper, R-Surprise; Ron Gould, R-Lake Havasu City; Bob Burns, R-Peoria; Robert Blendum, Litchfield Park; Chuck Gray, R-Mesa, and Thayer Verschoor, R-Gilbert.