REFORM THE STATE BAR OF ARIZONA

Restraining Order
Sought Against Bar

Former Bar President Daniel McAuliffe has publicly admitted that the State Bar retaliated against former Bar President Ernest Calderon because he filed an affidavit in support of Andrew Thomas. As a result, the Maricopa County Attorney's Office has been forced to ask the Supreme Court to issue a restraining order to prevent further intimidation of witnesses by Bar officials. Click here.

Arizona Stands Alone

Find out how the State Bar of Arizona has made Arizona the only state in the nation in which the attorney-client privilege and other important legal rights are not fully protected by law. Click here.

Leading Legislators
Urge Bar Reform

Calling themselves deeply concerned about the Bar's wave of investigations of the Maricopa County Attorney's Office, 17 state legislators, including the chairmen of the House and Senate Judiciary Committees and Appropriations Committees, have called for serious reform of the State Bar of Arizona. Click here.

In 2007 Maricopa County Attorney Andrew Thomas spoke out forcefully about the reluctance of leading judges and officials with the Maricopa County Superior Court to follow the requirements of Proposition 100. This ballot measure, approved by 78 percent of Arizona voters in 2006, denied the right to bail for illegal immigrants accused of serious felonies. Since that very public battle the Superior Court has been following the new statutes and rules and implementing Proposition 100.

In apparent reaction to that struggle in October 2007 the State Bar of Arizona launched thirteen inquiries / investigations against County Attorney Thomas and his deputies. The State Bar has authority to revoke, suspend or take other action against the license to practice law of Arizona attorneys. The President of the State Bar made very public oral and written statements critical of the Maricopa County Attorney.

At the request of the County Attorney five local and national experts have examined the complete written record of the unprecedented inquiries / investigations of the County Attorney's Office by the State Bar. All have found the complaints to be without merit. The five experts are:

The fact that the State Bar would launch this groundless onslaught of inquiries / investigations gives rise to the necessary conclusion that the State Bar has become an agency compromised by politics. That conclusion is further supported by the fact that the State Bar retaliated against one of the five experts, Ernest Calderon, by not reappointing him to an important post after his opinion opposing the State Bar's inquiries / investigations became public.

The structure of the State Bar leads to its current untenable position. The State Bar is run by a Board of Governors who are elected by attorneys. The Bar is supposed to perform two separate and competing functions. One, the Bar is the lobbyist for the attorney profession. An elected group being involved in political matters at the Legislature is a pretty standard organizational model. But the second function of the Bar is to administer a fair and objective system of lawyer regulation that is free from bias or political influence. It is that judicial role that is incompatible with its other political functions. The Bar appears unable to keep its political operations out of its judicial functions. And it is unable to prevent its political viewpoints from affecting its disciplinary process.

The American Bar Association (ABA), in fact, spoke directly to this issue in its 2002 comment to Rule 2 of the ABA Model Rules For Lawyer Disciplinary Enforcement. The ABA stated that the disciplinary system should be controlled and managed exclusively by the state's highest court and not by state or local bar associations for the following compelling reasons. First, the disciplinary process should be directed solely by the disciplinary policy of the court and its appointees and not influenced by the internal politics of bar associations. Second, the disciplinary system should be free from even the appearance of conflicts of interest or impropriety. When elected bar officials control all or parts of the disciplinary process, these appearances are created, regardless of the actual fairness and impartiality of the system. This is true whether the bar is unified or not.

Contrary to the ABA's recommendation to completely separate elected bar officials from the disciplinary process, elected State Bar of Arizona officials control many aspects of discipline:
  • Chief Bar Counsel is employed by the State Bar of Arizona and is under the direction of the State Bar executive director. All other bar counsel are employed by the State Bar of Arizona or are volunteers. Rule 46(f)(1).
  • The Executive Director is supervised by the Board of Governors (BOG). Rule 32(d)(3). Chief Bar Counsel acts under the authority of the Board of Governors (BOG), and under the direction and by appointment of the Executive Director. Rule 51(a).
  • The officers of the BOG consist of a president, president-elect, two vice presidents, and a secretary/treasurer. Rule 32(f).
  • The panel or panelist in a disciplinary proceeding is one or more members of the BOG or other member appointed by the BOG. Rule 46(f)(16).
  • The panelist approves investigatory subpoenas requested by bar counsel. Rule 47(h)(1).
  • The panelist approves, disapproves, or modifies the recommendation of bar counsel for any disposition other than dismissal. (Rule 54)(b)(4).
  • BOG members, bar counsel or attorneys acting under their direction are immune from any suit, charge or discipline complaint arising out of an exercise of discretion under the disciplinary rules. No complaint may even be docketed absent authorization from Chief Bar Counsel. Rule 48(l) and (m).
  • Chief Bar Counsel attends BOG meetings and makes a report to the BOG.

The time has come to reform Arizona's lawyer regulation process and separate it from bar association politics. The Supreme Court should take control of lawyers' discipline. Or, the Legislature should establish a board or commission not affiliated with the bar association to punish and remove corrupt or incompetent attorneys - as it does for doctors, accountants and other professionals.