ORDER OF PUBLIC CENSURE
BEFORE THE SUPREME COURT
STATE OF WYOMING
REPORT AND RECOMMENDATION FOR PUBLIC CENSURE
THIS MATTER came before the Board of Professional Responsibility on the 13th day of January, 2015, for consideration of the recommendation of Bar Counsel that the Board file a report and recommendation for a public censure of Respondent. Bar Counsel's recommendation was made pursuant to Section 20 of the Disciplinary Code for the Wyoming State Bar as a result of Bar Counsel's investigation of Respondent's Arizona disciplinary proceeding, in which Respondent consented to disbarment in Arizona.
Upon receipt of Bar Counsel's recommendation for a public censure, the Board issued an order to Respondent to file a written response to Bar Counsel's recommendation, showing cause, if any exists, as to why the recommendation of Bar Counsel should not be adopted by the Board. Respondent filed a timely response, consenting to the recommendation for public censure.
For the reasons that follow, a quorum of the Board unanimously recommends that an order of public censure be issued in this matter.
Overview. Respondent was admitted to the Wyoming State Bar in 1970. He is also licensed to practice in Montana, Utah and Arizona. The events that give rise to this recommendation occurred in Arizona, and resulted from Respondent's representation of Lisa M. Aubuchon, a former deputy Maricopa County attorney who was disbarred in 2013 for numerous ethical violations relating to abuse of her position. Respondent represented Aubuchon in her disbarment proceedings, and also filed a lawsuit on her behalf in the Superior Court of Maricopa County, Aubuchon, et al. v. Brock, et al. (Aubuchon)
After the claims asserted against the Polsinelli Defendants were dismissed with prejudice as lacking any factual or legal basis — and after Aubuchon's disbarment — disciplinary proceedings were brought against Respondent by Arizona bar counsel, alleging that Respondent had filed and maintained Aubuchon in bad faith; that Respondent acted improperly in allowing Aubuchon to sign the Aubuchon complaint on Respondent's behalf; and that Respondent lied when he told Arizona Bar Counsel that he was representing Aubuchon on a pro bono basis when in fact he had a contingent fee agreement in the case. Respondent decided not to contest the disciplinary proceedings and signed a Consent to Disbarment which was quickly followed by a Final Judgment of Disbarment. This investigation followed.
Aubuchon v. Brock. Aubuchon, the lawsuit filed by Respondent in 2011 while he was representing Aubuchon in her disbarment proceeding, was largely a reprise of a lawsuit filed by Aubuchon in 2009 while she was a deputy district attorney in the Maricopa County Attorney's Office ("MCAO"). The earlier lawsuit, Arpaio, et al. v. Maricopa County Board of Supervisors, et al. (the "RICO Action"), was filed by Aubuchon on behalf of the Maricopa County Sheriff, Joseph M. Arpaio, and the Maricopa County Attorney, Andrew Thomas, against the Board of Supervisors, its members, four Maricopa County Superior Court judges, the Polsinelli Defendants and others. In the RICO Action, Aubuchon alleged that the defendants committed bribery and extortion as part of a conspiracy "to hinder the investigation and prosecution of elected officials, county employees, and their attorneys concerning the funding and construction of a court tower in Maricopa County" (the so-called "Court Tower Conspiracy"). The RICO Action and its underlying controversies received national press coverage.
Shortly after the RICO Action was filed, the Maricopa County Attorney, Andrew
While Aubuchon's disciplinary case was pending, Respondent filed Aubuchon in August 2011, naming as plaintiffs Aubuchon, Aubuchon's husband, and David Hendershott and Anna Hendershott, husband and wife. David Hendershott was second in command in the Maricopa County Sheriff's Office. The new case essentially re-pled the Court Tower Conspiracy with the same defendants as the RICO Action (including Polsinelli Defendants Edward Novak, Thomas Irvine and their law firm), except that the Superior Court judges were omitted and several MCAO staff members were added as defendants.
Aubuchon's disciplinary hearing commenced in September 2011 and concluded in December of that year. The case had generated so much notoriety that the hearing was televised. The Arizona hearing panel issued its findings in February 2012. The panel found with respect to the RICO Action, "The allegation that there was a conspiracy driving the Court Tower Project was factually impossible." The hearing panel found that Aubuchon prejudiced the interests of justice in violation of Rule 8.4(d) by filing the RICO Action against judges who were absolutely immune from a civil damages lawsuit based upon their judicial acts. According to the Arizona hearing panel, Aubuchon "pursued the RICO Action to retaliate against the named judges and to intimidate the judges of the Superior Court." In re Aubuchon, 233 Ariz. 62, 309 P.3d 886, 894 (2013). This ethical transgression along with others led to Aubuchon's disbarment per order of the Arizona Supreme Court in October 2013. Id.
The Arizona disciplinary proceedings against Respondent. In May 2012, three months after the hearing panel issued its findings in Aubuchon's disciplinary case, Maricopa County Superior Court Judge Sally Duncan issued a minute order in Aubuchon dismissing the claims that had been asserted against the Polsinelli Defendants. The order stated, "No legal or factual basis ever existed to file a Complaint against [the Polsinelli Defendants] and THE COURT FURTHER FINDS the Complaint was filed for vexatious purposes." The order directed the Polsinelli Defendants to file a motion for attorneys' fees.
Later that month, on May 31, 2012, the Polsinelli Defendants (Edward Novak, Thomas Irvine and Polsinelli Shughart managing shareholder, Marty Harper) filed a complaint with the Arizona State Bar against Respondent, submitting Judge Duncan's minute order along with other documents from Aubuchon in support of the complaint. Five months later, on November 5, 2012, Arizona bar counsel gave Respondent written notice that Respondent was under investigation and apprised Respondent of the nature of the allegations. Respondent responded on January 11, 2013, through counsel, denying misconduct and submitting more than 1,600 pages of accompanying documents. In the meantime, on November 12, 2012, Judge Duncan awarded the Polsinelli Defendants $185,126.50 in attorneys' fees and $1,437.50 in costs, jointly and severally, against the Aubuchon plaintiffs, Respondent, and Respondent's law firm.
Nothing further was done in the disciplinary investigation of Respondent until September 2013, when Arizona bar counsel wrote to Respondent with additional questions and follow up document requests. Though Respondent produced "more than 6,000 electronic files' worth" of additional documents, Arizona bar counsel concluded, "None of the information submitted established any reason to doubt the accuracy of Judge Duncan's May 8, 2012 findings that Plaintiffs' claims against the Polsinelli Defendants lacked any legal or factual basis and were asserted for vexatious purposes."
On January 29, 2014, the Attorney Discipline Probable Cause Committee of the Arizona
On July 15, 2014, Acting Presiding Disciplinary Judge, Sandra E. Hunter, signed a Final Judgment of Disbarment terminating Respondent's membership in the Arizona State Bar.
On July 21, 2014, Bar Counsel for the Wyoming State Bar received an email from Maret Vessella, Chief Bar Counsel for the Arizona State Bar, to which were attached copies of Respondent's Consent to Disbarment and the Final Order of Disbarment. Bar Counsel immediately inquired whether Respondent was willing to consent to an order of disbarment in Wyoming as well. Respondent promptly responded to Bar Counsel, "It is my intent to fight the disbarment in Wyoming where I believe I can get a fair hearing." Respondent also notified the state bars of Montana and Utah of his Arizona disbarment, as well as the federal district and circuit courts of appeal in those jurisdictions. Bar Counsel thereupon opened an investigation and began assembling documents from Respondent's disciplinary proceeding in Arizona.
On September 24, 2014, Respondent filed a motion for relief from the Final Judgment of Disbarment in Arizona pursuant to Rule 60(c)(6) of the Arizona Rules of Civil Procedure which, like Wyoming's comparable rule, allows for relief from a judgment or order for "any other reason justifying relief ..." The motion was supported by Respondent's detailed declaration, under penalty of perjury, setting forth the circumstances behind his decision to consent to disbarment, including most significantly Respondent's reliance upon assurances that the consent to disbarment was not an admission of wrongdoing and would therefore not result in reciprocal discipline in the other jurisdictions in which Respondent was licensed. Respondent's motion and supporting materials pointed out that when he consented to disbarment, Respondent was in extreme mental and emotional turmoil, compounded by the fact that his wife was battling a recurrence of breast cancer. Citing relevant case law, Respondent argued that the sanction of disbarment was disproportionate to the misconduct with which Respondent was charged. Respondent pleaded for the opportunity to defend the disciplinary complaint on the merits.
Meanwhile, upon receipt of Respondent's notification of the Arizona disbarment, the Honorable Nancy D. Freudenthal, Chief United States District Judge for the District of Wyoming, issued a notice directing Respondent to show cause why reciprocal discipline
On October 8, 2014, Arizona bar counsel filed a lengthy opposition to Respondent's motion for relief from the Final Order of Disbarment with numerous exhibits. In essence, Arizona bar counsel argued that Respondent had not made a sufficient showing justifying Rule 60 relief, and that (despite the recommendation of a six-month suspension in bar counsel's December 12, 2013 report of investigation) the misconduct with which Respondent was charged clearly warranted disbarment.
Respondent filed a response to Arizona bar counsel's opposition on October 22, 2014, in which Respondent reiterated that his mistaken belief as to the effect of his Arizona disbarment upon his licenses in other jurisdictions was understandable in part because of an email from the settlement officer, a retired Superior Court judge, stating, "There is a possibility that the other disciplinary agencies may not choose to investigate or prosecute you for your conduct in Arizona. You would have the opportunity to defend yourself on the merits or otherwise with the other jurisdictions." Respondent's reply went on:
On November 26, 2014, the Honorable Dana L. Christensen, Chief United States District Judge for the District of Montana, after reviewing Respondent's notification of the Arizona disbarment, issued an order declining "to impose any discipline at this time. However, if the Montana Supreme Court decides to levy discipline, this Court will revisit the matter at that time." In his order, Judge Christensen discussed "substantial reasons not to order identical discipline" of Respondent:
On December 10, 2014, the Acting Presiding Discipline Judge in Respondent's Arizona disciplinary case issued an order denying Respondent's motion for relief from the Final Judgment of Disbarment. The disciplinary judge found that Respondent did not meet his burden of showing "extraordinary circumstances" justifying relief from the Final Judgment of Disbarment. Having so found, the disciplinary judge did not get to the issue of whether Respondent had a substantial defense to the underlying disciplinary charge. The disciplinary judge stated, "[I]t is now Moriarity's burden to make his case to those other jurisdictions under their rules and disciplinary proceedings." Respondent has appealed the disciplinary judge's decision to the Arizona Supreme Court.
Wyoming's reciprocal discipline rule. Section 20 of the Disciplinary Code for the Wyoming State Bar deals with reciprocal discipline and provides:
Bar Counsel's Investigation and Recommendation
In the course of his investigation, Bar Counsel reviewed a large volume of documentation relating to the Aubuchon disbarment proceeding, in which Respondent represented Aubuchon. Aubuchon's hearing was consolidated with companion cases against two other MCAO attorneys, Maricopa County Attorney Andrew Thomas and his deputy, Rachel R. Alexander. All three disciplinary charges stemmed from the attorneys' involvement in the RICO action: Thomas as a named plaintiff; Aubuchon as the MCAO attorney who filed the case; and Alexander as the MCAO attorney who was assigned the case a few days after it was filed, when Thomas took Aubuchon off the case due to a perceived conflict of interest. Alexander voluntarily dismissed the RICO Action three months after it was assigned to her. Thereafter, disciplinary complaints were filed charging Thomas, Aubuchon and Alexander with multiple rules violations. Following the disciplinary hearing, the hearing panel ordered both Thomas and Aubuchon disbarred. Thomas did not appeal his disbarment. Aubuchon did, as reported above, and the Arizona Supreme Court upheld the disbarment.
With respect to Alexander, the hearing panel found violations of Rules 1.1 (competence); 1.7(a)(1) and (2) (concurrent conflict of interest); 3.1 (lack of meritorious basis); 3.4(c) (failure to follow the rules of the tribunal); 4.4(a) (use of litigation to embarrass, delay, or burden); and 8.4(d) (conduct prejudicial to the administration of justice) and ordered a suspension of six months and one day. On appeal, the Arizona Supreme Court reversed the findings of violations of Rules 1.7(a)(2), 3.4(c) and 4.4(a), and reduced Alexander's suspension to six months. In re Alexander, 232 Ariz. 1, 300 P.3d 536 (2013).
The Arizona disciplinary charge against Respondent consisted of three claims:
In Bar Counsel's opinion, Arizona bar counsel overcharged Respondent. Having reviewed a substantial volume of documents generated in the course of Arizona bar counsel's investigation of Respondent, Bar Counsel came to the conclusion that the second and third items should not have been charged for the following reasons: When Respondent authorized Aubuchon to sign the Aubuchon complaint and amended complaint, Respondent was doing something that is routinely done in Wyoming. At the time she signed those pleadings, Aubuchon was a licensed member of the Arizona State Bar in good standing. It is hard to imagine that a fair-minded hearing panel would have found Respondent to have acted unethically in authorizing Aubuchon to sign pleadings in Respondent's absence. Similarly, the thrust of the third charge — that Respondent misled Arizona bar counsel by characterizing his representation of Aubuchon as pro bono
In the opinion of Bar Counsel, the sole disciplinary charge that was warranted in Respondent's case is that he violated Rule 3.1 with respect to the Aubuchon v. Brock claims against the Polsinelli Defendants. Thus, Bar Counsel's recommendation that Respondent receive a public censure was premised on the assumption that a Rule 3.1 violation — and only a Rule 3.1 violation — could be proven by clear and convincing evidence.
As discussed in the above-quoted order entered by Judge Christensen in Montana, it is unlikely that a Rule 3.1 violation would have drawn a suspension under Arizona law. Under Wyoming law as reflected in this Court's recent holding in Bd. of Prof. Resp. v. Stinson, 337 P.3d 401 (Wyo.2014), a public censure is clearly the appropriate sanction.
In Stinson, this Board found that Stinson committed a negligent violation of Rule 3.1 in filing a meritless counterclaim and recommended a public censure as the appropriate sanction. On appeal, Special Bar Counsel urged that Stinson should be suspended. In rejecting that argument and ordering a public censure, the Court discussed the application of the American Bar Association's Standards for Imposing Lawyer Discipline ("ABA Standards) to a Rule 3.1 violation. The Court began with ABA Standard 3.0, which lists the four factors to be considered in imposing a sanction after a finding of lawyer misconduct:
Stinson, 337 P.3d at 420.
The Court proceeded to discuss the first factor, the duty violated, and observed that a violation of Rule 3.1 falls within ABA Standard 6.2, "Abuse of the Legal Process":
In considering the second factor, the lawyer's mental state, the Court quoted from the preamble to the ABA Standards:
Id. at 420-21.
The Court next considered the third factor, the potential or actual injury caused by the lawyer's misconduct, and quoted the definition of "injury" under the ABA Standards:
Finally, the Court quoted ABA Standard 9.0, entitled "Aggravation and Mitigation":
Id. at 421-22.
In recommending a public censure of Stinson, this Board found two mitigating factors: (1) absence of a prior disciplinary record; and (2) good reputation as a competent attorney. Id. at 423. These same two factors apply to Respondent. Also with respect to Stinson, this Board found two aggravating factors: (1) Stinson's substantial experience in the practice of law; and (2) his refusal to acknowledge the wrongful nature of his conduct. Id. at 424. Again, these same two factors apply to Respondent, who remains steadfast in his insistence that he committed no ethical misconduct in his representation of Aubuchon.
In Stinson, the Court concluded, "Having considered all four factors — the duty violated, Mr. Stinson's mental state, the harm caused by the violation, and the aggravating or mitigating circumstances — we agree with the Board that the appropriate sanction for the violation is a public reprimand." Id.
Based upon Bar Counsel's investigation of Respondent's Arizona disciplinary proceeding, the Board agrees with Bar Counsel that the same analysis yields the same result and supports the same sanction. For the sake of consistency under Wyoming precedent as set forth in Stinson, the Board recommends a public censure of Respondent.
For the reasons stated in this report and recommendation and based upon Bar Counsel's thorough review and well-reasoned conclusions, the Board recommends that the Court issue an order of public censure of Respondent, including an order that Respondent pay an administrative fee of $500.00 and costs of $50.00 to the Wyoming State Bar.
Dated January 14, 2015.