ibc_proposed findings 12-16-11
TRANSCRIPT
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John S. Gleason James S. Sudler Kim E. Ikeler Alan C. Obye Marie E. Nakagawa Independent Bar Counsel Colorado Supreme Court Office of Attorney Regulation Counsel 1560 Broadway, Suite 1800 Denver, Colorado 80202 (303) 866-6400
BEFORE THE PRESIDING DISCIPLINARY JUDGE OF THE STATE BAR OF ARIZONA In the Matter of Members of the State Bar of Arizona, ANDREW P. THOMAS, Bar No. 014069, LISA M. AUBUCHON, Bar No. 013141, and RACHEL R. ALEXANDER, Bar No. 020092
INDEPENDENT BAR COUNSEL’S PROPOSED REPORT AND ORDER
IMPOSING SANCTIONS
Case No. PDJ 2011-9002
Independent Bar Counsel, John S. Gleason, acting by appointment of Rebecca White Berch,
the Chief Justice of the Arizona Supreme Court, as set forth in her Administrative Order No. 2010-
41, entered March 23, 2010, respectfully submits his Proposed Report and Order Imposing
Sanctions.
I. INTRODUCTION
This case is a lawyer discipline matter brought pursuant to Rule 31, Rules of the Arizona
Supreme Court, against Andrew P. Thomas (“Thomas”), Lisa M. Aubuchon (“Aubuchon”), and
Rachel R. Alexander (“Alexander”). A three-member Hearing Panel held a hearing about the
allegations against the three lawyers from September 12 to November 2, 2011. The Presiding
Disciplinary Judge (“PDJ”) ordered Independent Bar Counsel (“IBC”) to file a written closing
argument by December 30, 2011. Respondents have until January 15, 2012 to file responses, after
which IBC has until January 30, 2012 to file a reply.
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.
This Report and Order Imposing Sanctions (“Report”) addresses an extremely troubled
period of time in Maricopa County government. Recognizing that, this Hearing Panel does not have
the authority or the inclination to determine who was responsible for initiating or exacerbating the
disputes described in this Report except as it relates to the misconduct committed by the three
lawyers under the Arizona Rules of Professional Conduct.
The format of this Report is as follows:
I. Introduction
II. Procedural History
III. Findings of Fact and Conclusions of Law (with regard to each claim)
IV. Sanctions
V. Conclusion
Appendix – Text of Relevant Rules of Professional Conduct
II. PROCEDURAL HISTORY
Respondents Andrew P. Thomas (“Thomas”), Lisa M. Aubuchon (“Aubuchon”) and Rachel
R. Alexander (“Alexander”) are each subject to the jurisdiction of the Arizona Supreme Court
pursuant to Rule 31, Arizona Rules of the Supreme Court. On February 3, 2011, Independent Bar
Counsel filed the Complaint in this matter. Thomas filed his Answer on March 16, 2011. Aubuchon
filed her Answer on March 10, 2011. Alexander filed her Answer on March 15, 2011. From
September 12, 2011 to November 2, 2011, a Hearing Panel consisting of the Presiding Disciplinary
Judge, Mark Sifferman, Esq., and Father John Hall heard testimony from various witnesses. The
Hearing Panel also received exhibits, only a few of which were not stipulated by the parties.
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III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Claims One, Two and Three – 2006 Events
1. Findings of Fact
1. Thomas was Maricopa County Attorney from 2005 until he resigned effective April
5, 2010.1
2. Arizona statute establishes the County Attorney’s role. A.R.S. § 11-532. Part of the
County Attorney’s role is to serve as the public prosecutor of the County. A.R.S. § 11-532(A)(1).
He also acts as the legal advisor to the Board of Supervisors (“MCBOS” or “the Board”), attends its
meetings and opposes claims against the County that the County Attorney deems unjust or illegal.
A.R.S. § 11-532 (A)(9).
3. At all pertinent times in this matter, the Maricopa County Attorney’s Office
(“MCAO”) had at least five criminal divisions and one civil division.2
4. In fulfilling his role pursuant to A.R.S. § 11-532(A)(9), from time to time the County
Attorney appoints counsel outside of MCAO to represent the Board or the County. The County
Attorney would appoint outside counsel if there was a need for expertise, there were conflicting
views among County officers, or the County Attorney had a conflict.3
5. In early 2006, the members of the Board believed Thomas was making appointments
of lawyers from outside MCAO as a form of political patronage.4 Additionally, members of the
Board were concerned that the money spent on outside counsel was increasing above what was
acceptable and that the services provided were not adequate.5 Supervisor Stapley was chair of the
Board at this time, and the Board asked him to talk to Thomas about its concerns.6 Stapley and 1 Ex. 217, TRIAL EXB 2438; Thomas Testimony, Hr’g Tr. 5:18-20, Oct. 26, 2011. 2 MacDonnell Testimony, Hr’g Tr. 73:15-74:7, Sept. 15, 2011. 3 MacDonnell Testimony, Hr’g Tr. 84:7-86:6, Sept. 15, 2011. 4 Stapley Testimony, Hr’g Tr. 72:12-73:2, 145:13-24, Sept. 20, 2011; Kunasek Testimony, Hr’g Tr. 202:6-204:6, Sept. 21, 2011; Kunasek Testimony, Hr’g Tr. 69, 10-22, Sept. 26, 2011. 5 Stapley Testimony, Hr’g Tr. 69:22-71:3; 184:18-186:21, Sept. 20, 2011. Wilcox Testimony, Hr’g Tr. 101:16-102:5, Sept. 21, 2011. See Ex. 489 (no TRIAL EXB number assigned), showing the increase in expenditures on outside counsel. Sandi Wilson Testimony, Hr’g Tr. 117:23-118:8; 121:8-22, Sept. 27, 2011. 6 Stapley Testimony, Hr’g Tr. 150:9-19, Sept. 20, 2011. Each year the Board selects one of its members as Chair;
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Thomas did not reach an agreement about the Board’s authority over the appointment of outside
counsel.7
6. MCAO understood Stapley to have taken the position that the Board should have
authority to select attorneys representing the County.8 This would be contrary to what MCAO
considered to be the appropriate practice, MCAO selecting outside counsel.9 The practice at MCAO
was for Thomas to make the selection of outside counsel from among several candidates.10 By
contrast, the Board sought a collaborative relationship with MCAO regarding the appointment of
outside counsel.11
7. On February 21, 2006, Supervisor Stapley wrote a letter to Thomas.12 In that letter,
Supervisor Stapley outlined his understanding of a mutual decision concerning legal representation
of MCBOS. The letter stated that MCBOS would select and appoint its lawyer and the County
Attorney would designate that person as a Special Deputy County Attorney. The letter led to a
dispute between MCBOS and Thomas about counsel for the Board.
8. Thomas wrote a series of letters to Stapley about this dispute.13 On March 2, 2006,
Thomas wrote to Stapley stating among other things that he could not agree to allow the Board to
make the selection of counsel independently or to retain counsel outside MCAO.14
9. After he received the letter referenced above, Supervisor Stapley met with Thomas.
The meeting did not go well. Thomas declined to cooperate with the Board in the selection of
outside counsel.15
10. On March 13, 2006, Thomas again wrote to Stapley.16 He stated the following:
Stapley was selected in 2006. Stapley Testimony, Hr’g Tr. 67:24-68:10, Sept. 20, 2011. 7 Ex. 251, TRIAL EXB 03406-07; MacDonnell Testimony, Hr’g Tr. 76:19-80:7, Sept. 15, 2011; Stapley Testimony, Hr’g Tr. 71:4-72:3, Sept. 20, 2011. 8 MacDonnell Testimony, Hr’g Tr. 82:5-20, Sept. 15, 2011. 9 MacDonnell Testimony, Hr’g Tr. 85:13-86:13, Sept. 15, 2011. 10 White Testimony, Hr’g Tr. 24:14-25:6; 38:18-40:6, Sept. 20, 2011. 11 Stapley Testimony, Hr’g Tr. 158:23-160:5, Sept. 20, 2011. 12 Ex. 251, TRIAL EXB 03406. 13 Thomas Testimony, Hr’g Tr. 11:22-15:25, Oct. 26, 2011. 14 Ex. 6, TRIAL EXB 00031. 15 Stapley Testimony, Hr’g Tr. 73:14-74:8, Sept. 20, 2011.
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a.) he wanted to emphasize once again that the Board of Supervisors does
not have the lawful authority to retain its own legal counsel outside the County Attorney’s Office, and that he had neither the authority nor the intention to consent to such an arrangement;
b.) he would not meet again with Stapley if Stapley wanted to discuss retention of private outside counsel;
c.) a proposed resolution of the Board to appoint General Counsel separate from the County Attorney was unlawful and that if the Board did so it would be a violation of Arizona statutes and case law;
d.) Board members are immune from suit when they rely in good faith upon opinions of the County Attorney, but no such immunity would apply and they may be personally liable for actions on advice of other counsel; and
e.) he would be obligated to commence litigation against the Board should the Board move forward to pay outside counsel.
11. A week later, on March 20, 2006, Thomas again wrote to Stapley17 and stated the
following:
a) Thomas had learned that the Board planned to meet in executive session that day, and that attorney Tom Irvine had attended a Board meeting on March 15, 2006, as “Outside Counsel;”
b) the County Attorney had not retained Mr. Irvine to represent the Board
in the matter; c) Mr. Irvine could not provide legal advice to the Board in either
executive or open session; d) he had instructed his civil division to delete Mr. Irvine from the
agenda; e) Thomas was to provide legal advice to the Board;
16 Ex. 7, TRIAL EXB 00032-33; Stapley Testimony, Hr’g Tr. 74:9-75:23, Sept. 20, 2011. 17 Ex. 8, TRIAL EXB 00034-35.
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f) the Board was entitled to separate legal counsel in only two limited situations: i) if the County Attorney’s Office is unwilling or unable to represent the Board (which he claimed was not the case); or ii) if there was an actual conflict of interest;
g) mere disagreement by the Board with the County Attorney’s opinion
did not constitute a conflict of interest; and h) no conflict existed.
12. Supervisor Stapley regarded this letter from Thomas as “the first shot across the
bow”.18 The Board members were concerned that Thomas was threatening them with litigation
while at the same telling them they could be personally liable.19 By this time, the Board believed
Thomas had a conflict of interest, based on grave concerns about his having dramatically overspent
the budget for the civil division and about Thomas’s selections for outside counsel.20
13. On April 17, 2006, Thomas wrote to Stapley stating that the Board could not amend
the County Restated Declaration of Trust to allow the Board to select private counsel for civil
litigation.21 The Declaration of Trust governs the self-insurance trust for the County.22 The Board
planned to amend the Declaration of Trust to give itself more control over which lawyers would be
selected.
14. In his April 17, 2006, letter, Thomas stated that his opinion was that the Board could
not select counsel to defend civil lawsuits without the consent of the County Attorney’s Office. He
wrote the following: It would be contrary to law for the Board to seek to exclude the county attorney from the process of selecting counsel for opposing claims against the county. Accordingly, should the Board seek to take this action, our office would be obliged to initiate litigation. As in my earlier correspondence to you
18 Stapley Testimony, Hr’g Tr. 75:23-76:11, Sept. 20, 2011. 19 Stapley Testimony, Hr’g Tr. 76:15-77:3, Sept. 20, 2011. 20 Stapley Testimony, Hr’g Tr. 168:5-170:22, Sept. 20, 2011; Wilcox Testimony, Hr’g Tr. 16:20-17:12; 20:5-22:3, Sept. 21, 2011; Ex. 489. 21 Ex. 9, TRIAL EXB 00036-37; MacDonnell Testimony, Hr’g Tr. 86:25-88:10, Sept. 15, 2011. 22 Stapley Testimony, Hr’g Tr. 77:24-78:13, Sept. 20, 2011.
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on these matters, this legal advice is offered merely in an attempt to explain the full legal consequences of the proposed action. I have decided to assign outside counsel to provide legal advice to the Board on the sole issue of the legality of this proposed action, and to defend against any lawsuit this office may initiate related to same. Because our office did not learn of this possible action until late last week, I have been unable to secure outside counsel prior to the executive session scheduled for today. As I explained in regard to Mr. Irvine’s recent improper actions, you or other Board members should not solicit legal advice from this counsel on unrelated matters. I will instruct this counsel not to provide such advice. You will be informed of which counsel has been selected for this matter in the near future . . . .23
15. The Board placed its proposed action on its agenda, and on May 18, 2006, the Board
did amend the Revised Restated Declaration of Trust for Maricopa County. Thomas broke off
communications with the Board, other than correspondence.24
16. In a letter to Stapley on May 23, 2006, Thomas said the Board had acted to give itself
the authority to manage, supervise and direct the County Attorney in the exercise of his duties.25
Thomas further stated that it was inconceivable that the Board would be permitted to veto a decision
made by the County Attorney pursuant to a clear statutory mandate.26 Thomas took the position that
only the County Attorney could give advice to the Board.27 Thomas then warned: Finally, the immunity granted to the Board by A.R.S. § 38-446 requires “good faith reliance on written opinions of . . . a county attorney.” Here, the Board has acted contrary to the written opinions of this office and will not be entitled to immunity if it acts in accordance with the invalid Trust Agreement.28
17. On June 14, 2006, Thomas filed a declaratory judgment action against the Board.29
Chief Deputy County Attorney Phil MacDonnell notified Supervisor Stapley of the lawsuit by
23 Ex. 9, TRIAL EXB 00036-37. 24 Stapley Testimony, Hr’g Tr. 79:2-80:3, Sept. 20, 2011; Max Wilson Testimony, Hr’g Tr. 154:18-158:24, Sept. 21, 2011. 25 Ex. 10, TRIAL EXB 00038-39. 26 Ex. 10, TRIAL EXB 00038. 27 MacDonnell Testimony, Hr’g Tr. 88:19-90:25, Sept. 15, 2011. 28 Ex. 10, TRIAL EXB 00039. 29 Ex. 11, TRIAL EXB 00040-95; MacDonnell Testimony, Hr’g Tr. 91:6-18, Sept. 15, 2011.
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mail.30 Thomas’s filing of this lawsuit shook the relationship between Supervisor Stapley and
Thomas “to its very core.”31
18. On the same day, Thomas released a public statement that he was suing MCBOS.32
In that statement, Thomas said the following: a) he filed the action to defend the County Attorney’s Office against the board’s unlawful attempts to undermine the independence of the office that he held. b) he had discussed on numerous occasions his concerns with all five supervisors and had sent Stapley, the chairman of the Board, no fewer than five letters making plain the illegality of “his” proposed actions.
19. Thomas’s June 14, 2006, statement addressed not only the suit Thomas brought
against the Board, but also cases brought by County officials Sandra Dowling and Philip Keen.33
Thomas stated that the County’s position in those two cases was unsupportable. Thomas stated that
in all three cases the Board had unlawfully sought to arrogate powers vested in other County
agencies.34
20. Additionally Thomas stated the following: It bears noting that these recent lawsuits [against the county] had occurred during, and largely because of, the unusual chairmanship of Supervisor Don Stapley. While respecting the attorney-client relationship I hold with Mr. Stapley and other members of the board, I would be remiss if I did not help the people of Maricopa County understand why the board has attracted so many costly lawsuits in such a brief period of time.
I cannot in good conscience defend the Board of Supervisors in the two legal actions brought by Ms. Dowling and Mr. Keen, as I believe these complaints [against the County] have merit. (Emphasis added).35
30 Ex. 12, TRIAL EXB 00096. 31 Stapley Testimony, Hr’g Tr. 80:23-81:1, Sept. 20, 2011. 32 Ex. 13, TRIAL EXB 00097. It was the practice at MCAO that press releases were drafted by Thomas and Barnett Lotstein. MacDonnell Testimony, Hr’g Tr. 93:19-25, Sept. 15, 2011. 33 Ex. 13, TRIAL EXB 00097. 34 Ex. 13, TRIAL EXB 00097. 35 Ex. 13, TRIAL EXB 00097.
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21. Despite the fact that Thomas had an attorney-client relationship with the Board,
Thomas issued his public statement supporting its adversaries, Dowling and Keen. Thomas’s
expression of support for these plaintiffs came as a surprise to the Board.36
22. To understand why Thomas’s public support for plaintiffs Dowling and Keen was
surprising and unethical, it is necessary to understand the history of the Board’s defense of those
cases.
23. Prior to June 14, 2006, while the above-described dispute over appointment of outside
counsel was occurring, Sandra Dowling, the County School Superintendant, filed one lawsuit against
the Board, and Philip Keen, the County Medical Examiner, filed another.37 Before lawsuits were
filed, MCAO, assisted by outside counsel, had advised the Board about these cases. Deputy County
Attorney Keller testified that he had been advising the Board about the Dowling matter since 2003.38
24. Thomas had hired Tom Irvine to assist in the Dowling matter before Dowling filed
suit in June 2006.39 From January 2006, Irvine worked together with MCAO in the Dowling case.40
In March and April 2006, MCBOS passed resolutions that concerned the Dowling situation. MCAO
counseled MCBOS on those resolutions and Irvine assisted MCAO in its efforts.41 When Dowling
filed suit, Irvine defended the County, together with MCAO.42 Bruce White and Chris Keller of
MCAO also represented the County in the case.43 The Board understood that MCAO supported it
against Dowling.
36 Stapley Testimony, Hr’g Tr. 82:14-17, Sept. 20, 2011; Wilcox Testimony, Hr’g Tr. 28:23-30:21, Sept. 21, 2011. See also Smith Testimony, Hr’g Tr. 167:16-168:22, Sept. 26, 2011; Sandi Wilson Testimony, Hr’g Tr. 123:12-125:7, Sept. 27, 2011. 37 Smith Testimony, Hr’g Tr. 166:15-167:15, Sept. 26, 2010. 38 Keller Testimony, Hr’g Tr. 58:17-59:8, Oct. 17, 2011. 39 Irvine Testimony, Hr’g Tr. 25:11-23, Sept. 14, 2011; Stapley Testimony, Hr’g Tr. 82:4-8, Sept. 20, 2011. 40 Irvine Testimony, Hr’g Tr. 22:10-26:3, Sept. 14, 2011. 41 Irvine Testimony, Hr’g Tr. 24:22-25:10, Sept. 14, 2011. 42 Irvine Testimony, Hr’g Tr. 25:24-26:3, Sept. 14, 2011. 43 Irvine Testimony, Hr’g Tr. 25:11-28:3, Sept. 14, 2011; White Testimony, Hr’g Tr. 25:7-26:3, Sept. 20, 2011; Wilcox Testimony, Hr’g Tr. 26:19-28:3, Sept. 21, 2011; Sandi Wilson Testimony, Hr’g Tr. 124:7-125:2, Sept. 27, 2011.
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25. MCAO had been advising the Board about the Keen case before it was filed.44 The
County hired other outside counsel to represent it in the Keen case after it was filed, further leading
the Board to assume that Thomas supported the County’s position.45
26. Thomas’s public statement opposing the Board also surprised Irvine, who with
MCAO deputy county attorneys had advised MCBOS about the Dowling case. Irvine was not aware
of any disagreement within MCAO about the defense being offered.46 Thomas did not consult with
MCAO’s civil division before he issued the June 14, 2006 public statement.47
27. Supervisor Stapley felt that several of Thomas’s representations in the public
statement were inaccurate.48 Supervisor Wilcox felt that Thomas had turned against the Board; she
no longer trusted him.49 After Thomas released the public statement, Supervisor Stapley requested
that MCAO retain conflict counsel to advise the Board.50
2. Conclusions of Law – Claim 1 – ER 1.7(a)(2) (Conflict of Interest)
28. There is clear and convincing evidence that Thomas violated ER 1.7(a)(2).
29. ER 1.7(a)(2) states that a lawyer shall not represent a client if the representation
involves a concurrent conflict of interest, specifically if there is a significant risk that the
representation of one or more clients will be materially limited by the lawyer’s responsibilities to
another client, a former client or a third person or by a personal interest of the lawyer. See In re
Murphy, 188 Ariz. 375, 936 P.2d 1269 (1997) (respondent demanded and obtained exclusively
favorable terms for his investment and his clients’ investment in a real estate development for which
his firm had done legal work; the terms respondent obtained stripped away the protection from
personal liability for the promoters that the law firm had labored to produce).
44 MacDonnell Testimony, Hr’g Tr. 94:1-95:11, Sept. 15, 2011. 45 Stapley Testimony, Hr’g Tr. 82:8-13, Sept. 20, 2011. 46 Irvine Testimony, Hr’g Tr. 26:4-30:17, Sept. 14, 2011. 47 White Testimony, Hr’g Tr. 26:8-25, Sept. 20, 2011. 48 Stapley Testimony, Hr’g Tr. 82:22-83:19, Sept. 20, 2011. 49 Wilcox Testimony, Hr’g Tr. 145:23-146:18, Sept. 21, 2011. 50 Ex. 14, TRIAL EXB 00098-99.
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30. While he was Maricopa County Attorney, Thomas had an attorney-client relationship
with the Maricopa County Board of Supervisors. A.R.S. § 11-532 establishes this attorney-client
relationship. Rule 42, Rules of the Arizona Supreme Court, which sets forth the Arizona Rules of
Professional Conduct, governs Thomas’s conduct as an attorney in this relationship.
31. Arizona statutes that establish an attorney-client relationship and the obligations and
duties of a County Attorney are analogous to an agreement between an attorney and his client about
the scope of the relationship and the rights of each. However, the Arizona ethical rules, which the
Arizona Supreme Court adopts and enforces, govern the conduct of any attorney licensed in the State
of Arizona. Disciplinary rules are binding rules of conduct. In re Swartz, 141 Ariz. 266, 272, 686
P.2d 1236, 1242. “The profession has both an obligation of public service and duties to clients
which transcend ordinary business relationships and prohibit the lawyer from taking advantage of
the client.” Id. at 273, 686 P.2d at 1243.
32. The court in Swartz found the respondent to have charged an excessive contingent fee
in violation of DR 2-106, the predecessor to ER 1.5, where the fee was reasonable at the time the
parties signed the fee agreement but subsequent events rendered the fee excessive. Id. at 273, 686
P.2d at 1243. The court found the lawyer in violation of DR 2-106 even though the fee agreement
may have been enforceable under contract law, id. at 273, 686 P.2d at 1243, and even though the
agreement had been approved by both the State Compensation Fund and the probate court, id. at
274, 686 P.2d at 1244. Likewise, even though Thomas may interpret A.R.S. § 11-532 to allow him
to act in conflict with his client, ER 1.7 forbids it.
33. As County Attorney, Thomas was obligated to be legal advisor to the Board and to
defend the County. However, in carrying out his obligations, Thomas was at all times obligated to
abide by the ethical rules.
34. In 2006, Thomas viewed his role as counsel for the Board in one way; the members
of the Board viewed that role differently. In the above-described series of letters, Thomas advised
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his client, MCBOS, about how his client should conduct itself. When there is no conflict of interest
for the lawyer, a lawyer should advise his client. See ER 1.2. However, in this situation Thomas’s
advice concerned issues in which Thomas’s own interest conflicted with the interests of his client.
35. Thomas did not simply advise a client about what his client could or could not do. He
advised his client not to take action that negatively affected Thomas and the office he held. His own
interests limited his advice to his client. A lawyer must counsel his client unimpeded by the
lawyer’s own interests. Thomas could not do so in this context.
36. Thomas violated ER 1.7(a)(2) by advising his client, MCBOS, that it could not do
what it wanted to do. He did so despite having a strong interest in the question such that he could
not give unbiased advice. Thomas’s interest was to protect his power and authority and the office
that he held. Accordingly, he saw any effort by MCBOS to appoint outside counsel as impeding on
his role. Thomas’s interests created a conflict of interest. Nevertheless, Thomas gave advice to
MCBOS on the issue. A concurrent conflict of interest existed because there was a significant risk
that Thomas’s own interest would materially limit the representation of a client.
37. Moreover, Thomas knew he had a conflict of interest in these matters. He
acknowledged this conflict in his April 17, 2006 letter. He decided at that point to appoint outside
counsel to advise the Board on these matters, although it is not clear from the evidence that he did so
at that time. He should have appointed outside counsel much earlier when this dispute first arose.
There is no good explanation for not having appointed counsel for the Board earlier, but his
recognition of this conflict in his April 17 letter shows that he knew of the conflict yet advised the
Board anyway.
3. Conclusions of Law – Claim 2 – ER 1.6(a) (Client Confidentiality)
38. Thomas violated ER 1.6(a) by revealing his thoughts and opinions about his client’s
positions in two cases.
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39. ER 1.6(a) states that a lawyer shall not reveal information relating to the
representation of a client unless the client gives informed consent. See, e.g., In re Murphy, 188 Ariz.
375, 936 P.2d 1269 (1997) (discussed above) (attorney who used confidential information to
detriment of firm's clients by using knowledge of clients' sales difficulties to make last-minute
demand for personal guarantees before investing in clients' business deal and arranging for other
clients to invest, violated rules of professional conduct that imposed duty of confidentiality and that
prohibited use of confidential information to clients’ disadvantage). 51
40. In his June 14, 2006 public statement, Thomas revealed his opinion that the County’s
positions in the Keen and Dowling lawsuits were unsupportable. Thomas made these negative
statements of opinion notwithstanding the fact that he had an attorney-client relationship with
MCBOS and the County and notwithstanding the fact that deputy county attorneys had advised the
County in the matters leading to the Dowling and Keen cases. Thomas did not have the Board’s
consent to offer his opinions publicly. To the contrary, Board members were surprised and
dismayed that their own lawyer had denigrated their legal positions.
41. Unless his client consents, a lawyer should never reveal his opinions about his client’s
case, especially when they are negative. Thomas made his disclosures in the most public way he
could, by a news release. Thomas’s sole purpose in making these public statements was to buttress
his position in the media at the expense of his client, the Board.
42. Before Thomas made his statements about Dowling and Keen, MCAO had provided
legal advice to the Board on both cases.52 Thomas did not check with his own deputies to determine 51 The Hearing Panel may also want to consider the following Disciplinary Commission decisions. The court in In re Cook, Nos. 06-0426, 06-0472, 2008 WL 5339977 (Ariz. Disp. Comm. Apr. 14, 2008), found the respondent in violation of ER 1.6(a) where he mailed a letter to the County Attorney accusing the respondent’s former client of committing perjury. The respondent had gained knowledge of the alleged perjury through his representation of the client. Id. at *4. The respondent mailed the letter to the County Attorney in order to defend himself against the client’s in-court allegations that the respondent advised the client to commit perjury. Id. at *4. See also In re Wolitzky, No. 09-0197 (Ariz. Disp. Comm. Feb. 26, 2010) (respondent disclosed confidential client information, including the client’s recollection of a shooting, during interview by client’s subsequent counsel); In re Patton, No. 07-0529 (Ariz. Disp. Comm. July 30, 2008) (respondent revealed confidential client information, including doctor’s opinions on the merits of clients’ cases, in answer to personal lawsuit). 52 Testimony conflicts as to whether MCAO provided legal advice to the Board in both the Dowling and Keen cases, but
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whether MCAO had advised the Board and what that advice had been.53 Further, Thomas never
discussed his opinions about his client’s cases with his client before he publicly announced them.54
In effect, Thomas’s News Release of June 14, 2006, announced that MCAO was abandoning its
client and then brazenly stated that his client’s positions were unsupportable. Thomas admits he was
“essentially going public with [his] position about [his] client’s conduct”55 and that the ethical rules,
including ER 1.6, controlled his conduct.56 In fact, Thomas admits he violated ER 1.6.57
43. Thomas has sought to justify revealing client confidences by arguing that ER 1.13
permitted disclosure.58 This argument is misplaced. ER 1.13(b) states that if a lawyer for an
organization knows that a constituent of the organization is acting in violation of a legal obligation to
the organization, which might result in substantial injury to the organization, then the lawyer may
proceed as is reasonably necessary in the best interest of the organization. ER 1.13(b) states that the
lawyer may refer the matter to a higher authority in the organization. The rule explicitly mandates
that the lawyer is to proceed in the best interests of his client, in this case, the Board. Further, the
rule sets forth a procedure whereby the lawyer discusses his concerns with his client. See ER 1.13
Cmt. 3.
44. Thomas was not in a situation governed by ER 1.13. A constituent of his
organizational client was not acting unlawfully or threatening to act unlawfully, nor was there any
threat of “substantial injury to the organization” as required by ER 1.13. Rather, Thomas disagreed
with the position the Board was taking in those two cases. Thomas testified that he thought “it was
clear and convincing evidence indicates that it did. For Testimony that MCAO provided legal advice to the Board in Dowling, see Keller Testimony, Hr’g Tr. 58:25-59:8, Oct. 17, 2011; White Testimony, Hr’g Tr. 25:14-21, Sept. 20, 2011; Stapley Testimony, Hr’g Tr. 82:18-21, Sept. 20, 2011; Wilcox Testimony, Hr’g Tr. 27:9-28:3, Sept. 21, 2011. For Testimony that MCAO provided legal advice in Keen, see Stapley Testimony, Hr’g Tr. 82:18-21, Sept. 20, 2011; Wilcox Testimony, Hr’g Tr. 28:8-14, Sept. 21, 2011; Kunasek Testimony, Hr’g Tr. 121:3-12, Sept. 26, 2011; but compare Keller Testimony, Hr’g Tr. 61:17-22, Oct. 17, 2011 (that MCAO did not provide legal advice in Keen). 53Keller Testimony, Hr’g Tr. 61:6-12, Oct. 17, 2011. 54 Thomas Testimony, Hr’g Tr. 19:10-20:20, Oct. 26, 2011. 55 Thomas Testimony, Hr’g Tr. 22:21-24, Oct. 26, 2011. 56 Thomas Testimony, Hr’g Tr. 23:25-24:11, Oct. 26, 2011. 57 Thomas Testimony, Hr’g Tr. 24:12-19, Oct. 26, 2011. 58 Thomas Testimony, Hr’g Tr. 24:12-25:3, Oct. 26, 2011.
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important to inform the constituents of all of us, the people of Maricopa County,” that the Board was
acting unlawfully and was “being aggressive in violation of law not only against our office, but
against . . . Dowling . . . . And also the chief medical examiner, Philip Keen.”59 Thomas appears to
mistakenly believe the people of Maricopa County are his client. In his civil capacity as County
Attorney, Thomas did not represent the people of Maricopa County, and he had no authority to
publicly reveal confidential information relating to his representation of the Board.
45. ER 2.1, Comment 1 states that a client is entitled to straightforward advice about the
lawyer’s assessment of a matter. Thomas never gave his client his advice. ER 1.2 states that a
lawyer shall abide by a client’s decisions concerning the objectives of representation. Thomas did
not abide by his client’s decisions about Dowling and Keen.
46. Thomas purposely made his statements about the two cases to support the case he
filed against MCBOS. Thomas’s motives were selfish and self-serving to the detriment of his client.
47. By disclosing client confidences, Thomas violated ER 1.6(a).
4. Conclusions of Law – Claim 3 – ER 3.6(a) (Improper Public Statements)
48. Thomas violated ER 3.6(a) by making statements about the Dowling and Keen cases.
49. ER 3.6(a) states that a lawyer who is participating or has participated in the
investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows
or reasonably should know will be disseminated by means of public communication and will have a
substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
50. Thomas may not have personally participated in the investigation or litigation of the
Dowling and Keen cases, but his deputies did, and in doing so they acted on his behalf, in his name,
and with his authority. ER 3.6(d) states that no lawyer associated in a firm or government agency
with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
59 Thomas Testimony, Hr’g Tr. 22:21-23:14, Oct. 26, 2011.
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51. The U.S. Supreme Court has stated that lawyers participating in pending cases have
“special access to information,” and their statements pose a heightened threat to the fair
administration of justice “since [they] are likely to be received as especially authoritative.” Gentile
v. State Bar, 501 U.S. 1030, 1074 (1991). Statements made during the pendency of a case are
“likely to influence the actual outcome of the trial.” Id. at 1075. See also Kramer v. Tribe, 156
F.R.D. 96, 109-110 (D.N.J. 1994) (“With increased frequency practicing attorneys are utilizing the
media to publicize their cases as a litigation tactic. This must stop if the integrity of the judicial
enterprise is to be preserved. Not only is it disruptive, wasteful and inherently prejudicial, but it is
also a clear violation of the Rules of Professional Conduct.”)
52. Courts in other jurisdictions have held lawyers in violation of the ethical rules for
misconduct similar to Thomas’s. The court in Lawyer Disp. Board v. Sims, 212 W. Va. 463 (2002),
found the respondent County Attorney violated Rule 3.6 where he publicly accused the County
Assessor of crimes in connection with pending grand jury proceedings, despite the respondent’s
argument that “in his eyes, he was fighting entrenched political corruption.” Id. at 468. See also In
re Litz, 721 N.E.2d 258 (Ind. 1999) (respondent violated Rule 3.6(a) by publishing letter in
newspaper asserting his client committed no crime and had passed a lie detector test).
53. Thomas intentionally issued to the media a public statement against his client, the
Board, that he knew or reasonably should have known would have the likelihood of materially
prejudicing the Keen and Dowling cases. In the news release, he attributed MCBOS’s actions to the
“unusual chairmanship of Don Stapley.” The County Attorney’s statement contrary to his client’s
interests was likely to prejudice the cases brought by Keen and Dowling against the County.
Thomas should not have issued such a statement and doing so exhibited disloyalty to his client and
animosity toward Supervisor Stapley. Thomas violated ER 3.6(a).
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B. Claims Four Through Eleven – Stapley I
1. Findings of Fact
54. The conduct that is the subject of Claims Four through Eleven centers around the
criminal charges filed by Thomas and Aubuchon against Supervisor Stapley in December 2008.
55. The MACE Unit. In late 2006 or early 2007 Thomas and Sheriff Arpaio created a
joint unit called MACE (“Maricopa Anti Corruption Effort”).60 Thomas and Sheriff Arpaio
conceived MACE as a joint operation to investigate organized crime and political corruption.61
Prosecutors from MCAO and investigators from MCSO staffed the MACE Unit. The head of the
Special Crimes Bureau, Vicki Kratovil, was initially assigned to the MACE Unit as MCAO’s
representative.62 Chief Assistant County Attorney Sally Wells and Division Chief Tony Novitsky
supervised Kratovil.63 Phil MacDonnell, the Chief Deputy County Attorney, also attended some
early MACE meetings.64 Brandon Luth, Bruce Tucker and other detectives represented MCSO in
MACE.65 Sergeant Luth reported to Lieutenant Tucker, who reported to Captain Miller, who
directly reported to then-Chief Deputy Sheriff Hendershott.66 Hendershott supervised the MACE
Unit for MCSO.67
56. Meetings of the MACE unit took place weekly or bi-weekly during 2007 and into
2008.68 Hendershott attended some meetings,69 as did Thomas and Sheriff Arpaio.70
60 Thomas Testimony, Hr’g Tr. 226:2-19, Oct. 26, 2011. 61 Hendershott Testimony, Hr’g Tr. 8:25-9:10; 11:1-13:1, Oct. 13, 2011; Arpaio Testimony, Hr’g Tr. 8:2-9:3, Oct. 18, 2011. 62 Kratovil Testimony, Hr’g Tr. 90:16-91:9, Oct. 6, 2011. 63 Wells Testimony, Hr’g Tr. 109:24-112:14, Sept. 13, 2011; Novitsky Testimony, Hr’g Tr. 57:4-18, Oct. 6, 2011. 64 Luth Testimony, Hr’g Tr. 60:16-61:9, Oct. 14, 2011. 65 Kratovil Testimony, Hr’g Tr. 91:10-17, Oct. 6, 2011; Luth Testimony, Hr’g Tr. 59:12-18, Oct. 14, 2011. 66 Luth Testimony, Hr’g Tr. 62:4-10, Oct. 14, 2011. 67 Hendershott Testimony, Hr’g Tr. 10:3-6, Oct. 13, 2011. 68 Kratovil Testimony, Hr’g Tr. 92:8-23, Oct. 6, 2011. 69 Novitsky Testimony, Hr’g Tr. 58:9-12, Oct. 6, 2011; Kratovil Testimony, Hr’g Tr. 91:22-25, Oct. 6, 2011; Hendershott Testimony, Hr’g Tr. 14:22-16:16, Oct. 13, 2011. 70 Wells Testimony, Hr’g Tr. 162:1-19, Sept. 13, 2011; Kratovil Testimony, Hr’g Tr. 91:18-21, Oct. 6, 2011; Johnson Testimony, Hr’g Tr. 100:3-14, Oct. 11, 2011; Luth Testimony, Hr’g Tr. 60:16-61:16, Oct.14, 2011.
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57. At some point in early 2008, Aubuchon replaced Vicky Kratovil as MCAO’s
representative in the MACE Unit.71
58. Initiation of Investigation of Supervisor Stapley. As early as January 2007, the
MACE unit was looking into the conduct of Supervisor Stapley. Notes kept by Vicki Kratovil and
MACE agendas made by Lt. Bruce Tucker show that Stapley was the subject of scrutiny for various
activities.72
59. Sometime in early 2007, Thomas had Special Assistant County Attorney Mark
Goldman investigate Supervisor Stapley. The investigation began for two reasons: Thomas had
heard a rumor that the Superior Court had been pressured into hiring attorney Tom Irvine, and
Thomas believed there was unusual behavior by Supervisor Stapley in trying to install Tom Irvine as
the Board’s lawyer.73 Thomas did not begin this investigation of Supervisor Stapley as a result of
information given to MCSO or MCAO about possible criminal activity. Rather, Thomas may have
asked Goldman to do so after Goldman suggested to Thomas that he do research into Stapley and
Irvine.74 Goldman worked directly for Thomas.75
60. In addition, on January 23, 2007, Chief Deputy Hendershott asked Sgt. Brandon Luth
to start investigating Stapley but to keep it confidential.76 Hendershott told Sgt. Luth that he wanted
to investigate Stapley’s business dealings.77 Sgt. Luth researched Stapley’s business holdings and
dealings for a couple of days in January 2007, and then stopped.78 From his involvement in early
2007, Sgt. Luth knew there was a statute of limitations issue in the Stapley case when Thomas and
Aubuchon filed charges in late 2008.79
71 Hendershott Testimony, Hr’g Tr. 17:6-19:14, Oct. 13, 2011. 72 Ex. 19, TRIAL EXB 00343-00539. 73 Thomas Testimony, Hr’g Tr. 119:18-120:10, Oct. 26, 2011. 74 Goldman Testimony, Hr’g Tr. 135:4-136:20, Oct. 12, 2011; Thomas Testimony, Hr’g Tr. 32:5-13, Oct. 26, 2011. 75 Goldman Testimony, Hr’g Tr. 125:16-137:13, Oct. 12, 2011. 76 Hendershott Testimony, Hr’g Tr. 45:2-49:3, Oct. 13, 2011; Luth Testimony, Hr’g Tr. 63:13-64:4, Oct. 14, 2011. 77 Luth Testimony, Hr’g Tr. 63:21-23, Oct. 14, 2011. 78 Luth Testimony, Hr’g Tr. 65:6-68:1, Oct. 14, 2011. 79 Luth Testimony, Hr’g Tr. 87:15-88:13, 91:15-20, 92:14-21, Oct. 14, 2011.
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61. Goldman’s Investigation in 2007. Goldman looked into Stapley’s business dealings
and his financial disclosures.80 His starting point was to look at Stapley’s financial disclosures to
see what Stapley owned and then to see if there was any connection to Irvine. Goldman printed
documents regarding Stapley’s properties and financial disclosures from the Internet as early as
January 2007.81 He found no connection between Stapley and Irvine.82 Goldman completed his
investigation into Stapley before Goldman went to Mexico in May of 2007.83
62. Following his investigation, Goldman provided information in a binder to Thomas
and MACE unit personnel.84 The binder contained documents from public land records and
assessor’s office records having to do with Supervisor Stapley’s real estate holdings.85
63. In June 2007, a notebook of information about Stapley was given to MCSO.86 This
notebook or a memo in it had a sticky note attached saying that it was “rec’d Weds. June 20, 2007 @
1600 from Sally Wells.”87 Lt. Bruce Tucker of the MACE Unit wrote this note.88 Wells was third
in charge of MCAO behind Thomas and Phil MacDonnell. She attended weekly meetings of MACE
in 2007.
64. The information in the notebook includes a memo with the following heading:
“Yavapai County Matters; Issues Related to MCSO Investigation of Donald Stapley.”89 Section IV
of the memo is headed “Filing Financial Disclosure Statements with False or Misleading
80 Goldman Testimony, Hr’g Tr. 135:4-138:14, Oct. 12, 2011. 81 Wells Testimony, Hr’g Tr. 116:4-118:20, Sept. 13, 2011; Goldman Testimony, Hr’g Tr. 138:15-141:3, Oct. 12, 2011. 82 Goldman Testimony, Hr’g Tr. 141:16-18, Oct. 12, 2011. 83 Goldman Testimony, Hr’g Tr. 140:11-141:3, Oct. 12, 2011. 84 Ex. 245, TRIAL EXB 03326-83; Novitsky Testimony, Hr’g Tr. 59:4-60:25, Oct. 6, 2011; Tucker Testimony, Hr’g Tr. 36:16-38:4, Oct. 12, 2011; Goldman Testimony, Hr’g Tr. 138:15-146:12, 161:16-162:8, Oct. 12, 2011; Luth Testimony, Hr’g Tr. 74:11-76:1, Oct. 14, 2011. 85 Kratovil Testimony, Hr’g Tr. 99:4-100:16, Oct. 6, 2011; Tucker Testimony, Hr’g Tr. 42:23-44:20, Oct. 12, 2011; Ex. 18, TRIAL EXB 00202-343; Goldman Testimony, Hr’g Tr. 146:13-161:15, Oct. 12, 2011; Luth Testimony, Hr’g Tr. 74:11-75:2, Oct. 14, 2011. 86 Ex. 18, TRIAL EXB 00113-99. 87 Ex. 18, TRIAL EXB 00113. 88 Johnson Testimony, Hr’g Tr. 225:22-226:13, Oct. 6, 2011; Tucker Testimony, Hr’g Tr. 44:25-46:23, 67:1-68:22, Oct. 12, 2011. 89 Ex. 18, TRIAL EXB 00114-16.
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Information.”90 Under that section various criminal statutes are noted including forgery, theft and
misdemeanor disclosure violations under A.R.S. §§ 38-543 and 38-544. The memo and the
information in this notebook indicate that Stapley’s financial disclosures were under investigation
earlier than June 20, 2007.91 The memo about Yavapai County Matters, which was prepared in
2007, is consistent with testimony by Sheila Polk, Yavapai County Attorney, and Thomas that
Thomas talked to Polk in 2007 about taking cases involving Stapley.92
65. As noted above, the investigation of Supervisor Stapley was discussed at MACE
meetings in early 2007.93 Deputy County Attorney Vicki Kratovil attended MACE and kept a
notebook containing among other things the agendas for MACE meetings.94
66. Lt. Bruce Tucker wrote these agendas.95 The Stapley matter is listed on the agendas
for MACE meetings occurring May 9, May 23, June 6, June 13, June 20, and June 27, 2007.96 After
Stapley’s name, it is noted in parentheses that these matters are being referred to Yavapai County.97
Lt. Tucker added the notation because he understood at the time that the Stapley investigation would
be referred to Yavapai County.98 This notation is consistent with the memo in the other notebook
described above.99
67. Additionally, Kratovil’s handwritten notes indicate that the MACE Unit was looking
at both Supervisor Stapley and Tom Irvine in early 2007.100
68. As part of the investigation of Supervisor Stapley, the MACE Unit decided to set up a
post office box under an undercover officer name, so that MCSO could request records concerning
90 Ex. 18, TRIAL EXB 00116. 91 Johnson Testimony, Hr’g Tr. 222:19-227:18, Oct. 6, 2011. 92Polk Testimony, Hr’g Tr. 120:11-121:7, Oct. 19, 2011. 93 Kratovil Testimony Hr’g Tr. 97:25-98:24, Oct. 6, 2011. 94 Ex. 19, TRIAL EXB 00343-549; Kratovil Testimony, Hr’g Tr. 94:17-24, 105:7-18, Oct. 6, 2011; Tucker Testimony, Hr’g Tr. 32:21-34:23, Oct. 12, 2011. 95 Novitsky Testimony, Hr’g Tr. 71:25-72:17, Oct. 6, 2011; Kratovil Testimony, 95:14-96:5, Oct. 6, 2011. 96 Ex. 19, TRIAL EXB 00366, 00369, 00373, 00376, 00379-80, 00382. 97 This is not the referral that was done later in April 2009. 98 Tucker Testimony, Hr’g Tr. 35:1-36:1, 70:3-24, Oct. 12, 2011. 99 Ex. 18, TRIAL EXB 00114-16. 100 Kratovil Testimony, Hr’g Tr. 105:19-107:16, Oct. 6, 2011.
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Supervisor Stapley anonymously.101 The meeting agenda for June 13, 2007, states that a public
records request was to be drafted with the assistance of “Deputy Maricopa County Attorney Mark
Goldman.”102
69. Goldman delivered the results of his research about Supervisor Stapley’s financial
disclosures to Thomas.103 Thomas remembered that Goldman showed him financial disclosure
forms.104 Thomas additionally testified that Goldman found at least one disclosure form of Stapley’s
and a violation of law. Thomas sent him to a MACE meeting to present his findings.105
70. Goldman went to MACE meetings and handed out the information he obtained about
Supervisor Stapley at one of those meetings during the first half of 2007.106 The participants at the
MACE meetings looked at some of Supervisor Stapley’s disclosure forms and discussed information
Goldman had discovered about properties or transactions in which Supervisor Stapley might be
involved that were not listed on the disclosure forms.107
71. MCAO Division Chief Novitsky testified that Goldman brought documents to MACE
meetings that are in Exhibit 245.108 Exhibit 245 consists of documents that Novitsky kept and later
gave to the Arizona Attorney General’s Office in 2010. Exhibit 245 included a financial disclosure
form for Supervisor Stapley from 2004.109 Novitsky stated that it appeared that Goldman had
initiated some type of investigation into Stapley’s financial disclosure forms and discussed whether
they contained irregularities.110 The discussions at MACE concerning Supervisor Stapley started
early in 2007.111 101 Kratovil Testimony, Hr’g Tr. 97:4-24, Oct. 6, 2011; Tucker Testimony, Hr’g Tr. 38:17-39:3, Oct. 12, 2011; Luth Testimony, Hr’g Tr. 69:18-70:10, 71:11-72:22, Oct. 14, 2011. 102 Ex. 19, TRIAL EXB 00373. 103 Goldman Testimony, Hr’g Tr. 141:19-142:3, Oct. 12, 2011. 104Thomas Testimony, Hr’g Tr. 123:3-25, Oct. 26, 2011. 105 Thomas Testimony, Hr’g Tr. 124:15-125:17, Oct. 26, 2011. 106 Ex. 245, TRIAL EXB 03326-83. Novitsky Testimony, Hr’g Tr. 59:4-60:11, 65:10-66:7, 81:20-82:12, Oct. 6, 2011; Goldman Testimony, Hr’g Tr. 142:8-146:12, Oct. 12, 2011. 107 Novitsky Testimony, Hr’g Tr. 84:16-86:10, Oct. 6, 2011. 108Novitsky Testimony, Hr’g Tr. 59:20-60:11, Oct. 6, 2011. 109Ex. 245, TRIAL EXB 3326-3327. 110Novitsky Testimony, Hr’g Tr. 60:16-61:1, Oct. 6, 2011. 111 Kratovil Testimony, Hr’g Tr. 92:24-93:6, Oct. 6, 2011.
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72. Thomas also testified that Goldman told him that Stapley had been involved in a
number of corporations his role in which he had not disclosed in his financial disclosures and that
Stapley’s conduct on a number of those disclosures appeared to be deliberate, and that it appeared to
Thomas that Stapley had not behaved very well.112 Thomas admitted that at least one of the
financial disclosures Goldman found would have triggered the statute of limitations.113
73. After Goldman took his documents to a MACE meeting, nothing was done with them
and Thomas testified he forgot about the matter.114 Goldman reminded Thomas about the matter in
early 2008.115
74. Aubuchon Takes Over Stapley Investigation. Thomas assigned the Stapley matter
to Aubuchon in March 2008.
75. Chief Deputy County Attorney Phil MacDonnell warned Thomas that MCAO was
not qualified to and should not handle the investigation and prosecution of Supervisor Stapley.116
MacDonnell particularly warned Thomas not to entrust the Stapley I case to Aubuchon, because she
was not competent to handle it.117 Appellate Division Chief Barbara Marshall had similar
concerns.118 Thomas ignored these warnings.
76. According to Aubuchon, when Thomas gave the matter to her, he told her he wanted
it done in a month.119 He also said they had received a tip that Stapley had failed to disclose some
information on his financial disclosure forms.120 He also told her that Goldman had looked at some
of the documents and it appeared there might be some truth to the tip.121
112 Thomas Testimony, Hr’g Tr. 124:15-125:19, Oct. 6, 2011. 113Thomas Testimony, Hr’g Tr. 126:2-128:13, Oct. 6, 2011. 114 Thomas Testimony, Hr’g Tr. 128:18-129:2, Oct. 6, 2011. 115 Thomas Testimony, Hr’g Tr. 128:18-129:12, Oct. 6, 2011. 116 MacDonnell Testimony, Hr’g Tr. 143:17-148:5, Sept. 15, 2011. 117 MacDonnell Testimony, Hr’g Tr. 148:6-153:19, Sept. 15, 2011. 118 Marshall Testimony, Hr’g Tr. 153:17-155:7, Sept. 19, 2011. 119Aubuchon Testimony, Hr’g Tr. 36:6-19, 55:21-7, 65:21-23, Oct. 25, 2011. 120Aubuchon Testimony, Hr’g Tr. 36:6-37:1, Oct. 25, 2011. 121Aubuchon Testimony, Hr’g Tr. 36:6-37:1, Oct. 25, 2011.
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77. Wells testified that she gave Goldman’s packet of information to Aubuchon.122
Goldman testified that he also gave a notebook of his research to Aubuchon.123
78. Aubuchon obtained information about Stapley from Goldman, and she learned of
financial disclosure forms that he had obtained.124 She retrieved the notebook from Goldman at his
house in Fountain Hills. Aubuchon testified that Goldman told her the information came from
another investigation of Stapley, that there was a possibility that Stapley had not been disclosing
things, and that there was an issue about nondisclosure.125 Aubuchon also admitted that she saw
date stamps on the documents that Goldman gave her that were from 2007, the year before.126 In
fact, there is clear and convincing evidence that the documents Goldman gave to Aubuchon were
those contained in Exhibit 18, Bates stamped TRIAL EXB 206 to 342. The pages that are Bates
stamped TRIAL EXB 255, 298, 319, 324, 325, 341, 342 show the date that the page was printed
from the internet and those pages respectively show Feb. 11, 2007; February 8, 2007; Feb. 5, 2007;
Feb. 5, 2007; Feb. 13, 2007; Jan. 23, 2007; and Jan. 23, 2007.
79. After March 2008, Aubuchon conducted an investigation herself into Stapley’s
disclosures.127 Aubuchon testified that she determined there was a pattern of nondisclosure by
Stapley and she told Thomas.128 Aubuchon prepared a draft indictment against Supervisor
Stapley,129 which lists May 29, 2008 as the date that the grand jury would return the indictment.130
The significance of this date is that it was about a year after Goldman had stopped working on the
Stapley matters. It is also significant because Thomas told Aubuchon that he wanted to go forward
within a month of when he gave the case to Aubuchon. As discussed below the statute of limitations
122 Wells Testimony, Hr’g Tr. 117:3-120:17, 125:5-10, Sept. 13, 2011. 123 Goldman Testimony, Hr’g Tr. 162:9-164:7, Oct. 12, 2011. 124Aubchon Testimony, Hr’g Tr. 41:18-42:5, Oct. 25, 2011. 125 Aubchon Testimony, Hr’g Tr. 44:5-46:6, Oct. 25, 2011. 126 Aubchon Testimony, Hr’g Tr. 46:14-22, Oct. 25, 2011. 127 Aubchon Testimony, Hr’g Tr. 46:23-48:15, Oct. 25, 2011. 128 Aubchon Testimony, Hr’g Tr. 48:16-20, Oct. 25, 2011. 129 Ex. 30, TRIAL EXB 00777. 130 Aubchon Testimony, Hr’g Tr. 50:8-55:13, Oct. 25, 2011.
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on misdemeanor violations in Arizona is one year after law enforcement knew or should have known
that there was probable cause to believe a crime had been committed.
80. Thomas Assigns Commander Stribling to Stapley Case. Thomas contacted Mark
Stribling, who is now Chief of Investigations of MCAO, in early May 2008 and asked him to work
on an investigation of Stapley.131 Thomas also told Stribling that the case had to be done in a
month.132 Thomas told Commander Stribling that he would be working with MCSO Sgt. Brandon
Luth.133 Commander Stribling was provided no information of how any of the information about the
case came to the attention of MCAO, but Thomas told him that Aubuchon had done Internet
searches on the properties owned by Stapley or his affiliates and that Aubuchon would be the
prosecuting attorney.134 Thomas provided Commander Stribling with a copy of one of Supervisor
Stapley’s financial statements.135 Thomas also told Commander Stribling that another investigation
of Supervisor Stapley would follow, to last between six and twelve months.136
81. May 14, 2008 Meeting re: Stapley. On May 14, 2008, Aubuchon, Sgt. Luth,
Commander Stribling, another investigator from MCAO (Tadlock), MCSO Captain James Miller,
and MCSO Lieutenant Anglin attended a meeting.137 The attendees were told that it concerned a
new investigation.138 Aubuchon explained that the investigation concerned Supervisor Stapley’s
filing of incomplete financial disclosure statements.139
82. At the May 14, 2008, meeting Aubuchon handed out documents, which she stated she
had researched online, that showed Stapley had filed false and/or incomplete disclosure
statements.140 Some of the documents that Aubuchon handed out showed that they had been printed 131 Stribling Testimony, Hr’g Tr. 58:6-17, Oct. 4, 2011. 132 Stribling Testimony, Hr’g Tr. 59:1-5, Oct. 4, 2011. 133 Stribling Testimony, Hr’g Tr. 58:18-59:1, Oct. 4, 2011. 134 Stribling Testimony, Hr’g Tr. 59:1-5, Oct. 4, 2011. 135 Stribling Testimony, Hr’g Tr. 59:13-25, Oct. 4, 2011. 136 Stribling Testimony, Hr’g Tr. 59:6-12, Oct. 4, 2011. 137 Stribling Testimony, Hr’g Tr. 60:19-61:6, Oct. 4, 2011. 138 Anglin Testimony, Hr’g Tr. 195:3-18, Oct. 11, 2011. 139 Anglin Testimony, Hr’g Tr. 195:19-196:14, Oct. 11, 2011. 140 Ex. 30, TRIAL EXB 00723-1026. Stribling Testimony, Hr’g Tr. 61:9-63:23, Oct. 4, 2011; Hr’g Tr. 57:3-58:18, Oct. 5, 2011; Anglin Testimony, Hr’g Tr. 197:9-24, Oct. 11, 2011.
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from the Internet in January or February 2007.141 Based on statements from Thomas and Aubuchon,
Commander Stribling understood that Aubuchon had conducted this research in 2007.142 However,
the clear and convincing evidence establishes that Goldman did this research and turned it over to
Aubuchon.
83. At the May 14, 2008 meeting, Aubuchon also handed out the draft indictment, which
set forth 65 counts.143 This draft indictment included allegations of misconduct by Stapley
beginning in 1994.144 As noted above, the draft indictment showed a date of May 29, 2008 next to
the signature page.145
84. Commander Stribling questioned how Aubuchon could have prepared a draft
indictment when no investigation had been conducted and no police report had been written.146 In
his twenty-plus years as a police officer and detective, Commander Stribling had never seen an
indictment prepared before the investigation was conducted.147
85. Sgt. Luth asked Aubuchon at the May 14, 2008, meeting if handing out all the
information made her a witness in the matter. She responded with words to the effect of “that’s why
you’re going to recreate the books or redo what we’ve already done.”148 Luth complained to
Captain Miller and Lt. Anglin regarding his concerns about when the day the investigation began.149
Anglin told Luth to document what he was told “in a protect yourself kind of way.”150 When Lt.
141 Compare Ex. 30, TRIAL EXB 00946 (same document as Ex. 18, TRIAL EXB 00228); Ex. 30, TRIAL EXB 00995-96 (same document as Ex. 18, TRIAL EXB 00298-99); Ex. 30, TRIAL EXB 00998-99 (same document as Ex. 18, TRIAL EXB 00308-09); Ex. 30, TRIAL EXB 1000-03 (same document as Ex. 18, TRIAL EXB 00301-04). Stribling Testimony, Hr’g Tr. 64:5-67:22, Oct. 4, 2011. 142 Stribling Testimony, Hr’g Tr. 132:19-37:24, Oct. 5, 2011. 143 Stribling Testimony, Hr’g Tr. 68:3-69:2, Oct. 4, 2011. 144 Ex. 30, TRIAL EXB 00777-98. 145 Stribling Testimony, Hr’g Tr. 69:3-19, Oct. 4, 2011. 146 Stribling Testimony, Hr’g Tr. 69:20-70:10, Oct. 4, 2011. 147 Stribling Testimony, Hr’g Tr. 70:16-21, Oct. 4, 2011. Commander Stribling’s fears caused him to preserve the documents that became Ex. 30, because he knew that at some point the Stapley I investigation would come full circle and he wanted to be able to explain his participation. Stribling Testimony, Hr’g Tr. 114:2-115:17, Oct. 4, 2011. He kept them in his home gun safe. Stribling Testimony, Hr’g Tr. 4:17-7:7, Oct. 5, 2011. 148 Luth Testimony, Hr’g Tr. 86:15-25, Oct. 14, 2011. 149 Luth Testimony, Hr’g Tr. 87:1-5, Oct. 14, 2011. 150 Luth Testimony, Hr’g Tr. 87:1-14, Oct. 14, 2011.
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Anglin asked for clarification as to how the case was brought to the attention of law enforcement,
Aubuchon told him that she was bringing the case to MCSO.151
86. Lieutenant Anglin of MCSO was concerned about the statute of limitations issue. He
asked Aubuchon about that issue. She assured him that the statute began to run when the matter was
brought to the attention of law enforcement, i.e., that day.152
87. Based on Aubuchon’s direction, Lt. Anglin told Sgt. Luth to prepare an MCSO report
about the Stapley I matter, with a start date of May 14, 2008.153 That report does not indicate why
the investigation was commenced or what research or investigation had been done before that date.
The report’s reference to MCSO receiving information about Supervisor Stapley is a reference to the
information provided by Aubuchon without actually naming her as the source.154
88. Another Supplemental MCSO report, undated, mentions a May 14, 2008 meeting
with MCAO as the time when MCSO learned about Supervisor Stapley’s alleged filing of false
and/or incomplete financial statements.155
89. At a later MACE meeting in May 2008, Commander Stribling questioned whether the
omissions of properties on certain disclosure statements might be nothing more than a clerical
error.156 Aubuchon said words to the effect of “if it’s not there, it’s a crime.”157
90. Commander Stribling was required to write a report of his work for the MACE Unit
on a blank piece of paper, because no Departmental Report number had been assigned to the Stapley
I investigation.158
151 Anglin Testimony, Hr’g Tr. 198:24-199:12, Oct. 11, 2011. 152 Anglin Testimony, Hr’g Tr. 199:13-200:1, 203:6-10, Oct. 11, 2011. 153 Ex. 246, TRIAL EXB 03384-85. Anglin Testimony, Hr’g Tr. 200:11-201:14, Oct. 11, 2011. 154 Anglin Testimony, Hr’g Tr. 202:11-203:5, Oct. 11, 2011; Luth Testimony, Hr’g Tr. 87:15-88:21, Oct. 14, 2011. 155 Ex. 304, TRIAL EXB 04082. 156 Stribling Testimony, Hr’g Tr. 73:2-74:12, Oct. 4, 2011. 157 Stribling Testimony, Hr’g Tr. 75:7-18, Oct. 4, 2011. 158 Stribling Testimony, Hr’g Tr. 70:22-71:11, 76:17-77:5, 86:19-87:6, Oct. 4, 2011.
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91. From May 2008 forward, Aubuchon and Chief Deputy Hendershott ran the Stapley I
investigation.159 Aubuchon kept Thomas informed about the MACE Unit’s investigation of
Supervisor Stapley.160
92. Indictment of Supervisor Stapley. In November 2008, Thomas and Aubuchon
caused the grand jury to return criminal charges against Supervisor Stapley.161 State v. Stapley,
CR2008-009242 (the investigation and prosecution are collectively referred to herein as “Stapley I”).
Aubuchon presented this case to a grand jury. The grand jury returned an indictment and it was filed
in court on November 20, 2008.162 On about December 2, 2008, a summons was served on
Supervisor Stapley.163
93. Transfer of Stapley I Case to Yavapai County. In March or early April 2009,
Thomas transferred the Stapley I case to the Yavapai County Attorney, Sheila Polk.164 At this time,
Stapley’s motion for determination of counsel was still pending in front of Judge Fields. MCAO
also transferred the investigations of Supervisor Wilcox, the “bug sweep,” and the Court Tower.165
94. In addition to the challenge to MCAO’s ability to act as counsel for the State in the
Stapley I case, a bar complaint had been filed against Thomas alleging a conflict of interest in that
case. That bar complaint was transferred and assigned to retired Superior Court Judge Rebecca
Albrecht to handle as independent bar counsel.166 Judge Albrecht prepared a decision and, in an
effort to give Thomas advance notice of her decision, she circulated a copy to Thomas’s counsel and
the State Bar.167 Judge Albrecht dismissed the matter on May 4, 2009, on the condition that Thomas
159 Anglin Testimony, Hr’g Tr. 203:23-205:19, Oct. 11, 2011; Hr’g Tr. 6:13-8:9, Oct. 12, 2011. 160 Johnson Testimony, Hr’g Tr. 89:3-90:5, Oct. 11, 2011. 161 Aubuchon sought the indictment. Thomas knew Aubuchon was seeking the indictment and reviewed a draft indictment before Aubuchon presented it to the grand jury. Thomas Testimony, Hr’g Tr. 34:22-35:12, Oct. 26, 2011. 162 Ex. 36, TRIAL EXB 01109-46. 163 Ex. 38, TRIAL EXB 01150-53. 164 Chief Deputy County Attorney Phil MacDonnell recommended this transfer. MacDonnell Testimony, Hr’g Tr. 154:8-155:18, Sept. 15, 2011; Polk Testimony, Hr’g Tr. 193:14-194:15, Oct. 18, 2011. 165 Johnson Testimony, Hr’g Tr. 222:4-14, Oct. 6, 2011. 166 Albrecht Testimony, Hr’g Tr. 189:11-190:4, 193:6-16, Oct. 3, 2011. 167 Albrecht Testimony, Hr’g Tr. 193:17-195:8, Oct. 3, 2011.
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withdraw from the case and transfer it to Yavapai County.168 She stated in her letter, however, that
the issues were highly concerning and should similar conflict of interest concerns come up in the
future, the file could be reviewed anew.169
95. On April 6, 2009, Thomas wrote to Supervisor Max Wilson and stated that it was “An
Open Letter to the People of Maricopa County.”170 He stated that he referred the Stapley case to
Polk and that he was also transferring to her the completion of the investigation related to the
Maricopa County Superior Court Tower as well as current or future investigations or prosecutions
involving the MCBOS or county management. Also on April 6, 2009, Thomas issued a News
Release captioned, “County Attorney Offers Compromise to End Infighting, Sends Stapley case,
Investigations to Yavapai County; Proposes Mediation.”171 In mid-April 2009, Thomas suggested
mediation to resolve his differences with the Board.172 At least one member of the Board viewed
these efforts with suspicion and questioned Thomas’s sincerity.173
96. Polk entered her appearance on April 15, 2009 and asked former Navajo County
Attorney Melvin Bowers to serve as the prosecutor in the case.174
97. During the time the Yavapai County Attorney was handling the various
investigations, Aubuchon continued to assist MCSO with the investigations.175 Although MCSO
had scanned thousands of Court Tower documents by the time the Court Tower investigation was
transferred, MCSO did not provide any of those documents to the Yavapai County Attorney’s
office.176
168 Ex. 101, TRIAL EXB 01436. 169 See also the March 5, 2009 draft of the dismissal letter, Ex. 87, TRIAL EXB 01382-84. Albrecht Testimony, Hr’g Tr. 191:8-193:1, 195:23-197:19, Oct. 3, 2011. 170 Ex. 99, TRIAL EXB 01433. 171 Ex. 97, TRIAL EXB 01429-30. 172 Ex. 99, TRIAL EXB 01433. 173 Kunasek Testimony, Hr’g Tr. 19:9-22:5, Sept. 26, 2011. 174Polk Testimony, Hr’g Tr. 196:17-197:1, Oct. 18, 2011. 175 Johnson Testimony, Hr’g Tr. 7:10-8:20; 93:2-17, Oct. 11, 2011. 176 Hendershott Testimony, Hr’g Tr. 42:22-45:1, Oct. 13, 2011.
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98. Supervisor Stapley’s counsel filed a motion to dismiss based on what counsel
contended was MCAO’s conflict of interest in prosecuting Supervisor Stapley. On June 10, 2009,
Judge Fields denied the motion to dismiss.177 Judge Fields distinguished MCAO’s prosecution of
Supervisor Stapley from MCAO’s investigation of the Court Tower, which Judge Donahoe had
found to be an ethical conflict. 2. Conclusions of Law – Claim 4 – ER 4.4(a) (Using Means to Burden or
Embarrass)
99. Thomas and Aubuchon violated ER 4.4(a) when they brought charges against
Supervisor Stapley in late 2008.
100. ER 4.4(a) states that in representing a client, a lawyer shall not use means that have
no substantial purpose other than to embarrass, delay, or burden any other person, or use methods of
obtaining evidence that violate the legal rights of such a person. In re Levine, 174 Ariz. 146, 847
P.2d 1093 (1993) (respondent violated ER 4.4 by engaging in a series of litigations over nine years
against his former partner and others; respondent persisted in bringing these cases despite the
disputes having been resolved on the merits against respondent and despite the courts’ having
awarded fees against respondent).
101. The text of the Indictment returned by the grand jury against Supervisor Stapley at the
direction of Aubuchon shows the personal and political nature of Thomas and Aubuchon’s attack on
Supervisor Stapley. The Indictment charges 118 separate criminal violations dating back to
1994.178 That was the year when he first ran for the office of County Supervisor.179
102. Thomas’s written press release about the Stapley I indictment stated that the case was
the result of investigations by the joint anti-corruption task force with the Sheriff (Maricopa County
Anti-Corruption Effort, “MACE”).180 As discussed below, the MACE Unit investigated Supervisors
177 Ex. 104, TRIAL EXB 01445-48. 178 Ex. 36, TRIAL EXB 01109-1146. 179 Stapley Testimony, Hr’g Tr. 65:1-66:8, Sept. 20, 2011. 180 Ex. 37, TRIAL EXB 01147-49.
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Wilcox and Kunasek. It also investigated County Manager Smith.181 The investigation of
Supervisor Stapley began first. Thomas announced that the Stapley I investigation was not over and
other County employees were also being investigated.182
103. To increase the number of charges, Aubuchon charged multiple Counts as to each
property for each year. For example, as to the non-disclosure of Stewart’s East Mesa Addition for
the year 1994, there are crimes charged in Counts 1, 2 and 3.183 As to the non-disclosure of
Stewart’s East Mesa Addition for the year 1995, there are crimes charged in Counts 4, 5, 6 and 7.184
As to the non-disclosure of Stewart’s East Mesa Addition for the year 1996, there are crimes charged
in Counts 9, 10 and 11.185 It is patent that Aubuchon was endeavoring to develop as many Counts as
possible.186 Charging these long-ago felonies was unfair to Supervisor Stapley because the passage
of time would make defending the charges very difficult. An analysis of Count 1 against Supervisor
Stapley shows this unfairness. The crime charged in Count 1 is perjury, under A.R.S. § 13-2702.187
Perjury requires a knowing state of mind. Aubuchon knew it would be difficult for Supervisor
Stapley to remember in 2008 whether he knowingly failed to disclose the Mesa properties in 1994,
or whether he just made a mistake, or whether someone else prepared the financial disclosure
statement for him. Perjury is a class 4 felony. A.R.S. § 13-2702(B). If convicted of perjury,
Supervisor Stapley could have faced imprisonment. A.R.S. § 13-702(D) states that the presumptive
sentence for a class 4 felony is 2.5 years in the department of corrections. Under Count 1,
Supervisor Stapley also could have faced a fine of up to $150,000. A.R.S. § 13-801. The unfairness
of charging this serious crime for conduct that occurred so long ago was obvious.
181 Smith Testimony, Hr’g Tr. 171:4-172:9, Sept. 26, 2011. 182 Ex. 37, second page, TRIAL EXB 01148. 183 Ex. 36, TRIAL EXB 01110-11. 184 Ex. 36, TRIAL EXB 01111-12. 185 Ex. 36, TRIAL EXB 01112-13. 186 It is worth noting that there is no allegation in the Indictment that Stapley personally benefitted from the non-disclosures. See the colloquy at the November 20, 2008 Grand Jury proceeding between prosecutor Wolfram and Commissioner Passamonte, Ex. 35, pp. 67-68, TRIAL EXB 01106-07. 187 Ex. 36, TRIAL EXB 01110.
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104. In addition, Thomas and Aubuchon brought more than 40 of the charges against
Stapley knowing that the statute of limitations barred those charges. See Claim Nine below, Part III
(B)(6).
105. This apparently was the first time in Arizona history that a County Supervisor’s
financial disclosures were the subject of criminal charges. Yet Thomas and Aubuchon did not
subject Stapley I to an incident review, a process by which Division Chiefs evaluated difficult cases
at MCAO.188 Aubuchon could have requested an incident review.189 Instead, she prepared the case
in isolation, without the benefit of the checks and balances available in MCAO’s usual chain of
command.190
106. It is evident that, by bringing these charges, Thomas and Aubuchon intended not to
address criminal activity, but to embarrass and burden Supervisor Stapley.
107. In making this conclusion, the Hearing Board is mindful that it does not matter that
from an objective view there may have been probable cause to charge Stapley. The fact that
probable cause may have existed does not allow a prosecutor to charge someone with a crime if the
subjective purpose was to embarrass or burden him. In re Levine, 174 Ariz. 146, 154, 847 P.2d 1102,
1101 (1993) (“even where respondent claims that an objectively arguable ground for a legal claim
exists, his subjective purpose in bringing the action is relevant to whether a violation of ER 4.4
occurred”).191
108. Thomas’s purpose against Supervisor Stapley began with the dispute over whether
Thomas or MCBOS could hire lawyers outside MCAO. Thomas initiated the investigation of
188 MacDonnell Testimony, Hr’g Tr. 12:17-14:24, Sept. 19, 2011; Marshall Testimony, 162:6-163:21, Sept. 19, 2011; Novitsky Testimony, Hr’g Tr. 66:14-68:18, Oct. 6, 2011. 189 Marshall Testimony, Hr’g Tr. 8:23-11:13, Sept. 20, 2011. 190 MacDonnell Testimony, Hr’g Tr. 134:14-136:5, Sept. 19, 2011. 191 See also Ky. Bar Ass’n v. Reeves, 62 S.W.3d 360 (Ky. 2001). The respondent in Reeves violated Rule 4.4 where he sent demand letter with “a dual purpose, one legitimate and one illegitimate.” Id. at 365. The Kentucky Supreme Court quoted with approval the trial commissioner, who found the respondent sent the letter “not solely to accomplish legitimate ends for his client, but rather, principally, to achieve an advantage in a personal matter,” id. at 365, and that “[o]nly with tunnel vision [could] the Demand Letter be deemed, when viewed in its entirety, to have had a solely legitimate ‘substantial purpose.’” Id. at 366.
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Supervisor Stapley based merely on an unsubstantiated rumor. The rumor concerned an alleged
bribe between Stapley and Judge Mundell to hire Tom Irvine to represent the Superior Court on the
tower project.192 No evidence was ever developed that there was such a bribe. Yet when it was
reported to Thomas that there was no connection found between Stapley and Irvine, Thomas decided
to investigate and prosecute Stapley anyway. It must be remembered that Stapley had been
perceived as the most aggressive supervisor to challenge Thomas’s power. Thomas then assigned
Aubuchon to prosecute Stapley, despite warnings to the contrary. Thomas and Aubuchon avoided
internal MCAO review, which might have questioned the legitimacy of the case.
109. The sheer number of charges (118), the fact that many of the charges dated back to
1994, and the fact that the statute of limitations barred the majority of the misdemeanors demonstrate
the burdensome, harassing and embarrassing purpose of the indictment. While prosecutors have
broad discretion to charge, the fact that Thomas and Aubuchon charged crimes they knew were
outside the statute of limitations and the fact that they charged so many crimes, including felonies of
forgery and perjury, for essentially the same types of acts and omissions show their motive to
retaliate, harm and burden Supervisor Stapley. Thomas and Aubuchon violated ER 4.4.
3. Conclusions of Law – Claim Five – ER 1.7(a)(1) and (a)(2) (Conflicts of Interest)
a. Representing One Client Against Another Client – ER 1.7(a)(1).
110. Thomas and Aubuchon violated ER 1.7(a)(1), which states that a lawyer shall not
represent a client if the representation of one client will be directly adverse to another client.
111. Thomas and Aubuchon represented one client, the State, against another client -
Supervisor Stapley - in the criminal case against Stapley. Thomas and Aubuchon caused a grand
jury to indict Supervisor Stapley when Stapley was a member of MCBOS.
192 Hendershott Testimony, Hr’g Tr. 22:4-22; 26:24-28:21; 31:21-32:22; 118:4-16, Oct. 13, 2011. Hendershott admits the conversation that started the rumor does not constitute a crime. Hendershott Testimony, Hr’g Tr. 118:4-16, Oct. 13, 2011. Judge Mundell denies the rumored conversation ever took place. Mundell Testimony, Hr’g Tr. 118:1-5, Oct. 3, 2011.
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112. In their role as prosecutor, Thomas and Aubuchon represented the State. State ex rel.
Romley v. Super. Ct. (Flores), 181 Ariz. 378, 382, 891 P.2d 246, 250 (App. 1995); see also Hawkins
v. Auto-Owners Ins. Co., 579 N.E.2d 118, 123 (Ind. App. 1991) (partially vacated on other grounds,
608 N.E.2d 1358 (Ind. 1993)) (“A deputy prosecutor does not represent the victims or witnesses in a
criminal proceeding, but rather, is the State's representative”); State v. Eidson, 701 S.W.2d 549, 554
(Mo. App. 1985) (“The prosecutor represents the State not the victim”).
113. In his role as civil advisor to the Board, Thomas represented the Board. A.R.S. § 11-
532. He also represented Stapley. Thomas himself recognized that he had an attorney-client
relationship with Stapley, as he stated in his news release of June 14, 2006, described above, and
implied he had the same relationship with each supervisor.193 Thomas and his office represented
individual members of the Board. Wilcox and Kunasek both testified that they received legal advice
from the County Attorney’s Office.194 Stapley referred to himself as Thomas’s client.195 No one
from the County Attorney’s office ever dispelled any supervisor of the notion that the County
Attorney represented them individually. It is the purported client’s view of the attorney-client
relationship that is paramount. See Hrudka v. Hrudka, 186 Ariz. 84, 89, 919 P.2d 179, 184 (App.
1995); Paradigm Ins. Co. v. Langerman Law Offices, P.A., 200 Ariz. 146, 149, 24 P.3d 593, 596
(2001) (“a purported client’s belief that [the lawyer] was their attorney is crucial to the existence of
the attorney-client relationship . . . .”) (citation omitted).
114. ER 1.13 makes clear that a public attorney can have an attorney-client relationship
with both a governmental entity and a constituent of that entity. See also State ex rel. Thomas v.
Schneider, 212 Ariz. 292, 296, 130 P.3d 991, 995 (App. 2006) (because city can only act through its
officers, city attorney has attorney-client relationship with city officers, not just city). There is no
evidence that Thomas ever terminated that relationship or advised Stapley about Thomas’s conflict
193 Ex. 13, TRIAL EXB 00097. 194 Wilcox Testimony, Hr’g Tr. 34:23-36:2, Sept. 21, 2011; Kunasek Testimony, Hr’g Tr. 5:7-6:9, 7:7-10:12, 116:4-117:1, Sept. 26, 2011. 195 Stapley Testimony, Hr’g Tr. 170:10-12, Sept. 20, 2011.
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of interest. As ER 1.7(a)(1) plainly states, an attorney cannot sue one client on behalf of another
client. “Client loyalty is at the heart of our conflict of interest rules.” In re Shannon, 179 Ariz. 52,
61, 876 P.2d 548, 557 (1994).
115. Thomas apparently interpreted the Arizona statutes establishing the County
Attorney’s role to allow him to simultaneously represent and criminally charge a member of the
Board. However, as described in Section III.A.2 above, the ethical rules, which the Arizona
Supreme Court adopts and enforces, govern the conduct of any attorney licensed in the State of
Arizona. Disciplinary rules are binding rules of conduct. In re Swartz, 141 Ariz. 266, 272, 686 P.2d
1236, 1242. “The profession has both an obligation of public service and duties to clients which
transcend ordinary business relationships and prohibit the lawyer from taking advantage of the
client.” Id. at 273, 686 P.2d at 1243. No Arizona Statute permits the County Attorney to disregard
his obligations under the ethical rules, nor could it. Thomas could not ethically represent and
prosecute Stapley because ER 1.7 forbids it, despite what Thomas might interpret A.R.S. § 11-532 to
permit.
116. There is no attorney discipline case in Arizona that has addressed the issue of whether
a County Attorney can ethically prosecute a member of the County Board of Supervisors. The
Arizona Court of Appeals has addressed this issue in the context of a motion to disqualify a County
Attorney in a criminal case, but as discussed below, that case did not and could not address the issue
before this court. It appears that the ethical obligations of a County Attorney in this situation under
the Arizona Rules of Professional Conduct are questions of first impression.
117. Respondents have relied upon State v. Brooks, a criminal case involving the issue of
determination of counsel where the County Attorney prosecuted a member of the Maricopa County
Community College District (MCCCD). 126 Ariz. 395, 399-400, 616 P.2d 70, 74-75 (App. 1980).
The Arizona Court of Appeals in Brooks did not analyze any of the attorney discipline issues raised
in this Bar matter. It analyzed the due process rights of a defendant in a criminal proceeding.
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Brooks did not cite any ethical rules or disciplinary rules. In this case the issue is whether a County
Attorney violates ER 1.7(a)(1) when prosecuting a member of the board of supervisors he represents.
118. Brooks is not binding on this Court. See In re Levine, 174 Ariz. 146, 155-56, 847
P.2d 1093, 1102-1103 (1993) (disciplinary committee may not give prior judicial rulings preclusive
effect and must make independent findings and conclusions based on the totality of the evidence
before it); In re Peasley, 208 Ariz. 27, 35, 90 P.3d 764, 772 (2004) (“A judge’s findings in the
underlying criminal case do not necessarily determine whether or not an ethical violation
occurred”). Disciplinary prodeedings are neither civil nor criminal, but are sui generis. Rule 48,
Ariz. R. Sup. Ct. Fifteen years after Brooks, the Arizona Court of Appeals recognized as much:
[D]isbarment and suspension proceedings are neither civil nor criminal in nature but are special proceedings, sui generis, and result from the inherent power of courts over their officers. Such proceedings are not lawsuits between parties litigant but rather are in the nature of an inquest or inquiry as to the conduct of the respondent.... Thus the real question at issue in a disbarment proceeding is the public interest and an attorney's right to continue to practice a profession imbued with public trust.
Brown v. Ariz. Dept. of Real Estate, 181 Ariz. 320, 325, 890 P.2d 615, 620 (App. 1995) (citing In re
Daley, 549 F.2d 469, 474 (7th Cir. 1977), cert denied, 434 U.S. 829 (1977)) (emphasis in
original).196 Disciplinary authority is vested in the Arizona Supreme Court and the State Bar. Rule
46, Ariz. R. Sup. Ct. The Arizona Supreme Court appoints the Presiding Disciplinary Judge and a
Hearing Panel pursuant to Rule 51, Ariz. R. Sup. Ct. The Panel is uniquely qualified to analyze
Ethical Rule violations and to impose discipline consistent with the disciplinary rules. The court of
appeals decided Brooks in 1980. In 1983, Arizona adopted the ABA Model Rules of Professional
Conduct, including ER 1.7 (amended 2003) and ER 1.13 (amended 2004). Those rules require a
different result in this case from the result one might reach based solely on reading Brooks.
196 In Brown, a realtor’s Testimony, previously given immunity under federal law during a Senate hearing, was held admissible in a subsequent license revocation proceeding against him before the Department of Real Estate. 181 Ariz. at 325-26, 890 P.2d at 620-21. The Brown court found the license revocation proceeding “remedial,” not criminal, by analogizing to attorney discipline proceedings. Id at 325, 890 P.2d at 620. The previously-immune Testimony was therefore admissible without violating the realtor’s Fifth Amendment rights. Id at 325-26, 890 P.2d at 620-21
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119. In Brooks, the County Attorney had not admitted he represented the constituent
member he was prosecuting. In this case, Thomas stated in his June 14, 2006 press release that he
had an attorney-client relationship with Stapley and the other members of the Board.197 In sum,
Brooks is not dispositive of the conflicts issues in this case.
120. The Hearing Panel finds that under ER 1.7(a)(1), Thomas and Aubuchon could not
criminally prosecute Supervisor Stapley while simultaneously representing him pursuant to A.R.S. §
11-532(A)(9). That prosecution created a clear conflict of interest. In the event the County Attorney
believes a member of the Board has committed crimes, there are obvious means of avoiding conflict.
The County Attorney should conflict out such a case to an independent prosecuting authority.
b. Conflicts Based on a Personal Interest of the Lawyer – ER 1.7(a)(2).
121. Thomas and Aubuchon also violated ER 1.7(a)(2), which provides that a lawyer shall
not represent a client if there is a significant risk that the representation will be materially limited by
a personal interest of the lawyer. Thomas and Aubuchon’s personal interests against Supervisor
Stapley should have precluded them from seeking the indictment and prosecution of him. Most of
the personal interest against Supervisor Stapley was primarily attributed to Thomas and was based
on the history of power struggles between Stapley and Thomas.198 However, this personal interest is
also imputed to Aubuchon because the two worked closely in the same firm. ER 1.10(a); ER 1.0(c).
122. ER 1.0(c) provides that government lawyers may be treated as a firm depending on
the particular Rule involved and the specific facts of the situation. For purposes of ER 1.7, MCAO
is a firm because of its structure—both the civil and criminal divisions report to Thomas—and
because Thomas and Aubuchon worked together to charge Stapley. See State Bar of Ariz. Ethics
Op. 89-08 (Public Defender’s Office should be considered a “firm” for purposes of ER 1.10; “A
197 Ex. 13, TRIAL EXB 00097. 198 A lawyer’s “personal interest” under ER 1.7(a)(2) is not limited to a financial interest. See ER 1.7 cmts. 10, 11, 12 (discussing business, family relationship, and sexual relationship interests). See also Villalpando v. Reagan, 211 Ariz. 305, 309, 121 P.3d 172, 176 (App. 2005) (“Any interest that is inconsistent with the prosecutor’s duty to safeguard justice is a conflict that potentially could violate a defendant’s right to fundamental fairness.”)
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lawyer in a position of ultimate authority and oversight may acquire confidential information about
all, or nearly all, of the cases handled by the office during his or her tenure”); State Bar of Ariz.
Ethics Op. 92-07 (screening of Deputy Public Defenders is not an adequate remedy for conflict
under ER 1.7); State Bar of Ariz. Ethics Op. 93-06 (splitting Public Defender’s Office into two
divisions does not avoid imputed disqualification).199 Thomas’s personal interests were imputed to
Aubuchon under ER 1.10(a) because they presented a significant risk of materially limiting the
representation. Aubuchon, as head of MCAO’s pre-trial division and a member of the MACE Unit,
reported to and worked directly with Thomas. See State v. Latigue, 108 Ariz. 521, 523, 502 P.2d
1340, 1342 (1972) (Chief Deputy County Attorney has “supervisory powers and duties over the
assistant county attorney who is prosecuting. Moreover, if the County Attorney’s Office is
functioning efficiently, its staff has frequent meetings to discuss cases, and even without meetings,
staff members often talk about their cases with one another”).
123. As discussed above, Thomas also was conflicted in prosecuting Supervisor Stapley by
his personal animosity toward him, arising out of the above-described disputes. Thomas admits
having a personal dispute with Stapley because Thomas felt Stapley had attracted several lawsuits
against the Board.200 4. Conclusions of Law – Claim 6 – ER 3.3(a)(1) (Making a False Statement to a
Court)
124. Aubuchon and Thomas violated ER 3.3(a)(1). Aubuchon made a false statement to a
tribunal that there was a “Chinese Wall” in MCAO. Thomas ratified this statement after Aubuchon
made it and admitted that he may have approved it before Aubuchon made it.
125. ER 3.3(a)(1) states that a lawyer shall not knowingly make a false statement of fact or
law to a tribunal (in this case meaning a court) or fail to correct a false statement of material fact or
199 ER 1.10(a) does not require any showing that confidential information has actually been shared or even that the other lawyers in the firm have access to it. State Bar of Ariz. Ethics Op. 93-06, citing Hazard and Hodes, The Law of Lawyering (2d ed.), § 1.10:201 at p. 325 (1992 Supp.). 200 Thomas Testimony, Hr’g Tr. 33:23-34:21, Oct. 26, 2011.
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law previously made to the tribunal by the lawyer. See, e.g., In re Alcorn, 202 Ariz. 62, 41 P.3d 600,
603-605, 609-611 (2002) (respondent was counsel for the defendant physician in a medical
malpractice action; respondent secretly agreed with counsel for the deceased patient's husband that
the physician would not object to any evidence offered by the husband; in return, the husband agreed
to dismiss the action against the physician with prejudice at the close of the husband's case; the
purpose of this collusion was to put on a “sham” trial generating a record that the husband's counsel
thought he could use to obtain reconsideration of the trial court's grant of summary judgment to
hospital; respondent made misleading statements to the court during the trial, in an attempt to
deceive the court about what was transpiring).
126. As noted above, Thomas and Aubuchon brought charges against Supervisor Stapley
in late 2008. On December 23, 2008, Stapley’s attorney filed a Motion for Determination of
Counsel and Motion for Scheduling Order. The Motion for Determination of Counsel argued that
Thomas should be disqualified as the prosecutor because of a conflict of interest under ER 1.7 and
that his actions had the appearance of impropriety. The motion pointed to the attorney-client
relationship between MCAO and Stapley.
127. Aubuchon filed a response to the motion arguing among other things that the case
against Stapley was based upon public records only, and that there was a “Chinese Wall”201 between
the criminal and civil divisions of the County Attorney’s Office in the prosecution of the case.
Aubuchon specifically stated, “There has been and is a ‘Chinese wall’ between the criminal and civil
division of the County Attorney’s Office in the prosecution of this case.”202
128. At the time Aubuchon made this statement, MCAO did not have a formalized or a
written screening policy, but she implied that there was a wall that would keep the civil division
from knowing what the criminal divisions were doing and vice versa. In fact, all the civil and
201 The term “Chinese Wall” is more properly referred to as “screening” to describe how attorneys can be isolated from involvement in a particular case. 202 Ex. 248A, State’s Response to Motions for Determination of Counsel and Scheduling Order, p. 7, lines 4-6, TRIAL EXB 07950.
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criminal divisions reported to Sally Wells, who reported to Phil MacDonnell, who in turn reported to
Thomas. There was no wall or screen.
129. The statement that there was a “Chinese Wall” implies a barrier across which
information could not cross. Not one attorney in MCAO described such a barrier. They described a
practice. A practice is not what Aubuchon described in her document.
130. At the time Aubuchon made this statement there was a somewhat informal practice of
screening, but no formal screening of some lawyers from others in the County Attorney’s Office in
particular with regard to the Stapley case.203 Further there was no formalized or written screening
policy ever implemented in general or in particular about Stapley I.204 Thomas, Phil MacDonnell
and Sally Wells all had access to information from both the criminal and civil divisions.205
131. Aubuchon’s statement implied that there was a formalized screening policy in
existence. Aubuchon’s statement to the court was dishonest and a material misrepresentation; she
was trying to mislead the court into concluding that the County Attorney had established screening
precisely to guard against information being shared by the civil division with the criminal division
and vice versa, specifically in the Stapley case. The statement was self-serving and benefitted
Thomas because it allowed Aubuchon and Thomas to continue pursuing the politically motivated
case against Stapley.
132. Thomas also knew that there was no such formal screening between the criminal and
civil divisions of MCAO. Thomas is equally culpable for this misrepresentation to the court because
Thomas testified that Aubuchon sent him many pleadings in the Stapley case and that he reviewed
many of them.206 If he did not approve of that pleading before Aubuchon filed it, he ratified it by
testifying that he thought Aubuchon’s statement about a “Chinese Wall” was accurate.207 Thomas
203 MacDonnell Testimony, Hr’g Tr. 20:10-22:23, 31:21-34:8, Sept. 19, 2011; White Testimony, Hr’g Tr. 21:16-23:11, 34:25-37:25, Sept. 20, 2011. 204 Wells Testimony, Hr’g Tr. 95:18-97:7, 151:25-152:4, Sept. 13, 2011. 205 MacDonnell Testimony, Hr’g Tr. 22:24-24:14, Sept. 19, 2011. 206Thomas Testimony, Hr’g.Tr. 84:16-21. Oct. 26, 2011. 207Thomas Testimony, Hr’g.Tr. 85:2-20, Oct. 26, 2011.
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testified that there was no formal prohibition against civil attorneys from talking to criminal
attorneys about cases.208
133. Aubuchon’s statement was false and a misrepresentation of fact to the court.
Aubuchon violated ER 3.3(a)(1). Thomas ratified her conduct and is equally liable for it under ER
5.1(c)(1). 5. Conclusions of Law – Claim 7 – ER 3.3(a)(1) (Making a False Statement to a
Court)
134. Aubuchon violated ER 3.3(a)(1) by knowingly making a false statement of fact to a
tribunal. Thomas, through Aubuchon, falsely stated to the Court that Judge Fields filed a Bar
complaint against him.
135. After Thomas filed Stapley I, Presiding Judge Mundell assigned it to retired Judge
Kenneth Fields. At the time, Presiding Judge Mundell was engaged in budget negotiations with
County management. She knew that the Board (which included Supervisor Stapley) would be
voting on reductions to the Superior Court’s budget. In order to avoid the appearance of
impropriety, Presiding Judge Mundell decided to assign Stapley I to a retired judge, who would not
be affected by the Board’s budget decision.209
136. Presiding Judge Mundell directed her assistant to assign Stapley I to a retired
judge.210 She called both Judge Fields and another retired judge, seeking someone to preside over
Stapley I. Judge Fields called back first.211 Their conversation was brief; they did not discuss the
case.212
137. Thomas and Aubuchon asserted that the Judge Mundell assigned Judge Fields to
Stapley I because Judge Fields was biased against Thomas. On December 10, 2008, Aubuchon, on
208 Thomas Testimony, Hr’g Tr. 87:3-7, Oct. 26, 2011. 209 Mundell Testimony, Hr’g Tr. 101:19-103:1, Oct. 3, 2011. 210 Mundell Testimony, Hr’g Tr. 103:2-11, 124:18-125:12, Oct. 3, 2011. 211 Mundell Testimony, Hr’g Tr. 103:12-19, Oct. 3, 2011. 212 Fields Testimony, Hr’g Tr. 9:3-13, Sept. 13, 2011.
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behalf of Thomas, filed a Motion for Voluntary Recusal or If Denied Motion for Change of Judge
For Cause.213
138. In her motion Aubuchon stated that Judge Mundell and Stapley had worked together
closely on numerous fiscal and countywide issues. Aubuchon stated that Judge Mundell had
recently negotiated with Stapley about the funding for the County Court Tower building. Aubuchon
alleged that Judge Mundell had interjected herself into the Stapley case and had chosen Judge Fields
who had a history of bias and prejudice as well as judicial activism against Thomas and his office.
In her motion Aubuchon stated, “Judge Fields is the complainant in an open and pending State Bar
matter that he initiated against County Attorney Thomas.”214
139. Aubuchon knew that this statement was untrue because she attached to her motion
Judge Fields’s letter to the Bar regarding attorney Dennis Wilenchik.215 This letter was not about
Thomas. Judge Fields never initiated a State Bar matter against Thomas.216 Aubuchon had no
evidence that Judge Fields had filed a bar complaint against Thomas. Aubuchon’s statement was a
knowing misrepresentation to the court.
140. Thomas is equally culpable for this misrepresentation to the court because Thomas
testified that the statement was “technically accurate,” but “could have been styled better.”217
Thomas defended the statement at the hearing of this matter.218
141. In the Stapley I case, Aubuchon and Thomas knowingly misrepresented to the court
that Judge Fields had filed a bar complaint with the Arizona State Bar against Thomas. There was
and is no evidence that Judge Fields filed a bar complaint against Thomas. Her statement to the
court was a misrepresentation in violation of ER 3.3(a)(1). The fact that the State Bar initiated an
investigation of Thomas does not mean that Judge Fields filed a bar complaint. Aubuchon knew that
213 Ex. 27, TRIAL EXB 00593-700. 214 Ex. 27, TRIAL EXB 00598, heading B(1). 215 Ex. 11 to Ex. 27, TRIAL EXB 00645. 216 Fields Testimony, 18:12-20:18, Sept. 13, 2011. 217 Thomas Testimony; Hr’g.Tr. 90:25-91:18, Oct. 26, 2011. 218 Thomas Testimony, Hr’g Tr. 60:12-61:21, 90:25-91:18; Oct. 26, 2011.
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Judge Fields did not file a bar complaint because against Thomas because the exhibit she attached to
her Motion was a letter that Fields sent to the Bar about another attorney, not Thomas.219 6. Conclusions of Law – Claim 8 – ER 8.4(d) (Conduct Prejudicial to the
Administration of Justice)
142. Aubuchon violated ER 8.4(d) by writing letters to judges seeking to interview and/or
depose them.
143. ER 8.4(d) states that it is professional misconduct for a lawyer to engage in conduct
that is prejudicial to the administration of justice. See In re Shannon, 179 Ariz. 52, 876 P.2d 548,
552, 563 (1994) (respondent delayed executing a satisfaction of judgment, even after being ordered
to do so by the court; respondent caused opposing counsel to file a motion to compel and
unnecessarily delayed the process of paying the judgment by five months; the trial court was
required to rule on the motion, burdening the already overburdened judicial system). ER 8.4(d) does
not require a particular mental state other than negligence. In re Clark, 207 Ariz. 414, 418, 87 P.3d
827, 831 (2004).
144. As noted above, Presiding Judge Mundell, through Judge Baca, assigned the Stapley I
case to Judge Fields.220 Presiding Judge Mundell was not providing Supervisor Stapley with special
treatment.221 Instead, as discussed above, she was attempting to avoid any appearance of
impropriety by assigning the case to a retired judge. She was not aware of any appearance of bias on
Judge Fields’ part.222
145. However, Aubuchon and Thomas believed that there was something nefarious about
this assignment. Thomas and Aubuchon thought Judge Fields was biased against Thomas, in part
because Judge Fields had disagreed with MCAO policies regarding a veteran’s court.223 Aubuchon
219 When asked “But, in fact, it’s true that Judge Fields did not file a Bar complaint asking the Bar to look at your conduct?” Thomas answered “Correct.” Thomas Testimony, Hr’g Tr. 61:13-16, Oct. 26, 2011. 220 Ex. 39, TRIAL EXB 01154; Mundell Testimony, Hr’g Tr. 151:1-153:10, Oct. 3, 2011; Baca Testimony, Hr’g Tr. 206:22-208:10, Oct. 3, 2011. 221 Mundell Testimony, Hr’g Tr. 104:22-105:16, Oct. 3, 2011. 222 Mundell Testimony, Hr’g Tr. 153:20-159:18, Oct. 3, 2011. 223 Ex. 51, TRIAL EXB 01189-90; Ex. 53, TRIAL EXB 01194-95; Thomas Testimony, Hr’g Tr. 60:3-11, Oct. 26, 2011.
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moved to recuse Judge Fields. He declined to do so voluntarily in an order dated December 10,
2008.224 The motion to recuse was assigned to Presiding Criminal Judge Anna Baca.225 On
December 15, 2008, Judge Baca denied Aubuchon’s motion without prejudice, allowing her the
opportunity to file a competent affidavit in support.226
146. On about December 11, 2008, Aubuchon wrote to Presiding Criminal Judge Baca
requesting that she submit to an interview about the reasons for the selection of retired Judge Fields
in Stapley I.227 Judge Baca had never before received such a request.228 Judge Baca responded by
order on about December 16, 2008, stating that the court declined to accept or read the letter from
the County Attorney since such an off-the-record communication may relate to the case.229 She
directed that the County attorney communicate in pleading form.
147. On about December 11, 2008, Aubuchon delivered a letter to Judge Mundell
requesting to interview her about the assignment of Judge Fields.230 Judge Mundell wrote back to
Aubuchon, stating that among other things lawyers do not write letters that are not part of the public
file; rather, they file motions. Judge Mundell also stated that it was not appropriate for Aubuchon to
attempt to ascertain Judge Mundell’s thought processes in making a judicial decision and that she
would not submit to an interview.231 Judge Mundell had never received a request like the one
Aubuchon made.232
148. Aubuchon also delivered a similar letter to Judge Fields, requesting an interview.233
He took no action.234
224 Ex. 43, TRIAL EXB 01165. Judge Fields declined to recuse voluntarily a second time on December 23, 2008. Ex. 55, TRIAL EXB 01198-99. 225 Baca Testimony, Hr’g Tr. 206:4-16, 209:5-13, Oct. 3, 2011. 226 Ex. 46, TRIAL EXB 01170-71; Baca Testimony, Hr’g Tr. 210:9-211:10, Oct. 3, 2011. 227 Ex. 242, TRIAL EXB 03311. 228 Baca Testimony, Hr’g Tr. 209:14-21, Oct. 3, 2011. 229 Ex. 45, TRIAL EXB 01169. 230 Ex. 242, TRIAL EXB 03310. 231 Mundell Testimony, Hr’g Tr. 104:3-21, 168:8-177:3, Oct. 3, 2011. 232 Mundell Testimony, Hr’g Tr. 104:3-21, Oct. 3, 2011. 233 Ex. 242, TRIAL EXB 03312. 234 Fields Testimony, Hr’g Tr. 22:13-23:19, Sept. 13, 2011, p. 22.
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149. Aubuchon then filed a motion requesting leave to interview or depose Judges
Mundell, Baca, and Fields. Judge Baca denied that motion on December 22, 2008.235 She noted,
“No Arizona case, statute or rule mandates or even authorizes a deposition of a Judge in relation to a
Rule 10.1 motion.”236
150. An attorney may not attempt to determine a judge’s decision-making thought process.
See Phillips v. Clancy, 152 Ariz. 415, 419-22, 733 P.2d 300, 304-07 (App. 1986) (legal malpractice
plaintiff could not elicit judge’s testimony on whether plaintiff would have won on appeal but for
attorney’s negligence; “The essential line of demarcation appearing from the cases is that judicial . . .
officers may be compelled to testify only as to relevant matters of fact that do not probe into or
compromise the mental processes employed in formulating the judgment in question”); U.S. v.
Morgan, 313 U.S. 409, 422 (1941) (Examining reasoning behind Secretary of Agriculture’s
decision, in his role as judge, would be “destructive of judicial responsibility”); Grant v. Shalala,
989 F.3d 1332, 1334 (3d Cir. 1993) (“It has long been recognized that attempts to probe the thought
and decision making processes of judges and administrators are generally improper”); U.S. v. Roth,
332 F. Supp. 2d. 565, 567 (S.D.N.Y. 2004) (“[T]he overwhelming authority from the federal courts .
. . , including the United States Supreme Court, makes it clear that a judge may not be compelled to
testify concerning the mental processes used in formulating official judgments or the reasons that
motivated him in the performance of his official duties”); U.S. v. Cross, 516 F. Supp. 700, 707 (M.D.
Ga. 1981), aff’d, 742 F.2d 1279 (11th Cir. 1984) ([T]he cases seem to be in agreement that judges
are under no obligation to divulge the reasons that motivated them in their official acts; the mental
processes employed in formulating the decision may not be probed”); State ex. rel. Kaufman v.
Zakaib, 207 W. Va. 662, 670, 535 S.E.2d 727, 736 (2000) (“[J]udicial officers may not be compelled
to testify concerning their mental processes employed in formulating official judgments or the
reasons that motivated them in their official acts”).
235 Ex. 54, TRIAL EXB 01196-97. Baca Testimony, Hr’g Tr. 211:11-212:6, Oct. 3, 2011. 236 Ex. 54, TRIAL EXB 01197.
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151. Other jurisdictions have found ethical rule violations in similar circumstances. The
court in Statewide Grievance Committee v. Burton, 299 Conn. 405 (2011), found that the respondent
engaged in conduct prejudicial to the administration of justice where she mailed a letter to the Chief
Justice of the Connecticut Supreme Court accusing three Superior Court judges of judicial
corruption without any credible evidence to support her claim. Likewise, Aubuchon’s letters to the
judges demonstrate an impermissible communication with those judges outside the confines of the
matter at hand, in an attempt to investigate a purely speculative allegation of bias.
152. The court in Inquiry Concerning Fowler, 287 Ga. 467 (2010), found a judge to have
engaged in conduct prejudicial to the administration of justice where the judge sent a letter to a
probation company requesting that it remove two probation officers from his court. The court found
the letter to contain an implied threat to hire a competitor of the probation company if the company
did not comply with the judge’s request. Similarly, in this case, Aubuchon’s letters constitute an
implied threat or intimidation tactic against judges who made decisions with which Aubuchon
disagreed.
153. The court in In re Madison, 282 S.W.3d 350 (Mo. 2009), found the respondent to
have engaged in conduct prejudicial to the administration of justice where he wrote letters containing
false or reckless allegations of ethical misconduct to a judge. The court noted that the respondent
improperly chose to write letters to the judge regarding his disagreement with the judge’s decision,
rather than appeal the decision. Id. at 357-58. See also Ligon v. Stilley, 2010 WL 4361447 (Ark.
Nov. 4, 2010) (violation of Rule 8.4(d) to send letter threatening bar complaint to judge).
154. Aubuchon engaged in conduct prejudicial to the administration of justice when she
wrote directly to Judges Mundell, Baca and Fields, requesting that the judges submit to an interview
regarding the selection of Judge Fields in Stapley I. Aubuchon’s proposed inquiry attempted to
intrude into judicial discretion and had the potential to undercut the separation of powers between
the judicial and executive branches of Maricopa County government. Aubuchon’s proposed
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depositions (with questions concerning whether the judges had conspired to appoint a judge
supposedly biased against Thomas) also had the potential to intimidate the judges and other judges
of the Superior Court. This conduct violated ER 8.4(d).237
155. Contrary to Thomas and Aubuchon’s assertions, Judge Mundell was not aware of any
bias by Judge Fields against Thomas or in favor of Supervisor Stapley.238 As discussed above in
section II(J), Judge Mundell chose a retired judge based upon her concern about a potential conflict
because budget problems affecting sitting judges would ultimately be decided by the Board. A
retired judge would not have that potential conflict and would not have the appearance of favoring
one of the Supervisors.
156. There was no justification of any sort for Aubuchon to write Judge Mundell and
Judge Baca. Aubuchon’s stated purpose for writing to those two judges was in an effort to support
her Motion for Voluntary Recusal of If Denied Motion for Change of Judge For Cause. This motion
was not about either Judge Mundell or Judge Baca; rather, it was about Judge Fields. Aubuchon’s
attempt to interview Judge Mundell and Judge Baca could not possibly support her motion about
Judge Fields’s alleged bias against Thomas.
7. Conclusions of Law – Claim 9 – ER 8.4(d) (Conduct Prejudicial to the Administration of Justice )
157. Thomas and Aubuchon violated ER 8.4(d) by bringing charges against Stapley in late
2008 knowing the statute of limitations had run.
158. Thomas and Aubuchon charged Supervisor Stapley with fifty-three misdemeanors.
They charged forty-four of those misdemeanors outside the statute of limitations, which is one year
after the alleged conduct was known or should have been known.
237 The Arizona Supreme Court Disciplinary Commission has found 8.4(d) violations based a wide range of misconduct in the past. See, e.g., In re Shell, No. 08-0358, 2009 WL 2005445 (Ariz. Disp. Comm. Apr. 27, 2009) (refusing to comply with State Bar’s request for information and pushing forward in a matter where a conflict clearly existed); In re Olcott, No. 05-2216, 2008 WL 6550135 (Ariz. Disp. Comm. Dec. 15, 2008) (filing a false affidavit). 238 Mundell Testimony, Hr’g Tr. 109:19-24, Oct. 3, 2011.
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159. Thomas and Aubuchon knew or had reason to know more than a year before the
grand jury indicted Stapley that he had allegedly committed misdemeanor disclosure omissions.
Thomas himself knew about disclosure omissions no later than May 2007.
160. Thomas knew that Goldman started the Stapley/Irvine investigation in early 2007.
Thomas knew that Goldman found information about Stapley’s financial disclosures before
Goldman went on trip to Mexico in May 2007. Goldman did not work on the Stapley matter after
that. Goldman delivered the results of his work to Thomas and Thomas knew that there was
information about financial disclosures in that information. Thomas also knew that Goldman had
found a violation of law. Later in 2008, when Thomas gave the case to Aubuchon, he wanted the
matter completed in a month. He said the same thing to Commander Stribling in early May 2008.
The logical explanation for this is that he knew there was a problem with the age of this case.
Importantly, Thomas admitted that the information Goldman found triggered the statute of
limitations on one of the charges.
161. Aubuchon knew or should have known by May 14, 2008 that that there was probable
cause in early 2007 to believe that Stapley had made omissions on his financial statements.
Aubuchon testified that when Thomas gave her the Stapley case in March 2008 he told her they had
received a “tip” about Stapley’s financial disclosures. Remarkably, Aubuchon never asked who
made the tip. Further, when she received information from Goldman, she did not ask why or when
he started the investigation. She did receive information from Goldman that showed he had printed
out documents in early 2007, which should have triggered her asking Goldman when he did his
investigation. Thomas told her that Goldman said there might be some truth to the tip he gave
Aubuchon. Again, it is remarkable that Aubuchon never asked either Special Crimes Bureau Chief
Kratovil or Major Crimes Division Chief Novitsky about the investigation into Stapley. The
Hearing Panel concludes that Aubuchon should have inquired when the investigation began into
Stapley’s financial disclosures, but she made no effort to do so.
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162. When Aubuchon presented the Stapley matter to MCSO she told them to use May 14,
2008 as the date the investigation began. She said the statute of limitations began when the matter
was brought to the attention of law enforcement, meaning MCSO. She failed to tell them that she
had actually been investigating as had Goldman. She directed that the MCSO report about Stapley I
be dated May 14, 2008. These facts lead the Hearing Panel to conclude that Aubuchon knew there
was a statute of limitations problem and she knowingly directed detectives away from it.
163. The statute of limitations, A.R.S § 13-107(b), provides:
Except as otherwise provided in this section, prosecutions for other offenses must be commenced within the following periods after actual discovery by the state or the political subdivision having jurisdiction of the offense or discovery by the state or the political subdivision that should have occurred with the exercise of reasonable diligence, whichever first occurs:
For a class 2 through a class 6 felony, seven years.
For a misdemeanor, one year.
164. The statute of limitations is triggered when the state actually discovers, or through
exercise of reasonable diligence should have discovered, that there was probable cause to believe
that the offense was committed. In State v. Jackson, 208 Ariz. 56, 64-66, 90 P.3d 793, 801-803
(App. 2005), the Arizona Court of Appeals, finding ambiguity as to what constitutes “discovery” of
an offense, read a “probable cause element” into the statute of limitations. The court of appeals held
that the statute of limitations begins “when the authorities know or should know in the exercise of
reasonable diligence that there is probable cause to believe a criminal [offense] has been
committed.” Id. at 65, 90 P.3d at 802 (citation omitted). The court of appeals stressed that
“commencement of the limitation period will not depend on law enforcement officers actually
establishing probable cause to arrest or charge a suspect. Rather, absent actual discovery, the
limitation period will commence when the government, through the exercise of reasonable diligence,
“should have” discovered probable cause to believe an offense has been committed, even though
probable cause is only later actually established.” 208 Ariz. at 66, 90 P.3d at 803.
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165. More than 40 of the Counts in the Stapley I Indictment are misdemeanors. Pursuant
to the statute quoted above, those misdemeanors are subject to a one-year statute of limitation.
166. For example, Count 7 of the Indictment charges Supervisor Stapley with a crime for
knowingly filing an incomplete and/or false financial disclosure statement in 1995 with regard to
property in Stewart’s East Mesa Addition.239 The crime charged in Count 7 is violation of A.R.S. §
38-542, which requires public officers to disclose real property they own. Pursuant to A.R.S. § 38-
544(A), knowingly filing a false or incomplete financial disclosure statement is a class 1
misdemeanor. For such a violation, Supervisor Stapley could have been sentenced to jail for up to
six months, A.R.S. § 13-707(A)(1), or fined up to $2,500, A.R.S. §802(A). Pursuant to A.R.S. § 13-
107, the statute of limitations would have run on Count 7 if the County Attorney’s Office did not
commence prosecution within one year after actual discovery of Supervisor Stapley’s having filed
false or incomplete financial disclosure statements, or within one year of when discovery should
have occurred with the exercise of reasonable diligence.
167. As discussed above, when Aubuchon brought Count 7 before the grand jury, she and
Thomas knew that Mark Goldman had researched Supervisor Stapley’s properties and financial
disclosures during 2007. Goldman gave Aubuchon and Thomas public records about Supervisor
Stapley’s properties and financial disclosures, which he had researched and printed in 2007.
Goldman had told Aubuchon there were areas in which he believed further inquiry was needed.
MCSO Lieutenant Travis Anglin had raised the statute of limitations issue with Aubuchon at the
May 2008 meeting. MCSO Sgt. Luth testified that he knew there was a statute of limitations
problem. In addition, Commissioner Passamonte raised the statute of limitations issue in connection
with setting Supervisor Stapley’s bond.240
168. Beyond this, when Aubuchon brought Count 7 before the grand jury, she knew that
the real property owned by Supervisor Stapley in 1995 was listed in the land records. She knew that
239 Ex. 36, p. 4, TRIAL EXB 01112. 240 Ex. 35, p. 58, TRIAL EXB 01097.
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Supervisor Stapley’s financial disclosure statements were available in public records. She therefore
knew that, with the exercise of reasonable diligence before November 2007, the County Attorney’s
Office should have discovered Supervisor Stapley’s filing of false or incomplete financial statements
in 1995. As a result, she knew the statute of limitations had run as to that Count.
169. With regard to the other Counts, Aubuchon had the same knowledge that she did with
regard to the timing of the discovery of the evidence supporting Count 7. There are more than 40
misdemeanor Counts in the Stapley I Indictment that concern Supervisor Stapley’s conduct that
occurred before June 2007: Counts 7, 8, 12, 13, 14, 18, 19, 20, 24, 25, 29, 30, 37, 38, 42, 43, 44, 48,
49, 50, 54, 55, 56, 57, 58, 65, 66, 67, 68, 77, 85, 86, 87, 88, 95, 96, 97, 98, 99, 100, 101, and 102.241
When Aubuchon brought those other misdemeanor counts, she knew that the statute of limitations
had run as to all of those counts.
170. No later than May 2007, Thomas knew or should have known there was probable
cause that Stapley had allegedly committed offenses. No later than May 14, 2008, Aubuchon knew
that law enforcement authorities knew or should have known about a year earlier that Stapley had
allegedly committed offenses. In Arizona the court lacks jurisdiction to consider crimes against a
person on which the statute of limitations has run. State v. Fogel, 16 Ariz. App. 246, 492 P.2d 742
(1972) (“A criminal statute of limitation is not a mere limitation upon the remedy, but a limitation
upon the power of the sovereign to act against the accused.”). Aubuchon and Thomas knew that
they brought most of the misdemeanor charges against Stapley outside the statute of limitations and
that, as a result, the court did not have jurisdiction to consider those charges. 8. Conclusions of Law – Claim 10 – ER 8.4(c) (Engaging in Conduct Involving
Dishonesty)
171. Aubuchon violated ER 8.4(c) by engaging in conduct involving dishonesty, fraud,
deceit or misrepresentation by failing to inform the grand jury that the statute of limitations had run.
241 Ex. 36, TRIAL EXB 01112-40.
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172. Aubuchon never presented information to the grand jury, which returned the
indictment against Stapley, that the statute of limitations had run or was even an issue.242 Aubuchon
did not elicit any testimony from the one witness who testified in front of the grand jury about the
time frame of the investigation or who began it.243 Instead, Aubuchon evasively asked, “And at
some point in time did the Maricopa County Sheriff’s Office receive information that Donald T.
Stapley, Jr., may have failed to disclose different things in his financial disclosure statements?”244
Aubuchon mentioned only gathering of evidence in 2008.245
173. Because the statute of limitations is a jurisdictional matter in Arizona, if a prosecutor
knows that charges are barred, then she must inform the grand jury and should advise the grand jury
not to indict on charges arising from conduct outside the statute. Instead, Aubuchon presented an
indictment listing all of the charges, including 44 barred by the statute. Aubuchon’s failure to tell
the grand jury about the State’s lack of jurisdiction to proceed against Supervisor Stapley on those
charges was dishonest.
174. Aubuchon knowingly failed to tell the grand jury that the Arizona statute of
limitations barred many of the misdemeanor charges filed against Supervisor Stapley. In fact,
Aubuchon made efforts to avoid informing the grand jury about this issue. While questioning Sgt.
Johnson, she never asked the date that the investigation began, and Sgt. Johnson did not attend the
May 14, 2008, meeting when Aubuchon brought the case to MCSO. Further, she did not call a
witness who could testify at the grand jury about when the investigation began. She failed to inform
the grand jury that she was involved in the investigation, and she had brought it to the Sheriff’s
office. She failed to tell the grand jury that she knew Goldman had been involved in a financial
disclosure investigation of Stapley in early 2007.
242 See Ex. 35, the the November 20, 2008 presentation to the Grand Jury, TRIAL EXB 01040-1108 243 Johnson Testimony, Hr’g Tr. 219:21-220:9, Oct. 6, 2011. 244 See Ex. 35, p. 19, ln. 4-8, TRIAL EXB 01058. 245 See Ex. 35, p. 21, ln. 6-9, TRIAL EXB 01060; p. 30, ln. 3-6, TRIAL EXB 01069.
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175. By failing to raise this issue with the grand jury, Aubuchon engaged in conduct
involving dishonesty, deceit, fraud, or misrepresentation in violation of ER 8.4(c).
9. Conclusions of Law – Claim 11 – ER 3.6(a) (Improper Public Statements)
176. Thomas violated ER 3.6(a) in making a public statement about Stapley I that had the
substantial likelihood of materially prejudicing the proceeding after Judge Fields dismissed
misdemeanor charges. As discussed above, MCAO had participated in both the investigation and
litigation of the Stapley I case.
177. Attorneys for Supervisor Stapley filed motions to dismiss the criminal charges against
him based upon the county’s failure to follow the requirements of A.R.S. § 38-545 to promulgate
standards for financial disclosure.
178. On August 24, 2009, Judge Fields granted the motion in part and dismissed many
counts on grounds that prior Boards of Supervisors had never passed a resolution regarding what
financial information Supervisors were required to disclose.246
179. Thomas issued a public statement on the same day as Judge Fields’s ruling.247
Although Yavapai County Attorney Sheila Polk was the prosecutor for the State in Stapley I on that
day, Thomas nevertheless issued this press release. In his public statement, Thomas urged Polk to
appeal the ruling. Thomas further stated the following: It is unjust and improper for this criminal defendant to be able to claim that as a member of the board of supervisors, he failed to properly pass or amend the very laws he’s accused of violating. For him to be able to take advantage of the improper performance of his own public duties is wrong by any measure. It’s equally wrong that the people of Maricopa County have just been told they’re the only citizens of Arizona whose elected county officials don’t have to disclose their private business dealings to the voters.
The ruling today reinforces our office’s concerns about the impartiality of Judge Fields. He was handpicked for this case in violation of the rules of court, despite his having filed a bar complaint against the Maricopa County Attorney (which
246 Ex. 110, TRIAL EXB 01462-65. 247 Ex. 243, TRIAL EXB 03313. Also Ex. 104, TRIAL EXB 01452.
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was dismissed) and having campaigned for Mr. Thomas’ opponent in last year’s election. Four esteemed experts in judicial ethics have stated that Judge Fields was ethically required to recuse himself from this case.
180. Thomas’s press release implied that Supervisor Stapley was taking advantage of his
own failure to pass adequate disclosure rules. In fact, Supervisor Stapley was not on the Board of
Supervisors when it took the action that Judge Fields found insufficient.248 Thomas further stated
that Judge Fields’s ruling reinforced Thomas’s office’s concern that Judge Fields was “handpicked”
for the case.
181. When Thomas issued the press release, the case against Stapley was still active and
consisted of 50 or 60 felonies that Polk had not yet moved to dismiss.249 Thomas did not discuss the
press release with Polk before its release.250 Polk did not agree with Thomas’s statement about
Judge Fields. She had no concerns about Judge Fields’s impartiality.251
182. Thomas’s willingness to make this unfair extrajudicial statement, at a time when he
was not handling the case, demonstrated Thomas’s continuing animosity against Supervisor Stapley
and eagerness to damage his reputation.
183. After Judge Fields’s ruling, the Yavapai County Attorney moved to dismiss the
remaining counts so that Judge Fields’s decision could be appealed.252 However, when Thomas
made these public statements, charges were still pending against Supervisor Stapley. Thomas
understood at the time that his statement would be widely disseminated by the media and that
Stapley’s trial would probably occur in Maricopa County.253
184. Thomas made an extrajudicial statement that he knew or reasonably should have
known would be disseminated by means of public communication and that would have a substantial
248 Stapley Testimony, Hr’g Tr. 115:7-116:18, Sept. 20, 2011. 249 Polk Testimony, Hr’g Tr. 202:22-203:19, Oct. 18, 2011. 250 Polk Testimony, Hr’g Tr. 202:22-203:23, Oct. 18, 2011. 251 Polk Testimony, Hr’g Tr. 203:24-204:11, Oct. 18, 2011. 252 Ex. 114, TRIAL EXB 01502-04; Stapley Testimony, Hr’g Tr. 116:25-118:1, Sept. 20, 2011. 253 Thomas Testimony, Hr’g Tr. 112:6-113:19, Oct. 26, 2011.
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likelihood of materially prejudicing an adjudicative proceeding in the matter. Thomas violated ER
3.6(a).
B. Claims Twelve to Fourteen – Events of December 2008
1. Findings of Fact
185. Introduction. The adversarial relationship between Thomas and MCBOS became
much tenser after the indictment of Supervisor Stapley. In fact, Chief Deputy County Attorney Phil
MacDonnell had predicted this would happen and told this to Thomas when MacDonnell advised
Thomas not to pursue criminal charges against Stapley.254 In an MCSO Departmental Report
(“DR”) in the case against Judge Donahoe (Sheriff’s Office Supplemental Report - DR# 09-225204)
it is stated that officials of both the Sheriff’s Office and MCAO perceived that the Board began “to
act against the County Attorney” after the Stapley I indictment was served or filed.255 Thomas
testified that he was surprised at the retaliation that occurred after he brought charges against
Supervisor Stapley.256 Thomas’s belief that MCBOS was retaliating against him should have raised
concerns in him that he would not be able to continue to pursue actions against the County, its
constituents or others affiliated with MCBOS in a conflict-free manner. Instead, Thomas and
Aubuchon initiated a grand jury investigation of the Court Tower, served a broad grand jury
subpoena on the County, issued public records requests to the County, interfered with the County’s
attorney-client relationship with Thomas Irvine, and after 2008 filed other inappropriate actions.
186. MCBOS Hires Irvine Re: Thomas Conflicts of Interest. On about December 5,
2008, four county supervisors (Supervisor Stapley recused himself) met and decided to hire attorney
Tom Irvine to review Thomas’s conflicts in representing the Board.257 In contemporaneous letters,
Thomas objected to the Board receiving legal advice from anywhere other than the County 254MacDonnell Testimony; Hr’g.Tr. 145:11-146:11, Sept. 15, 2011; Thomas Testimony Hr’g. Tr. 39:25-40:13, Oct. 26, 2011. 255 Ex. 159, TRIAL EXB 01872. 256Thomas Testimony, Hr’g.Tr. 39:18-24, Oct. 26, 2011. 257Ex. 42, December 5, 2008 Special Meeting Minutes, TRIAL EXB 01161-64. See Irvine Testimony, Hr’g Tr. 37:2-40:5, Sept. 14, 2011; Wilcox Testimony, Hr’g Tr. 39:5-40:14, Sept. 21, 2011; Smith Testimony, Hr’g Tr. 201:11-203:20, Sept. 26, 2011.
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Attorney’s Office.258 Thomas pointed to the possibility that the Board might be subject to actions
for recovery of monies illegally paid should the Board hire counsel to advise it about conflicts of
interest.259 At the hearing of this matter, Thomas testified that the Board was “trying to install their
own lawyer to replace me.”260
187. Background of Court Tower Project. Around 2000 or 2001, then-Presiding Judge
Colin Campbell brought together a group of judges, private attorneys, officials, public defenders and
county attorneys to examine the future needs of Maricopa County’s criminal justice system.261 Over
the next few years, Maricopa County built two new facilities, and there were plans to build several
more, including a Court Tower building in downtown Phoenix.262 Judge Mundell took over as
Presiding Judge in 2005.263
188. In fulfillment of her duties under Rule 92(a)(5), Arizona Rules of the Supreme Court,
Presiding Judge Mundell met with others to plan the Court Tower, including Aubuchon, who
represented the County Attorney’s Office.264 On November 2, 2006, Presiding Judge Mundell hired
attorney Tom Irvine to assist her with the work of planning the construction of this large criminal
court facility.265 Irvine was highly qualified to represent the Presiding Judge with respect to her
Rule 92(a)(5) responsibilities, given his expertise as a construction lawyer and his lengthy
involvement in financing and building Maricopa County’s jails.266 Much of his advice was legal in
nature.267 The Board approved the construction of the Court Tower in May 2007.268 258 Ex. 40, TRIAL EXB 01155-58; Ex. 41, TRIAL EXB 01159-60. See Irvine Testimony, Hr’g Tr. 40:6-42:22, Sept. 14, 2010. 259 Ex. 41, TRIAL EXB 01160. Kunasek Testimony, Hr’g Tr. 212:18-214:8, Sept. 21, 2011. 260 Thomas Testimony, Hr’g Tr. 45:18-46:2, Oct. 26, 2011. 261 Mundell Testimony, Hr’g Tr. 97:24-98:12, Oct. 3, 2011. 262 Mundell Testimony, Hr’g Tr. 98:13-22, Oct. 3, 2011. 263 Mundell Testimony, Hr’g Tr. 98:13-22, Oct. 3, 2011. 264 Mundell Testimony, Hr’g Tr. 98:23-99:7, Oct. 3, 2011. 265 Mundell Testimony, Hr’g Tr. 99:8-101:15, 136:18-139:21, 142:22-144:17 Oct. 3, 2011. Ex. 16, TRIAL EXB 00107-110, and Ex. 17, TRIAL EXB 00111, track the process by which Irvine was retained to assist the Superior Court. See also Irvine Testimony, Hr’g Tr. 54:16-55:3, 70:11-71:12, Sept. 14, 2011; Irvine Testimony, Hr’g Tr. 36:9-37:17, Sept. 15, 2011. 266 Mundell Testimony, Hr’g Tr. 118:6-21, Oct. 3, 2011. 267 Mundell Testimony, Hr’g Tr. 147:8-148:13, Oct. 3, 2011. 268 Mundell Testimony, Hr’g Tr. 132:22-133:4, Oct. 3, 2011.
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189. Initiation of Court Tower Investigation. In late 2008, Thomas and Sheriff Arpaio
began to question the decision to build the new Court Tower. However, the Board made the
decision to go forward on the Court Tower quite a bit earlier, in May 2007, and as noted above the
Court Tower had been planned for quite some time.269
190. In December 2008, MCAO and MCSO launched a criminal investigation into the
Court Tower by first issuing a grand jury subpoena duces tecum to the county. This subpoena is
described in more detail below.
191. Aubuchon testified that the reasons a grand jury investigation into the Court Tower
was commenced were 1) to see if there was anything criminal going on because the County was
going forward on a $345 million project when departments were having their budgets cut; 2) people
were being paid millions of dollars for being space planners; 3) the county treasurer had complained
that he could not get records about the Court Tower financing; 4) Tom Irvine’s firm had represented
a contractor on a different project which contractor was now working on the Court Tower; and 5) the
conversation in which Judge Mundell allegedly told Dave Hendershott that Stapley forced her to hire
Tom Irvine.270 Aubuchon stated to Supervisor Kunasek in February 2010 that it was basically “a
little odd” that the Board slashed county budgets, laid people off and went forward with a three
hundred and fifty million dollar project that was not really needed.271 In the same conversation with
Supervisor Kunasek, Aubuchon expressed her personal situation relative to that of Tom Irvine: he
was an attorney earning $400 an hour, and she was just making her “measly County salary” and had
not had a raise in years.272 Then-Deputy Chief Hendershott testified in front of a grand jury in
January 2010 that there was concern at a MACE unit meeting that because of the recession the Court
269 Mundell Testimony, Hr’g Tr. 132:22-133:4, Oct. 3, 2011. 270 Aubuchon Testimony, Hr’g Tr. 105:1-106:23, Oct. 25, 2011. 271 Ex. 196, TRIAL EXB 02277. 272 Ex. 196, TRIAL EXB 2275.
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Tower should not be built.273 Thomas knew about the grand jury investigation and authorized
Aubuchon to bring these matters before the grand jury.274
192. Sgt. Luth of MCSO did not know who the complainant was on the Court Tower
investigation.275 He asked Lisa Aubuchon where the complaint came from and she stated, “it was
your guys’ case.”276 The MCSO file was not assigned a departmental report number and contained
no victim complaint; rather, the file contained only public records requests.277
193. There was also concern about Tom Irvine’s role in the Court Tower Project. Irvine
had been hired to represent Judge Mundell in the Court Tower matter on November 11, 2006.278
194. Aubuchon expressed concern about the hiring of Irvine to assist with the Court Tower
project.279 Hendershott, Thomas and Aubuchon were concerned that attorney Irvine was working as
a space planner on the Court Tower. MCAO attorneys who attended meetings to plan the Court
Tower had reported that Irvine was active in discussions about the building’s design.280 Thomas
was concerned that Irvine was being paid lawyer rates to plan space.281 The concern about Irvine
acting as a “space planner” was based upon minimal evidence at best. There was no evidence
produced to this Hearing Panel there was any inappropriate behavior—much less criminal conduct—
by Irvine or Judge Mundell.
195. The evidence indicates that the justification for initiating the Court Tower
investigation was concern about the Board’s decision to move forward with the project in difficult
economic times and speculation that Irvine was doing something wrong. The Hearing Panel cannot
conclude that there was any legitimate reason justifying the initiation of this investigation. The fact
273 Ex. 185, January 4, 2010, the proceedings before the 494th Maricopa County Grand Jury, re: Stephen Wetzel, Andrew Kunasek, Sandra Wilson, Gary Donahoe, Thomas Irvine and David Smith, p. 44, TRIAL EXB 02060. 274 Thomas Testimony, Hr’g Tr. 79:24-24, Oct. 26, 2011. 275 Luth Testimony, Hr’g Tr. 96:8-10, Oct. 14, 2011. 276 Luth Testimony, Hr’g Tr. 96:18-97:15, Oct. 14, 2011. 277 Almanza Testimony, Hr’g Tr. 117:23-118:9, Oct. 11, 2011. 278Mundell Testimony, Hr’g Tr. 142:22-144:17, Oct. 3, 2001. 279 Ex. 196, TRIAL EXB 02275; Luth Testimony, Hr’g Tr. 97:19-98:15, Oct. 14, 2011. 280 MacDonnell Testimony, Hr’g Tr. 130:18-132:21, Sept. 15, 2011. 281 MacDonnell Testimony, Hr’g Tr. 130:18-132:21, Sept. 15, 2011.
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that MCBOS had voted to go forward with the Court Tower in a recession and while cutting
department budgets was a legislative decision made by duly elected County Supervisors. It was for
the Board to decide whether and how much to cut agency budgets during the difficult recession that
began in the County’s fiscal year ending June 2009.282 The decision to cut budgets was not made to
punish MCAO or MCSO, but so that the County would remain solvent.283
196. Clear and convincing evidence shows that the motivation for initiating this
investigation was bias by Thomas, Aubuchon, and the Sheriff or his Chief Deputy against the Board,
County officials and Tom Irvine, whom Thomas viewed as a competitor.284
197. Issuance of Grand Jury Subpoena Duces Tecum. On December 15, 2008,
Aubuchon and Thomas issued a grand jury subpoena to the County that was broad and
overreaching.285 The subpoena was directed to “Maricopa County Administration” and was to the
attention of David Smith, County Manager. The subpoena required the production of budgets;
records about funding; documents regarding proposed usage, occupancy, RFP’s, contracts re:
planning and design; contracts re: construction; contracts re: consultants; and any and all documents,
correspondence and email referring to the Court Tower project.286 The Board had approved
numerous contracts for this major construction project, so there were many thousands of documents
required to be produced.287
198. A subpoena of such breadth had not been served on the County in recent memory.288
In addition, the subpoena was unsettling in that it came from the Board’s and County’s own counsel,
MCAO.289 Acting County Manager Sandi Wilson, who received the subpoena, did not know how
282 Sandi Wilson Testimony, Hr’g Tr. 141:21-142:21, Sept. 27, 2011. 283 Smith Testimony, Hr’g Tr. 168:23-170:12, Sept. 26, 2011. 284 MacDonnell Testimony, Hr’g Tr. 126:17-129:14, Sept. 15, 2011. 285 Ex. 44, TRIAL EXB 01166-67. Aubuchon issued the subpoena. Thomas approved its issuance. Thomas Testimony, Hr’g Tr. 43:16-44:13, Oct. 26, 2011. 286 Irvine Testimony, Hr’g Tr. 45:1-17, Sept. 14, 2011. 287 Wilcox Testimony, Hr’g Tr. 46:10-49:1, Sept. 21, 2011. 288 Stapley Testimony, Hr’g Tr. 95:17-98:3, Sept. 20, 2011. 289 Kunasek Testimony, Hr’g Tr. 12:6-21, Sept. 26, 2011.
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the County could comply with the massive request within the 15 days stated on the subpoena.290
She attempted to obtain legal advice about complying with the subpoena but was stymied by
Thomas and other deputy county attorneys.291 At one point, Thomas instructed Wilson to stop
sending him e-mails and instead to communicate with his Chief Deputy, Phil MacDonnell.292 Ms.
Wilson was intimidated by Thomas’s refusal to directly communicate with her.293
199. Public Records Requests. In addition to the grand jury subpoena, Thomas also
issued broad public records requests to the County.294 Thomas made public records requests to his
own client.295 The public records requests were burdensome and required the County to assemble
millions of pages of documents in order to comply.296 The County was required to retain conflict
counsel to respond to the extensive public records requests.297 The County incurred $80,000 in
expenses reviewing the records for privileged information prior to production.298 Board members
and staff spent time complying.299
200. In late December, the Sheriff also made public records requests to the County about
the Court Tower project.300 These public records requests were identical to the subpoena duces
tecum issued by Aubuchon. In response, the Board adopted new procedures for intra-county records
requests, intended to conserve county resources and discourage unnecessary requests.301 The new
procedures shifted the financial burden of document productions to the requesting agency.302
290 Sandi Wilson Testimony, Hr’g Tr. 125:22-127:22, Sept. 27, 2011. 291 Sandi Wilson, Hr’g Tr. 132:15-133-17, Sept. 27, 2011. 292 Sandi Wilson Testimony, Hr’g Tr. 127:11-22, Sept. 27, 2011. 293 Sandi Wilson Testimony, Hr’g Tr. 152:9-143:11, Sept. 27, 2011. 294 Ex. 47, TRIAL EXB 01172-83; Ex. 61, TRIAL EXB 01226-32; Ex. 81, TRIAL EXB 01369-70; White Testimony, Hr’g Tr. 30:12-31:10, Sept. 20, 2011; Sandi Wilson Testimony, Hr’g Tr. 128:10-129:6, 130:25-131:13, Sept. 27, 2011. 295 Irvine Testimony, Hr’g Tr. 57:1-58:25, Sept. 14, 2011. 296 Irvine Testimony, Hr’g Tr. 50:11-51:18, Sept. 14, 2011. 297 Ex. 48, TRIAL EXB 01184; Ex. 50, TRIAL EXB 01187-88; MacDonnell Testimony, Hr’g Tr. 159:10-163:15, Sept. 15, 2011; Sandi Wilson Testimony Hr’g Tr. 132:4-133:17, 180:23-187:5, Sept. 27, 2011. 298 Irvine Testimony, Hr’g Tr. 52:19-54:1, Sept. 14, 2011; Sandi Wilson Testimony, Hr’g Tr. 133:18-24, Sept. 27, 2011. 299 Wilcox Testimony, Hr’g Tr. 50:14-21, Sept. 21, 2011. 300 Ex. 62, TRIAL EXB 01233-34; Ex. 73, TRIAL EXB 01324-26. 301 Ex. 82, TRIAL EXB 01371-72; Irvine Testimony, Hr’g Tr. 190:6-191:21, Sept. 14, 2011 Stapley Testimony, Hr’g Tr. 102:8-103:3, Sept. 20, 2011; Wilcox Testimony, Hr’g Tr. 50:22-51:5, Sept. 21, 2011. 302 Ex. 315, TRIAL EXB 04245-46; Smith Testimony, Hr’g Tr. 177:2-179:18, 214:3-21, Sept. 26, 2011.
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201. The Board gathered documents responsive to the records requests and conducted a
review for confidential information.303 Thirty-three boxes of documents were assembled, including
correspondence, e-mails, contracts, budgets, financial statements, and architectural drawings.304
202. MCBOS Moves to Take Control of Civil Litigation. On December 23, 2008, the
Board voted to take control of MCAO’s civil division.305 The Board was concerned that it was
receiving conflicted advice from the County Attorney.306 The Board believed that, because of
Thomas’s self-interest, the only way to obtain reliable advice was to create a separate legal office
until the conflicts with Thomas were resolved.307 The Board took steps to transfer the authority to
appoint counsel to the County Manager.308 Thomas objected, sending a letter to Supervisor
Kunasek, then Chairman of the Board.309
203. On December 26, Irvine on behalf of the Board sent a letter to Thomas demanding
that MCAO cease all activities in conflict with the Board and objecting to MCAO taking on any new
matters in conflict with the Board without disclosure and consent.310 Irvine asked that MCAO
disclose all matters in which during the last two years MCAO had been adverse to the Board, had
assisted a party adverse to the Board, or had shared Board confidences with anyone adverse to the
Board.311
204. Then-Acting County Manager Sandi Wilson sent a memorandum attaching Irvine’s
letter to all MCAO attorneys.312 She wanted to make sure in particular that each civil attorney
understood that he or she was not to provide advice or assistance to parties adverse to the Board.313
303 Kunasek Testimony, Hr’g Tr. 12:22-14:2, Sept. 26, 2011; Wilson Testimony, Hr’g Tr. 129:7-19, Sept. 27, 2011. 304 Sandi Wilson Testimony, Hr’g Tr. 130:5-24, Sept. 27, 2011. 305 Ex. 57, Special Meeting Agenda, TRIAL EXB 01208. See Irvine Testimony, Hr’g Tr. 59:8-61:18, Sept. 14, 2011; Kunasek Testimony, Hr’g Tr. 14:7-15:8, Sept. 26, 2011. 306 Kunasek Testimony, Hr’g Tr. 5:2-6:9, Sept. 26, 2011. 307 Stapley Testimony, Hr’g Tr. 103:13-105:17, Sept. 20, 2011. 308 Sandi Wilson Testimony, Hr’g Tr. 133:25-134:13, Sept. 27, 2011. 309 Ex. 58, TRIAL EXB 01209-11. 310 Ex. 59, TRIAL EXB 01212-24. 311 Ex. 59, TRIAL EXB 01212-24. See also Irvine Testimony, Hr’g Tr. 63:7-64:22, Sept. 14, 2011. 312 Ex. 60, TRIAL EXB 01225; Sandi Wilson Testimony, Hr’g Tr. 187:10-191:8, Sept. 27, 2011. 313 Sandi Wilson Testimony, Hr’g Tr. 134:14-135:3, Sept. 27, 2011.
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205. On December 31, 2008, Chief Assistant County Attorney Wells wrote back,
reviewing the history of MCAO’s disputes with the Board, responding to Irvine’s points, and
denying that MCAO had disclosed confidences.314 Wells characterized MCAO’s role as a “check
and balance” on the Board, a concept that seemed illogical to the Acting County Manager,
particularly with regard to the Court Tower investigation.315
206. Thomas and Arpaio Sue Board in Declaratory Judgment Action. Thomas and
Sheriff Arpaio filed a declaratory judgment action (the “Dec Action”) against the County on
December 31, 2008.316 The complaint in the Dec Action asked for, among other things, an order
that the Board could not hire Irvine, or any other counsel to advise it about Thomas’s conflicts; that
the Board could not choose its own counsel if there was conflict in Thomas’s representation of the
Board; and that only the County Attorney, not the Board, could determine if the County Attorney had
a conflict of interest.317
207. Judge Mundell assigned the Dec Action to retired Judge Daughton. In response to a
motion by the Board, Judge Daughton ordered MCAO to disclose any conflicts. The Board, through
Irvine, eventually filed an Answer and a Counterclaim on April 6, 2009, asking the court to declare
that Thomas’s conflicts made him unavailable to act as the Board’s attorney, and to declare that the
Board could choose its own counsel because the County Attorney was unavailable due to his
conflicts.318
208. Thomas Files Quo Warranto Action. Thomas sued Tom Irvine individually and his
firm at the same time he sued MCBOS also on December 31, 2008.319 The case was styled Thomas
v. Irvine, Shughart Thomson & Kilroy and Richard Romley, CV 2008-033193, Maricopa County
Superior Court.320 This action claimed that Irvine had usurped the authority of the County 314 Ex. 65, TRIAL EXB 01301-08. 315 Wilson Testimony, Hr’g Tr. 137:13-25, Sept. 27, 2011. 316 Ex. 248, TRIAL EXB 03393-3401. 317 Ex. 248, TRIAL EXB 03400. 318 Irvine Testimony, Hr’g Tr. 88:11-91:13, Sept. 14, 2011. 319 Irvine Testimony, Hr’g Tr. 71:19-73:9, 75:19-76:16, Sept. 14, 2011. 320 Ex. 247, TRIAL EXB 03386-92.
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Attorney.321 The defendants did not file answers, and the case was voluntarily dismissed on
December 7, 2009. The parties agreed that this action would be determined by the outcome of the
Dec Action, and for that reason there was no substantive litigation of this matter.322
209. Other Actions Interfering in the Board’s Hiring of Irvine. In addition to suing
Irvine and the County over the hiring of Irvine, Thomas sent letters to the county employees
threatening them with criminal prosecution if they paid any money to Irvine or his firm.323 In a
letter to Supervisor Kunasek, dated December 5, 2008, Thomas, through Deputy Philip MacDonnell,
urged Supervisor Kunasek to consult about this issue with the Civil Division of the County Attorney,
and that if the Board hired Irvine’s firm the Board would be performing an illegal act and subject the
Board to actions for recovery of money paid.324
210. In letters to Deputy County Manager Wilson and chief Financial Officer Manos,
Thomas demanded that they issue no payment warrants for outside counsel and stated that the
Board’s action taken on December 5, 2008 was unlawful.325 If any moneys were paid to Irvine’s
firm, Thomas threatened legal action to recover funds from them personally. Thomas also sent this
letter to County Treasurer ‘Hos’ Hoskins.326
211. On January 7, 2009, Chief Deputy County Attorney Phil MacDonnell sent a letter to
Acting County Manager Wilson, defending Thomas’s direction to Treasurer Hoskins that he not pay
Irvine’s invoices or those of other outside counsel.327 At about the same time, Acting County
Manager Wilson asked the attorneys working as outside counsel for the Board on various matters to
list any conflicts.328 The dispute put contract counsel in the difficult position of trying “to serve two
masters”.329 321 Ex. 247, TRIAL EXB 03392. 322 Irvine Testimony, Hr’g Tr. 87:18-88:10, Sept. 14, 2011. 323 Wilcox Testimony, Hr’g Tr. 41:11-18, 42:7-43:3, Sept. 21, 2011. 324 Ex. 41, TRIAL EXB 01159-60. 325 Ex. 66, TRIAL EXB 01309, 1311. 326 Ex. 66, TRIAL EXB 01310. 327 Ex. 72, TRIAL EXB 01322-23. 328 Ex. 74, TRIAL EXB 01331; Wilson Testimony, Hr’g Tr. 191:16-197:5, Sept. 27, 2011. 329 See the January 9, 2009 letter to Thomas from contract counsel Roger W. Hall, Ex. 74, TRIAL EXB 01327-36.
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212. Because the Board did not want to make matters any worse than they were with the
County Attorney’s office, the Board put off paying Irvine and other contract counsel.330 Irvine did
not receive payment for his work until after Judge Daughton ruled in the County’s favor in the Dec
Action.331 2. Conclusions of Law – Claim 12 – ER 4.4(a) (Using Means to Burden or
Embarrass)
213. The Hearing Panel finds that Thomas violated ER 4.4(a) by sending letters to County
employees threatening to sue them if they paid any monies to Tom Irvine.
214. The Board had hired Irvine to advise it about Thomas’s conflicts. The Board’s effort
to obtain conflicts advice was lawful, and Thomas’s effort to interfere in that relationship was
burdensome on county employees and Irvine. While Thomas may seek to justify his letters based on
what he thought was the soundness of his position, the substantial purpose was to stop Irvine from
providing conflicts advice to the Board about Thomas’s own situation. He was not justified in doing
so.
215. Thomas’s letters and those he sent through his subordinates had no substantial
purpose other than to threaten, intimidate and burden the County officials in carrying out their duties
and to interfere in the attorney-client relationship between MCBOS and Irvine. Thomas violated ER
4.4(a).
3. Conclusions of Law – Claim 13 – ER 4.4(a) (Using Means to Burden or Embarrass)
216. The Hearing Panel finds that Thomas and Aubuchon violated ER 4.4(a) by issuing the
grand jury subpoena duces tecum to the County in December 2008.
217. Thomas and Aubuchon issued a grand jury subpoena to the County asking for nearly
every document that the County had about the $347 million Court Tower project. In addition to the
subpoena, both MCAO and MCSO issued burdensome records requests to the County.
330 Sandi Wilson Testimony, Hr’g Tr. 139:15-141:2, Sept. 27, 2011. 331 Irvine Testimony, Hr’g Tr. 77:4-79:7, Sept. 14, 2011.
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218. Thomas and Aubuchon issued the subpoena and records request for no substantial
purpose other than to burden the County and its employees and to retaliate against the Board.
Thomas could have initiated the investigation into the court tower much earlier, for instance, when
the Board voted to go forward with the project. Or the investigation could have been started when
the Stapley made the alleged statement to Mundell. Both of those events occurred in 2007. Instead,
Thomas served the grand jury subpoena ten days after MCBOS took action that directly affected him
by hiring Irvine. The timing of the subpoena indicates that Thomas and Aubuchon were retaliating
for the Board’s actions on December 5, 2008.
219. The subpoena required the production of voluminous records and materials and was
not limited to any particular aspect of the Court Tower project. Among many other things, the
subpoena asked for all contracts related to the Court Tower without specifying any particular
contractor or vendor. The County had to expend substantial time and resources to comply with the
subpoena. If one of the real purposes behind this subpoena were to focus on payments made by the
County to Irvine, the subpoena would have been much more specific in that regard.
220. The purpose of this subpoena and the related records requests were to burden the
County, County officers, and County employees. It is worth noting that, following the production of
the Court Tower documents, Thomas filed no charges based on mismanagement or
misappropriation.
4. Conclusions of Law – Claim 14 – ER 1.7(a)(1) and ER 1.7(a)(2) (Conflicts of Interest)
221. Thomas and Aubuchon violated both ER 1.7(a)(1) and 1.7(a)(2) because of their
conflicts of interest in the Court Tower matter.
222. ER 1.7(a)(1) prohibits a lawyer from representing one client against another client. In
investigating the Court Tower project, Thomas and Aubuchon were representing the State as
prosecutors and investigating their client the Board of Supervisors, among others. See Section
III.B.3, above. As found by Judge Donahoe, they were investigating a matter about which MCAO
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had advised the Board. They represented one client against another, which is a concurrent conflict
of interest in violation of ER 1.7(a)(1).
223. On one hand, Thomas and Aubuchon were requiring the County to produce thousands
of pages of documents. On the other hand, as attorney for the County, Thomas and Aubuchon
should have considered whether the County should comply with the very subpoena MCAO had
issued. See generally In re Investigative Grand Jury Proceedings on April 10, 1979 and Continuing,
480 F. Supp. 162, 166 (N.D. Ohio 1979) (finding prohibited conflict in representation of both target
and non-target witnesses).
224. Judge Donahoe ruled on February 6, 2009, that MCAO could not represent the State
on the Court Tower grand jury investigation.332 His ruling was based on the fact that the County
Attorney had a conflict in investigating its own client on a subject about which it had advised the
client. This ruling is not binding on this Hearing Panel, but it may be considered and supports the
conclusions reached herein. In re Levine, 174 Ariz. 146, 154-156, 847 P.2d 1093, 1101-1103
(1993). Judge Donahoe’s ruling is discussed below in Section III.D.1.
225. ER 1.7(a)(2) prohibits a lawyer from representing a client when the lawyer’s interests
limit the representation the lawyer can give to the client. Thomas and Aubuchon violated ER
1.7(a)(2) by initiating and conducting the Court Tower investigation. Their personal bias against
MCBOS and Attorney Irvine limited their representation of the State of Arizona as prosecutors.
They were motivated to investigate the Court Tower not because of any legitimate concern about
criminal conduct but because of their personal disagreement and hostility toward the Board and
others, including Irvine.333
226. The personal interests of Thomas and Aubuchon are shown by 1) their disagreement
with the decision to build the Court Tower; 2) Aubuchon’s personal feeling that Irvine was making a
332 Ex. 85, TRIAL EXB 01376-01379. 333 The Board hired Irvine to assist with the budget, another sore spot for MCAO in 2008. Ex. 33, TRIAL EXB 01034-38.
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lot of money when she was just making a County salary; 3) MCBOS’s hiring of Irvine to advise it
about conflicts; and 4) the absence of any legitimate reason to initiate the Court Tower investigation.
227. ER 1.7(a)(2) uses the term “personal” interest of the lawyer. During the hearing
respondents attempted to show that they had no personal interest that would lead to a conflict.
Howcver, they construe “personal” too narrowly. A personal interest can be something such as
Thomas’s interest in maintaining the authority of his office to advise the Board of Supervisors. See
Section III.B.3 above.
D. Claims 15 – 20: The RICO Action and Events Leading to It.
1. Findings of Fact.
228. On December 1, 2009, Thomas and Aubuchon filed a federal civil Racketeer-
Influenced and Corrupt Organizations (“RICO”) case against 15 defendants. Before they filed the
RICO action, various events occurred during 2009 that are relevant to the misconduct that Thomas,
Aubuchon and Alexander committed in the pursing the RICO action.
229. County Files Motion to Quash Court Tower Grand Jury Subpoena. On
December 23, 2008 The Board, through attorney Tom Irvine, filed a Motion to quash the grand jury
subpoena to the County that Aubuchon and Thomas had served on Dec. 15, 2008.334 In the same
pleading, the Board moved to disqualify MCAO on grounds that MCAO had advised the Board on
legal aspects of the Court Tower project, as to which MCAO was now conducting a criminal
investigation.335
230. As noted in an MCSO Departmental Report (“DR”) in the case against Judge
Donahoe (Sheriff’s Office Supplemental Report - DR# 09-225204), officials of both MCSO and
MCAO perceived that the Board began “to act against the County Attorney” after the Stapley I
334 Ex. 56, TRIAL EXB 01200-07. See Irvine Testimony, Hr’g Tr. 45:22-46:16, Sept. 14, 2011. 335 Ex. 56, TRIAL EXB 01202-06.
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indictment was served or filed.336 The DR states that “they,” meaning the Board, hired Irvine to
“block investigations and prosecutions directed toward them (Board Members).”337
231. During the development of the Court Tower, MCAO had provided civil legal advice
to MCBOS, e.g., on the large and complex contracts necessary for this multi-hundred-million dollar
project.338 MCAO Deputy County Attorney John Paulson, with the civil division, was among those
advising the Board.339
232. Aubuchon responded, contending that MCAO could both provide civil advice to the
Board and investigate criminal activity potentially involving Board members.340
233. Aubuchon also moved to assign the Board’s Motion to Quash and Motion to
Disqualify to an out-of-county judge.341 In this pleading Aubuchon advanced the premise that the
Superior Court and the judges of that Court had an interest in the Court Tower, which disqualified
them from deciding the Board’s Motion to Quash.342 This faulty premise – that the judges were
receiving some sort of benefit from the building of the Court Tower – was repeated in the federal
RICO complaint.
234. Aubuchon also moved to disqualify Irvine and his firm.343 Aubuchon informed the
court that Irvine’s role in the Court Tower project was one of the subjects of the criminal
investigation. Aubuchon argued that as a target of the investigation, Irvine could not appear on
behalf of the Board seeking to quash the grand jury subpoena.344
235. The factual background of Irvine’s involvement in the Court Tower project was as
follows. Irvine had an extensive background related to construction and financing of public 336 Ex. 159, TRIAL EXB 01872. 337 Ex. 159, TRIAL EXB 01872. 338 Irvine Testimony, Hr’g Tr. 54:2-15, Sept. 14, 2011; White Testimony, Hr’g Tr. 21:4-15, 24:6-13, Sept. 20, 2011; Kunasek Testimony, Hr’g Tr. 105:21-106:16, Sept. 26, 2011. 339 Sandi Wilson Testimony, Hr’g Tr. 138:10-139:6, 150:21-151:21, Sept. 27, 2011. 340 Ex. 75, TRIAL EXB 01337-46. 341 Ex. 77, TRIAL EXB 01351-56. 342 Ex. 77, TRIAL EXB 01354-55. 343 Ex. 76, TRIAL EXB 01347-50. 344 Ex. 76, TRIAL EXB 01348. Irvine learned that he was a target from Aubuchon’s pleadings. See Irvine Testimony, Hr’g Tr. 46:17-50:8, Sept. 14, 2011.
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facilities.345 He had participated in the initial planning of the Court Tower.346 He had signed in and
attended various meetings about the Court Tower project while representing the Superior Court.347
Sally Wells and Aubuchon also attended these meetings.348
236. The Board was aware of Irvine’s representation of the Superior Court.349 No
evidence of criminal conduct in the Court Tower by Irvine or anyone else was ever discovered.350
237. Judge Donahoe’s Ruling Re: GJ Subpoena and Disqualification of MCAO. On
February 6, 2009, Judge Donahoe ruled on 1) MCBOS’s motion to quash the subpoena duces tecum
on the County; 2) Thomas and Aubuchon’s motion to disqualify Irvine’s firm; and 3) Thomas and
Aubuchon’s motion to assign an out-of-county judge to rule on the motion to quash and the motion
to disqualify.351 Judge Donahoe denied the motion to appoint an out-of-county judge, stating that he
had no interest in the court tower project.352
238. Judge Donahoe disqualified MCAO. He stated that the issue was the ethical propriety
of the County Attorney seeking documents from its client, MCBOS, as a part of a grand jury
investigation. He found that MCAO was counsel for the Board and gave the Board legal advice
regarding the Court Tower. Therefore, a conflict of interest existed.353
239. Judge Donahoe also denied Thomas and Aubuchon’s motion to disqualify Irvine’s
firm.354
240. Thomas and Aubuchon filed a special action requesting review of Donahoe’s rulings
in the court of appeals, CA-SA 09-0056, and then in the supreme court, CV 09-0165 PR. The court
345 Irvine Testiomny, Hr’g Tr. 6:19-15:16, 16:22-19:3, 134:18-135:23, Sept. 14, 2011. 346 Irvine, Hr’g Tr. 15:17-16:21, Sept. 14, 2011. 347 Irvine Testimony, Hr’g Tr. 68:8-21, Sept. 14, 2011. 348 Irvine Testimony, Hr’g Tr. 67:9-68:7, 68:22-69:5, Sept. 14, 2011; Mundell Testimony, Hr’g Tr. 132:22-133:25, Oct. 3, 2011; Baca Testimony, Hr’g Tr. 42:7-43:11, Oct. 4, 2011. Thomas knew that Aubuchon and Wells participated in the planning of the Court Tower. Thomas Testimony, Hr’g Tr. 47:5-48:4, Oct. 26, 2011. 349 Wilcox Testimony, Hr’g Tr. 43:24-44:16, Sept. 21, 2011. 350 Almanza Testimony, Hr’g Tr. 120:5-20, 187:23-189:16, Oct. 11, 2011. 351 Ex. 85, TRIAL EXB 01376-79. 352 Ex. 85, TRIAL EXB 01377. 353 Ex. 85, TRIAL EXB 01377-79. 354 Ex. 85, TRIAL EXB 01379.
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of appeals declined to take jurisdiction in May 2009. The supreme court declined to review it on
December 1, 2009.
241. Neither Thomas nor Aubuchon attempted to appeal Judge Donahoe’s February 6,
2009 ruling in a timely manner.355 After the Supreme Court declined special action review there
was no other review available. Judge Donahoe’s ruling stands.
242. County Sweeps Office for Listening Devices. In December 2008, after Supervisor
Stapley was indicted, members of the Board and County employees became concerned and
frightened that the Sheriff might have placed electronic surveillance devices in the County’s offices
as part of an effort to obtain further indictments.356 Another concern was that there might be
surveillance devices hidden in the conference room where the Board held its executive sessions.357
Supervisor Kunasek initially consulted with the Attorney General’s Office. The Attorney General’s
Office told him that it declined to conduct a search because that Office also was concerned about
politically motivated investigations.358 Supervisor Kunasek then authorized hiring a contractor to
look for such devices.359 The purpose was to calm the fears of County employees that MCSO or
MCAO was spying on them.360 No listening devices were found.361
243. This led to a criminal investigation by MCAO and MCSO of Supervisor Kunasek,
among others.362 Aubuchon and Chief Deputy Sheriff Hendershott wanted to obtain a search
warrant for the Board’s offices, based on the Board having conducted a search of their offices for
listening devices.363 Chief Deputy Hendershott asked Lieutenant Rich Burden to draft the search
355 Thomas Testimony, Hr’g Tr. 71:6-73:7, Oct. 26, 2011; Aubuchon Testimony, Hr’g Tr. 78:11-22, Oct. 25, 2011. 356 Wilcox Testimony, Hr’g Tr. 32:8-34:22, Sept. 21, 2011. 357 Kunasek Testimony, Hr’g Tr. 145:11-146:4, Sept. 26, 2011. 358 Kunasek Testimony, Hr’g Tr. 62:9-64:13, Sept. 26, 2011. 359 Kunasek Testimony, Hr’g Tr. 24:6-26:9, 113:23-115:20, Sept. 26, 2011. 360 Max Wilson Testimony, Hr’g Tr. 185:16-187:25, Sept. 21, 2011; Kunasek Testimony, Hr’g Tr. 64:23-66:5, Sept. 26, 2011. 361 Kunasek Testimony, Hr’g Tr. 26:10-15, Sept. 26, 2011. A second sweep was conducted in spring 2010. The combined cost was $15,000. Max Wilson Testimony, Hr’g Tr. 164:10-166:14, Sept. 27, 2011. 362 Kunasek Testimony, Hr’g Tr. 35:1-37:24, Sept. 26, 2011. 363 Gentry Testimony, Hr’g Tr. 150:17-20, Oct. 4, 2011.
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warrant, based on a magazine article.364 Chief Deputy Hendershott told Lt. Burden that Aubuchon
would assist him in drafting the search warrant.365
244. On March 11, 2009, a meeting of the organized crime unit (formerly the MACE Unit)
was held, attended by Aubuchon, MCSO Sergeants Gentry, Luth and Johnson, and Lt. Burden.366
Sgt. Gentry and the other detectives told Aubuchon that they did not think they could obtain a search
warrant because no crime had been committed.367 A search warrant has to contain a statement that a
crime has been committed and that evidence of the crime will be found at a specific location.368 Sgt.
Gentry was unable to obtain satisfactory answers from Aubuchon as to what crime had been
committed and what evidence they would find in the Board’s offices.369
245. Aubuchon told the group that to write a search warrant using the magazine article
would just take “a little good police work”. Aubuchon suggested that the detectives just add “a little
fluff above” the magazine article and “a little fluff below”, “use a little creative writing, and you can
get any judge to sign it.”370 Lt. Burden and Sgt. Gentry understood Aubuchon to be suggesting that
the detectives engage in dishonesty.371 Lt. Burden and Sgt. Gentry refused to allow their detectives
to “make up stuff”.372 Sgt. Gentry was not willing to trade his integrity to prepare a search warrant
without probable cause.373
246. When asked to identify her informant regarding the “bug sweep”, Aubuchon refused
to reveal her source.374 Aubuchon also made a statement to the effect that, if she couldn’t try a case
in court, she would try it in the media.375 The meeting concluded with Aubuchon leaving and 364 Burden Testimony, Hr’g Tr. 168:22-169:19, Oct. 6, 2011; Hendershott Testimony, Hr’g Tr. 53:10-22, Oct. 13, 2011. 365 Burden Testimony, Hr’g Tr. 169:20-170:21, Oct. 6, 2011. 366 Gentry Testimony, Hr’g Tr. 148:8-150:7, Oct. 4, 2011. 367 Gentry Testimony, Hr’g Tr. 150:12-24, 156:12-160:14, 163:20-165:10, Oct. 4, 2011. 368 Gentry Testimony, Hr’g Tr. 179:17-180:23, Oct. 4, 2011. 369 Gentry Testimony, Hr’g Tr. 180:23-25, Oct. 4, 2011. 370 Burden Testimony, Hr’g Tr. 170:22-173:8, Oct. 6, 2011; Johnson Testimony, Hr’g Tr. 19:6-20:5. 371 Gentry Testimony, Hr’g Tr. 150:25-151:5, 181:1-6, Oct. 4, 2011; Burden Testimony, Hr’g Tr. 173:9-175:7, Oct. 6, 2011. 372 Johnson Testimony, Hr’g Tr. 20:6-11, Oct. 11, 2011. 373 Gentry Testimony, Hr’g Tr. 173:11-176:14, Oct. 4, 2011. 374 Gentry Testimony, Hr’g Tr. 170:18-172:11, Oct. 4, 2011. 375 Gentry Testimony, Hr’g Tr. 151:6-10, Oct. 4, 2011; Burden Testimony, Hr’g Tr. 184:4-13, Oct. 6, 2011.
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slamming the door behind her.376 The bug sweep was the subject of grand jury testimony in January
2010, as discussed below.
247. Production of Court Tower Documents. News media made their own public
records requests about the Court Tower project and, as a result, the Court Tower documents were
made available to the public and MCSO in early 2009.377 MCSO detectives scanned approximately
10,000 documents.378 They found no evidence of criminal activity.379
248. Sweeps Case. On February 27, 2009, Arpaio and Thomas sued the Board in a new
action about funds that the Supervisors had appropriated or encumbered.380 Arpaio and Thomas v.
MCBOS, CV2009-006709, Maricopa County Superior Court (referred to as the “Sweeps” case). The
case arose out of the State’s decision to withhold funds from each County entity because of a
budgetary crisis.381 Tom Irvine represented MCBOS. In part the defendants alleged that Thomas
should be precluded from bringing this suit because it essentially equated to a lawyer suing his own
client for an act that he had previously approved.
249. Judge Klein did not rule on this issue in his order, but he granted summary judgment
for the County on June 10, 2009, finding that Thomas and Arpaio had no standing. The court of
appeals affirmed the trial court’s decision. Arpaio v. MCBOS, 225 Ariz. 358, 238 P.3d 626 (2010).
Interim County Attorney Rick Romley dismissed MCAO from the lawsuit. Id. at fn. 5. Therefore
the opinion does not include the County Attorney. The Supreme Court denied review of this
decision on January 4, 2011.
250. This case is relevant to the issues in this matter because of the following:
376 Gentry Testimony, Hr’g Tr. 152:8-14, Oct. 4, 2011; Burden Testimony, 175:5-22, Oct. 6, 2011. Shortly thereafter, Sgt. Gentry and Lt. Burden were transferred out of the organized crime unit. Gentry Testimony, Hr’g Tr. 152:15-17, Oct. 4, 2011; Burden Testimony, Hr’g Tr. 176:2-15, Oct. 6, 2011. 377 Irvine Testimony, Hr’g Tr. 51:19-52:18, Sept. 14, 2011; Wilcox Testimony, Hr’g Tr. 115:11-116:12, Sept. 21, 2011; Sandi Wilson Testimony, Hr’g Tr. 130:10-24, Sept. 27, 2011. 378 Johnson Testimony, Hr’g Tr. 18:5-19:2, Oct. 11, 2011; Almanza Testimony, Hr’g Tr. 118:17-120:20, Oct. 11, 2011. 379 Almanza Testimony, Hr’g Tr. 120:5-20, 187:23-189:16, Oct. 11, 2011. 380 Irvine Testimony, Hr’g Tr. 239:5-240:3, Sept. 14, 2011. 381 Sandi Wilson Testimony, Hr’g Tr. 143:5-18, Sept. 27, 2011.
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a. Similar to the lack of standing that Thomas was found to have had in the Spanish-speaking DUI case,382 Thomas again filed a case without standing;
b. Standing became a major issue in the RICO Case that Thomas filed in Dec. 2008;
c. Once more Thomas and Arpaio were jointly suing MCBOS and its members, whom they later sued again in the RICO action.
251. Establishment of General Litigation Services. In May 2009, the Board reduced
MCAO’s budget from approximately $10 million to $4 million.383 MCAO was forced to reduce the
number of its attorneys and staff in the civil division.384 MCAO protested these budget cuts to the
County administration.385 The Board through County Manager David Smith began its own litigation
division.386 The new office – called the Office of General Litigation Services – took on new cases
and tried to settle old cases that outside counsel were handling.387
252. The establishment of General Litigation Services reflected the Board’s lack of
confidence in Thomas.388 Members of the Board thought that, rather than representing the Board,
Thomas had been acting for his own political purposes.389 The Board viewed the arrangement as
temporary, until the County Attorney’s conflicts were resolved.390
253. Thomas attacked these changes in the media as a “power grab designed to thwart
[the] Stapley investigation”.391 Supervisor Stapley viewed Thomas’s press release as a personal
attack on his integrity, designed to humiliate him and damage his reputation.392
382 Thomas Testimony, Hr’g Tr. 26:13-27:25, Oct. 26 ,2011. 383 Ex. 489 (no TRIAL EXB number assigned). 384 Ex. 102, TRIAL EXB 01437; MacDonnell Testimony, Hr’g Tr. 170:10-173:5, Sept. 15, 2011. 385 Ex. 103, TRIAL EXB 01438-44; Ex. 105, TRIAL EXB 01449-51; Ex. 108, TRIAL EXB 01454-59. 386 MacDonnell Testimony, Hr’g Tr. 144:22-145:12, Sept. 19, 2011; Stapley Testimony, Hr’g Tr. 105:18-106:18, Sept. 20, 2011. 387 Swanson Testimony, Hr’g Tr. 13:1-19:12, 45:21-47:25, Sept. 27, 2011. 388 Stapley Testimony, Hr’g Tr. 43:4-23, Sept. 21, 2011; Max Wilson Testimony, Hr’g Tr. 158:25-159:25, Sept. 21, 2011. 389 Kunasek Testimony, Hr’g Tr. 205:10-208:16, Sept. 21, 2011; Kunasek Testimony, Hr’g Tr. 119:16-121:25, Sept. 26, 2011, p. 119. 390 Stapley Testimony, Hr’g Tr. 193:17-194:15, Sept. 20, 2011; Kunasek Testimony, Hr’g Tr. 100:24-105:20, Sept. 26, 2011. But see Swanson Testimony, Hr’g Tr. 50:1-13, Sept. 27, 2011. The County Attorney again took full control of civil litigation in 2011, under the Montgomery administration. Swanson Testimony, Hr’g Tr. 19:13-22, Sept. 27, 2011. 391 Ex. 92, TRIAL EXB 01389-90. 392 Stapley Testimony, Hr’g Tr. 110:11-111:19, Sept. 20, 2011.
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254. Ruling by Daughton in Declaratory Judgment Action. On Aug. 27, 2009, Judge
Daughton ruled on motions filed in the Dec Action.393 He found 1) that the County Attorney was
subject to the Rules of Professional Conduct; 2) that he had not complied with his professional
obligations concerning client conflicts; 3) that Thomas is not the one to decide if there is a conflict;
and 4) that MCBOS actions on December 5 and 23, 2008, were appropriate.394 The court entered
judgment against MCAO.395
255. MCAO appealed this matter to the Arizona Court of Appeals by route of Special
Action, Case No. CA-SA 09-0212. On October 27, 2010, the court of appeals issued its opinion in
this matter. In summary, the opinion upholds Judge Daughton’s ruling but remands it to the trial
court to determine conflicts of interest on a case-by-case basis.396 Romley v. Daughton, 225 Ariz.
521, 241 P.3d 518 (App. 2010).397 From this opinion it is clear that when the County Attorney has a
conflict, he cannot give the Board advice, and the Board can hire outside counsel for advice.398
256. Thomas Takes Back Cases From Yavapai County Attorney. As noted above, in
March or April of 2009 Thomas transferred various MACE cases to Yavapai County Attorney Sheila
Polk. In September 2009, under pressure from Sheriff Arpaio, Thomas took back a number of
investigations from Yavapai County Attorney Sheila Polk. One of the investigations has been
referred to in this disciplinary proceeding as Stapley II. Stapley II refers to the second criminal
investigation and the subsequent case filed against Supervisor Stapley in December 2009, CR2009-
007891.
257. Thomas also took back from Polk the investigation of Supervisor Wilcox. The
MACE Unit’s investigation of Supervisor Wilcox apparently began no later than summer 2009.399
Supervisor Wilcox was not informed about the investigation.400 393 Ex. 117, TRIAL EXB 01561-64. 394 Ex. 117, TRIAL EXB 01562. 395 Ex. 117, TRIAL EXB 01564. 396 Irvine Testimony, Hr’g Tr. 74:16-75:16, Sept. 14, 2011. 397 Ex. 293, beginning at TRIAL EXB 03990. 398 Kunasek Testimony, Hr’g Tr. 91:3-94:21, Sept. 26, 2011. 399 See MCSO’s August 31, 2009 Supplemental Report on Wilcox, Ex. 112, TRIAL EXB 01469-1500.
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258. Thomas also took back the Court Tower investigation and the “bug sweep”
investigation against county officials.401
259. Thomas took back these investigations following a meeting with Arpaio, Polk,
Hendershott, and possibly others, as well as a second meeting with Polk.402
260. Thomas’s Attempts to Appoint Washington D.C. Lawyers. After taking the cases
back, Thomas wanted to appoint two lawyers from Washington, D.C. to investigate the Court Tower
matter and to handle Stapley II.403 This was the first time that the County Attorney had requested
prosecutors from out-of-state for a criminal case.404 The two Washington lawyers began working
with MCSO to educate themselves on the investigations.405
261. This led to another fight with the MCBOS because the Board would not approve out-
of-state counsel.406 County management did not understand why the conflicted matters had been
returned to MCAO.407 On October 20, 2009, County Manager Smith sent a memorandum to
Thomas, declining to place Thomas’s proposal for appointment of special prosecutors on the Board’s
agenda.408 The County declined on grounds that the proposed appointees were not from Maricopa
County.409 Flying in attorneys from Washington, D.C. would increase costs.410 A less-costly
alternative existed: transferring Stapley II and related investigations to another County Attorney.411
400 Wilcox Testimony, Hr’g Tr. 52:8-59:1, Sept. 21, 2011. 401 See the Yavapai County Attorney’s letter to Thomas, dated Oct. 6, 2009, Ex. 120, TRIAL EXB 01569. 402 Hendershott Testimony, Hr’g Tr. 63:17-65:16, Oct. 13, 2011. 403 See, e.g., Ex. 122, TRIAL EXB 01571-72, an Oct. 16, 2009 memorandum from MCAO to Deputy County Manager Wilson discussing the costs of special prosecutors; Ex. 123, TRIAL EXB 01573-78, an Oct. 19, 2009 legal memorandum provided to County Manager Smith concerning the proposed appointment of special deputy county attorneys; Ex. 124, TRIAL EXB 01579, an Oct. 20, 2009 letter from Thomas to James Rizer, Esq.; Ex. 121, TRIAL EXB 01570. 404 MacDonnell Testimony, Hr’g Tr. 136:6-138:3. 405 Johnson Testimony, Hr’g Tr. 9:4-10:10, Oct. 11, 2011. 406 Wilcox Testimony, Hr’g Tr. 56:16-57:21; 104:21-106:1, Sept. 21, 2011; Hendershott Testimony, Hr’g Tr. 64:14-22, Oct. 13, 2011. 407 Swanson Testimony, Hr’g Tr. 78:17-81:13, Sept. 27, 2011. 408 Ex. 126, TRIAL EXB 01582-83; Smith Testimony, Hr’g Tr. 176:3-177:1, Sept. 26, 2011. 409 Irvine Testimony, Hr’g Tr. 93:19-95:5, Sept. 14, 2011. 410 Wilson Testimony, Hr’g Tr. 163:12-164:20, 176:18-177:3, Sept. 21, 2011; Kunasek Testimony, Hr’g Tr. 22:6-23:2, Sept. 26, 2011. 411 Swanson Testimony, Hr’g Tr. 68:14-69:6, Sept. 27, 2011.
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262. Thomas responded with a counter-memorandum and press release.412 Thomas made
another effort to obtain the Board’s approval of these appointments on October 27, 2009.413 Thomas
looked for volunteers from within MCAO to handle Stapley II; none came forward.414 Thomas
continued to seek the appointment of special prosecutors up through February 2010.415
263. Members of the Board were concerned about persons not appointed properly by
MCBOS appearing in front of the grand jury.
264. MCBOS Through Irvine and Novak Files Notice and Motion Re: Special
Prosecutors. On November 13, 2009, the Board through Irvine filed its Notice and Motion re
Unauthorized County Representation.416 The Board filed the Notice and Motion with Presiding
Criminal Judge Donahoe.417
265. Thomas reacted publicly, claiming that MCBOS was attempting to “destroy the
sanctity of the grand jury.”418 Thomas also asserted that the County was attempting to block MCAO
from using the grand jury to investigate Board members.419
266. Aubuchon on behalf of the State filed various responses and motions. Aubuchon
filed a Motion to Strike Motion in Unspecified Criminal Matter.420 Aubuchon also filed a Motion to
Assign Out-of-County Judge to Rule on Pending Motion to Strike Motion,421 in which Aubuchon
again mistakenly concluded that the Superior Court and, in particular, Judge Donahoe, had an
attorney-client relationship with Irvine.422
412 Ex. 129, TRIAL EXB 01610-15. 413 Ex. 131, TRIAL EXB 1632-33. 414MacDonnell Testimony, Hr’g Tr. 18:21-20:9, 83:10-86:5, Sept. 19, 2011. 415 Ex. 201, TRIAL EXB 02389; Ex. 202, TRIAL EXB 02390-91; Ex. 203, TRIAL EXB 02392-93. 416 Ex. 137, TRIAL EXB 01644-83. 417 Irvine Testimony, Hr’g Tr. 98:6-99:16, Sept. 14, 2011. 418 Ex. 139, TRIAL EXB 01744-45. 419 Ex. 139, TRIAL EXB 01744. 420 Ex. 141, TRIAL EXB 01751-61. 421 Ex. 148, TRIAL EXB 01792-1801. 422 Ex. 148, TRIAL EXB 01794, 1796.
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267. In addition, Aubuchon filed a Request for Voluntary Recusal/Motion for Change of
Judge Pursuant to Rule 10.1.423 She submitted this on December 9, 2009, after she had filed the
direct complaint charging Judge Donahoe with crimes. Ultimately, another Maricopa County
Superior Court Judge, Roland Steinle, decided these motions. Judge Steinle agreed with the
arguments in Aubuchon’s Motion to Strike that the Board was effectively seeking a civil
injunction.424
268. Judge Donahoe set a hearing for December 9, 2009 to consider the Notice and Motion
filed by MCBOS.425
269. Filing of RICO Case. Thomas and Aubuchon then filed the RICO case on
December 1, 2009.426 RICO is a federal statute created to combat organized crime syndicates.427
270. On the same day, Thomas held a press conference announcing that Sheriff Arpaio and
Thomas were filing a racketeering case against Supervisors and judges who supposedly were
blocking the Court Tower investigation and other matters.428
271. The purported plaintiffs in the RICO case were Thomas and Sheriff Joe Arpaio. Lisa
Aubuchon signed the complaint. The signature block appears as follows: ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY By: s/Lisa M. Aubuchon Lisa M. Aubuchon Deputy County Attorney
272. Thomas appears as both a plaintiff and the lawyer for plaintiffs in this civil case. The
RICO complaint named the following defendants:
423 Ex. 151 TRIAL EXB 01834-42. 424 Ex. 170, TRIAL EXB 01926-30. See Irvine Testimony, Hr’g Tr. 107:12-109:19, Sept. 14, 2011. 425 Ex. 144, TRIAL EXB 01766, a November 30, 2009 e-mail from Judge Donahoe’s clerk to counsel; Donahoe Testimony, Hr’g Tr. 75:13-76:13, Oct. 5, 2011. 426 Ex. 145, TRIAL EXB 01767-85. 427 Goldstock Testimony, Hr’g Tr. 139:17-142:20, Oct. 19, 2011. 428 Ex. 146, TRIAL EXB 01786-87.
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Maricopa County Board of Supervisors, a body politic and corporate; Fulton Brock, Supervisor; Andrew Kunasek, Supervisor; Donald T. Stapley, Supervisor; Mary Rose Wilcox, Supervisor; Max Wilson, Supervisor; David Smith, County Manager; Sandi Wilson, Deputy County Manager; Wade Swanson, Office of General Litigation; Judge Barbara R. Mundell, Judge of the Superior Court; Judge Anna Baca, Judge of the Superior Court; Judge Gary Donahoe, Judge of the Superior Court; Judge Kenneth Fields, Judge of the Superior Court; Thomas Irvine, attorney; Edward Novak, attorney; Polsinelli Shughart, P.C.
273. Staffing of RICO Case. Aubuchon and Thomas drafted the RICO complaint.429
Thomas and Aubuchon did not request that the RICO complaint be subjected to an incident review
by MCAO’s Division Chiefs.430 Incident review was a process by which Division Chiefs and other
experienced attorneys at MCAO could review and discuss “tough cases.”431 Nor did they discuss it
with anyone else in the office in any detail. In fact, almost no one at MCAO besides Thomas and
Aubuchon knew in advance that they were going to file the complaint.432
274. Thomas formally assigned Alexander to the case on December 11, 2010 because he
was concerned Aubuchon might have a conflict.433 Alexander was also concerned Aubuchon might
have a conflict because she had signed the direct complaint against Judge Donahoe in the criminal
case.434 Alexander filed a notice of substitution of counsel on December 23, 2010.435 At that time,
429 Aubuchon Testimony, Hr’g Tr. 92:21-93:19; 120:8-121:16, Oct. 25, 2011. 430 MacDonnell Testimony, Hr’g Tr. 15:15-19, Sept. 19, 2011; Marshall Testimony, Hr’g Tr. 163:17-25, Sept. 13, 2011. Marshall termed the absence of staffing in this type of case “unusual”. Marshall Testimony, Hr’g Tr. 14:15-15:3. 431 MacDonnell Testimony, Hr’g Tr. 12:17-14:14, Sept. 19, 2011. 432 Thomas Testimony, Hr’g Tr. 150:4-25, Oct. 26, 2011; Alexander Testimony, Hr’g Tr. 29:6-15, Oct. 20, 2011. 433 Alexander Testimony, Hr’g Tr. 23:20-24:20, Oct. 20, 2011. 434 Alexander Testimony, Hr’g Tr. 24:14-25:15, Oct. 20, 2011. 435 Alexander Testimony, Hr’g Tr. 51:22-52:9, Oct. 20, 2011; Ex. 177, TRIAL EXB 1977-79.
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she understood she was “on the hook” for the RICO case and was responsible for the accuracy of
anything filed thereafter.436
275. Thomas hired Alexander as a Special Assistant Deputy County Attorney in 2005.437
As a Special Assistant, Alexander worked directly for Thomas.438 When Thomas assigned
Alexander to the RICO case, she had no trial experience beyond handling a few preliminary hearings
and initial appearances.439 She had never litigated a case in federal court.440
276. When Thomas assigned the case to Alexander, Aubuchon gave her a packet of
documents that was purportedly the case file.441
277. Thomas’s subordinates notified him that Alexander lacked sufficient experience and
training to serve as lead counsel to the RICO case. In particular, in a December 13, 2009 e-mail that
Chief Deputy MacDonnell passed on to Thomas, Alexander’s Division supervisor, Mark Faull,
expressed serious misgivings about Alexander’s ability to function as a litigator. He stated “[i]t is
my professional opinion that we are inviting malpractice complications with this assignment.”442
Faull stated in his e-mail that he had received reports that Alexander’s court coverage performance
was “deficient.”443 He had already advised Thomas of his concerns about Alexander’s litigation
abilities in the past.444 Faull’s critique was not well received, and shortly thereafter, Alexander was
transferred to the asset forfeiture bureau.445 Faull cautioned Peter Spaw, the head of that bureau, that
he should provide close supervision and assistance to Alexander.446 Conversely, Alexander was
436 Alexander Testimony, Hr’g Tr. 51:22-53:1, Oct. 20, 2011. 437 Alexander Testimony, Hr’g Tr. 7:12-8:18, Oct. 20, 2011. 438 Alexander Testimony, Hr’g Tr. 8:1-18, Oct. 20, 2011. One of Alexander’s previous assignments from Thomas was to research judges’ statements that were critical of Thomas. Judges Mundell and Fields were included in that research. Ex. 29, TRIAL EXB 703-22; Alexander Testimony, Hr’g Tr. 15:1-16:10, Oct. 20, 2011. 439 Alexander Testimony, Hr’g Tr. 7:12-14:25, Oct. 20, 2011. 440 Alexander Testimony, Hr’g Tr. 32:1-25, Oct. 20, 2011. 441 Alexander Testimony, Hr’g Tr. 50:4-51:21, Oct. 20, 2011. 442 Ex. 169, TRIAL EXB 01925. Faull Testimony, Hr’g Tr. 87:16-90:9, 106:7-24, Oct. 12, 2011. 443 Ex. 169, TRIAL EXB 01925. 444 Faull Testimony, Hr’g Tr. 92:8-14, Oct. 12, 2011. 445 Faull Testimony, Hr’g Tr. 90:10-92:14, Oct. 12, 2011. 446 Faull Testimony, Hr’g Tr. 113:20-117:4, Oct. 12, 2011.
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aware Spaw was not an expert in RICO.447 After Thomas transferred Alexander to his bureau, Spaw
functioned as her supervisor.448
278. Spaw urged Alexander to obtain the investigation file for the matter so that she could
determine what the facts were.449 Spaw warned Alexander that “without access to the detailed facts
supporting this suit, all other efforts are tantamount to simply rearranging the deck chairs on the
Titanic.”450 Unknown to Spaw at that time, there was no such file. Despite Spaw’s warnings about
the lack of evidence in the case, Alexander was adamant that the RICO complaint go forward.451 As
late as March 2010, as MCAO’s work on the RICO case was ending, Spaw emphasized in an e-mail
that, as Alexander’s supervisor, he had been asking for months for “a precise list of what
investigative materials there are in existence”.452 He never received such a list.
279. Many of the defendants filed motions to dismiss the RICO case. Alexander filed a
frivolous response to these motions, and her response continued the suit needlessly and without
justification.453 Alexander’s response was not based on any independent criminal investigation.
Alexander did not obtain any investigative file on which to base her argument that the complaint
should not be dismissed. She made no independent factual investigation that would establish the
crimes alleged in the RICO complaint.454 When Alexander asked Thomas for additional facts, he
referred her to Aubuchon and Chief Assistant County Attorney Sally Wells.455 Wells provided
court pleadings and communications between MCBOS and MCAO, many of which are described
447 Alexander Testimony, Hr’g Tr. 47:18-50:3, Oct. 20, 2011. 448 Thomas Testimony, Hr’g Tr. 151:3-20, Oct. 26, 2011; Spaw Testimony, Hr’g Tr. 132:14-21, Oct. 17, 2011. Spaw testified he supervised Alexander from an “organizational standpoint,” not from a “managerial standpoint.” 449 Ex. 180, TRIAL EXB 01983. 450 Ex. 182, TRIAL EXB 01986-90. 451 Duvendack Testimony, Hr’g Tr. 188:17-189:7, Oct. 14, 2011. 452 Ex. 209, TRIAL EXB 02409-11. 453 Ex. 195, TRIAL EXB 02227-72. 454 Alexander Testimony, Hr’g Tr. 56:15-59:11, 65:15-66:8, 70:11-71:2, 71:17-73:11, 79:13-81:7, 86:2-89:12, 90:9-93:4, 94:18-95:3, Oct. 20, 2011. 455 Ex. 415, TRIAL EXB 08364-69.
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above, which evidenced judges making decisions and disputes between the Thomas administration
and the Board – but not racketeering.456
280. Thomas participated in the drafting of the response. In a January 22, 2010 e-mail to
Thomas, Spaw enclosed for Thomas’s review a draft of Plaintiffs’ Partial Response to Defendants’
Motions to Dismiss Regarding Sufficiency of Complaint and Standing of Plaintiffs to Bring
Action.457 On January 23, 2010, Thomas forwarded his revisions and comments on the response to
Alexander and Spaw.458 A January 25, 2010 e-mail from Spaw to Alexander states: “Andy has
reviewed the draft regarding the sufficiency of pleadings issue and standing issue and has requested
certain revisions.”459
281. Alexander also filed a first amended complaint in the RICO action.460 Thomas
participated in drafting this pleading.461 With Thomas’s knowledge, the first amended complaint
incorporated and left unchanged the meritless allegations of the original RICO complaint.462
282. Alexander asked the court to accept the first amended complaint for filing or, in the
alternative, for leave to amend the RICO complaint.463 After the defendants objected, the court did
not allow the first amended complaint.
283. The RICO action was voluntarily dismissed in March 2010.
2. Conclusions of Law – Claim 15 – ER 4.4(a) (Using Means to Burden or Embarrass)
284. The respondents violated ER 4.4(a) by filing and pursuing the RICO case.
456 Ex. 390, TRIAL EXB 08006-07; Wells Testimony, Hr’g Tr. 140:12-141:25, Sept. 13, 2011. 457 Ex. 398, TRIAL EXB 08096-8115. 458 Ex. 397, TRIAL EXB 08093-95. 459 Ex. 396, TRIAL EXB 08092. 460 Ex. 188, TRIAL EXB 02155-86. 461 See Ex. 404, TRIAL EXB 0813-71, a January 13, 2010 e-mail from Spaw to Thomas, noting the inclusion in the first amended complaint of revisions suggested by Thomas and requesting his approval before filing. See also Ex. 447, TRIAL EXB 08541; Ex. 448, TRIAL EXB 08543-44; Ex. 452, TRIAL EXB 08550. 462 Ex. 407, TRIAL EXB 08178-8208. 463 Ex. 191, TRIAL EXB 02192-2200.
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285. Thomas, Aubuchon and Alexander filed and pursued the RICO case for no substantial
purpose other than to embarrass, delay or burden the named defendants. See, e.g., In re Levine, 174
Ariz. 146, 171, 847 P.2d 1093, 1118 (1993) (Levine violated ER 4.4 by bringing groundless claims
in bad faith over a period of years).
286. In the RICO action Thomas, Aubuchon and Alexander abused their power and
authority as County officers. They filed the RICO case in retaliation against the defendants, not
based upon any alleged criminal activity, but rather based upon the defendants’ exercise of lawful
authority that frustrated and infuriated Thomas, Aubuchon and Sheriff Arpaio. The purpose of the
RICO case was to burden and/or embarrass the defendants. No factual or legal basis supported the
filing of the RICO case. See Sections III.D.3.a and b, below. The motive for filing the RICO action
was retaliation against those who had acted against Thomas and MCAO.
287. There is also evidence that Thomas and Aubuchon filed the case in order to put the
County into receivership, which would burden the County by preventing the existing government
from being able to run the County.464
288. Thomas, Aubuchon and Alexander violated ER4.4(a).
3. Conclusions of Law – Claim 16 – ER 3.1 (Filing a Frivolous Lawsuit)
289. Thomas, Aubuchon and Alexander violated ER 3.1 by filing the frivolous RICO
action.
290. ER 3.1 states that a lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a good faith basis in law and fact for doing so that is not
frivolous. See, e.g., In re Levine, 174 Ariz. 146, 171, 847 P.2d 1093, 1118 (1993) (Levine violated
ER 3.1 by bringing groundless claims in bad faith over a period of years).
464 Hendershott Testimony, Hr’g Tr. 72:20-73:19, Oct. 13, 2011; Aubuchon Testimony, Hr’g Tr. 117:5-118:9, Oct. 25, 2011. This evidence is corroborated by Kunasek’s testimony that Thomas and Hendershott planned to indict a third Board member in an attempt to “destabilize the Board.” Kunasek Testimony, Hr’g Tr. 40:2-41:11, Sept. 26, 2011.
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a. Lack of Basis in Law for RICO Complaint.
i. Failure to Plead the Required Elements of a RICO Action.
291. The RICO complaint itself is confusing, difficult to analyze, and does not set out the
required legal or factual elements of a RICO civil action.
292. A complaint in federal court must contain sufficient factual matter, accepted as true,
to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007). “A plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Id. at 555. A complaint must contain factual allegations sufficient to “raise a right of relief
above the speculative level.” Id. “Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S.Ct. 1937, 1949
(2009) (quoting Twombly, 550 U.S. at 557).
293. The RICO complaint and amended complaint fail to meet the federal court pleading
requirements because they do not contain sufficient factual matter, accepted as true, to state a claim
for relief plausible on its face as alleged under the RICO statute, 18 U.S.C. § 1962(b), (c), or (d), 465
in the following respects.
294. The RICO complaint and amended complaint fail to state a claim under 18
U.S.C. § 1962(c). That section makes it unlawful “for any person employed by or associated with
any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a
pattern of racketeering activity or collection of unlawful debt.”466 To state a claim for relief under
Section 1962(c), a plaintiff must sufficiently allege (1) conduct (2) of an enterprise (3) through a
465 The complaint and amended complaint purport to set forth claims under 18 U.S.C. § 1962(b), (c), and (d). Exhibit 145 ¶ 66, TRIAL EXB 1783; Exhibit 188 ¶ 80, TRIAL EXB 2172. 466 See also Goldstock Testimony, Hr’g Tr. 142:7-20, Oct. 19, 2011.
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pattern (4) of racketeering activity. See Miller v. Yokohama Tire Corp., 358 F.3d 616, 620 (9th Cir.
2004).
295. 18 U.S.C. § 1961(4) defines an enterprise “to include any individual, partnership,
corporation, association, or other legal entity, and any union or group of individuals associated in
fact although not a legal entity.” A RICO enterprise has been further described as “an entity, for
present purposes a group of persons associated together for a common purpose of engaging in a
course of conduct.” U.S. v. Turkette, 452 U.S. 576, 583 (1981).
296. An “associated in fact” enterprise is “proved by evidence of an ongoing organization,
formal or informal, and by evidence that the various associates function as a continuing unit.” Id.
“An association-in-fact enterprise must have a structure, and . . . to establish the existence of an
association-in-fact enterprise, a plaintiff must identify at least three structural features: a purpose,
relationships among those associated with the enterprise, and longevity sufficient to permit these
associates to pursue the enterprise’s purpose.” Boyle v. U.S., 556 U.S. 938, __, 129 S. Ct. 2237,
2244 (2009).467
297. The RICO complaint fails to identify an enterprise. At one point it labels all the
defendants as one “enterprise” in a purely conclusory fashion: it alleges the “defendants are
involved in an enterprise as they are all related by contract association, as a legal entity or as a group
of individuals associated in fact.”468 The complaint then references multiple enterprises: “These
enterprises engage in or participate in activities . . . .”469 Even more confusingly, the amended
complaint states the Board is the enterprise470 and then describes how some of the defendants—but
not the judges—are related to the Board.471 At the same time, the amended complaint maintains the
language from the original complaint describing all the defendants as the enterprise or enterprises.472
467 See also Goldstock Testimony, Hr’g Tr. 140:25-141:18; 145:6-145:20, Oct. 19, 2011. 468 Exhibit 145 ¶ 78, TRIAL EXB 1783. 469 Exhibit 145 ¶ 78, TRIAL EXB 1783. 470 Exhibit 188 ¶ 84, TRIAL EXB 2174. 471 Exhibit 188 ¶ 85-87, TRIAL EXB 2175. 472 Exhibit 188 ¶ 78, TRIAL EXB 2172.
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According to the plaintiffs’ response to the defendants’ motions to dismiss the RICO complaint,473
the facts supporting the existence of an enterprise are scattered throughout the complaint and
amended complaint in various paragraphs.474 These vague, contradictory, and conclusory statements
do not allege an enterprise475 and do not come anywhere near the pleading requirements set forth in
Twombly.
298. The RICO complaint fails to allege a pattern of racketeering activity. In order to
state a claim under 18 U.S.C. § 1962(c) a plaintiff must show a “pattern of racketeering activity.”476
The pattern of racketeering activity must consist of “predicate acts.” There must be a sufficient
number of discrete predicate acts—at least two—to constitute a pattern. 18 U.S.C. § 1961(5).477
299. Those predicate acts must constitute crimes. 18 U.S.C. § 1961(1). The criminal acts
making up the pattern of racketeering activity must be identified and pled in the complaint the same
way they would be pled in a criminal indictment. That is, the complaint must identify the offense,
the date of the offense, the person who committed the offense, and so forth.478
300. The RICO complaint makes vague reference to the crimes of bribery and extortion.479
But nowhere does the complaint provide any evidence of these crimes, much less list the elements of
the crimes. There simply are no crimes pled. Therefore the complaint and amended complaint fail
473 Exhibit 195 TRIAL EXB 02243. 474 See Exhibit 145 ¶ 26, alleging the Superior Court and the Board hired defendant Irvine; ¶ 36, alleging “the Board and other defendants” hired a contractor to sweep county offices for “bugs”; ¶ 44, alleging defendants Board and Polsinelli usurped Thomas’s authority to serve as counsel to the Board; ¶ 50, alleging Defendant Donahoe granted Defendant Board’s motion to quash a grand jury subpoena; ¶ 59, alleging non-party Rebecca Albrecht circulated a bar complaint dismissal letter to Defendant Novak; ¶ 65, alleging defendant Board adopted policies regarding public records requests in order to benefit defendants Board, Irvine and Polsinelli; ¶ 73, alleging defendants Board, Irvine and Polsinelli filed a motion in front of Judge Donahoe seeking to block Thomas from investigating and prosecuting Board members; ¶ 75, alleging the Board cut six million dollars from MCAO’s civil budget; ¶ 76, alleging defendant Smith filed a Bar complaint against Thomas; and others. 475 Goldstock Testimony, Hr’g Tr. 148:3-153:13, Oct. 19, 2011. 476 Goldstock Testimony, Hr’g Tr. 140:18-143:13, Oct. 19, 2011. 477 See also Goldstock Testimony, Hr’g Tr. 145:21-147:2, Oct. 19, 2011. 478 Goldstock Testimony, Hr’g Tr. 145:21-147:19, Oct. 19, 2011. 479 Exhibit 145 ¶ 66, TRIAL EXB 1783; Exhibit 188 ¶ 80, TRIAL EXB 2172.
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to allege a pattern of racketeering activity,480 and thus fail to meet the pleading standards of
Twombly.
301. The RICO complaint and amended complaint fail to state a claim under 18
U.S.C. § 1962(b). That subsection of the RICO statute prohibits the “acquisition or maintenance” of
control of an enterprise through a pattern of racketeering activity.481 To state a claim, a plaintiff
must allege an “acquisition or maintenance” injury separate and apart from the purported injury the
plaintiff is alleged to have suffered as a result of the predicate acts of racketeering activity. The
plaintiff must show “a specific nexus between the control of the enterprise and the racketeering
activity,” and must also allege “an injury to plaintiff resulting from defendant’s control or
acquisition of a RICO enterprise.” Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (9th Cir. 2003)
(citations omitted). Nowhere in the complaint or amended complaint do the plaintiffs plead any such
injury.
302. The RICO complaint and amended complaint fail to state a claim under 18
U.S.C. § 1962(d). That section makes it unlawful to conspire to violate 18 U.S.C. § 1962(a), (b), or
(c). The complaint and amended complaint “assert that a conspiracy exists” to commit bribery and
extortion,482 but do not explain how. Also, because no violation of Section 1962(c) is properly
alleged, there can be no violation of 1962(d). Howard v. Am. Online, Inc., 208 F.3d 741, 751 (9th
Cir. 2000) (the failure to adequately plead a substantive violation of RICO precludes a claim for
conspiracy . . . To establish a violation of section 1962(d), Plaintiffs must allege either an agreement
that is a substantive violation of RICO or that the defendants agreed to commit, or participated in, a
violation of two predicate offenses”).
303. Alexander based her attempts to prolong and continue the case on incompetent
reasoning. She accepted the “facts” alleged in the complaint filed by Thomas and Aubuchon without
480 Goldstock Testimony, Hr’g Tr. 153:14-154:11. 481 See also Goldstock Testimony, Hr’g Tr. 142:7-20, Oct. 19, 2011. 482 Exhibit 145 ¶ 81, TRIAL EXB 1784; Exhibit 188 ¶ 82, TRIAL EXB 2173.
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question. At the end of the response to the motions to dismiss Alexander wrote the following
confession that she was standing outside the boundaries of existing law:
As a final alternative, and in the event plaintiffs cannot proceed at all with this Complaint, plaintiffs seek guidance from this Court as to how federal law may be changed to permit local law-enforcement officials to challenge the complained-of conduct in federal court, so that plaintiffs may petition Congress to amend federal law accordingly.483
ii. Lack of Standing to Bring the RICO Case
304. Thomas and Arpaio lacked standing to bring the RICO case. Standing is a necessary
element of federal-court jurisdiction under Article III of the Constitution. Thomas v. Mundell, 572
F.3d 756, 760 (9th Cir. 2009) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). To have
standing, “the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or
hypothetical.” Thomas, 572 F.3d at 760 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (citations and quotation marks omitted). A “particularized” injury is one that “affect[s] the
plaintiff in a personal and individual way.” Id. at 560 n. 1. To sue under RICO, the alleged harm
must be an injury to the plaintiff’s “business or property.” 18 U.S.C. § 1964(c); Canyon County v.
Syngenta Seeds, Inc., 519 F.3d 969, 972 (9th Cir. 2008) (quoting Holmes v. Sec. Inv. Prot. Corp.,
503 U.S. 258, 268 (1992)). The plaintiff must suffer injury to a “personal” interest, rather than an
“official” interest. Thomas, 572 F.3d at 761.
305. The injuries alleged in the RICO complaint and amended complaint are not personal
to Thomas or Arpaio. Thomas and Arpaio incurred the alleged injuries in their official capacities as
County Attorney and Sheriff.484 The caption of the complaint and amended complaint list plaintiffs
483 Ex. 195, TRIAL EXB 02270-71. 484 See Ex. 145, ¶ 1, TRIAL EXB 01768-69, alleging defendants hindered MCAO’s investigations and prosecutions; ¶¶ 5, 75, TRIAL EXB 01769, 01782, alleging defendants reduced MCAO’s budget and eliminated its civil division; ¶¶ 4, 63, 75, TRIAL EXB 01769, 01779, 01782, alleging defendants deprived MCSO of its right to be provided legal services by MCAO.
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Thomas and Arpaio in their official capacities. “Allegations of disadvantage to the office of the
County Attorney are insufficient to plead successfully standing.” Id. at 762. The only injury alleged
that was arguably personal—the potential threat to his law license485—was purely speculative and
insufficient to confer standing under Lujan.
iii. Lack of Authority to Bring the RICO Case
306. Arizona statutes do not empower a county attorney to bring an action such as the
RICO case. The complaint states that it is brought in the name of Thomas and Arpaio in their
official capacities as County Attorney and as County Sheriff respectively. Among the defendants is
the county Board “as a body politic.” One of the requests for relief asks the federal court to award
treble damages against all defendants, and specifically damages to make Arpaio whole from the
harm he had allegedly suffered.486 A.R.S. § 11-535 prohibits a county attorney from presenting a
demand for allowance against the county or advocating the demand for an allocation of another.
Therefore, Thomas, Aubuchon and Alexander could not lawfully bring this action against the Board.
The Presiding Disciplinary Judge noted on September 6, 2011, that “under Arizona law no member
of the Maricopa County Attorney’s Office may engage in the private practice of law . . . . A.R.S. §
11-403(B). Further the county attorney is precluded by state law from presenting a demand for
allowance against the county, or to advocate the demand for [or] by another. A.R.S. § 11-535.”487
iv. Lack of Factual Basis for the RICO Complaint
307. As discussed above, there was no evidence that the defendants were engaged in an
enterprise or that they had committed predicate acts constituting a pattern of racketeering activity,
elements needed for a RICO claim.
485 Ex. 145, ¶ 6, 31, 58, 76, TRIAL EXB 01770, 01772-73, 01778, 01782. 486 Ex. 145, p. 18, ¶1, TRIAL EXB 01784. 487 Order re Ruling IBC’s Mot. to Compel Witness Testimony of Philip MacDonnell 3.
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308. The first paragraph of the RICO complaint alleged that the defendants had made
coordinated efforts to protect Supervisor Stapley from criminal investigation and prosecution.488
The allegation was groundless, as could have been learned with minimal investigation.489
309. The RICO Complaint questioned the Board’s funding of the Court Tower project,
describing it as “the most expensive public-works project in the history of Maricopa County
government” and listing amenities such as “marble, travertine and wood flooring.”490 But Thomas,
Aubuchon and Alexander ignored or failed to honor the fundamental concept that, as part of the
separation of powers in County government, it was for the Board to decide what capital
improvements to make and when to make them.491 The Board had saved the funds to build the
Court Tower.492 The recession that began in 2007 was a good time to build a large public works
project, because prices were low and the project would stimulate the local economy.493 To conclude
from the Board’s decision to build the Court Tower that its members were racketeers was
preposterous.494
310. There was no basis in fact for the racketeering allegations about the judges. The
conspiracy theory put forth in the RICO complaint depends in part upon a faulty factual assumption
that Judges Mundell, Baca and Fields conspired to hinder the prosecution of Supervisor Stapley by
assigning Judge Fields to Stapley I.495 The theory is that Judges Mundell and Baca knew that Judge
Fields was biased against Thomas.496 Thomas, Aubuchon, and Alexander based these allegations on
supposition, not competent evidence. In fact, the judges did not discuss how Stapley I would be
488 Ex. 145, p. 2, ¶1, TRIAL EXB 01768. 489 Wilcox Testimony Hr’g Tr. 60:21-61:20, Sept. 21, 2011; Wilson Testimony, Hr’g Tr. 165:25-166:2, Sept. 21, 2011; Kunasek Testimony, Hr’g Tr. 211:23-212:17, Sept. 21, 2011; Kunasek Testimony, Hr’g Tr. 29:23-32:4, Sept. 26, 2011; Novak Testimony, Hr’g Tr. 13:6-15:15, Oct. 3, 2011; Donahoe Testimony, Hr’g Tr. 79:4-17, Oct. 5, 2011; Sandi Wilson Testimony, Hr’g Tr. 145:5-13, Sept. 27, 2011. 490 Ex. 145, p. 6, ¶¶ 28-29, TRIAL EXB 01772. 491 Smith Testimony, Hr’g Tr. 170:13-25, Sept. 26, 2011. 492 Wilcox Testimony, Hr’g Tr. 45:14-17, Sept. 21, 2011. 493 Wilcox Testimony, Hr’g Tr. 45:18-46:9, Sept. 21, 2011. 494 Kunasek Testimony, Hr’g Tr. 108:3-110:8, Sept. 26, 2011. 495 Ex. 145, ¶¶ 33, 37, TRIAL EXB 01773-74. 496 Ex. 145, ¶¶ 38-41, TRIAL EXB 01774-75.
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handled; rather, the judges agreed not to discuss the case.497 Nor was Judge Fields biased against
Thomas or MCAO.498
311. The RICO complaint alleges that the “Mundell-Fields faction” conspired to instigate
frivolous State Bar investigations of Thomas.499 There was no “Mundell-Fields faction”, no
conspiracy, nothing more than unsupported suspicions on the part of Thomas and Aubuchon.500
312. The factual premise in paragraph 33 of the complaint, that the Board was paying the
Superior Court to fund the building of the Court Tower, reflected a fundamental lack of
understanding of how the project was financed.501 The Court Tower is a County building, paid for
by the County as part of its capital improvement program.502 The Court Tower was not in the
Superior Court’s budget.503 Aubuchon should have understood this because she participated in
planning the Court Tower.
313. Nor was the conspiracy theory advanced in paragraph 33 logical. The Court Tower
project had been planned and underway for nearly a decade.504 The project addressed long-standing
inefficiencies and inadequacies in the County’s criminal justice infrastructure.505 This history
negated the plaintiffs’ claim that the Court Tower was being built as a benefit in exchange for the
judges’ hindering the prosecution of Stapley, who was not indicted until late 2008.506 It is difficult
to understand how MCAO, which had been involved in advising the Board about the Court Tower
497 Fields Testimony, Hr’g Tr. 13:23-14:21, Sept. 13, 2011; Baca Testimony, Hr’g Tr. 37:6-9, Oct. 4, 2011. 498 Fields Testimony, Hr’g Tr. 16:16-17:10, 25:1-29:4, 36:7-37:17, Sept. 13, 2011; Mundell Testimony, Hr’g Tr. 107:12-108:14, Oct. 3, 2011. In fact, Judge Fields denied a motion to dismiss Stapley I, finding no conflict in Thomas’s prosecution of Stapley. Ex. 104, TRIAL EXB 1445-48. Rather than admitting this ruling showed Judge Fields’s lack of bias, Thomas characterized it as evidence that “the law was so obvious, [Judge Fields] didn’t have the guts to ignore it in that context.” Thomas Testimony, Hr’g Tr. 65:13-66:9, Oct. 26, 2011. 499 Ex. 145, ¶¶ 31-32, TRIAL EXB 01772-73. 500 Fields Testimony, Hr’g Tr. 37:18-39:12, Sept. 13, 2011; Mundell Testimony, Hr’g Tr. 109:25-110:6; Donahoe Testimony, Hr’g Tr. 68:20-25, 80:1-11, Oct. 5, 2011. 501 Ex. 145, p. 7, ¶33, TRIAL EXB 01773. 502 Irvine Testimony, Hr’g Tr. 117:10-20, Sept. 14, 2011. 503 Wilson Testimony, Hr’g Tr. 213:19-217:16, Sept. 27, 2011. 504 Stapley Testimony, Hr’g Tr. 121:6-22, Sept. 20, 2011. 505 Wilcox Testimony, Hr’g Tr. 44:17-45:13, Sept. 21, 2011. 506 Swanson Testimony, Hr’g Tr. 22:9-23:5, Sept. 27, 2011.
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for many years, could advance a litigation theory so contrary to the facts.507 Deputy County
Attorney Peter Spaw warned Thomas in a January 2, 2010 e-mail that “[t]he Court Tower
Investigation is mentioned repeatedly in the Complaint, but only in passing and never in a way that
allows us to argue that we can connect the list of conduct to the Court Tower Investigation and get
an inferred scheme out of the deal.”508
314. Beyond this, the alleged conspiracy between the judges, the Board and County
management to protect Stapley from prosecution never existed, and the judges took no steps to
protect him.509 The Board took its actions in the interests of the County and the Board as an
institution considering the lawsuits and related actions flowing from Thomas and the Sheriff.510 An
objective observer would have perceived this.
315. Paragraph 34 of the RICO complaint broadly alleges that the defendants worked in
concert to “threaten and extort” Thomas, Sheriff, and MCAO and MCSO employees, and “to hinder
and obstruct criminal investigations and prosecutions of themselves.”511 This paragraph appears to
refer in part to pleadings, motions and responses filed by the Board in litigation against the County
Attorney, e.g., the Board’s Notice and Motion regarding the appearance of special prosecutors
before the grand jury, discussed above.512 The filing of documents is an appropriate means of
resolving disputes; it is not racketeering.513 Beyond such legitimate responses, no threats or
extortion occurred.514
316. Paragraph 36 of the RICO complaint charges that the Board hired a contractor to
“sweep for bugs” to protect the defendant Board members and their staff from criminal investigation
507 Kunasek Testimony, Hr’g Tr. 16:3-17:6, Sept. 26 2011. 508 Ex. 398, TRIAL EXB 8096. 509 Stapley Testimony, Hr’g Tr. 119:18-120:8, Sept. 20, 2011; Smith Testimony, Hr’g Tr. 180:23-181:24, Sept. 26, 2011; Novak Testimony Hr’g Tr. 16:3-6, Oct. 3, 2011; Mundell Testimony Hr’g Tr. 108:15-109:4, Oct. 3, 2011; Donahoe Testimony, Hr’g Tr. 66:1-68:19, Oct. 5, 2011. 510 Stapley Testimony, Hr’g Tr. 120:9-121:5, Sept. 20, 2011. 511 Ex. 145, p. 7, ¶34, TRIAL EXB 01773. 512 Ex. 137, TRIAL EXB 01644-83. 513 Novak Testimony, Hr’g Tr. 15:11-15, 16:20-17:6, Oct. 3, 2011. 514 See, e.g., Sandi Wilson Testimony, Hr’g Tr. 146:10-147:1, 161:23-163:18, Sept. 27, 2011.
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and prosecution.515 As discussed above, the Board conducted the “bug sweep” because County
employees were afraid of the Sheriff, not to hinder legitimate criminal investigations.516 There was
no reasonable basis to believe that looking for listening devices was a crime.
317. Paragraph 37 alleges that Judge Mundell violated the standard policies of the Superior
Court by selecting Judge Fields to preside over Stapley I.517 In fact, as discussed above, Judge
Mundell was attempting to avoid any appearance of impropriety during budget negotiations by
selecting a retired judge. This action was consistent with Superior Court policy, which requires that
the Presiding Judge in every case ensure that the prosecution and the defendant receive a fair and
impartial judge.518
318. Paragraphs 38 through 42 assert that Judges Mundell and Baca conspired to appoint
Judge Fields to the Stapley I case, knowing that he was biased against Thomas and MCAO.519
Aubuchon originally made these allegations during her forum shopping at the beginning of Stapley I,
discussed in section III.B.5, above. There was no truth to these allegations.520 An objective
observer who reflected even briefly upon the record of Judge Fields’s decisions during 2009 in
Stapley I would have realized that he had not shown bias against MCAO but, instead, had made
well-reasoned and balanced decisions, some favoring the prosecution.521
319. Paragraph 39 alleges that Robin Hoskins reported to Judge Baca that Judge Fields
was biased against Thomas.522 In fact, what Ms. Hoskins reported to Judge Baca was that Judge
Fields had been rude to Deputy County Attorney Barbara Marshall, not that he was hostile to
MCAO.523
515 Ex. 145, pp. 7-8, ¶36, TRIAL EXB 01773-74. 516 Wilcox Testimony, Hr’g Tr. 62:10-24, Sept. 21, 2011; Kunasek Testimony, Hr’g Tr. 34:6-17, Sept. 26, 2011. 517 Ex. 145, p. 8, ¶37, TRIAL EXB 01774. 518 Mundell Testimony, Hr’g Tr. 109:5-13, Oct. 3, 2011. 519 Ex. 145, pp. 8-9, ¶¶ 38-42, TRIAL EXB 01774-75. 520 Mundell Testimony, Hr’g Tr. 109:14-23, Oct. 3, 2011. 521 See, e.g., Ex. 104, TRIAL EXB 01445-48, Judge Fields’s ruling denying Stapley’s motion to dismiss on grounds of MCAO’s conflict of interest arising from MCAO having given Stapley advice about making financial disclosures. 522 Ex. 145, p. 8, ¶39, TRIAL EXB 01774. 523 Baca Testimony, Hr’g Tr. 22:8-25:15, Oct. 4, 2011.
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320. Paragraph 42 alleges that Judge Baca had refused to grant MCAO a hearing on
Aubuchon’s motion to remove Judge Fields for bias.524 This allegation was flatly false, as
Aubuchon knew. Aubuchon filed an incompetent affidavit in support of her motion to recuse. Judge
Baca gave Aubuchon the opportunity to refile.525 Aubuchon did so. Thereafter, hearings were
scheduled, but the motion became moot when Thomas transferred Stapley I to Yavapai County.526
321. Paragraph 44 of the RICO complaint alleges that, in retaliation for Stapley’s
indictment, the Board and County management removed much of the civil division from MCAO.527
This allegation was false.528 As discussed above, the Board placed portions of the County’s civil
litigation under its direct control because the Board felt it was receiving conflicted advice from
Thomas. The history of Thomas’s conflicted advice and taking positions adverse to the Board
reached back several years, well before Stapley was indicted.
322. The allegation in paragraph 46 of the complaint, that Irvine and the Polsinelli law
firm concealed from MCAO and the public that Irvine was representing the Superior Court, was
false.529 Irvine had attended dozens of meetings on the Court Tower with Aubuchon, Sally Wells
and others from MCAO; his participation was public knowledge.530
323. Paragraph 47 alleges that Presiding Judge Mundell dishonestly appointed Judge
Daughton to preside over the Dec Action, knowing that he was biased against Thomas, in order to
assure a favorable outcome for the Board.531 The allegation was groundless.532 This allegation
demonstrated that Aubuchon was willing to claim that any decision adverse to Thomas must have
been the product of criminal activity.
524 Ex. 145, p. 9, ¶42, TRIAL EXB 01775. 525 Ex. 46, TRIAL EXB 01171. 526 Baca Testimony, Oct. 3, 2011, p. 212, ln. 7 – p. 214, ln. 18. 527 Ex. 145, p. 9, ¶44, TRIAL EXB 01775. 528 Smith Testimony, Hr’g Tr. 181:25-182:7, Sept. 26, 2011. 529 Ex. 145, p. 9, ¶46, TRIAL EXB 01775. 530 Irvine Testimony, Hr’g Tr. 117:24-118:22, Sept. 14, 2011. 531 Ex. 145, pp. 9-10, TRIAL EXB 01775-76. 532 Mundell Testimony Hr’g Tr. 110:7-15, Oct. 3, 2011.
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324. Paragraph 48 of the RICO complaint alleges that Irvine and his firm filed a pleading
“falsely claiming numerous conflicts of interest on behalf of plaintiff Thomas and MCAO” while at
the same time refusing to disclose their own supposed conflict of interest in representing both the
Board and the Superior Court.533 There was no concealment of Irvine’s work for the Superior Court,
which Aubuchon knew through her attendance at Board meetings.534 In addition, there was no
conflict because the Board and the Superior Court had obviously parallel objectives in building the
Court Tower, to wit, improving the administration of criminal justice.535
325. In paragraph 49, Aubuchon alleged inter alia that Irvine and Novak and their law
firm had represented Conley Wolfswinkel, a business associate of Stapley, and Stapley
personally.536 These allegations were inaccurate, as could have been learned from public records.537
326. Paragraph 49 also alleges that Novak participated in quashing a grand jury subpoena
when he knew he was the target of the Grand Jury. Novak moved to quash the grand jury subpoena
on behalf of the County because of MCAO’s conflict of interest in launching a criminal investigation
of its own client, the Board, related to the Court Tower, on which MCAO had advised the Board, all
of which is evident from the text of the motion.538 Novak had no sinister purpose to protect himself
by his representation of the County.
327. Paragraphs 50 through 52 allege that Judge Donahoe quashed the grand jury
subpoena of the Court Tower documents; concealed the attorney-client relationship between the
Polsinelli firm, the Superior Court, and the Board; and falsely accused Thomas of a conflict of
interest in an effort to intimidate County prosecutors and end the Court Tower investigation.539
Paragraph 50 implies that Judge Donahoe took the alleged acts in return for his appointment as
533 Ex. 145, p. 10, ¶ 48, TRIAL EXB 01776. 534 Irvine Testimony, Hr’g Tr. 67:9-68:7, 68:22-69:5, Sept. 14, 2011; Novak Testimony, Hr’g Tr. 18:13-19:3, Oct. 3, 2011. 535 Sandi Wilson Testimony, Hr’g Tr. 215:10-217:7, Sept. 27, 2011. 536 Ex. 145, p. 10, ¶49, TRIAL EXB 01776. 537 Novak Testimony, Hr’g Tr. 19:4-21, Oct. 3, 2011; Irvine Testimony, Hr’g Tr. 118:23-121:9, Sept. 14, 2011. 538 Ex. 56, TRIAL EXB 01200-07. 539 Ex. 145, pp. 10-11, ¶¶ 50-52, TRIAL EXB 01776-77.
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Presiding Criminal Judge by Presiding Judge Mundell. In fact, Presiding Judge Mundell made no
request of Judge Donahoe related his appointment other than that he work past his retirement date.540
328. The allegation in paragraph 56 that defendant Wade Swanson had filed a pleading
seeking to impose personal sanctions on Aubuchon was inaccurate.541 Instead, Swanson filed the
pleading in question to protect the County.542 The purpose of the pleading was to request a hearing,
in the event the court sanctioned Aubuchon, on whether the County would have to pay the sanction
for her.543
329. The allegation in paragraph 57 that Irvine and others laughed at Aubuchon in court
was false.544 In reality, Aubuchon apparently heard laughter coming from the hall outside the
courtroom and thought it was aimed at her.545 Aubuchon interpreted the alleged laughter to mean
Irvine and Novak were “making fun of us; they were trying to get personal sanctions against [us];
they were intimidating us.”546 She apparently based that assumption on the fact that the hearing took
place in the same time period as the investigations into the Court Tower and Stapley.547 Alexander
was unable to explain why this allegation appeared in the racketeering complaint, other than that it
might show “motive.”548 Even assuming that attorneys were laughing at Aubuchon, including this
allegation in the RICO complaint and repeating it in the first amended complaint demonstrate the
lack of competent judgment and gross frivolousness of this action.
330. The allegations in paragraphs 58 and 59 against Novak, made “upon information and
belief,” were untrue and defamatory.549 Novak did not file an anonymous Bar complaint against
Thomas.550 Nor did he act “corruptly” in obtaining Judge Albrecht’s dismissal of a Bar complaint 540 Donahoe Testimony, Hr’g Tr. 64:15-65:25, Oct. 5, 2011. 541 Ex. 145, p. 12, ¶56, TRIAL EXB 01778. Swanson Testimony, Hr’g Tr. 23:6-26:7, Sept. 27, 2011. 542 Swanson Testimony, Hr’g Tr. 26:8-27:7, Sept. 27, 2011. 543 Swanson Testimony, Hr’g Tr. 96:21-99:18, Sept. 27, 2011; Ex. 488. 544 Ex. 145, p. 12, ¶57, TRIAL EXB 01778. 545 Irvine Testimony, Hr’g Tr. 121:10-123:4, Sept. 14, 2011; Novak Testimony, Hr’g Tr. 24:2-22, Oct. 3, 2011. 546 Aubuchon Testimony, Hr’g Tr. 167:23-169:25. 547 Aubuchon Testimony, Hr’g Tr. 167:23-169:25. 548 Alexander Testimony, Hr’g Tr. 103:12-104:3, Oct. 20, 2011. 549 Ex. 145, pp. 12-13, ¶¶ 58-59, TRIAL EXB 01778-79. 550 Novak Testimony, Hr’g Tr. 26:6-18, Oct. 3, 2011.
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against Thomas.551 Rather, Novak, who was president of the Bar at the time, arranged for Judge
Albrecht to act as an independent investigator of the charges against Thomas, in order to avoid any
appearance of bias on the part of the State Bar.552 Aubuchon imaginatively constructed from Judge
Albrecht’s circulation of a draft of her dismissal letter to Thomas’s counsel and the State Bar the
claim that Novak’s efforts were “corrupt.”553
331. The allegation in paragraph 60 that Swanson “repeatedly refused to authorize
payments to outside law firms retained by MCSO and MCAO” was false.554 The County set up a
separate office to provide MCSO and MCAO with representation, including through outside
counsel.555
332. The RICO complaint alleged there were “classic signs of graft” regarding the Court
Tower project, including the Superior Court’s payment of fees to Irvine.556 First, this allegation
assumes there is some common meaning to the phrase “classic signs of graft.” Yet nowhere in the
complaint or the first amended complaint is this conclusory allegation supported. This allegation
ignored Irvine’s extensive background and expertise in developing public buildings.557 Irvine’s
experience was well known.558 The allegation of corruption relied upon perceived slights to Thomas
and upon rumors, including the fabricated rumor that Stapley had pressured Judge Mundell to hire
Irvine as a space planner for the Court Tower project.559 In fact, Stapley did not speak to Chief
Judge Mundell or anyone else at the time about hiring Irvine to advise on the Court Tower project.560
551 Ex. 101, TRIAL EXB 01436. 552 Novak Testimony, Hr’g Tr. 27:3-33:17, Oct. 3, 2011. 553 Albrecht Testimony, Hr’g Tr. 193:22-194:25, Oct. 3, 2011. 554 Ex. 145, p. 13, ¶, TRIAL EXB 01779. Swanson Testimony, Hr’g Tr. 27:10-19, Sept. 27, 2011. 555 Swanson Testimony, Hr’g Tr. 27:20-30:1, Sept. 27, 2011. 556 Ex. 145, p. 14, ¶67. 557 Irvine Testimony, Hr’g Tr. 6:19-15:16, 16:22-19:3, 134:18-135:24, Sept. 14, 2011. 558 See, e.g., Kunasek Testimony, Hr’g Tr. 17:7-19:4, Sept. 26, 2011. 559 Hendershott Testimony, Hr’g Tr. 21:23-23:1, 26:25-39:22, Oct. 13, 2011; MacDonnell Testimony, Hr’g Tr. 132:24-135:18, Sept. 15, 2011. 560 Stapley Testimony, Hr’g Tr. 88:19-89:4, 91:6-8, Sept. 20, 2011; Mundell Testimony, Hr’g Tr. 118:2-5, Oct. 3, 2011.
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333. Beyond this, by the time Thomas and Aubuchon filed the RICO complaint, the Court
Tower documents had been available to the public for months.561 Review of these documents would
have revealed that no “graft” existed. Aubuchon concluded there was corruption in the Court Tower
project when there were no actual facts supporting that conclusion.
334. Paragraph 68 alleges that defendants Smith and Swanson prepared and released a
legal memorandum seeking to justify the Board’s refusal to approve special prosecutors that “used
groundless legal reasoning”.562 The reasoning was not groundless.563 Tom Irvine and others at his
firm prepared the legal memorandum.564 The Board’s unwillingness to approve special prosecutors
reflected its concern with the cost and its preference that Thomas send Stapley II and related
investigations to another County Attorney.565 Once again, including such an allegation in a RICO
complaint demonstrates the utter groundlessness of the action.
335. In short, the factual allegations in the RICO complaint are meritless. Aubuchon
recklessly hoped and assumed that she would later substantiate her many allegations during
discovery. Aubuchon and Thomas acted in bad faith by drafting and filing the RICO complaint.
Alexander acted in bad faith by knowingly perpetuating the frivolous case.
336. Respondents’ Knowledge of Insufficient Factual Basis of the RICO Complaint.
Thomas, Aubuchon and Alexander knew the RICO complaint lacked a factual basis. There is no
evidence that any formal investigation was conducted into the facts alleged in the RICO complaint
and no MCAO file has been produced to establish otherwise.566 Chief Deputy County Attorney Phil
MacDonnell never saw supporting files in the racketeering case.567 MacDonnell strongly
recommended to Thomas that he not file the case.568 MacDonnell explained to Thomas that the case 561 Irvine Testimony, Hr’g Tr. 51:19-52:18, Sept. 14, 2011Wilcox Testimony, Hr’g Tr. 115:11-116:12, Sept. 21, 2011. 562 Ex. 145, pp. 14-15, ¶68, TRIAL EXB 01780-81. 563 Swanson Testimony, Hr’g Tr. 30:2-21, Sept. 27, 2011; Ex. 123, TRIAL EXB 01573-78. 564 Swanson Testimony, Hr’g Tr. 52:20-53:7, Sept. 27, 2011. 565 Swanson Testimony, Hr’g Tr. 54:6-55:2, Sept. 27, 2011. 566 Compare the timeline prepared by Aubuchon, Ex. 127, TRIAL EXB 01584-1603. Johnson Testimony, Hr’g Tr. 10:20-11:9, Oct. 11, 2011. 567 MacDonnell Testimony, Hr’g Tr. 133:15-134:13, Sept. 19, 2011. 568 MacDonnell Testimony, Hr’g Tr. 135:19-137:8, Sept. 15, 2011.
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was a “very bad idea,” that it “amounted to supposition,” not evidence, and that “there was no proof
of any sort of criminal conspiracy or enterprise against Mr. Thomas.”569 After Thomas filed the
case, MacDonnell told him that the RICO case lacked sufficient evidence and was “fatally
defective.”570
337. Deputy County Attorney Peter Spaw was asked to work on the RICO case both
before and after it was filed. Most of his involvement was after the case was filed.571 He advised
both Thomas and Aubuchon that the case lacked merit.572 In a December 21, 2009 e-mail to
Alexander, Spaw characterized the RICO complaint as “dead on arrival”.573 In a January 6, 2010 e-
mail to Alexander, Spaw stated, “incredibly, the racketeering complaint filed in federal court failed
to identify one single federal racketeering act.”574
338. Based on the lack of any investigation and the repeated warnings of their deputies,
Thomas, Aubuchon and Alexander knew there was no factual support for the RICO complaint. If
they thought otherwise, that belief was entirely objectively unreasonable.
339. The court in In re Levine, 174 Ariz. 146, 153, 847 P.2d 1093, 1100 (1993), held that
the objective reasonableness of a legal claim is the standard to determine whether it is frivolous
under ER 3.1. However, the rule also requires a subjective good faith motive by the client and a
subjective good faith argument by the lawyer. Id. Therefore, if an improper motive or a bad faith
argument exists, a lawyer will not escape ethical liability for bringing a legal claim that may
otherwise meet the objective test of a nonfrivolous claim. Id. As a result, the court found Levine in
violation of ER 3.1 for bringing a lawsuit “even assuming, without deciding, that the legal basis of
569 MacDonnell Testimony, Hr’g Tr. 140:21-143:16, Sept. 15, 2011; 87:22-88:22, Sept. 19, 2011. 570 Ex. 178A (no TRIAL EXB number assigned). 571 Spaw assisted in drafting of the plaintiffs’ Response to the Motions to Dismiss. Ex. 402, TRIAL EXB 08127-36. He also was involved in preparing the first amended complaint. Ex. 403, TRIAL EXB 08137-38. 572 See Ex. 189, TRIAL EXB 02187-89, in which Spaw describes his “deep and abiding concerns” about the RICO Case. See also Ex. 182, TRIAL EXB 01986-90. 573 Ex. 173, TRIAL EXB 01936-37. 574 Ex. 445, TRIAL EXB 8539.
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the claim . . . was objectively reasonable when made” because the lawsuit was not brought in good
faith. 174 Ariz. at 165, 847 P.2d at 1112.
340. The RICO case was both objectively and subjectively frivolous because there was no
objectively reasonable basis for bringing the RICO case, and Thomas and Aubuchon filed the case
with improper motives and in bad faith.
341. As described above, there was no objectively reasonable basis for bringing the RICO
case because the complaint itself fails to identify any racketeering activity. The amended complaint
also fails to identify any racketeering activity. In fact, there was no racketeering activity.
Respondents have never presented any evidence whatsoever of racketeering.
342. Thomas and Aubuchon brought the RICO suit with improper motives and in bad faith
for the reasons described in Section III.D.2, infra (alleging ER 4.4 violation).
343. Alexander pursued the RICO case after it was filed, including responding to motions
to dismiss and filing a meritless First Amended complaint. There was no good faith basis in fact or
in law to support the filing or pursuit of the RICO case, which was wholly lacking in any merit.
Respondents violated ER 3.1. 4. Conclusions of Law – Claim 17 – ER 1.1 (Competent Representation)
344. Thomas, Aubuchon and Alexander violated ER 1.1.
345. ER 1.1 states that a lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, and thoroughness and preparation
reasonably necessary for the representation. See In re Wolfram, 174 Ariz. 49, 847 P.2d 94 (1993), in
which the respondent represented a mother charged with felony child abuse. Respondent failed to
interview the prosecution witnesses, failed to read the transcript of the grand jury proceeding, failed
to examine the physical evidence, failed to interview prospective witnesses listed in police reports,
failed to retain an expert witness and otherwise failed to provide the mother with an adequate
defense. Respondent also failed to cooperate with bar investigations. 174 Ariz. at 51-52, 847 P.2d
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at 96-97. The Arizona Supreme Court held that respondent violated ER 1.1 and Rule 51, Rules of
the Arizona Supreme Court.
346. Thomas, Aubuchon and Alexander were completely incompetent in bringing the
RICO action. The RICO complaint is confusing, fails to state the necessary elements for such a
claim, and lacks any supporting factual basis. No competent lawyer would have brought and then
pursued the action.
347. IBC’s expert witness, Ronald Goldstock, testified at the hearing of this matter that
“[t]he RICO complaint was not competently done. It doesn’t meet the basic standards of a RICO
complaint. It doesn’t allege an enterprise. It doesn’t allege a pattern of racketeering activity.
There’s no basis for the suit in terms of the relief that’s sought.”575
348. By failing to competently represent their clients, Thomas, Aubuchon and Alexander
violated ER 1.1. 5. Conclusions of Law – Claim 18 – ER 1.7(a)(1) and (2) (Conflicts of Interest)
349. Thomas, Aubuchon, and Alexander violated ER 1.7(a)(1) and (2) by filing the RICO
action.
350. Thomas, Aubuchon and Alexander represented the State of Arizona in bringing the
RICO action against their clients—the Board as a body, each of the individual supervisors, the
county manager and his deputy.576 However, they were all also purportedly representing Thomas
and Arpaio.577 In so doing, Thomas, Aubuchon and Alexander were suing various clients on behalf
of at least one other purported client, Sheriff Arpaio. That is a conflict of interest as defined by ER
1.7(a)(1).
575 Goldstock Testimony, Hr’g Tr. 157:16-22, Oct. 19, 2011. 576 Aubuchon stated in a Response to Petition for Special Action, CV 09-00372 SA that the County Attorney, in his official capacity as a county law-enforcement officer, filed the RlCO suit against the defendants based in part on criminal conduct. She also stated that the County Attorney requested no personal damages in the RICO case and sought relief only so he could effectively combat the corruption that is being shielded from proper prosecution in the county court system. See the Response, Ex. 286, pp. 11, 14, TRIAL EXB 03742, 03745. 577 On February 16, 2010, attorneys Elizabeth Fierman and Robert Driscoll substituted in to represent Sheriff Arpaio in the RICO action.
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351. Furthermore, their representation was also limited due to the disputes that had
occurred with MCBOS, the Superior Courts, and other RICO defendants. Their judgment was
limited by their own self interest and personal animosity. That is a conflict of interest as defined by
ER 1.7(a)(2).
352. By the time Thomas and Aubuchon filed the RICO complaint in early December
2009, they had been involved in many disputes with the defendants they sued in the RICO action.
Judges who were defendants in the RICO action had ruled against Thomas and his office.
Supervisors had exercised their lawful authority contrary to the personal and professional wishes of
Thomas and his office. Each of these disputes was resolved unfavorably to Thomas. Among the
disputes and rulings were:
a. Thomas and Aubuchon’s unsuccessful attempts to depose or interview
Judge Mundell and Judge Baca about the appointment of Judge Fields to the Stapley I case.
b. Thomas and Aubuchon’s unsuccessful attempts to remove Judge Fields from the Stapley I case.
c. MCBOS (less Stapley) hired attorney Irvine to determine if Thomas had conflicts of interest.
d. MCBOS determined to manage all the County’s civil litigation through
county manager Smith.
e. Thomas sued MCBOS in the Dec Action.
f. Judge Donahoe quashed the court tower grand jury subpoena and disqualified MCAO from that investigation.
g. Judge Daughton made various rulings against Thomas in the Dec Action.
h. Thomas sued attorney Tom Irvine, his firm and Rick Romley in the Quo
Warranto action.
i. Thomas sued MCBOS in the Sweeps action.
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j. Thomas fought with MCBOS over the appointment of special prosecutors.
Each of the above disputes and rulings limited the representation that Thomas, Aubuchon and
Alexander could give to their clients in the RICO case.
353. Thomas and Aubuchon had other disputes with the RICO defendants before filing the
RICO case. For example, the Board, through Irvine and Novak, moved to quash the Court Tower
grand jury subpoena and then limited the ability of County officers to submit records requests to the
County; the Board sought personal sanctions against Aubuchon in a matter involving Conley
Wolfswinkel (Stapley’s business associate); and David Smith threatened Thomas at some point in
early 2009.578 At the hearing of this matter, Thomas testified all these disputes did not limit his
judgment in the RICO case. To the contrary, he testified that his judgment was “enlightened.”579
354. Thomas’s conflicts were imputed to Aubuchon. See Section III.B.3 above.
6. Conclusions of Law – Claim 19 – ER 3.4(c) (Violation of a Court Rule)
355. ER 3.4(c) prohibits a lawyer from violating a rule of a court (tribunal). Thomas,
Aubuchon and Alexander violated ER 3.4(c) by basing some of the allegations in the RICO matter
on Bar complaints that they alleged the defendants filed against Thomas and deputy county
attorneys.
356. Thomas, Aubuchon and Alexander’s efforts to sue the RICO defendants because they
had allegedly filed Bar complaints against Thomas were a violation of Supreme Court Rule 48(l) and
were incompetent.580
357. Rule 48(l), Rules of the Arizona Supreme Court provides as follows: d. Immunity from Civil Suit. Communications to the court, state bar,
commission, hearing committees or hearing officers, mediators, the client protection fund, the peer review committee, the fee arbitration program, the committee on the Rules of Professional Conduct, monitors of the Member Assistance or Law Office Management Assistance Programs, probable cause panelists or state bar staff
578 Thomas Testimony, Hr’g Tr. 51:8-52:24, Oct. 26, 2011. 579 Thomas Testimony, Hr’g Tr. 51:8-53:17, Oct. 26, 2011. 580 Ex. 195, TRIAL EXB 02255.
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relating to lawyer misconduct, lack of professionalism or disability, and testimony given in the proceedings shall be absolutely privileged conduct, and no civil action predicated thereon may be instituted against any complainant or witness. Members of the board, commission, hearing committees or hearing officers, mediators, the peer review committee, client protection fund trustees and staff, fee arbitration committee arbitrators and staff, the ethics committee, monitors of the Member Assistance or Law Office Management Assistance Programs, probable cause panelists, state bar staff shall be immune from suit for any conduct in the course of their official duties. (emphasis added)
358. Thomas and Aubuchon alleged that some of the defendants had instigated frivolous
investigations of Thomas and MCAO prosecutors with the State Bar of Arizona, or had threatened to
go to the State Bar about Thomas.581 MCAO deputy county attorney Rachel Alexander continued to
make this assertion in a response she filed to motions to dismiss. Alexander argued that part of the
injury to Thomas was that the defendants attempted to deprive him of his license to practice law.582
In asserting these claims Thomas, Aubuchon and Alexander violated Rule 48(), Arizona Rules of the
Supreme Court.
359. Thomas, Aubuchon and Alexander alleged in the RICO complaint and later filings
that the RICO defendants were liable in part due to bar complaints that they had filed or conspired to
file. Rule 48(l) of the Arizona Supreme Court provides that those who file Bar complaints are
immune from being sued for doing so and prohibits any action based upon a Bar complaint. Because
they pursued a civil action that Rule 48(l) barred, Thomas, Aubuchon, and Alexander each violated
ER 3.4(c). 7. Conclusions of Law – Claim 20 – ER 8.4(d) (Conduct Prejudicial to the
Administration of Justice)
360. Thomas, Aubuchon and Alexander violated ER 8.4(d) by suing judges who were
immune from suit.
581 Ex. 145, RICO complaint, ¶¶ 31, 39, 58, 64, 70 and 76, TRIAL EXB 01772-74, 1778, 1779-82. 582 Ex. 195, Plaintiffs’ Response to Defendants’ Motions to Dismiss, pp 29-31, TRIAL EXB 02255-57.
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361. Thomas, Aubuchon and Alexander sued four judges of the Maricopa Superior Court
concerning their decisions in various matters. By doing so, they sought damages against members of
the judicial branch of government for carrying out their obligations and duties. Even if those judges
had made decisions in error they were immune from civil liability. Ashelman v. Pope, 793 F.2d
1072, 1075 (9th Cir. 1986).
362. Judicial immunity is absolute. Mullis v. U.S. Bankruptcy Court for Dist. Of Nev., 828
F.2d 1385, 1388 (9th Cir. 1987) (citing Bradley v. Fisher, 80 U.S. 335, 347). “As long as the
judge’s ultimate acts are judicial acts taken within the court’s subject matter jurisdiction, immunity
applies.” Ashelman, 793 F.2d at 1078. Factors determining whether a judge’s act is “judicial” relate
to “the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the
expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” There is
no indication any of the judges named in the RICO complaint were acting outside the court’s subject
matter jurisdiction. All of the allegations against the judges in the RICO complaint are based on the
judges’ judicial acts.583 The judges were therefore absolutely immune from lawsuits based on those
acts.584
363. Alexander also argued that judicial immunity did not apply to the judges because they
had committed acts outside the scope of their judicial duties.585 However, Alexander’s argument
was that the judges had issued rulings that ignored the law.586 The logical conclusion of this
583 See, e.g., Ex. 145, ¶ 37, alleging Judge Mundell reassigned Stapley to Judge Fields; ¶ 41, alleging Judges Mundell, Baca, and Fields “conspired to retain Fields” as the judge in Stapley; ¶ 42, alleging Judges Mundell and Baca refused to grant MCAO a hearing on a motion to remove Judge Fields for bias; ¶ 43, alleging Judges Mundell and Fields issued rulings and statements improperly implying MCAO attorneys had committed ethical violations; ¶ 47, alleging Judge Mundell improperly selected Judge Daughton to hear a civil case; ¶ 50, alleging Judge Donahoe improperly quashed a grand-jury subpoena relating to the Court Tower; ¶ 62, alleging Judge Fields dismissed all misdemeanor counts from the Stapley indictment; ¶ 63, alleging Judge Daughton issued an improper minute entry upholding the Board’s “illegal takeover” of MCAO’s civil functions. 584 Ex. 145, ¶ 31 alleges judges “conspired and acted outside the scope of their judicial capacities” to file Bar complaints against Thomas. There is an absolute privilege extended to anyone who files a complaint with the State Bar alleging unethical conduct by an attorney. Drummond v. Stahl, 127 Ariz. 122, 126, 618 P.2d 616, 620 (App. 1980). 585 Ex. 195, TRIAL EXB 02267-69. 586 Id.
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position is that judges are not immune if they ignore case law in making a decision. Alexander’s
argument has no basis in fact or law.
364. Respondents filed the RICO case to intrude upon the independence of the judiciary
and the decision-making process of judges, and to silence judges. The sparse factual allegations
against the judges in the RICO complaint do not allege any specific acts of wrongdoing but concern
only legitimate activities by judges. Respondents pursued the RICO action to retaliate against the
named judges and to intimidate the Maricopa County Superior Court.
E. Claims Twenty-One to Twenty-Three – Stapley II and Wilcox
1. Findings of Fact
365. MCAO and MCSO were investigating Supervisor Stapley in a second case as early as
May 2008. As noted above in Section III.B.1, Thomas told Commander Stribling in May 2008 that
there was a second matter involving Stapley in addition to what became the Stapley I case.
366. At some point in 2009 MCAO and MCSO initiated an investigation of Supervisor
Mary Rose Wilcox. MCAO transferred the Wilcox investigation to Yavapai County Attorney Sheila
Polk, along with the Stapley I matter and other investigations. Aubuchon continued to work on the
Wilcox case while it was in Yavapai County. Specifically, she worked with Seargent Johnson on
subpoenas.587 Despite having transferred this matter to Polk, Thomas took the Wilcox and Stapley II
matters back from her in September 2009, as described above in Section III.D.1.
367. After the Board declined to consider the appointment of the out-of-state special
prosecutors, Aubuchon took over handling the Wilcox and Stapley II investigations.588
368. On December 7, 2009, Thomas and Aubuchon caused an indictment to be returned
against Supervisor Wilcox.589 The indictment contained more than twenty counts.590 A portion of
587 Johnson Testimony, Hr’g Tr. 7:10-8:16, Oct. 11, 2011. Aubuchon and Johnson also discussed “conflict of interest law” at that time. Johnson Testimony, Hr’g Tr. 7:10-8:16, Oct. 11, 2011. 588 Johnson Testimony, Hr’g Tr. 10:11-19, Oct. 11, 2011. 589 Ex. 149, TRIAL EXB 01802-19. A second Indictment of Wilcox was issued January 25, 2010. Ex. 193, TRIAL EXB 02205-25. 590 Wilcox Testimony, Hr’g Tr. 36:7-14, Sept. 21, 2011.
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the indictment concerned matters about which Supervisor Wilcox stated she had been advised by
Chris Keller, an MCAO attorney.591
369. On December 7, 2009, Thomas and Aubuchon obtained a second grand jury
indictment against Supervisor Stapley (Stapley II).592 The next day, December 8, 2009, Thomas
issued a press release stating that a grand jury had indicted Supervisors Stapley and Wilcox and that
all of the defendants named in the RICO complaint were under active criminal investigation for
hindering prosecution and other offenses.593
370. Thomas had earlier handed off the Wilcox investigation to Yavapai County Attorney
Sheila Polk, but he took it back from her in September 2009. The Stapley II indictment alleges three
areas of alleged misconduct: Stapley’s use of contributions in his campaign to be elected to an office
in the National Association of Counties, obtaining a loan by fraud, and financial disclosure
violations. The court dismissed this case on March 15, 2010, on motion of Thomas. Thomas made
this motion to dismiss, through Deputy County Attorney Kittredge, because Judge Leonardo had
ruled in Wilcox that Thomas and his office had a conflict of interest in that matter. The motion
stated that the State intended to have a special prosecutor review and decide about the prosecution.
371. When the Stapley II and Wilcox indictments were filed, Thomas and Aubuchon had
already sued Stapley and Wilcox in the federal RICO action. Thomas and Aubuchon brought a
criminal case against persons they had sued seeking civil damages. Thomas, Aubuchon and
Alexander alleged among other things in the RICO complaint that the defendants, including
Supervisors Wilcox and Stapley, had threatened his livelihood by bringing Bar complaints against
him, had threatened to sue him and his wife to recover legal fees, and had conspired to cut the
funding of MCAO by $6,000,000.
591 Wilcox Testimony, Hr’g Tr. 34:23-36:5, Sept. 21, 2011. 592 State v. Stapley, No. CR 2009-007891 Maricopa County Superior Court. The Indictment is Ex. 150, TRIAL EXB 01820-33. 593 Ex. 152, TRIAL EXB 0843-44. The press release demonstrates Thomas’s desire to publicly humiliate Stapley by listing personal expenses for which Stapley allegedly used campaign funds and accusing Stapley of “personal aggrandizement.”
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372. Wilcox moved through her counsel, Colin Campbell, to disqualify MCAO due to
conflicts of interest. On February 24, 2010, Pinal County Superior Court Judge Leonardo ruled that
Thomas and his office could not serve as prosecutors in Wilcox.594 The issue before Judge Leonardo
was whether a conflict of interest existed in the Wilcox matter so as to deprive her of fundamental
fairness.595 Judge Leonardo found that Thomas had four areas of conflicts of interest: 1) his
retaliation against members of MCBOS for actions they carried out in concert with each other
against him; 2) his attempts to gain political advantage by prosecuting those who opposed him
politically; 3) his political alliance with Sheriff Arpaio, who targeted members of MCBOS; and 4)
his duty to provide confidential, uncompromised legal advice to the members of MCBOS on matter
forming the basis of charges in the indictment.596
373. Judge Leonardo described the conflicts of interest that Thomas had:
There has been a very public confrontation ongoing between [MCAO] and [MCBOS] concerning a number of issues including the propriety of the MCAO to act as legal counsel to the [MCBOS] while at the same time pursuing a criminal investigation of its members; the ability of the [MCBOS] to decline to approve the request of MCAO to appoint special prosecutors to prosecute criminal cases against MCBOS members; the federal civil RICO suit filed by the MCAO against [MCBOS] alleging that members of the Board, including [Wilcox], conspired to have Mr. Thomas’ license to practice law revoked by the state bar, and threatened to attempt to recover legal fees from Thomas and his wife if he sued the Board; the MCBOSs reduction of the civil budget of MCAO by six million dollars; and the attempts by both sides to obtain investigative information from the other.597
374. Judge Leonardo’s findings regarding Thomas’s conflicts of interest are not to be
given “preclusive” effect. In re Levine, 174 Ariz. 146, 154-156, 847 P.2d 1093, 1101-1103 (1993).
However, the Panel has considered Judge Leonardo’s ruling and determine that the facts at this
594 Ex. 199, TRIAL EXB 2380-2386. 595 Id. at TRIAL EXB 2383. 596 Id. at TRIAL EXB 2383-2384. 597 Id. at TRIAL EXB 2385.
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hearing support Judge Leonardo’s conclusions by clear and convincing evidence. See id. at 154-156,
847 P.2d at 1101-1103. 2. Conclusions of Law – Claim 21 – ER 1.7(a)(2) (Conflict of Interest in Wilcox prosecution)
375. Thomas and Aubuchon violated ER 1.7(a)(2) by filing criminal charges against their
client, Supervisor Wilcox, while suing her civilly at the same time in the RICO case.598 Thomas and
Aubuchon sought civil damages and some sort of equitable relief against Wilcox in the RICO
lawsuit. Thomas and Aubuchon’s prosecution of Wilcox was therefore materially limited by their
own self-interest—the possibility of recovering damages from Wilcox or the possibility of an order
countermanding the Board’s actions regarding MCAO. “[I]f a prosecutor has . . . any pecuniary
interest or a significant personal interest in a civil matter which may impair his obligation in a
criminal matter to act impartially toward both the state and the accused, then he is . . . disqualified
from initiating or participating in the prosecution of that criminal cause.” Sinclair v. State, 278 Md.
243, 254, 363 A.2d 468, 475 (1976).
376. Filing criminal charges against someone a prosecutor is suing civilly creates a conflict
of interest in part because the prosecutor can use the criminal case to leverage a favorable settlement
of the civil case for the prosecutor’s benefit. The Prosecutor represents the sovereign whose obligation is to govern impartially and whose chief object is justice. Public confidence in the criminal justice system is maintained by assuring that it operates in a fair and impartial manner. This confidence is eroded when a prosecutor has a conflict or personal interest in the criminal case which he is handling. Turbin v. Superior Court, 165 Ariz. 195, 198, 797 P.2d 734, 737 (App. 1990) (citation omitted).
377. Aubuchon’s conflict of interest in these cases was somewhat different than Thomas’s.
First, she worked for Thomas, her direct boss on these matters, very closely. Her personal interest
598 “Although . . . ER 1.7(a) refer[s] to suing a client on behalf of another client, nothing in [its] rationale suggests the results should be any different because the suit is on the lawyer’s own behalf. The duty of loyalty would be equally violated in both situations, if not more egregiously where the lawyer is pursuing the lawyer’s own interests.” State Bar of Ariz. Ethics Op. 00-03 at 2. Thomas brought the RICO suit on behalf of both himself and Sheriff Arpaio.
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was to vindicate the positions taken by her boss against the Board.599 Second, at the hearing in this
matter she stated that the reason for pursuing the RICO case was to have the civil division returned
to her office, MCAO.600 While pursuing that goal it was not appropriate to bring criminal charges
against the supervisors that could be used as leverage to obtain the return of the civil division to
MCAO. 3. Conclusions of Law – Claim 22 – ER 4.4(a) (Using Means to Burden or Embarrass)
378. Thomas and Aubuchon violated ER 4.4(a) by prosecuting Stapley and Wilcox not to
seek justice but to burden the supervisors and to pursue Thomas’s political and personal interests.
When Thomas filed charges against Supervisors Stapley and Wilcox in December, 2009, Thomas
and the Board were involved in three civil lawsuits against each other: the Dec Action, the Sweeps
case, and the RICO case. Additionally, Thomas had fought with the Board over the appointment of
special prosecutors and the hiring of Thomas Irvine. Thomas had conflicts of interest that drove him
to seek charges against the supervisors for improper purposes.
379. Thomas and Aubuchon’s personal and political animosity motivated the investigation
and charging of Stapley and Wilcox. Thomas and Aubuchon brought the charges in Stapley II and
Wilcox for no purpose other than to embarrass and burden the two Supervisors.
380. As noted in earlier discussions of ER 4.4(a) (See Section III.B.2, above), a lawyer can
be found to have violated the rule if the motivation for bringing an otherwise valid case is to burden
or embarrass.
4. Conclusions of Law – Claim 23 – ER 1.7(a)(2) (Conflict of Interest)
381. Thomas and Aubuchon violated ER 1.7(a)(2) in the Stapley II case.
382. Thomas and Aubuchon had a conflict of interest in charging Supervisor Stapley in
2008, and those same conflicts existed in 2009 when they caused a second indictment to be filed
599 Thomas’s conflicts are imputed to Aubuchon. See Section III.B.3 above. 600 Aubuchon Testimony, Hr’g Tr. 123:1-124:2, 135:1-136:5, Oct. 25, 2011.
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against Stapley. In fact those conflicts that had begun in 2008 were exacerbated by the subsequent
events that occurred in 2009.
383. Additionally, by this time Thomas and Aubuchon had filed the civil RICO case
seeking money from Stapley and Wilcox. It was a conflict of interest to charge Stapley with crimes
in part because a prosecutor can use his power in the criminal case to force a settlement of the civil
case. See the legal authority set forth in Claims Five and Twenty-One, above. F. Claims Twenty-Four to Thirty – Criminal Case Against Judge Donahoe
1. Findings of Fact
384. The Filing of Charges Against Judge Donahoe. As described above in Section
III.D.1, Judge Donahoe had scheduled a hearing for the afternoon of December 9, 2009 regarding
the Notice and Motion filed by Thomas Irvine and Edward Novak on behalf of the County.601 The
motion filed for the Board by Irvine and Novak sought an order prohibiting special deputy county
attorneys from appearing before a grand jury.
385. On December 9, 2009, under Thomas’s authority and with his approval, Aubuchon
through MCSO detectives filed a criminal case against Judge Donahoe.602 Thomas made the
decision to file a direct complaint against Judge Donahoe following a meeting with Aubuchon,
Hendershott, and Arpaio.603 Thomas and Aubuchon denied that they wanted to file the charges
against Judge Donahoe to stop that hearing.604 However, as discussed below, the Hearing Panel
concludes that the evidence is clear and convincing that Thomas, Aubuchon, Sheriff Arpaio and
then-Deputy Chief Hendershott decided to file the charges against Judge Donahoe so that he would
not hold the December 9, 2009 hearing.
601 Ex. 137, TRIAL EXB 01644-83. 602 Ex. 163, TRIAL EXB 01905-1914. 603 Hendershott Testimony, Hr’g Tr. 78:5-79:16, 110:5-111:1, 116:9-14, Oct. 13, 2011; Thomas Testimony, Hr’g Tr. 171:24-172:5, 172:16-23,176:21-178:22, Oct. 26, 2011; Aubuchon Testimony, Hr’g Tr. 173:9-181:18, Oct. 25, 2011. 604 Thomas Testimony, Hr’g Tr. 178:18-180:10, Oct. 26, 2011; Aubuchon Testimony, Hr’g Tr. 181:10-182:1, Oct. 25, 2011.
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386. Aubuchon and Detective Gabe Almanza signed the direct complaint.605 It charged
the judge with hindering, obstruction and bribery.606 There was no investigation in this matter prior
to the filing of the direct complaint.607 Only after the direct complaint was filed did MCSO create a
report.608
387. Aubuchon attempted to file the charges against Judge Donahoe a day earlier on
December 8, 2009, after a meeting with Thomas, Arpaio and Hendershott.
388. On the afternoon of December 8, 2009, Chief Deputy Hendershott of MCSO called
Sgt. Rich Johnson about filing a case against Judge Donahoe.609 Chief Deputy Hendershott told Sgt.
Johnson that they needed it done “now.”610 MCSO Sgt. Brandon Luth, Sgt. Johnson and Deputy
Chief Young called Aubuchon on the afternoon of December 8, 2009, to ask her what was going on
and what they needed to charge.611 Aubuchon stated they needed a Form 4, a DR (departmental
report) and a probable cause statement.612 Aubuchon told the MCSO officers she wanted to charge
bribery and related charges.613 Sgt. Luth did not know what to write.614 Sgt. Luth’s orders were to
put the case together and accompany Detective Cooning to “walk it throught” that evening.615
389. Later in the afternoon of December 8, 2009, Aubuchon, Chief Young, Sgt. Luth, Sgt.
Johnson and Chief Hendershott met.616 Chief Hendershott told them about the racketeering lawsuit,
605 Ex. 163, TRIAL EXB 01906. 606 Ex. 163, TRIAL EXB 01905-06. 607 Johnson Testimony, Hr’g Tr. 11:10-12:23, 14:13-15:9, Oct. 11, 2011; Almanza Testimony, Hr’g Tr. 136:25-137:7, Oct. 11, 2011. 608 See Ex. 158, TRIAL EXB 01866-69, MCSO Supplemental Report concerning Judge Donahoe, dated December 9, 2009; Ex. 159, TRIAL EXB 01870-77, another MCSO Supplemental Report, also dated December 9, 2009. 609Johnson Testimony, Hr’g Tr. 11:18-25, Oct. 11, 2011; Luth Testimony, Hr’g Tr. 100:4-11, Oct. 14, 2011. 610 Johnson Testimony, Hr’g Tr. 14:13-22, Oct. 11, 2011; Luth Testimony, Hr’g Tr. 100:4-11, Oct. 14, 2011. 611 Johnson Testimony, Hr’g Tr. 12:1-16, Oct. 11, 2011. 612 A “Form 4” is a document for processing a person in custody. It includes a probable cause statement, which aids the hearing officer in making a decision concerning future detention or release. Marshall Testimony, Hr’g Tr. 161:5-20, Sept. 19, 2011. The probable cause statement should contain evidence of all of the elements of an offense. Novitsky Testimony, Hr’g Tr. 72:18-73:9, Oct. 6, 2011; Luth Testimony, Hr’g Tr. 100:21-23, Oct. 14, 2011. 613 Johnson Testimony, Hr’g Tr. 12:1-13, Oct. 11, 2011; Luth Testimony, Hr’g Tr. 100:21-25, Oct. 14, 2011. 614 Luth Testimony, Hr’g Tr. 100:21-101:11, Oct. 14, 2011. 615 Luth Testimony, Hr’g Tr. 111:20-112:3, Oct. 14, 2011. 616 Johnson Testimony, Hr’g Tr. 12:24-13:9, Oct. 11, 2011.
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and that they thought Judge Donahoe was going to throw MCAO off all County investigations.617
Chief Hendershott said that he had met with Thomas, Aubuchon, and Sheriff Arpaio, and that Sheriff
Arpaio came up with the idea of charging the judge.618 Chief Hendershott told Sgt. Luth to use as
the material for the Form 4, or probable cause (“PC”) statement, a complaint that the Chief Deputy
had submitted to the Commission on Judicial Conduct against Judge Donahoe.619 Chief Hendershott
printed off his complaint and wrote the charges on it. 620 At the hearing in this case, Hendershott
was unable to describe any criminal conduct by Judge Donahoe.621
390. Sgt. Luth drafted the PC statement using Chief Deputy Hendershott’s judicial
complaint622 at Aubuchon’s direction.623 The PC statement addresses Judge Donahoe’s:
a. alleged conflict of interest;
b. his failure to take action against Supervisor Stapley about alleged disclosure of grand jury information;
c. problems with the Sheriff’s Department transporting prisoners to court;
d. bias against the Sheriff’s Office;
e. setting a hearing about a motion to remove MCAO from prosecuting cases against MCBOS and County Management.
The PC statement is substantially about perceived difficulties MCSO was having with Judge
Donahoe, but not about crimes he may have committed.
391. Sgt. Johnson called MCSO’s dispatch unit and obtained a Departmental Report
number for the case.624 At about 5:00 p.m., Sgt. Luth took the Donahoe charging documents to
617 Luth Testimony, Hr’g Tr. 101:12-102:16, Oct. 14, 2011. 618 Luth Testimony, Hr’g Tr. 101:14-102:16, Oct. 14, 2011; Arpaio Testimony, Hr’g Tr. 53:25-55:18, Oct. 18, 2011. 619 Johnson Testimony, Hr’g Tr. 13:10-18, Oct. 11, 2011; Luth Testimony, Hr’g Tr. 102:17-103:1, Oct. 14, 2011. Chief Deputy Hendershott’s judicial complaint against Judge Donahoe is Ex. 241, TRIAL EXB 03306-09. 620 Luth Testimony, Hr’g Tr. 103:12-23, Oct. 14, 2011. 621Hendershott Testimony, Hr’g Tr. 81:17-89:9, Oct. 13, 2011. 622 Sgt. Johnson’s Testimony, Oct. 11, 2011, p. 14, ln. 3-6; Luth Testimony, Hr’g Tr. 107:10-108:1, Oct. 14, 2011. 623 Hendershott Testimony, Hr’g Tr. 78:21-79:16, Oct. 13, 2011 624 Johnson Testimony, Hr’g Tr. 14:7-15:6, Oct. 11, 2011; Luth Testimony, Hr’g Tr. 108:13-18, Oct. 14, 2011.
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Aubuchon. She read them. She said that “it worked for her.”625 Aubuchon signed the complaint as
Deputy County Attorney.
392. Aubuchon attempted to have an investigator from MCAO file the direct complaint in
Superior Court in the late afternoon or early evening of December 8, 2009. Aubuchon assigned the
task of filing the direct complaint to MCAO investigator Lt. Richard Hargus.626 Lt. Hargus then
asked MCAO Detective Timothy Cooning to meet an MCAO clerk in front of the court at 5:30
p.m.627 Det. Cooning did so, and the clerk handed him the Donahoe file. Cooning read the file,
returned to his office, and informed Lt. Hargus that he felt uncomfortable swearing to the
truthfulness of the complaint against Donahoe because he had not investigated the case.628 Cooning
also was uncomfortable signing the probable cause statement because it was unclear what crimes had
been committed and who had investigated them.629
393. Lt. Hargus told his superior, Commander Stribling, that Lt. Hargus and Detective
Cooning did not want to file the complaint because there was no probable cause to support it.630
Commander Stribling agreed that none of his detectives should be put in the position of walking
through a complaint on a sitting Superior Court judge when he knew nothing about the investigation
that led up to the filing of the complaint.631 The commissioner assigned to the evening court might
ask the detective questions, and the detective would not know what to say.
394. Commander Stribling called Thomas. Commander Stribling informed Thomas that
Aubuchon was asking Lt. Hargus and Det. Cooning to get the Donahoe complaint filed.632
Commander Stribling told Thomas that based on what Lt. Hargus and Det. Cooning had told him,
there was no probable cause to support the complaint.633 Commander Stribling told Thomas that he 625 Luth Testimony, Hr’g Tr. 110:9-111:7, Oct. 14, 2011. 626 Ex. 155, TRIAL EXB 01851-54. 627 Cooning Testimony, Hr’g Tr. 138:7-139:11, Oct. 13, 2011. 628 Cooning Testimony, Hr’g Tr. 138:7-140:5, Oct. 13, 2011. 629 Cooning Testimony, Hr’g Tr. 147:16-148:15, Oct. 13, 2011. 630 Stribling Testimony, Hr’g Tr. 87:16-88:6, Oct. 4, 2011. 631 Stribling Testimony, Hr’g Tr. 89:10:24, Oct. 4, 2011. 632 Stribling Testimony, Hr’g Tr. 90:10-17, Oct. 4, 2011. 633 Stribling Testimony, Hr’g Tr. 90:17-19, Oct. 4, 2011.
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refused to have his detective walk through a complaint about which the detective had no
knowledge.634 Thomas agreed, but insisted that the complaint be filed no later than the next
morning.635
395. Commander Stribling then called Aubuchon to explain his decision. The
conversation was heated.636 Commander Stribling suggested that MCSO Sgt. Brandon Luth file the
complaint, since he was with the MACE Unit. Eventually, Aubuchon acquiesced.637
396. Because Commander Stribling had refused to have MCAO investigators “walk it
through,” Aubuchon turned to the sheriff’s office to assist her in filing the Donahoe complaint.638 At
Hargus’s instruction, at 6:00 that evening Det. Cooning met Sgt. Luth in front of Cooning’s office
and gave Luth the direct complaint. Cooning told Luth he refused to swear to the complaint.639
Luth called Aubuchon and handed the phone to Cooning. Aubuchon told Cooning she “can’t believe
this” and “this is outrageous” and hung up on Cooning.640 Cooning then agreed to meet Luth at the
IA court a few minutes later, where Luth was to file the complaint. Once there, however, Luth
refused to file the complaint.641
397. Sgt. Luth did not want to file the complaint against Judge Donahoe because he did not
want to answer questions by the court about the case when it was filed.642 He arranged for Det.
Almanza and Det. Tennyson to meet with him the next morning.643
398. On the morning of December 9, 2009, Sgt. Luth, Det. Almanza and Det. Tennyson
met with Aubuchon.644 Aubuchon handed Sgt. Luth the complaint against Judge Donahoe, which 634 Stribling Testimony, Hr’g Tr. 90:19-91:8, Oct. 4, 2011. 635 Stribling Testimony, Hr’g Tr. 91:9-13, Oct. 4, 2011. 636 Stribling Testimony, Hr’g Tr. 91:14-92:12, Oct. 4, 2011. 637 Stribling Testimony, Hr’g Tr. 92:13-93:1, Oct. 4, 2011. 638 See Ex. 155, TRIAL EXB 01852, which states: “Complaint returned to MCSO Case Agent for filing”, and TRIAL EXB 01854, a sticky note indicating that MCSO Detective Brandon Luth would meet MCAO’s agent at the IA court. 639 Cooning Testimony, Hr’g Tr. 141:3-142:7, Oct. 13, 2011. 640 Cooning Testimony, Hr’g Tr. 141:3-143:9, Oct. 13, 2011. 641 Cooning Testimony, Hr’g Tr. 143:11-144:14, Oct. 13, 2011, Ex. 156, TRIAL EXB 1855-57. 642 Almanza Testimony, Hr’g Tr. 125:4-16, Oct. 11, 2011; Luth Testimony, Hr’g Tr. 113:6-13, Oct. 14, 2011. 643 Almanza Testimony, Hr’g Tr. 125:17-19, Oct. 11, 2011. 644 Almanza Testimony, Oct. 11, 2011, Hr’g Tr. 126:1-17, Oct. 11, 2011; Luth Testimony, Hr’g Tr. 117:5-12, Oct. 14, 2011.
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she had drafted, with the probable cause statement attached.645 Sgt. Luth asked Aubuchon whether
she had enough evidence to charge Judge Donahoe.646 Aubuchon referred to past court filings and
decisions and outlined for Sgt. Luth why she believed Judge Donahoe should be charged with
crimes.647 This struck Det. Almanza as bizarre because Aubuchon was telling Sgt. Luth what the
evidence was, rather than the usual procedure, in which the investigator informs the prosecutor of
the evidence.648
399. Sgt. Luth and the detectives left the meeting. Sgt. Luth took the complaint he had
received from Aubuchon, along with documents Aubuchon had printed off of her computer.649
400. The complaint was filed the same morning of December 9, 2009.650 Detective
Gabriel Almanza signed it under oath.651 Sgt. Luth told Det. Almanza to sign it.652 Det. Almanza
was not comfortable doing so, because he had not been involved in drafting the complaint and he
had no knowledge as to the truth or falsity of it.653 Det. Almanza had never filed a complaint
before.654 Sgt. Luth assured Det. Almanza that Aubuchon believed she had enough evidence to
charge the judge.655 Det. Almanza signed it based on his reliance on Aubuchon’s good faith.656
401. MCSO Detectives Almanza and Tennyson served the direct complaint on Judge
Donahoe.657 They secretly recorded the service.658 After Judge Donahoe was served, Sgt. Luth was
ordered to take a copy of the direct complaint to Aubuchon and Chief Deputy Hendershott.659 When
Sgt. Luth gave the copy of the complaint to Aubuchon, she said she already received an email 645 Almanza Testimony, Hr’g Tr. 126:22-127:10, Oct. 11, 2011. 646 Almanza Testimony, Hr’g Tr. 126:22-127:16, Oct. 11, 2011; Luth Testimony, Hr’g Tr. 117:17-118:4, Oct. 14, 2011. 647 Almanza Testimony, Hr’g Tr. 127:17-128:9, Oct. 11, 2011. 648 Almanza Testimony, Hr’g Tr. 128:10-129:17, Oct. 11, 2011. 649 Almanza Testimony, Hr’g Tr. 129:15-130:8, 133:7-10, Oct. 11, 2011. 650 Ex. 163, TRIAL EXB 01905-14. 651 Almanza Testimony, Hr’g Tr. 120:21-121:17, Oct. 11, 2011. 652 Almanza Testimony, Hr’g Tr. 132:5-20, Oct. 11, 2011; Luth Testimony, Hr’g Tr. 119:8-120:7, Oct. 14, 2011. 653 Almanza Testimony, Hr’g Tr. 121:21-124:8, 132:17-133:6, Oct. 11, 2011. 654 Almanza Testimony, Hr’g Tr. 130:4-23, Oct. 11, 2011. 655 Almanza Testimony, Hr’g Tr. 133:11-22, Oct. 11, 2011; Luth Testimony, Hr’g Tr. 119:20-120:7, Oct. 14, 2011. 656 Almanza Testimony, Hr’g Tr. 133:23-134:5 Oct. 11, 2011. 657 Almanza Testimony, Hr’g Tr. 134:6-25, Oct. 11, 2011. 658 Johnson Testimony, Hr’g Tr. 16:2-17:12, Oct. 11, 2011; Almanza Testimony, Hr’g Tr. 135:1-22, Oct. 11, 2011. 659 Luth Testimony, Hr’g Tr. 120:12-20, Oct. 14, 2011.
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notifying her that Judge Donahoe had vacated the hearing that had been set for later that
afternoon.660 She appeared pleased and happy.661 Sgt. Luth then gave the complaint to Chief
Deputy Hendershott, explaining that the complaint had been served and that he had just met with
Aubuchon.662 Chief Deputy Hendershott said, “checkmate.”663
402. On the same day the direct complaint was filed, Thomas issued a press release
announcing the filing of a criminal complaint against Judge Donahoe.664 In addition, documents
related to the filing of the direct complaint revealed Judge Donahoe’s home address, making it
possible for criminals he sentenced to locate him.665
403. Thomas and Aubuchon’s Testimony About Charging Judge Donahoe. The
Hearing Panel finds that Thomas’s testimony about the timing of the charges against Judge Donahoe
was not credible. Thomas testified that he wanted Judge Donahoe charged so Thomas could have a
press conference to announce the filing of the charges and to invite the media to go over to the
hearing so they could observe firsthand Judge Donahoe’s behavior.666 He stated that his intent was
not to nullify the hearing but to publicize it.667 Thomas testified that he believed there was a unique
moment in time to fully educate the community about the lawlessness they were dealing with in the
county government.668 The Hearing Panel finds that Thomas’s explanation for filing criminal
charges at that time is unbelievable. Thomas’s goal of public education could have been
accomplished by issuing a news release explaining his concerns about the hearing Judge Donahoe
was conducting. Alternatively, instead of filing criminal charges right before the hearing, Thomas
could have filed charges after the scheduled hearing on December 9, 2009. Thomas’s filing charges
to publicize a hearing is unbelievable. 660 Luth Testimony, Hr’g Tr. 121:1-8, Oct. 14, 2011. 661 Luth Testimony, Hr’g Tr. 121:9-13, Oct. 14, 2011. 662 Luth Testimony, Hr’g Tr. 121:17-122:4, Oct. 14, 2011. 663 Luth Testimony, Hr’g Tr. 122:1-5, Oct. 14, 2011. 664 Ex. 164, TRIAL EXB 01915. 665 Ex. 167, TRIAL EXB 01920-23. 666 Thomas Testimony, Hr’g Tr. 186:11-188:12, Oct. 26, 2011. 667 Thomas Testimony, Hr’g Tr. 186:11-188:12, Oct. 26, 2011. 668 Thomas Testimony, Hr’g Tr. 191:17-192:11, Oct. 26, 2011.
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404. The Hearing Panel also finds Aubuchon’s testimony about why Judge Donahoe was
charged on December 9, 2009, incredible. Aubuchon testified that she did not file the charges
against Judge Donahoe to force him to vacate the hearing he had scheduled.669 Aubuchon testified
that there was no urgency about charging Judge Donahoe on December 8 or December 9, 2009.670
She testified that she did not wait until a later time, say January 2010, to charge Judge Donahoe
because she believed he had committed a crime. She made this decision despite the fact that, had the
hearing been held on Dec. 9, she might have developed more evidence of criminal conduct that
could support her view of Judge Donahoe’s behavior.671 Aubuchon also testified that Judge
Donahoe was considering a motion which was trying to stop an investigation into himself, his
supervisor, the attorneys who were filing the motion, and everyone else. She also believed that
Judge Donahoe’s ‘having a forum’ for that motion was criminal conduct.672 She thought that he
should not have set the hearing in the first place and she wanted him to vacate the hearing.673
405. As stated above, the first thing that Aubuchon said to Sgt. Luth after he advised her
that the charges had been filed was that she already received an email notifying her that Judge
Donahoe had vacated the hearing scheduled that afternoon. She appeared pleased and happy.
406. However, a day earlier on December 8, 2009, Aubuchon tried to get the charges filed
and was angry that no one would file them. If she and Thomas were not trying to get Judge
Donahoe to vacate that hearing, they would have waited to file the charges until after that hearing on
December 9, 2009. Any lawyer would know that Judge Donahoe would have to vacate such a
hearing upon being charged with crimes.
407. Thomas and Aubuchon’s testimony about the timing of the charges is unbelievable.
669 Aubuchon Testimony, Hr’g Tr. 181:10-182:1, Oct. 25, 2011. 670 Aubuchon Testimony, Hr’g Tr. 181:19-182:1, Oct. 25, 2011. 671 Aubuchon Testimony, Hr’g Tr. 187:1-20, Oct. 25, 2011. 672Aubuchon Testimony, Hr’g Tr. 181:19-184:19, Oct. 25, 2011. 673 Aubuchon Testimony, Hr’g Tr. 184:7-19, Oct. 25, 2011.
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408. Thomas and Aubuchon’s Testimony About Probable Cause to Charge Judge
Donahoe. At the hearing in this matter, Thomas testified that he brought the bribery charge against
Judge Donahoe because the Judge was an “accessory” to the “Mundell-Stapley-Irvine triangle.”674
Thomas stated that he charged Judge Donahoe as an accomplice “because he was repeatedly beating
back investigations into not only the court tower, but any of the principals who were involved in
other matters or at the periphery of that deal, which [Thomas] considered corrupt.”675 According to
Thomas, Judge Donahoe was an accessory to bribery because he did the following:
a. Quashed a grand jury subpoena concerning the Court Tower;
b. Disqualified MCAO from the Court Tower matter; and
c. Quashed a search warrant of an office in the Stapley matter.676
409. The Hearing Panel finds this testimony to be unbelievable. There was no mention in
the PC statement attached to the direct complaint against Judge Donahoe that Judge Donahoe was an
accessory to an alleged bribe involving Mundell, Stapley and Irvine.677 Thomas had attached the
complaint and he assumed the PC statement to his news release about charging Donahoe.678 The
fact that there is not one mention of Thomas’s theory in the PC statement indicates that his
explanation is an attempt to create probable cause where there was none. No other witness in this
hearing, including Aubuchon, testified that the theory for charging Judge Donahoe was that he was
an accessory.
410. Further, this testimony is unbelievable because the three acts that Thomas points to as
criminal were judicial decisions that Judge Donahoe made. There was no evidence presented to this
Hearing Panel that MCAO or MCSO had evidence that Judge Donahoe accepted a bribe for making
these judicial decisions. Thomas’s testimony that these acts constituted acts of an accessory to
674 Thomas Testimony, Hr’g Tr. 181:4-184:9, Oct. 26, 2011. 675 Thomas Testimony, Hr’g Tr. 181:11-22, Oct. 26, 2011. 676 Thomas Testimony, Hr’g Tr. 182:13-184-15, Oct. 26, 2011. 677 Ex. 163, TRIAL EXB 01912-14. 678 Thomas Testimony, Hr’g Tr. 188:13-189:5, Oct. 26, 2011.
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bribery is totally incredible. The Hearing Panel finds that Thomas engaged in misrepresentation at
the hearing on this issue.
411. Aubuchon testified that the PC statement set forth probable cause to believe that
Judge Donahoe engaged in bribery, hindering and obstruction.679 The Hearing Panel finds that
testimony incredible. A reading of the PC statement indicates that it does not set forth any evidence
of criminal conduct by Judge Donahoe. No lawyer, especially one with extensive criminal
prosecution experience, could conclude otherwise. For Aubuchon to testify that it did set forth
probable cause indicates that she engaged in misrepresentation to this Hearing Panel. As noted
above, no other evidence except that in the PC statement was presented to this Hearing Panel that
Judge Donahoe engaged in crimes.
2. Conclusions of Law – Claim 24 – ER 3.8(a) (Filing Charges Knowing There Was No Probable Cause)
412. Thomas and Aubuchon violated ER 3.8(a), which states that a prosecutor in a
criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by
probable cause. See Shepard v. Fahringer, 158 Ariz. 266, 269-70, 762 P.2d 553, 569-70 (1988) (“A
prosecutor should not seek an indictment without probable cause. Nor is a prosecutor expected to
obtain an indictment until he or she believes that the accused’s guilt can be proven beyond a
reasonable doubt.”) (Citation omitted). By filing charges that they knew were not supported by
probable cause, Thomas and Aubuchon violated ER 3.8(a).
413. The basis for the criminal charges was an unsupported judicial complaint written by
then-Deputy Chief Hendershott that itself failed to allege any criminal activity and failed to identify
any criminal statute.680 Specifically, there was no evidence that Judge Donahoe engaged in bribery,
hindrance or obstruction. The Hearing Panel finds that Thomas and Aubuchon knew that not one of
679 Aubuchon Testimony, Hr’g Tr. 203:16-207:5, Oct. 25, 2011. 680 Ex. 241, TRIAL EXB 03306-09.
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the charges against Judge Donahoe was supported by probable cause. Each charge is discussed
below.
414. Bribery. Aubuchon and Thomas alleged in the criminal complaint that Judge
Donahoe violated the bribery statute, A.R.S. § 13-2602, which provides as follows:
Bribery of a public servant or party officer;
A person commits bribery of a public servant or party officer if with corrupt intent:
Such person offers, confers or agrees to confer any benefit upon a public servant or party officer with the intent to influence the public servant's or party officer's vote, opinion, judgment, exercise of discretion or other action in his official capacity as a public servant or party officer; or While a public servant or party officer, such person solicits, accepts or agrees to accept any benefit upon an agreement or understanding that his vote, opinion, judgment, exercise of discretion or other action as a public servant or party officer may thereby be influenced.
It is no defense to a prosecution under this section that a person sought to be influenced was not qualified to act in the desired way because such person had not yet assumed office, lacked jurisdiction or for any other reason.
Bribery of a public servant or party officer is a class 4 felony.
415. There was no evidence that Judge Donahoe acted with corrupt intent. The probable
cause (“PC”) statement attached to the complaint does not describe any corrupt intent by Judge
Donahoe. At the very worst, the PC statement alleges that Judge Donahoe was “biased” against
Sheriff Arpaio; but bias is not evidence of corrupt intent.681
416. Further, there was no evidence supporting the conclusion that Judge Donahoe was
actually biased against the Sheriff. Judge Donahoe, as the Presiding Criminal Judge, did have
681 Ex. 163, TRIAL EXB 01914.
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concerns about MCSO’s late delivery of prisoner to court appearances due to understaffing of the
detention detail.682 He was frustrated with the Sheriff’s inability and failure to deliver prisoners to
court.683 But after litigation, Judge Donahoe and MCSO were able to reach a compromise.684 Judge
Donahoe was justified in holding Detention Officer Stoddard in contempt because he had searched a
defense attorney’s file in court without a warrant or probable cause.685
417. There was no evidence in the PC statement nor was there any evidence at the hearing
that Judge Donahoe solicited, accepted or agreed to accept any benefit. There is no evidence that
Judge Donahoe’s position as Presiding Criminal Court Judge was in any jeopardy if he decided
issues in a certain manner.686 There is no evidence that Judge Donahoe desired or sought to
maintain a beneficial relationship with Judge Mundell. There is no evidence that Judge Mundell
ever communicated with Judge Donahoe about her desires regarding the Court Tower. Further, there
is no evidence that Judge Donahoe had any significant concern about whether the Court Tower was
built. Judge Donahoe was due to retire before the building was completed.687
418. There was no evidence in the PC Statement nor was there any evidence at the hearing
that Judge Donahoe made a decision or issued a ruling because of a benefit he solicited, accepted or
agreed to accept. There was no evidence at all, much less probable cause, to believe that Judge
Donahoe engaged in bribery.
419. Hindering. Thomas and Aubuchon also charged Judge Donahoe under the hindering
statute, A.R.S. § 13-2512, which provides as follows:
Hindering prosecution in the first degree; classification
682 Ex. 163, TRIAL EXB 01913. Donahoe Testimony, Hr’g Tr. 90:16-93:13, Oct. 5, 2011. 683 Donahoe Testimony, Hr’g Tr. 165:15-168:3, Oct. 5, 2011. 684 Donahoe Testimony, Hr’g Tr. 93:14-21, Oct. 5, 2011, p. 93, ln. 14-21. 685 Ex. 163, TRIAL EXB 01914. Donahoe Testimony, Hr’g Tr. 93:22-95:13, Oct. 5, 2011. 686 Donahoe Testimony, Hr’g Tr. 65:23-25, Oct. 5, 2011. 687 Donahoe Testimony, Hr’g Tr. 65:6-22, 68:9-19, Oct. 5, 2011.
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A person commits hindering prosecution in the first degree if, with the intent to hinder the apprehension, prosecution, conviction or punishment of another for any felony, the person renders assistance to the other person.
Hindering prosecution in the first degree is a class 5 felony [except in situations inapplicable here].
420. There was no evidence in the PC Statement nor was there any evidence at the hearing
that Judge Donahoe hindered the apprehension, prosecution, conviction or punishment of anyone for
any felony. The charges against Judge Donahoe do not specify whom he intended to help avoid
prosecution or conviction or for what crime.
421. Judge Donahoe’s original assignment to the matter688 was not a crime. It was not
even out of the ordinary.689
422. There was no evidence at all, much less probable, cause to believe that Judge
Donahoe engaged in hindering.
423. Obstruction. Thomas and Aubuchon charged Judge Donahoe under the obstruction
statute, A.R.S. § 13-2409 which provides as follows: A person who knowingly attempts by means of bribery, misrepresentation, intimidation or force or threats of force to obstruct, delay or prevent the communication of information or testimony relating to a violation of any criminal statute to a peace officer, magistrate, prosecutor or grand jury or who knowingly injures another in his person or property on account of the giving by the latter or by any other person of any such information or testimony to a peace officer, magistrate, prosecutor or grand jury is guilty of a class 5 felony.
424. There was no evidence in the PC Statement, nor was there any evidence at all, that
Judge Donahoe attempted to use bribery, misrepresentation, intimidation, force or threats of force to
delay or prevent the communication of information about a crime to any peace officer, prosecutor or
grand jury. Obstruction requires three people: a defendant [Donahoe]; a law enforcement officer or
other specified official; and another, prospective informant or witness. Walker v. Super. Ct. In and
For County of Navajo, 956 P.2d 1246 (Ariz. App. 1998). In order to support probable cause to
688 Ex. 163, TRIAL EXB 01913. 689 Donahoe Testimony, Hr’g Tr. 69:1-70:9, Oct. 5, 2011.
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believe that Judge Donahoe engaged in obstruction, there must have been evidence that Judge
Donahoe attempted to prevent some person from communicating with a law enforcement officer or
grand jury. There was no such evidence. There was no prospective informant or witness whom he
was preventing from communicating to anyone.
425. Thomas and Aubuchon may have intended this charge to refer to Judge Donahoe’s
quashing of the grand jury subpoena.690 If so, they knew by the time the direct complaint was filed
that Judge Donahoe’s order had not prevented the communication of information to law
enforcement. MCSO had obtained the Court Tower documents in spring 2009 from public records
requests. MCSO had reviewed the Court Tower documents and found no evidence of a crime.691
426. In addition, Thomas and Aubuchon knew that Judge Donahoe had quashed the grand
jury subpoena without prejudice so that a non-conflicted prosecutor could pursue it.692 In fact, they
knew that the Court Tower investigation had been referred to the Yavapai County Attorney.693
427. Thomas and Aubuchon also knew that the subpoena was addressed to the Maricopa
County Administration, not Ed Novak or Tom Irvine.694 As a result, the alleged conflict they were
concerned about did not exist.695
428. Thomas and Aubuchon may have intended this charge to refer to the fact that Judge
Donahoe had set a hearing on pending motions for December 9, 2009. Aubuchon alleged that Judge
Donahoe set that hearing “to attempt to remove the Maricopa County Attorney’s Office from
prosecution of cases against the Maricopa County Board of Supervisors and County
Management.”696 This allegation was unfounded because Thomas and Aubuchon did not know how
Judge Donahoe would rule at the hearing. Based on the briefs submitted in advance of the hearing,
690 Ex. 163, TRIAL EXB 01912. 691 Almanza Testimony, Hr’g Tr. 118:25-120:20, Oct. 11, 2011. 692 Ex. 85, TRIAL EXB 01379. 693 See Section III.D.1 above. 694 Ex. 85, TRIAL EXB 01377. 695 Ex. 163, TRIAL EXB 01913. 696 Ex. 163, TRIAL EXB 01914.
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Aubuchon had legitimate legal arguments against MCAO’s disqualification.697 Setting a hearing is
not a crime.
429. Part of the theory underlying the charges against Judge Donahoe was the supposed
existence of an attorney-client relationship between Judge Donahoe and attorneys Tom Irvine and
Ed Novak.698 This theory was based on the legally faulty premise that, because Irvine represented
the Superior Court, he also represented the individual judges who worked for the Superior Court. In
fact, Irvine represented the Presiding Judge, who had the duty pursuant to Rule 92(a)(5), Rules of the
Arizona Supreme Court, to oversee the construction of new court facilities such as the Court
Tower.699 Irvine did not represent Judge Donahoe, who was an employee of the State of Arizona
and a State of Arizona Superior Court Judge.700
430. Aubuchon and Thomas knew that no criminal investigation of the charges against
Judge Donahoe had occurred. Aubuchon and Thomas knew that there was no factual basis for the
charges against Judge Donahoe. That is the likely reason why they did not request that the Donahoe
case be subjected to an incident review.701 That is also the likely reason Thomas did not even
inform his Chief Deputy, Phil MacDonnell, that he was filing charges against Judge Donahoe.702
431. Sheila Polk, the Yavapai County Attorney, testified in this hearing. During cross
examination, Aubuchon’s counsel asked Polk if the PC statement would constitute probable cause.
After reading it again, Polk stated that it would not.703
432. In Arizona, a determination of probable cause must be objectively reasonable. Thus,
a prosecutor cannot escape liability under ER 3.8(a) by claiming to subjectively “know” his charges
were supported by probable cause. “[P]robable cause exists if the proof is sufficient to cause a 697 Ex. 141, TRIAL EXB 01751-61. 698 Ex. 163, TRIAL EXB 01912. Hendershott Testimony, Hr’g Tr. 81:17-84:14, Oct. 13, 2011. 699 Irvine Testimony, Hr’g Tr. 69:6-70:10, Sept. 14, 2011. 700 Donahoe Testimony, and colloquy, Hr’g Tr. 171:12-21, 176:25-186:10, Oct. 5, 2011, Hr’g Tr. 11:8-15:12, Oct. 6, 2011. 701 MacDonnell Testimony, Hr’g Tr. 15-6-19, Sept. 19, 2011; Marshall Testimony, Hr’g Tr. 163:17-19, Sept. 19, 2011; Novitsky Testimony, Hr’g Tr. 70:8-11, Oct. 6, 2011. 702 MacDonnell Testimony, Hr’g Tr. 16:23-17:24, Sept. 19, 2011. 703 Polk Testimony, Hr’g Tr. 112:1-113:7, Oct. 19, 2011.
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person of ordinary caution or prudence conscientiously to entertain a reasonable suspicion that a
public offense has been committed in which the accused participated.” Drury v. Burr, 107 Ariz.
124, 125, 483 P.2d 539, 540 (1971) (citation omitted). See also Appeal in Juvenile Action J-84984,
138 Ariz. 282, 284, 674 P.2d 836, 838 (1983) (“probable cause requires a reasonably prudent person
to find more probably than not the existence of the contested fact”); State ex rel. Collins v. Superior
Court, 132 Ariz. 479, 480, 647 P.2d 177, 178 (1982) (“Probable cause exists if an individual has a
reasonable belief that a crime has been committed and that the defendant committed that crime”).
433. Lack of probable cause is an element that must be proved in malicious prosecution
cases. In the context of malicious prosecution, “‘probable cause’ is defined as “a reasonable ground
of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing
the accused is guilty of the offense, which is generally tested by determining whether upon the
appearances presented to the defendant, a reasonably prudent man would have instituted or
continued the proceeding.” Gonzales v. City of Phoenix, 203 Ariz. 152, 155, 52 P.3d 184, 187
(2002).
434. The Iowa Supreme Court in Iowa Supreme Court Attorney Disciplinary Board v.
Howe, 706 N.W.2d 360 (Iowa 2005) and Iowa Supreme Court Attorney Disciplinary Board v. Zenor,
707 N.W.2d 176 (Iowa 2005) found that the respondents charged defendants with misdemeanors
knowing they were not supported by probable cause.704 Howe and Zenor involved prosecutors who
amended traffic citations to allege violations of a “cowl-lamp” statute instead of the more serious
moving violations with which the defendants were actually charged. The prosecutors made the
amendments for purposes of plea bargaining with the consent of the police officers who wrote the
original citations and with the approval of the presiding magistrate. 706 N.W.2d at 367; 707 N.W.2d
at 179. The respondents admitted they knew the cowl-lamp charges were not supported by probable
cause. 706 N.W.2d at 368; 707 N.W.2d at 179. However, the court went on to impose an
704 Iowa’s DR 7-103(A) provides that a prosecutor shall not institute criminal charges “when the lawyer knows or it is obvious that the charges are not supported by probable cause.”
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additional, objective requirement, stating probable cause “means that the circumstances would
support a belief by a reasonable person that the defendant committed the crime with which the
defendant is charged.” 706 N.W.2d at 368; 707 N.W.2d at 179. A reasonable person could not have
believed there was probable cause for the cowl-lamp statute violations because the statute, “a
remnant from a long-ago era,” required cowl (or fender) lights that no longer existed on modern
automobiles. 706 N.W.2d at 367.
435. Thomas and Aubuchon could not have reasonably believed there was probable cause
to charge Judge Donahoe with crimes. Based on the facts set forth above, there was no evidence
Judge Donahoe committed any acts that corresponded with any elements of the crimes charged. To
the extent Thomas and Aubuchon claim they did believe there was probable cause, that claim is
either incredible or is so unreasonable that no ordinarily prudent person could possibly have come to
the same conclusion.705 To find otherwise would be to allow a prosecutor to charge any person with
any crime as long as the prosecutor claimed he thought the charges were supported by probable
cause—creating the absurd result that instead of finding probable cause, a prosecutor need only
claim he thought there was probable cause. “[A] mere suspicion that an accused is guilty of the
offense of which he is charged is not sufficient” to support probable cause. Drury v. Burr, 107 Ariz.
124, 125, 483 P.2d 539, 540 (1971) (quoting State v. Abbott, 103 Ariz. 336, 338, 442 P.2d 80, 82
(1968)). “A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate. This responsibility carries with it specific obligations to see that the defendant is accorded
procedural justice and that guilt is decided on the basis of sufficient evidence.” ER 3.8 cmt. [1]
(emphasis added).
705 Nor can Respondents cite their broad prosecutorial discretion to justify charging Judge Donahoe. Prosecutorial discretion—the decision whether and what crimes to charge—can be exercised only after finding probable cause. “In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute . . . generally rests entirely in his discretion.” State v. Romero, 130 Ariz. 142, 147, 634 P.2d 954, 959 (1981) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). Where there is no probable cause, a prosecutor does not have discretion to charge a defendant with crimes.
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436. Despite having no evidence that Judge Donahoe engaged in bribery, obstruction, or
hindering, Thomas and Aubuchon charged Judge Donahoe with three felonies. Thomas and
Aubuchon therefore charged Judge Donahoe knowing there was no probable cause to do so. By
filing charges they knew were not supported by probable cause, Thomas and Aubuchon violated ER
3.8(a).
3. Conclusions of Law – Claim 25 – ER 4.4(a) (Using Means to Burden or Embarrass)
437. Thomas and Aubuchon violated ER 4.4(a) by filing the charges against Judge
Donahoe.
438. The Hearing Panel finds that Thomas and Aubuchon’s purpose in charging Judge
Donahoe was to burden or embarrass him in an effort to force him to recuse himself from the hearing
he was handling the afternoon of December 9, 2010, which concerned the Notice and Motion filed
by MCBOS objecting to special deputy county attorneys appearing before the grand jury. Judge
Donahoe vacated the hearing scheduled for the afternoon of December 9, 2009 after being served
with the direct complaint.706
439. Further, the Hearing Panel finds that the purpose of charging Judge Donahoe was to
retaliate against him for actions he had taken earlier, in particular the removal of MCAO from the
investigation of Court Tower matters in February 2009. Judge Donahoe’s ruling on the Court Tower
matter was the subject of a special action that Thomas and Aubuchon filed, review of which was
denied for the final time on December 1, 2009, eight days before they charged Judge Donahoe with
felonies.
440. Additionally, the Hearing Panel finds that the Thomas and Aubuchon brought charges
against Judge Donahoe to retaliate against him for rulings against MCSO and disputes he had with
MCSO. This conclusion is inescapable given that the PC statement is based largely on these rulings
706 Ex. 168, TRIAL EXB 01924. Donahoe Testimony, Hr’g Tr. 82:21-84:17, Oct. 5, 2011.
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and disputes, which were contained in Hendershott’s complaint to the Commission on Judicial
Conduct.
4. Conclusions of Law – Claim 26 – ER 8.4(c) (Engaging in Conduct Involving Dishonesty)
441. Thomas and Aubuchon violated ER 8.4(c) by filing the charges against Judge
Donahoe.
442. Thomas and Aubuchon engaged in conduct involving dishonesty, fraud, and deceit
when they knowingly brought charges against Judge Donahoe that were false and made without any
investigation or evidence. Compare In re Peasley, 208 Ariz. 27, 90 P.3d 764 (2004) (Peasley
presented false testimony in a capital murder trial, in violation of, among other Rules, ER 8.4(c); the
court ordered disbarment).
5. Conclusions of Law – Claim 27 – ER 8.4(b) (Violation of a Criminal Law)
443. Thomas and Aubuchon committed a violation of an Arizona criminal statute, which
in turn violates ER 8.4(b).
444. ER 8.4(b) states that it is professional misconduct for a lawyer to commit a criminal
act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other
respects. See In re Savoy, 181 Ariz. 368, 891 P.2d 236 (1995), in which the respondent testified
before a grand jury that he did not have records requested by its subpoena. A search of his office
shortly thereafter revealed the requested records. The respondent was subsequently charged and
convicted of perjury. Id. at 238. The Disciplinary Commission imposed a two-year suspension. Id.
at 240.
445. Perjury. Thomas and Aubuchon engaged in perjury, a criminal act that reflects
adversely on their honesty, trustworthiness or fitness as a lawyer.
446. Perjury is defined by A.R.S. § 13-2702: 2. A person commits perjury by making either:
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a. A false sworn statement in regard to a material issue, believing it to be false.
b. A false unsworn declaration, certificate, verification or statement
in regard to a material issue that the person subscribes as true under penalty of perjury, believing it to be false.
c. Perjury is a class 4 felony.
447. On December 9, 2009, Thomas and Aubuchon knew that the criminal complaint
against Judge Donahoe was to be filed in Superior Court.
448. Aubuchon signed the direct complaint that she and Thomas filed against Judge
Donahoe. The direct complaint, prepared by Aubuchon, contained a signature line for a
“complainant” from MCSO. Detective Gabe Almanza signed the document as “complainant” and
did so under oath. Detective Almanza had not conducted any investigation into alleged criminal
conduct by Judge Donahoe. Thomas and Aubuchon knew that the criminal charges they brought
against Judge Donahoe were false, that Detective Almanza swore to a false complaint, and that a
complaint is a sworn document as defined by A.R.S. § 13-1701. Therefore Thomas and Aubuchon
are criminally accountable for the conduct of Detective Almanza because they knowingly caused
him to sign and file a false sworn document and/or they ratified his conduct after he had signed the
complaint. Thomas and Aubuchon committed perjury because they acted with the culpable mental
state to engage in perjury and did so through the acts of another. Accordingly, they are criminally
responsible under A.R.S. § 13-303 for the acts of another. By committing perjury, Thomas and
Aubuchon violated ER 8.4(b).
6. Conclusions of Law – Claim 28 – ER 8.4(b) (Violation of a Criminal Law) 449. Thomas and Aubuchon violated a federal criminal statute, 18 U.S.C. § 241, and in so
doing they violated ER 8.4(b).
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450. Conspiracy to Violate Federal Civil Rights. A federal criminal statute, 18 U.S.C. §
241, provides in pertinent part:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; . . .
They shall be fined under this title or imprisoned not more than ten years, or both.
451. That statute makes it a crime to conspire to injure, oppress, threaten or intimidate any
person in the free exercise or enjoyment of a right or privilege secured to him by the U.S.
Constitution.
452. Thomas and Aubuchon conspired with each other and with Sheriff Arpaio and
Deputy Chief Hendershott to injure, oppress, threaten or intimidate Judge Donahoe in the free
exercise of his First Amendment right to freedom of speech, a right or privilege secured to him by
the U.S. Constitution and laws of the U.S. See, e.g., Perry v. McGinnis, 209 F.3d 597, 603-604 (6th
Cir. 2000) (prison disciplinary hearing decision is a communicative act entitled to First Amendment
protection).707
453. Thomas and Aubuchon also conspired with each other and with others to injure,
oppress, threaten or intimidate Judge Donahoe in the free exercise of his constitutional right to
engage in his profession and do his job as a public officer. See Engquist v. Or. Dept. of Agriculture,
478 F.3d 985, 996-999 (9th Cir. 2007) (finding a protected substantive due process right to pursue a
707 This claim is not barred by Garcetti v. Ceballos, 547 U.S. 410 (2006), which held that the First Amendment does not protect a public employee from being disciplined based on his speech where the employee speaks pursuant to his official duties. Garcetti was an employee discipline case that analyzed whether an employer could punish an employee for the contents of his office memorandum. The answer turned on whether the employee was speaking pursuant to his official duties or as a private citizen. The rationale was that the government must be able to regulate its employees’ speech in a different manner than that of ordinary citizens in order to effectively manage its operations.
A government employer regulating an employee’s speech is an entirely different scenario from a prosecutor criminally charging a judge to prevent him from holding a hearing. Thomas and Aubuchon had no idea what Judge Donahoe might have done that day, whether by judicial ruling, unofficial comment, or otherwise. They conspired to charge Judge Donahoe to prevent him from speaking at all, and succeeded, a prior restraint in clear violation of Judge Donahoe’s First Amendment rights.
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particular profession in the 9th Circuit); U.S. v. Patrick, 54 F. 338, 348-49 (M.D. Tenn. 1900)
(conspiracy against public officer in the performance of his duties is violation of predecessor statute
to 18 U.S.C. § 241). The intent of Thomas, Aubuchon and others was to muzzle Judge Donahoe so
that he would not rule on the motion scheduled for hearing on the afternoon of December 9, 2009.
454. Other avenues existed to address Thomas and Aubuchon’s concerns about Judge
Donahoe’s jurisdiction to consider the Board’s Notice and Motion (which sought an order
prohibiting special deputy county attorneys from appearing before a grand jury). Thomas,
Aubuchon, Sally Wells, Barbara Marshall, and Barnett Lotstein discussed how to handle the hearing
Judge Donahoe had set for December 9, 2009, at a meeting. The options included filing a motion to
vacate the hearing or taking a Special Action if there was an adverse ruling.708 The argument
against Judge Donahoe having jurisdiction was strong, as evidenced by Judge Steinle’s ultimate
ruling, entered after the case was transferred to him.709 Judge Donahoe may have ruled the same
way Judge Steinle did.
455. Instead of choosing one of these reasonable avenues, Thomas and Aubuchon pressed
forward with criminal charges against Judge Donahoe as a means of stopping the December 9, 2009
hearing. Their personal animosity toward Judge Donahoe based upon his judicial decisions limited
their representation and judgment as attorneys for the State.
456. Thomas and Aubuchon conspired to stop Judge Donahoe from exercising his federal
civil rights. In so doing, they violated ER 8.4(b).
7. Conclusions of Law – Claim 29 – ER 1.7(a)(2) (Conflict of Interest)
457. Thomas and Aubuchon violated ER 1.7(a)(2).
458. Thomas and Aubuchon had conflicts of interest in bringing criminal charges against
Judge Donahoe. Thomas and Aubuchon’s animosity against Judge Donahoe, based on his judicial
rulings, limited their representation and judgment as attorneys for the State of Arizona.
708 Marshall Testimony, Hr’g Tr. 157:14-159:15, Sept. 19, 2011. 709 Ex. 170, TRIAL EXB 01926-30.
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459. Thomas and Aubuchon were biased against Judge Donahoe starting in February 2009,
when he quashed the grand jury subpoena and he disqualified MCAO from investigating the Court
Tower project. Their bias against him is further indicated by the PC statement attached to the direct
complaint. The PC statement alleges no crime but sets forth MCSO’s view of Judge Donahoe’s bias
against MCSO. 8. Conclusions of Law – Claim 30 – ER 8.4(d) (Conduct Prejudicial to the
Administration of Justice)
460. Thomas and Aubuchon violated ER 8.4(d).
461. Thomas and Aubuchon engaged in conduct prejudicial to the administration of justice
by charging Judge Donahoe with crimes for the sole purpose of compelling his recusal in the
pending Court Tower matter. Their conduct prejudiced the administration of justice by forcing
Judge Donahoe to recuse himself and not hear a motion the County had filed.
G. Claims 31 and 32 – January 2010 Grand Jury
1. Findings of Fact
462. On January 4, 2010, Aubuchon began a presentation to the grand jury about two
areas: 1) allegations that Stephen Wetzel, Andrew Kunasek and Sandi Wilson had illegally used
public monies on two separate occasions to conduct sweeps for electronic listening devices at county
offices; and 2) allegations that Judge Donahoe, Thomas Irvine and County Manager David Smith
had illegally conspired to hinder prosecution and obstruct a criminal investigation involving the
Court Tower. Testimony was taken on January 4, 2010.710 There were only two witnesses,
Detective Abrahamson and Chief Deputy Hendershott.711 After the testimony, the grand jury asked
Aubuchon for a draft indictment. Aubuchon provided a draft indictment, but the grand jury did not
reach any conclusion.712
710 Ex. 185, TRIAL EXB 02017-2131. 711 Ex. 185, TRIAL EXB 02035-02125. 712 Ex. 185, TRIAL EXB 02128-30. A copy of the draft Indictment is Ex. 186, TRIAL EXB 02132-41. See also the January 6, 2010 the same Grand Jury proceedings, Ex. 187, TRIAL EXB 02142-51.
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463. In late January 2010, Supervisor Kunasek had reason to believe that he was the target
of a grand jury investigation.713 He also learned that it was the County Attorney’s plan to indict
him, and to thereby reduce the voting members of the Board below a quorum, unless there was an
agreement concerning who would succeed Thomas when he resigned to run for Attorney General.714
Supervisor Kunasek heard this from Deputy County Attorney Tom Liddy, who had been told that by
MCSO Chief Deputy Hendershott.715
464. Supervisor Kunasek and his attorney then had a recorded conversation with
Aubuchon, on February 12, 2010.716 Aubuchon informed Supervisor Kunasek that she believed she
had sufficient evidence to indict him.717
465. In the meantime, Judge Donahoe requested and received a stay on the prosecution
against him. On February 24, 2010, Judge Leonardo disqualified MCAO from prosecuting the case
against Mary Rose Wilcox.718 On March 3, 2010, Aubuchon appeared in front of the grand jury.719
She advised them of the stay in the Donahoe matter and of the disqualification in the Wilcox case.
She asked that the grand jury return the bug sweep and court tower matters to MCAO so that when
MCAO found a special prosecutor, that prosecutor could make a determination how to proceed.720
466. The grand jury asked for advice as to how it could proceed. The grand jury was
advised that they could ask for a draft indictment, end the inquiry, or call for more witnesses or
evidence. The grand jury voted to end the inquiry.721 The term “end the inquiry” was defined to the
Grand Jury in instructions given to it earlier.722
713 Kunasek Testimony, Hr’g Tr. 39:2-10, Sept. 26, 2011. 714 Kunasek Testimony, Hr’g Tr. 40:2-41:19, Sept. 26, 2011. 715 Kunasek Testimony, Hr’g Tr. 127:15-129:20, Sept. 26, 2011. 716 Ex. 196, TRIAL EXB 2273-2323. 717 Kunasek Testimony, Hr’g Tr. 138:9-139:13, Sept. 26, 2011. 718 Ex. 199, TRIAL EXB 02380-86. 719 Ex. 208, TRIAL EXB 02403-08. 720 Ex. 208, TRIAL EXB 02405-06. 721 Ex. 208, TRIAL EXB 02407-08. 722 Ex. 162, TRIAL EXB 01902-04, December 9, 2009 proceedings before the 494th Maricopa County Grand Jury, re: orientation.
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467. On April 1, 2010, Thomas announced his resignation as County Attorney, which he
stated was effective April 6, 2010.
468. On April 2, 2010, Aubuchon sent Flores a letter, memorandum and departmental
report about the bug sweep investigation.723 Aubuchon wrote in her memo that the matter was
presented to the county grand jury as part of an overall investigation into local corruption.
Aubuchon wrote that the grand jurors had not finished deliberating on an indictment when a judge
entered a stay as to one of the suspects, Judge Donahoe. Aubuchon stated that she asked the grand
jurors to stop considering the matter until that issue was resolved. She wrote further that her office
was found to have a conflict in the Mary Rose Wilcox case and that the office decided to dismiss the
matters relating to the other county officials. She said that if Flores decided to go forward with the
charges, parts of the grand jury presentation may need to be accessed or disclosed after court order
as it was all in a sealed grand jury proceeding under number 494 GJ 156, January 4, 2010.
Aubuchon failed to tell Flores that, in fact, the grand jury had voted to end the inquiry.
2. Conclusions of Law – Claim 31 – ER l.7(a)(2) (Conflict of Interest)
469. The targets of the two grand jury proceedings in January 2010 were many of the same
persons who Thomas and Aubuchon had sued in the civil RICO action, namely Judge Donahoe,
Thomas Irvine, Andrew Kunasek, and David Smith. It was a conflict of interest to initiate a criminal
proceeding against the same individuals they were suing in the RICO action. See Section III.D.5
above. Also, Thomas and Aubuchon’s personal and political animosity against the named
individuals limited their representation and judgment as attorneys for the State of Arizona.
3. Conclusions of Law – Claim 32 – ER 8.4(c) (Engaging in Dishonesty)
470. Aubuchon’s failure to tell Flores of the grand jury’s decision to end the inquiry in the
Bug Sweep and Court Tower matters was misleading and dishonest in violation of ER 8.4(c).724
723 Ex. 215, TRIAL EXB 2436. MCSO prepared a Supplemental Report about the bug sweep in early April 2010. Ex. 214, TRIAL EXB 2422-35. Gentry Testimony, Hr’g Tr. 178:18-179:4, Oct. 4, 2011. 724 Prior Disciplinary Commission decisions have found ER 8.4(c) violations in cases involving misrepresentation by omission. See, e.g., In re Lacey, No. 05-0273, 2006 WL 6319110 at *8 (Ariz. Disp. Comm. Apr. 5, 2006).
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471. Aubuchon should never have disclosed to Flores any matters attendant to the grand
jury.725 However, once she did so, she had to be honest about what she revealed. Aubuchon
engaged in dishonesty and misrepresentation in violation of ER 8.4(c) because she knowingly failed
to tell Flores that the grand jury had voted to end the inquiry. Given that Aubuchon had told Flores
that she had presented matters to the grand jury concerning local corruption, her failing to inform
Flores that the grand jury had ended the inquiry was misleading and dishonest.
H. Claim Thirty-Three – Rules 53(d) and (f), Rules of the Arizona Supreme Court – Respondents’ Failure to Cooperate in the Screening Investigation)
1. Findings of Fact
472. Independent Bar Counsel began the screening investigations in the matters leading to
this complaint on about April 12, 2010. Notice of these investigations was given to each respondent
pursuant to Rule 54(b)(2) then in effect.
473. As more specifically described below, each of the respondents did not cooperate with
these investigations as required pursuant to Rules 53(d) and 53(f). Rule 53(d) (now Rule 54(d))
provides that it is grounds for discipline for a lawyer to refuse cooperate with officials and staff of
the state bar. As more specifically described below the respondents refused to cooperate with
Independent Bar Counsel by filing meritless, frivolous and dilatory motions and special actions.
Each of the respondents filed frivolous and meritless motions intended to delay, obstruct and burden
the process of the screening investigations.
474. The respondents filed the following motions with the Probable Cause Panelist, all of
which were denied:
725 A.R.S. § 13-2812 criminalizes disclosure of matters attendant a grand jury proceeding unless a court order permits one to do so.
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a.) May 7, 2010, Joint Motion for Temporary Restraining Order, filed by all respondents;726
b.) May 20, 2010, Joint Motion to Dismiss Charges, filed by all respondents;727
c.) May 20, 2010, Joint Motion for Repudiation of State Bar of Arizona’s Pending Threat Against Lawyers Acting on Behalf of the Investigative Subjects and Motion for Immunity from Bar Complaints for Lawyers Acting on behalf of Investigative Subjects, filed by all respondents;728
d.) May 20, 2010, Joint Motion to Dismiss or Stay Pending Proceedings Based upon
Illegal Initiation of Bar Investigation; filed by all respondents;729
e.) May 27, 2010, Motion for Protective Order, filed by all respondents;730
f.) June 9, 2010, Motion for Reconsideration of Panelist’s Order Denying Respondent’s Motion for Probable Cause [sic] and Reply in support of Motion for Probable Cause [sic]; filed by Thomas and Alexander;731
g.) July 23, 2010, Response to Panelist’s Order (asking for clarification), Thomas only;732
h.) August 5, 2010, Joint Motion in Support of Maricopa County Sheriff’s Motion to Intervene, filed by all respondents.733
475. The respondents filed the following motions and actions in the Supreme Court, all of
which the Court denied or declined to take jurisdiction:
a.) June 25, 2010, Motion to Reverse Panelist’s Ruling Regarding Dismissal, filed by Thomas and Aubuchon;734
726 Ex. 221, TRIAL EXB 02464-2622. 727 Ex. 222, TRIAL EXB 02623-43. Respondents also filed a Reply in Support of Joint Motion to Dismiss all Charges, Ex. 227, TRIAL EXB 02763-82. 728 Ex. 223, TRIAL EXB 02644-73. Respondents also filed a Reply in Support of Joint Motion for Repudiation of the State Bar of Arizona’s Pending Threat, etc., Ex. 226, TRIAL EXB 02741-62. 729 Ex. 224, TRIAL EXB 02674-2714. Respondents also filed a Reply in Support of Joint Motion to Dismiss or Stay Proceedings, etc., Ex. 225, TRIAL EXB 02715-40. 730 Ex. 228, TRIAL EXB 02788-2804. 731 Ex. 229, TRIAL EXB 02805-24. 732 Ex. 237, TRIAL EXB 03157-3297. 733 Ex. 238, TRIAL EXB 03298-3300. 734 Ex. 230, TRIAL EXB 02825-56.
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b.) June 25, 2010, Motion to Reverse Panelist’s Ruling Regarding Illegal Initiation of Bar Complaint, filed by Thomas and Aubuchon;735
c.) June 25, 2010, Motion to Reverse Panelist’s Ruling Regarding Repudiation of Threat, filed by Thomas and Aubuchon;736
d.) July 1, 2010, Petition for Special Action to Reverse Panelist’s Ruling Regarding Motion to Dismiss for Illegal Initiation, filed by all respondents;737
e.) July 1, 2010, Petition for Special Action to Reverse Panelist’s Ruling Regarding Repudiation of Threat, filed by all respondents;738
f.) July 1, 2010, Petition for Special Action to Reverse Panelist’s Ruling Regarding Motion to Dismiss for lack of a Complaint, filed by all respondents;739
g.) July 12, 2010, Petition for Special Action to Reverse Panelist’s Ruling Regarding Extension of time to Respond to Charges, filed by all respondents (Alexander withdrew her Petition on July 27, 2010).740
476. All three Respondents reviewed or approved all the above filings in they joined.741
477. By filing the above motions and special actions, each of the Respondents failed to
cooperate with the screening investigations as required by Rule 53(d). The effect was to make
Independent Bar Counsel’s investigation more difficult, as Respondents intended.
478. Rule 53(f) provides that it is grounds for discipline for a lawyer to fail to furnish
information or fail to respond promptly to any inquiry or request from Bar Counsel (in this case
Independent Bar Counsel). By their conduct each Respondent violated Rule 53(f) by failing to
promptly respond to an inquiry from Independent Bar Counsel.
479. At some point, each Respondent did send to Independent Bar
Counsel a letter in response to Independent Bar Counsel’s screening investigation letters.
735 Ex. 231, TRIAL EXB 02857-2967. 736 Ex. 232, TRIAL EXB 02968-3015. 737 Ex. 233, TRIAL EXB 03016-3050. 738 Ex. 234, TRIAL EXB 03051-3108. 739 Ex. 235, TRIAL EXB 03111-3128. 740 Ex. 236, TRIAL EXB 03129-3156. 741Alexander Testimony, Hr’g Tr. 16:11-23:12, Oct. 20, 2011; Thomas Testimony, Hr’g Tr. 8:22-10:21, Oct. 26, 2011; Aubuchon Testimony, Hr’g Tr. 9:24-15:24, Oct. 25, 2011.
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2. Conclusions of Law – Claim 33 – Rules 53(d) and (f), Rules of the Supreme Court (failure to cooperate with the State Bar and Bar counsel)
480. Rule 53(d) stated that it is grounds for discipline to refuse to cooperate with officials
and staff of the State Bar. Rule 53(f) provided that it is grounds for discipline to fail to furnish
information to or respond promptly to any inquiry or request from bar counsel.
481. Liability under Rule 53(d) and (f) is not limited to lawyers who fail to participate in
an investigation entirely. See In re Garza, Nos. 08-0065 et al, 2009 WL 2005427 (Ariz. Disp.
Comm. Mar. 4, 2009) (respondent violated Rule 53(d) and (f) where he submitted a four-page
“informal” response to the Bar and appeared twice at the Bar offices but otherwise failed to
meaningfully respond); In re Howell, No. 06-0230 et al, 2008 WL 5413039 (Ariz. Disp. Comm.
Mar. 12 2008) (respondent violated Rule 53(f) where he submitted late and incomplete responses
and records, despite his arguments that Bar waived its timeliness argument by agreeing to extend
deadlines and that Bar had all the information it needed and was not entitled to engage in “fishing
expeditions”).
482. Respondents did not comply with Rules 53(d) or (f) during the investigation of these
disciplinary matters. Instead of cooperating and timely filing answers to requests for information
from Independent Bar Counsel, Respondents filed numerous motions and special actions, all of
which were frivolous and meritless. Respondents intended these motions and special actions to
delay their responses to IBC’s requests for information. They also intended to burden IBC, the
Probable Cause Panelist, and the Court. Although Respondents filed these pleadings through
counsel, Respondents are each liable for their own lack of cooperation. Ethical Rule 8.4(a) explicitly
states that a lawyer must comply with ethical rules and obligations and cannot violate those
obligations through the acts of another. Respondents each have acknowledged that they authorized
the filing of the pleadings that counsel filed on their behalf.
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IV. SANCTIONS
This section discusses the guidelines for sanctions to be imposed upon Thomas, Aubuchon,
and Alexander. Because Alexander is not alleged to have been involved in all the matters pertaining
to Thomas and Aubuchon, subsections A through G discuss sanctions specific to Thomas and
Aubuchon, and subsection H discusses sanctions specific to Alexander.
A. Standards for Determination of Sanction
In assessing appropriate lawyer discipline, the Arizona Supreme Court is guided by the
American Bar Association Standards for Imposing Lawyer Sanctions (“ABA Standards”). In re
Abrams, ___ P.3d ___, No. JC-11-0001, 2011 WL 3330109 (Ariz. August 4, 2011); In re Phillips,
226 Ariz. 112, 117, 244 P.3d 549, 554 (2010). ABA Standard 3.0 prescribes four relevant factors for
determining the appropriate sanction: “(1) the duty violated, (2) the lawyer's mental state, (3) the
potential or actual injury caused by the lawyer's conduct, and (4) the existence of aggravating or
mitigating factors.” Phillips, supra. In addition, the Court may “look to other, similar cases in
determining whether the sanction imposed is proportionate to the misconduct charged.” In re Van
Dox, 214 Ariz. 300, 303, 41 P.3d 1183, 1190 (2007).
B. Duty
Respondents violated their duties under Rule 41 of the Rules of the Supreme Court of
Arizona, which sets forth the duties of members of the Arizona State Bar:
• Respondents violated the Arizona ethical rules as described above. Rule 41(a).
• Thomas and Aubuchon failed to maintain the respect due to the courts and judicial officers.
Rule 41(c).
• Thomas and Aubuchon maintained actions they knew were illegal. Rule 41(d).
• Thomas and Aubuchon maintained actions by means inconsistent with the truth. Rule 41(e).
• Thomas disclosed client confidences. Rule 41(f).
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• Thomas and Aubuchon engaged in unprofessional conduct, including by advancing
allegations that harmed the reputations of others. Rule 41(g).
• Thomas and Aubuchon commenced and continued actions for their own corrupt motives and
self interest. Rule 41(h).
• Thomas and Aubuchon also violated their duty as public officials to refrain from conduct
prejudicial to the administration of justice. ABA Standards 5.2.
C. Mental State
The ABA Standards define “knowledge” as “the conscious awareness of the nature or
attendant circumstances of the conduct but without the conscious objective or purpose to accomplish
a particular result.” See In re Levine, 174 Ariz. 146, 171, 847 P.2d 1093, 1118 (1993) (indicating
that the knowledge required to establish a sanction for professional misconduct is knowledge that the
respondent may have been violating an ethical rule). Knowledge may be inferred from the
circumstances. ER 1.0(f). The evidence is clear and convincing that Respondents acted knowingly
throughout the events underlying this case. Respondents do not dispute this or claim that their acts
were negligent rather than knowing. Respondents were repeatedly put on notice that their actions
were violating the ethical rules. See Levine, 174 Ariz. at 156, 847 P.2d at 1103. (holding that being
repeatedly sanctioned by judges would give a reasonable lawyer conscious awareness that his
conduct may violate ethical rules). Among many other examples, judges ruled that Thomas and
Aubuchon had conflicts of interest in Wilcox and the Dec Action, Thomas’s own deputies warned
him of the frivolous nature of the RICO lawsuit, and MCSO officers warned Aubuchon that they
would not swear to a complaint without probable cause.
Beyond this, in much of their misconduct Thomas and Aubuchon acted intentionally. The
ABA Standards define “intent” as “the conscious objective or purpose to accomplish a particular
result.”
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Among other things, Thomas and Aubuchon purposefully targeted persons they viewed as
their political enemies with criminal investigations and prosecutions, hoping to intimidate them,
harass them, or remove them from power. Supervisor Stapley’s indictment resulted from his 2006
clashes with Thomas, which motivated Thomas to have MACE members fish for financial
information to use against Supervisor Stapley beginning in January 2007. Supervisor Wilcox’s
indictments were in part Thomas’s retaliation for her public stands against his and the Sheriff’s
policies and practices on immigration issues.742 Supervisor Wilson was concerned that Thomas was
attempting to stop the Board from functioning.743 Supervisor Kunasek received a subpoena naming
him as a target of a criminal investigation, which he believed was an attempt “to rattle my cage.”744
Deputy County Attorney Tom Liddy told Supervisor Kunasekthat, if a satisfactory successor to
Thomas was not selected, Supervisor Kunasek would be indicted and the Board would be unable to
function.745
Thomas made public statements criticizing the litigation position of MCBOS in the Keen and
Dowling matters in order to bolster his own litigation against MCBOS. Aubuchon sought interviews
with Judges Mundell, Baca and Field, in order to intrude into their judicial discretion. She also
misled the grand jury by failing to inform them that the statute of limitations barred many of the
charges against Supervisor Stapley. In a further effort to burden and embarrass their opponents,
Thomas and Aubuchon filed the RICO case. Their intentional misconduct continued during the
screening investigation, which they attempted to delay and obstruct.
742 Wilcox Testimony, Hr’g Tr. 67:11-24, 70:1-19, 97:24-99:11, 137:14-139:22, Sept. 21, 2011. 743 Wilson Testimony, Hr’g Tr. 164:21-165:12, Sept. 21, 2011. 744 Kunasek Testimony, Hr’g Tr. 208:17-211:22, Sept. 21, 2011; Kunasek Testimony, Hr’g Tr. 129:21-131:17, Sept. 26, 2011; Ex. 437. 745 Kunasek Testimony, Hr’g Tr. 128:7-129:20, Sept. 26, 2011.
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D. Injury
The ABA Standards define “Injury” as the “harm to a client, the public, the legal system, or
the profession which results from a lawyer's misconduct.” Respondents caused substantial injury to
the legal system. The injury included the following.
Thomas and Aubuchon injured the Maricopa County Superior Court, the Arizona Supreme
Court, and the federal district court, by filing meritless actions and pleadings.
Thomas and Aubuchon harmed individual Superior Court Judges Mundell, Baca, Donahoe
and Fields, by naming them as parties in the RICO case, ignoring their judicial immunity.
When she learned that she had been named as a defendant in a racketeering case, Judge
Mundell was “shellshocked”. As the reality sank in, her fears concerning how it would affect her
reputation and how it would affect her economically grew.746 Her fears were compounded after
Judge Donahoe was charged with crimes; she believed she would be indicted next.747 She suffered
great anguish over the harm that the RICO case would do to her family and her reputation.748 When
she was required to explain that she had been sued as a racketeer, she was reduced to tears.749
Because the racketeering allegations interfered with her performance of her duties, Judge Mundell
felt forced to retire.750 Her national reputation was tarnished.751 Her family lived in the cold
shadow of surveillance.752
Judge Baca was shocked that she had been named as a criminal, e.g., for taking bribes. As
reality set in, she realized that it was going to take extended litigation to sort out that she had done
nothing wrong.753 After Thomas held the press conference announcing the Stapley II and Wilcox
indictments, Judge Baca also assumed she was under criminal investigaton.754 This took a
746 Mundell Testimony, Hr’g Tr. 106:25-107:11, Oct. 3, 2011. 747 Mundell Testimony, Hr’g Tr. 110:16-112:11, Oct. 3, 2011. 748 Mundell Testimony, Hr’g Tr. 112:12-115:4, Oct. 3, 2011. 749 Mundell Testimony, Hr’g Tr. 113:9-18, Oct. 3, 2011. 750 Mundell Testimony, Hr’g Tr. 115:5-19, 123:23-124:17, Oct. 3, 2011. 751 Mundell Testimony, Hr’g Tr. 115:20-116:17, Oct. 3, 2011. 752 Mundell Testimony, Hr’g Tr. 116:18-117:17, Oct. 3, 2011. 753 Baca Testimony, Hr’g Tr. 7:4-23, Oct. 4, 2011. 754 Ex. 152, TRIAL EXB 01843-44. Baca Testimony, Hr’g Tr. 7:18-8:13, Oct. 4, 2011.
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tremendous emotional toll on Judge Baca and her close-knit family, all of whom were worried about
her.755 In addition, the reputation she had spent a career in building was permanently damaged.756
She worried about how she would be able to afford her defense costs.757 Judge Baca also believed
she was under surveillance, possibly by the MACE Unit.758
Judge Fields was forced to make arrangements to hire counsel, including in anticipation of
possible criminal charges.759 He and his family suffered stress and economic consequences.760
Judge Donahoe was “stunned and shocked” when he received the RICO complaint.761 This
emotional trauma included being served with the RICO complaint by a litigant who had previously
appeared before Judge Donahoe and who had threatened to kill him.762
Thomas and Aubuchon also harmed Judge Donahoe by charging him with hindering,
obstruction, and bribery, when no probable cause to do so existed. When he received the direct
complaint charging him with crimes, he was emotionally overwhelmed, a “basket case”.763 Judge
Donahoe was required to bring a special action concerning the crimes with which he had been
charged.764 He incurred approximately $200,000 in fees in defending the criminal case.765
As part of the filing of the direct complaint, Judge Donahoe’s residential address was
publicly revealed, compromising his security and that of his family.766 His work as Presiding
Criminal Judge was adversely impacted, so he asked to be reassigned.767 He became severely
depressed, suffered headaches, was unable to sleep.768 When he applied for another job, he was 755 Baca Testimony, Hr’g Tr. 8:14-10:23, Oct. 4, 2011. 756 Baca Testimony, Hr’g Tr. 10:24-13:15, Oct. 4, 2011. 757 Baca Testimony, Hr’g Tr. 13:17-14:15, Oct. 4, 2011. 758 Baca Testimony, Hr’g Tr. 14:16-19:16, 28:17-30:22, Oct. 4, 2011. 759 Fields Testimony, Hr’g Tr. 32:10-35:6, Sept. 13, 2011. 760 Fields Testimony, Hr’g Tr. 40:2-41:19, Sept. 13, 2011. 761 Donahoe Testimony, Hr’g Tr. 76:14-78:5, Oct. 5, 2011. 762 Donahoe Testimony, Hr’g Tr. 96:17-97:25, Oct. 5, 2011. 763 Donahoe Testimony, Hr’g Tr. 84:18-85:1, 86:18-87:15, Oct. 5, 2011. 764 Donahoe Testimony, Hr’g Tr. 105:3-106:22, Oct. 5, 2011. The Arizona Court of Appeals and the Arizona Supreme Court declined jurisdiction. See Ex.s 506 and 507, orders from the appellate courts declining review. 765 Donahoe Testimony, Hr’g Tr. 85:2-86:6, Oct. 5, 2011. 766 Donahoe Testimony, Hr’g Tr. 99:10-23, 103:4-15, Oct. 5, 2011. 767 Donahoe Testimony, Hr’g Tr. 100:12-101:1, Oct. 5, 2011. 768 Donahoe Testimony, Hr’g Tr. 101:2-7, Oct. 5, 2011.
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required to explain that he had been charged with a felony.769 The reputation he had built for thirty
years was destroyed.770
Aubuchon burdened Superior Court Judges Baca, Mundell and Fields by requesting intrusive
interviews with and/or depositions of them, as discussed in section III.B.6 above.
Thomas and Aubuchon harmed the Superior Court by bringing charges against Stapley that
were barred by the statute of limitations.
Respondents injured their clients. Thomas gave advice to his client, MCBOS, tainted by his
own personal interests. Thomas injured MCBOS by revealing confidential information about
County lawsuits and publicly making extrajudicial statements that he knew would prejudice the
County in litigation. Thomas and Aubuchon served oppressive subpoenas and document requests on
their client, MCBOS. Thomas and Aubuchon caused their client, MCBOS, to incur expenses for
attorneys fees defending multiple meritless lawsuits brought by MCAO over several years.
Thomas and Aubuchon dragged their client, MCBOS, and constituents and employees of
their client, into the baseless RICO case. Supervisor Stapley was shocked and frightened by being
named as a defendant.771 Supervisor Wilcox was very disturbed to be labeled corrupt.772
Thomas and Aubuchon filed charges against constituents of his client, MCBOS, Supervisors
Stapley and Wilcox, which charges (as Respondents intended) embarrassed and burdened them.
Supervisor Stapley was stunned and shocked when he was served with the Stapley I
summons.773 He had no foreknowledge of the charges.774 Supervisor Stapley’s family learned of
the Stapley I indictment through the media, which published Thomas’s press release.775 The
indictment humiliated Supervisor Stapley and his family. It affected their health.776 Supervisor
769 Donahoe Testimony, Hr’g Tr. 101:17-23, Oct. 5, 2011. 770 Donahoe Testimony, Hr’g Tr. 101:24-102:14, Oct. 5, 2011. 771 Stapley Testimony, Hr’g Tr. 118:24-119:12, Sept. 20, 2011. 772 Wilcox Testimony, Hr’g Tr. 60:7-12, Sept. 21, 2011. 773 Stapley Testimony, Hr’g Tr. 92:8-15, Sept. 20, 2011. 774 Stapley Testimony, Hr’g Tr. 94:2-23, Sept. 20, 2011. 775 Stapley Testimony, Hr’g Tr. 92:20-93:18, Sept. 20, 2011. 776 Stapley Testimony, Hr’g Tr. 94:24-95:9, Sept. 20, 2011.
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Stapley incurred legal bills and costs in excess of $2,000,000.777 Supervisor Stapley described the
experience as the most terrifying of his life, a “nightmare that has not ended.”778
Supervisor Wilcox recalled that the two indictments returned against her “shook my whole
world”.779 Her reputation, built up over years of public service, was tarnished.780 She was forced to
close her restaurant, in part because it was under surveillance by the Sheriff.781 Community
members shunned her.782 She and her family underwent great emotional distress.783 She incurred
over $200,000 in attorney’s fees.784
Even though MCAO did not ultimately indict Supervisor Kunasek, the continual fear of a
criminal prosecution took a heavy toll on him emotionally.785 His wife also suffered from
anxiety.786 Supervisor Kunasek was unable to sleep.787 He was constantly afraid of being
arrested.788
Supervisor Wilson feared that he would be indicted.789 He met with his family and planned
for the possibility that he would be arrested.790
County Manager Smith was most affected by his alarm that Maricopa County came close to
becoming “a third-world country like Russia or China where people just disappear”, or in other
words, close “to law enforcement teaming up with prosecutors to take zero facts and lie to a Grand
Jury to get people convicted.”791
777 Stapley Testimony, Hr’g Tr. 95:10-16, Sept. 20, 2011. 778 Stapley Testimony, Hr’g Tr. 128:1-129:24, Sept. 20, 2011. 779 Wilcox Testimony, Hr’g Tr. 67:1-14, Sept. 21, 2011. 780 Wilcox Testimony, Hr’g Tr. 67:25-68:24, Sept. 21, 2011. 781 Wilcox Testimony, Hr’g Tr. 70:20-71:18, Sept. 21, 2011. 782 Wilcox Testimony, Hr’g Tr. 71:19-74:17. Sept. 21, 2011. 783 Wilcox Testimony, Hr’g Tr. 74:18-77:11, Sept. 21, 2011. 784 Wilcox Testimony, Hr’g Tr. 77:12-24, Sept. 21, 2011. 785 Kunasek Testimony, Hr’g Tr. 50:18-51:17, Sept. 26, 2011. 786 Kunasek Testimony, Hr’g Tr. 51:18-52:7, Sept. 26, 2011. 787 Kunasek Testimony, Hr’g Tr. 52:8-23, Sept. 26, 2011. 788 Kunasek Testimony, Hr’g Tr. 52:24-53:20, Sept. 26, 2011. 789 Wilson Testimony, Hr’g Tr. 166:14-20, Sept. 21, 2011. 790 Wilsos Testimony, Hr’g Tr. 166:14-169:22, Sept. 21, 2011. 791 Smith Testimony, Hr’g Tr. 183:15:184:7, Sept. 26, 2011.
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Deputy County Manager Wilson was horrified at receiving the RICO complaint. She did not
know what it meant.792 She also was terrified by learning from the press release that accompanied
the RICO complaint that she was under criminal investigation.793 It was painful for her and her
family to answer questions from neighbors.794 Being publicly called a racketeer diminished her
reputation and marketability.795 She hired counsel because based on the public statements of
Thomas and Sheriff Arpiao she was afraid they would indict her.796
Wade Swanson, the head of the County’s civil litigation unit, was angry, fearful and
overwhelmed by the combination of being named as a defendant in the RICO case and hearing it
broadcast in the press that he as one of the defendants was under active criminal investigation.797
Thomas and Aubuchon harmed the private parties to the RICO case by joining them as
defendants. Tom Irvine was required to hire counsel to defend against a possible criminal case. He
took steps to provide sufficient liquidity for that, and for the possibility that his law firm would place
him on leave.798 Irvine was required to explain to his family that he had been sued as a racketeer.799
Irvine’s professional reputation was tarnished.800
Novak, another private lawyer joined as a defendant, was shocked that public officials would
participate in filing a complaint that was completely without basis. He was outraged that he had
been named in a complaint that alleged bribery of a judge.801 His sterling reputation in the legal
community, which he had built for decades, culminating in his election as president of the Bar, was
besmirched.802 He and his family suffered great anxiety and distress.803
792 Sandi Wilson Testimony, Hr’g Tr. 144:4-16, Sept. 27, 2011. 793 Sandi Wilson Testimony, Hr’g Tr. 148:4-25, Sept. 27, 2011; Ex. 152, TRIAL EXB 01843. 794 Sandi Wilson Testimony, Hr’g Tr. 145:14-22, Sept. 27, 2011. 795 Sandi Wilson Testimony, Hr’g Tr. 147:2-23, Sept. 27, 2011. 796 Sandi Wilson Testimony, Hr’g Tr. 224:19-225:5, Sept. 27, 2011. 797 Swanson Testimony, Hr’g Tr. 32:22-39:1, Sept. 27, 2011. 798 Irvine, Hr’g Tr. 114:5-116:6, Sept. 14, 2011. 799 Irvine Testimony, Hr’g Tr. 124:24-125:8, Sept. 14, 2011. 800 Irvine Testimony, Hr’g Tr. 125:9-18, 128:25-129:22, 131:8-132:10, Sept. 14, 2011. 801 Novak Testimony, Hr’g Tr. 12:13-13:3, Oct. 3, 2011. 802 Novak Testimony, Hr’g Tr. 33:18-37:7, Oct. 3, 2011. 803 Novak Testimony, Hr’g Tr. 37:8-38:19, Oct. 3, 2011.
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The Polsinelli law firm, for which Irvine and Novak worked, was required to spend hundreds
of hours and significant funds to deal with the ethics issues involved with the firm representing the
County, which was a co-defendant in the RICO case.804 The Polsinelli law firm incurred
approximately $300,000 in attorney’s fees defending the RICO case.805
Thomas harmed the County by publicly switching sides in the Dowling case, discussed in
section E of Part II above. Thomas’s statements questioning the validity of the County’s defense
had the effect of expanding that litigation from months to years.806
Respondents harmed the legal profession by failing to cooperate with the disciplinary
investigation, and by filing frivolous and dilatory motions and special actions during that
investigation.
Thomas embarrassed the attorneys who worked for MCAO during his tenure.807 Thomas
harmed MCAO’s civil division employees, by setting in motion the events that led to the Board’s
reduction of funding to the civil division, which resulted in layoffs.808 In a similar way, Thomas’s
conduct resulted in disruption of the services provided to the County by the civil division and the
severing of long-term attorney-client relationships.809 E. Presumptive Sanction – Thomas and Aubuchon
Because Thomas and Aubuchon acted knowingly and intentionally, disbarment is the
presumptive sanction. The reasons are as follows.
Absent aggravating or mitigating circumstances, upon application of the factors set out in
ABA Standards 3.0, a sanction under ABA Standards 5.2 is generally appropriate in cases involving
public officials who engage in conduct that is prejudicial to the administration of justice. Standards
5.21 provides that disbarment is generally appropriate when a lawyer in an official or governmental
804 Irvine Testimony, Hr’g Tr. 115:2-20, Sept. 14, 2011, p. 115, ln. 2-20. 805 Irvine Testimony, Hr’g Tr. 125:19-126:13, Sept. 14; Novak Testimony, Hr’g Tr. 35:2-9, Oct. 3, 2011. 806 Irvine Testimony, Hr’g Tr. 133:15-134:17, Sept. 14, 2011. 807 Marshall Testimony, Hr’g Tr. 172:23-173:1, Sept. 19, 2011. 808 Whites Testimony, Hr’g Tr. 43:8-47:4, Sept. 20, 2011. 809 White Testimony, Hr’g Tr. 50:12-53:2, Sept. 20, 2011.
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position knowingly misuses the position with the intent to obtain a significant benefit or advantage
for himself or another, or with the intent to cause serious or potentially serious injury to a party or to
the integrity of the legal process. Thomas and Aubuchon, high-ranking prosecutors, knowingly used
their powers with the intent to intimidate and remove those they viewed as opponents and to advance
the agendas of MCAO and MCSO at the expense of other Maricopa County government operations.
Compare In re Peasley, 208 Ariz. 27, 90 P.3d 764 (2004) (prosecutor disbarred for presenting false
testimony in the prosecution of two defendants charged with capital murder).
Another basis for the sanction of disbarment is ABA Standards 4.31. That Standard
provides that disbarment is generally appropriate when a lawyer, without the informed consent of
client(s): (a) engages in representation of a client knowing that the lawyer's interests are adverse to
the client's with the intent to benefit the lawyer or another, and causes serious or potentially serious
injury to the client; or (b) simultaneously represents clients that the lawyer knows have adverse
interests with the intent to benefit the lawyer or another, and causes serious or potentially serious
injury to a client; or (c) represents a client in a matter substantially related to a matter in which the
interests of a present or former client are materially adverse, and knowingly uses information
relating to the representation of a client with the intent to benefit the lawyer or another, and causes
serious or potentially serious injury to a client.
ABA Standards 6.11 also applies here. It provides, “Disbarment is generally appropriate
when a lawyer, with the intent to deceive the court, makes a false statement, submits a false
document, or improperly withholds material information, and causes serious or potentially serious
injury to a party, or causes a significant or potentially significant adverse effect on the legal
proceeding.” In addition, the Hearing Panel should consider ABA Standards 7.1 (“Disbarment is
generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed
as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or
potentially serious injury to a client, the public, or the legal system.”).
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A presumptive sanction, however, may be overcome by “[t]he presence of aggravating or
mitigating factors.” In re Van Dox, 214 Ariz. At 306, 152 P.3d at 1189. We next turn to
consideration of those factors. F. Aggravating and Mitigating Factors
The following aggravating factors are relevant to the sanction to be imposed upon Thomas
and Aubuchon.
1. Dishonest and Selfish Motive
ABA Standards 9.22(b) allows the Hearing Panel to consider in aggravation whether Thomas
and Aubuchon had a dishonest and selfish motive. A dishonest or selfish motive “speaks in terms of
‘motive,’ not conduct.” In re Shannon, 179 Ariz. 52, 69, 876 P.2d 548, 565 (1994); compare In re
Alcorn, 202 Ariz. 62, 74, 41 P.3d 600, 612 (2002) (respondent violated his ethical duty of candor
toward the tribunal, but selfish motive was not an aggravating factor). Usually, the aggravating
factor of dishonest or selfish motive is applied when an attorney in the private sector receives some
financial gain or makes misrepresentations to cover his or her negligence. However, a prosecutor
also can be motivated by a dishonest or selfish motive. In re Peasley, 208 Ariz. at 37, 90 P.3d at 774
(prosecutor’s dishonest and selfish motive was demonstrated by his intentionally and repeatedly
presenting false testimony solely for the purpose of obtaining convictions and subsequent death
penalties for the defendants). Cf. People v. Pautler, 35 P.3d 571, 585-86 (Colo. 2001) (finding that
prosecutor who misrepresented himself to a suspect as a public defender was motivated in part by
gaining an advantage in subsequent legal proceedings, which supported the existence of the
aggravating factor of dishonest or selfish motive).
The aggravating factor of dishonest or selfish motive is present in this case. Thomas and
Aubuchon were motivated by personal ambition, a desire to protect the budget of MCAO and their
desire to retaliate and punish those who disagreed with them. To accomplish their ends, Thomas and
Aubuchon made misrepresentations to the courts, deceived the grand jury, ignored conflicts of
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interest, revealed confidential information, made public statements that prejudiced the County’s
position in litigation, filed criminal charges without probable cause, joined multiple parties in
meritless litigation, encouraged and approved of perjury, and deceived a successor prosecutor. The
extensive evidence of a dishonest and selfish motive supports disbarment.
2. Multiple Offenses
ABA Standards 9.22(d) concerns the factor of multiple offenses. In re Moak, 205 Ariz. 351,
352, 356, 71 P.3d 343, 344, 348 (2003) (respondent’s commission of over a dozen ethical violations
supported application of the aggravating factor of multiple offenses). The charges in Independent
Bar Counsel’s (“IBC”) Complaint, discussed above, include thirty charges against Thomas and
twenty-seven charges against Aubuchon based on their conduct in the underlying events. Thomas
and Aubuchon engaged in misconduct covering several years and involving criminal, civil and
appellate cases, as well as Thomas’s extrajudicial misconduct. Respondents repeatedly acted in
conflict with their obligations to their clients and in dereliction of their duties as officers of the court
and as members of the legal profession. Respondents’ multiple offenses strongly support the
sanction of disbarment. 3. Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to
Comply with the Rules or Orders of the Disciplinary Agency
ABA Standards 9.22(e) applies when a respondent fails to cooperate in good faith with the
State Bar. In re Riddle, 175 Ariz. 379, 381-82, 857 P.2d 1233, 1235-36 (1993) (respondent asked
that his response to the complaint remain confidential, then failed to submit a non-confidential
response and otherwise failed to participate in the disciplinary matter); In re Fresquez, 162 Ariz.
328, 329-31, 783 P.2d 774, 775-77, 781 (1989) (respondent prepared a false, backdated letter for the
State Bar during its investigation, submitted a false affidavit to the bar, and lied under oath during
the disciplinary proceedings). As detailed in Claim Thirty-Three of the Complaint and Section III.H
above, rather than cooperating and timely filing answers to requests for information from IBC,
Respondents through counsel filed numerous motions and special actions, all of which were
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frivolous and meritless. Respondents intentionally engaged in obstruction. This factor supports
disbarment.
4. Refusal to Acknowledge Wrongful Nature of Conduct
ABA Standards 9.22(g) addresses whether a respondent is willing to admit the wrongful
nature of what he or she has done. In re Levine, 174 Ariz. 146, 171, 847 P.2d 1093, 1118 (1993)
(respondent refused to acknowledge wrongfulness of his pressing, over a period of nine years,
burdensome litigation against his ex-partner and others related to the dissolution of his law firm).
Thomas and Aubuchon have continued to insist upon the validity of the actions they took, even
though trial and appellate courts have ruled against them. Indeed, Aubuchon has recently filed a suit
against many of the same defendants she charged in the RICO case. This factor further demonstrates
why Thomas and Aubuchon must be disbarred.
5. Substantial Experience in the Practice of Law
ABA Standards 9.22(i) requires the Hearing Panel to consider the effect of a respondent’s
experience. In re Zawada, 208 Ariz. 232, 238-39, 92 P.3d 862, 868-69 (2004) (prosecutor’s many
years of experience should have taught him to conform his conduct to the Rules); In re Peasley, 208
Ariz. at 37, 90 P.3d at 774 (same). Thomas was admitted to the Arizona Bar in 1991. Aubuchon
was admitted in 1990. Both have substantial experience in the practice of law. Aubuchon has
extensive experience in criminal prosecution. They knew their conduct was wrong. The factor of
substantial experience supports disbarment.
6. Mitigating Factor
The Hearing Panel finds that one mitigating factor applies: neither Thomas nor Aubuchon
have prior discipline. ABA Standards 9.32(a).
G. Proportionality
The last step in determining if a particular sanction is appropriate is to assess whether the
discipline is proportional to the discipline imposed in similar cases. In re Alcorn, 202 Ariz. 62, 76,
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41 P.3d 600, 614 (2002). See also In re Wines, 135 Ariz. 203, 207, 660 P.2d 454, 458 (1983)
(holding that while proportionality is important, discipline is tailored to each individual case).
IBC has found no cases in Arizona or any other jurisdiction with a similar fact pattern to the
instant case. To be sure, in Arizona and other jurisdictions, disbarment or a lengthy suspension are
proper only in the most serious of circumstances. But the Arizona Supreme Court has disbarred a
prosecutor who engaged in serious misconduct while in office.
In In re Peasley, the prosecutor was disbarred for having intentionally presented false
testimony in a capital murder case, in a misguided effort to obtain a conviction at any cost. 208
Ariz. at 27, 29-30, 44. 90 P.3d at 774, 766-67, 781. Some of the same aggravating factors were
present in Peasley as are present here: substantial experience in the practice of law, dishonest and
selfish motive, and multiple offenses. 208 Ariz. at 36-38, 90 P.3d at 773-775.
Thomas and Aubuchon, like Peasley, engaged in unethical conduct to achieve their personal
ends. They were experienced prosecutors who knew that their duty was to achieve justice, not to
intimidate public officials. The serious nature of their offenses, committed while at the highest
levels of MCAO, warrants disbarment.
H. Appropriate Sanctions for Alexander
Alexander is charged with seven claims: Claims 15-20 (having to do with maintaining the
frivolous and groundless RICO case) and Claim 33 (for obstructive conduct during the disciplinary
investigation). Although not as extensive or egregious as that of Thomas and Aubuchon, her
misconduct nonetheless is serious enough to deserve a significant sanction.
Alexander violated her duties under Rule 41(a) of the Rules of the Supreme Court by
violating the Rules of Professional Conduct, as set forth in the Claims listed above. Alexander acted
knowingly in her maintenance of the RICO action, filing meritless briefs and a frivolous and
groundless amended RICO complaint. Those actions wasted the time of the federal district court and
harmed the defendants in the RICO case.
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The presumptive sanction is suspension. ABA Standards 5.22 provides, “Suspension is
generally appropriate when a lawyer in an official or governmental position knowingly fails to
follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity
of the legal process.”). ABA Standards 4.52 provides, “Suspension is generally appropriate when a
lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and
causes injury or potential injury to a client.” ABA Standards 6.22 provides, “Suspension is
appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential
injury to a client or a party, or interference or potential interference with a legal proceeding.” By
knowingly pressing forward with the RICO case without a factual or legal basis, Alexander engaged
in misconduct that requires discipline pursuant to these Standards.
The aggravating factors that apply are her multiple offenses, ABA Standards 9.22(d), her bad
faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or
orders of the disciplinary agency, ABA Standards 9.22(e), and her refusal to acknowledge the
wrongful nature of her conduct, ABA Standards 9.22(g).810
The mitigating factors that apply are her lack of prior discipline, ABA Standards 9.32(a) and
her relative inexperience in the practice of law, ABA Standards 9.32(f).
The Arizona Supreme Court has suspended attorneys in similar circumstances. In re
Zawada, 208 Ariz. 232, 92 P.3d 862 (2004), concerned a prosecutor who, during a first degree
murder trial, attacked without a factual basis the ethics of defense mental health experts. The
Hearing Officer and the Disciplinary Commission concluded that censure and probation were the
appropriate remedies. In re Zawada, 208 Ariz. at 234-35, 92 P.3d at 864-65. The Arizona Supreme
Court, sua sponte, undertook review. The Court found that Zawada had knowingly violated ER 3.1,
3.4(c) and 8.4(d), Rules Alexander also is charged with violating. 208 Ariz. at 237-38, 92 P.3d at
867-68. The Court emphasized that Zawada had refused to acknowledge the wrongful nature of his
810 See Ex. 522, an article from Alexander’s website, “intellectualconservative.com”, which at p. 5 characterizes this disciplinary proceeding as a “trumped-up, meritless witch hunt”.
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conduct. The Court held that a sanction of censure was not proportional and increased the
suspension to six months and one day, plus probation. 208 Ariz. at 239-41, 92 P.3d at 869-71.811
Although Alexander has less experience in the practice of law than Zawada had, her knowing
pursuit of RICO claims without the benefit of a factual investigation and without the necessary
elements for such a case, coupled with her refusal to admit the wrongful nature of her conduct,
requires that she receive a suspension.
V. CONCLUSION
The Hearing Panel having considered the evidence presented at the hearing of this matter,
and having duly rendered its decision,
IT IS ORDERED that ANDREW P. THOMAS, a member of the State Bar of Arizona, is
hereby disbarred from the practice of law, effective the date of this Report, for conduct in violation
of his duties and obligations as a lawyer, as described herein.
IT IS ORDERED that LISA M. AUBUCHON, a member of the State Bar of Arizona, is
hereby disbarred from the practice of law, effective the date of this Report, for conduct in violation
of her duties and obligations as a lawyer, as described herein.
IT IS ORDERED that RACHEL R. ALEXANDER, a member of the State Bar of Arizona,
is hereby suspended for a period of three months, effective the date of this Report, for conduct in
violation of her duties and obligations as a lawyer, as described herein.
811 See also In re Levine, 174 Ariz 146, 152-67, 170-171, 847 P.2d 1093, 1099-1113, 1117-118, in which the Arizona Supreme Court suspended Levine for six months based on his assertion of meritless claims against multiple defendants, which he brought in bad faith for wrongful purposes.
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RESPECTFULLY SUBMITTED this 19th day of December, 2011.
_________________________________________ JOHN S. GLEASON, Independent Bar Counsel JAMES S. SUDLER KIM E. IKELER ALAN C. OBYE MARIE E. NAKAGAWA COLORADO SUPREME COURT OFFICE OF ATTORNEY REGULATION COUNSEL 1560 Broadway, Suite 1800 Denver, CO 80202 303-866-6400
ORIGINAL sent by Email and Federal Express this 19th day of December 2011 to: Laura Hopkins, Disciplinary Clerk Office of the Presiding Disciplinary Judge 1510 West Washington, Suite 102 Phoenix, AZ 85007-3231 COPIES sent by Email and United States Mail this 19th day of December 2011 to: Donald Wilson, Jr. Terrence P. Woods Brian Holohan Broening Oberg Woods & Wilson Post Office Box 20527 Phoenix, Arizona 85036 Edward P. Moriarity Bradley L. Booke Shandor S. Badarrudin Moriarity, Badaruddin, & Booke, LLC 124 West Pine Street, Suite B Missoula, Montana 59802-4222 Scott H. Zwillinger Zwillinger Greek Zwillinger & Knecht PC 2425 E. Camelback Road, Suite 600 Phoenix, AZ 85016-4214 By_____/s/ Nadine M. Cignoni_______________
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APPENDIX
ER 1.1 – Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. ER 1.6(a) – Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted or required by paragraphs (b), (c) or (d). or ER 3.3(a)(3). (b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm. (c) A lawyer may reveal the intention of the lawyer's client to commit a crime and the information necessary to prevent the crime. (d) A lawyer may reveal such information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (2) to mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (3) to secure legal advice about the lawyer's compliance with these Rules; (4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (5) to comply with other law or a final order of a court or tribunal of competent jurisdiction directing the lawyer to disclose such information. (6) to prevent reasonably certain death or substantial bodily harm. ER 1.7 – Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
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(1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if each affected client gives informed consent, confirmed in writing. and: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client: (2) the representation is not prohibited by law; and (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal. ER 3.1 – Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a good faith basis in law and fact for doing so that is not frivolous, which may include a good faith and nonfrivolous argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. ER 3.3(a) – Candor toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
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(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by ER 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse. ER 3.6(a) – Trial Publicity (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity
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not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). ER 4.4(a) – Respect for the Rights of Others (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden any other person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives a document and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender and preserve the status quo for a reasonable period of time in order to permit the sender to take protective measures. ER 8.4 – Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable Code of Judicial Conduct or other law. (g) file a notice of change of judge under Rule 10.2, Arizona Rules of Criminal Procedure, for an improper purpose, such as obtaining a trial delay or other circumstances enumerated in Rule 10.2(b).