In re Alexander

• Decision Date: 02 May 2013
• Docket Number: No. SB–12–0039–AP.,SB–12–0039–AP.
• Citation: In re Alexander, 232 Ariz. 1, 300 P.3d 536, 659 Ariz. Adv. Rep. 19 (Ariz. 2013)
• Parties: In the Matter of a Member of the State Bar of Arizona Rachel R. ALEXANDER, Attorney No. 20092, Respondent.
• Court: Arizona Supreme Court

232 Ariz. 1

300 P.3d 536

659 Ariz. Adv. Rep. 19

In the Matter of a Member of the State Bar of Arizona Rachel R. ALEXANDER, Attorney No. 20092, Respondent.

No. SB–12–0039–AP.

Supreme Court of Arizona, En Banc.

May 2, 2013.

Rachel Alexander, Phoenix, In Propria Persona.

John S. Gleason, Alan C. Obye, James S. Sudler, Independent Bar Counsel, Denver, CO, Attorney for State Bar of Arizona.

OPINION

TIMMER, Justice.

¶ 1This case presents our first opportunity to issue an opinion on the propriety of findings made and discipline imposed by a hearing panel under our new attorney-discipline procedures.We accept the panel's determination that Rachel R. Alexander violated Arizona Rules of Professional Conduct (“ERs”)1.1, 1.7(a)(1), 3.1, and 8.4(d) and former Arizona Supreme Court Rule 53(d) and (f).¹We disagree she violated ERs1.7(a)(2), 3.4(c), and 4.4(a).We reduce her suspension to six months and, as a condition for reinstatement, require her to take ten hours of classes focusing on the ethical responsibilities of Arizona lawyers.

BACKGROUND

¶ 2 Alexander was admitted to the State Bar of Arizona in 2000.She met Andrew Thomas in 2004 while he was campaigning for the office of Maricopa County Attorney.After Thomas was elected, Alexander became a deputy county attorney and his special assistant.Alexander did not directly handle cases but assisted trial lawyers with “behind-the-scenes work” and performed non-legal tasks like disseminating information to the public through websites, social media, and speeches.

¶ 3 Starting in 2006, the Maricopa County Attorney's Office(“MCAO”) became embroiled in well-publicized disputes, lawsuits, investigations, and criminal prosecutions variously involving members of the Maricopa County Board of Supervisors(the “Board”), judges serving in the Maricopa County Superior Court, and others.These disciplinary proceedings primarily concern Alexander's role in a federal civil racketeering (“RICO”) lawsuit filed by Thomas and Maricopa County SheriffJoseph Arpaio in 2009 against the Board, its members, four superior court judges, and others.

¶ 4 MCAO and the Sheriff's Office initially considered filing a civil RICO lawsuit against the Board in fall 2009 but seemingly abandoned the idea after several attorneys, including Deputy County AttorneyPeter Spaw, MCAO's designated RICO expert, advised against it due to a lack of supporting evidence.Thomas reconsidered without consulting his senior advisors, however, and directed Deputy County AttorneyLisa Aubuchon to pursue the lawsuit.

¶ 5 On December 1, 2009, Aubuchon filed the RICO lawsuit on behalf of Thomas and Arpaio in their official capacities.She alleged that the defendants committed acts of 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.

¶ 6 Days after the lawsuit was filed, Thomas assigned Alexander to the case because Aubuchon had a potential conflict of interest.Alexander had no prior trial experience and only minimal knowledge of RICO.According to Mark Faull, her supervisor for deputy county attorney duties, Alexander incompetently handled routine court matters, and he warned that appointing Alexander as lead counsel in the RICO lawsuit would be “inviting malpractice” as she lacked sufficient experience and training.

¶ 7 Thomas transferred Alexander to work under Spaw's supervision.MCAO also retained the law firm of Ogletree, Deakins, Nash, Smoak & Stewart (“Ogletree Deakins”) to provide “advice, research and review of pleadings” in the RICO lawsuit, but terminated the engagement two weeks later.Deputy County AttorneyJeffrey Duvendack was also initially assigned to assist Alexander but never did so.Although Spaw communicated with opposing counsel and Thomas about the lawsuit and otherwise worked on the matter, only Alexander appeared as counsel of record in the lawsuit after Aubuchon withdrew.

¶ 8 The RICOdefendants filed motions to dismiss the complaint, and Alexander and Spaw drafted and filed responses.While the motions were pending, Alexander and Spaw, with input from Thomas, drafted and filed a first-amended complaint, which added two counts.The court rejected the pleading, concluding MCAO was not entitled to amend the complaint without leave of the court.Alexander moved the court to either reconsider its order or grant plaintiffs leave to file the amended complaint.The court never ruled on this motion or the motions to dismiss.In early March 2010, the court granted the Sheriff's motion to substitute out-of-state counsel for MCAO.One week later, Alexander and the Sheriff's new attorneys filed a notice voluntarily dismissing the complaint.

¶ 9 Also in March 2010, at the request of the Executive Director of the State Bar of Arizona, Chief Justice Rebecca White Berch appointed independent bar counsel to investigate and, as appropriate, prosecute allegations of ethical misconduct against Thomas and other MCAO lawyers.Pursuant to former Rule 54(b)(4), bar counsel submitted a report of the investigation to a probable cause panelist, who subsequently found probable cause for counsel to file a formal complaint against Thomas, Aubuchon, and Alexander.Bar counsel filed a complaint in February 2011 alleging Alexander violated six ERs during her involvement in the RICO lawsuit and violated former Rule 53(d) and (f) by failing to cooperate and furnish information during the disciplinary screening investigation.²

¶ 10 Because bar counsel filed the complaint after the effective date of the new rules governing disciplinary complaints, a three-person hearing panel composed of a presiding disciplinary judge, a lawyer volunteer, and a non-lawyer volunteer conducted the disciplinary hearing.Ariz. R. Sup.Ct. 52.After a lengthy evidentiary hearing, the panel issued its report finding that bar counsel had proven all charges against Alexander.It then suspended her from the practice of law for six months and one day.Alexander timely appealed, and enforcement of the panel's suspension order was stayed pending appeal.We have jurisdiction pursuant to Article 3 and Article 6, Sections 1,5(3), and5(4) of the Arizona Constitution and Supreme Court Rule 59(a).

DISCUSSION

I.Professional Misconduct

¶ 11 Alexander argues bar counsel failed to prove the alleged misconduct by clear and convincing evidence.Ariz. R. Sup.Ct. 58(j)(3).Bar counsel satisfied this burden if he showed it was highly probable that the allegations against Alexander were true.In re Curtis,184 Ariz. 256, 261, 908 P.2d 472, 477(1995).We accept the panel's factual findings unless they are clearly erroneous.Ariz. R. Sup.Ct. 59( l ).Findings are clearly erroneous if they are not supported by reasonable evidence.In re Van Dox,214 Ariz. 300, 304 ¶ 15, 152 P.3d 1183, 1187(2007).

A. ER 3.1: Meritorious Claims and Contentions

¶ 12 ER 3.1 prohibits a lawyer from bringing or defending a proceeding or asserting issues 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.”The hearing panel found that Alexander violated ER 3.1 by maintaining the RICO lawsuit because both the complaint and the proposed amended complaint were legally and factually deficient, and she failed to sufficiently investigate the validity of the RICO allegations.

¶ 13We apply an objective standard to assess whether a legal proceeding is frivolous, but we use a subjective standard to determine whether the lawyer acted in good faith.In re Levine,174 Ariz. 146, 153, 847 P.2d 1093, 1100(1993).To warrant suspension, the evidence must demonstrate that the lawyer knowingly violated ER 3.1.Id. at 153–54, 847 P.2d at 1100–01.A lawyer's motives and knowledge can be inferred from the frivolousness of a claim.Id. at 154, 847 P.2d at 1101(“[A]n objective standard assumes that a genuinely frivolous claim will be known to be frivolous by most lawyers.”(quoting Geoffrey C. Hazard, Jr., & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 331(student ed. 1986))).

¶ 14 Alexander does not dispute the panel's finding that the RICO lawsuit was frivolous.Instead, Alexander argues she was unaware the lawsuit was frivolous and acted in good faith by relying on representations of more experienced MCAO lawyers while she conducted a reasonable inquiry regarding the merits of the RICO allegations.Alexander contends she did not know that Spaw and other lawyers had previously advised against filing a RICO lawsuit, she was not involved in filing the initial complaint, she had no reason to doubt representations that MCAO lawyers and detectives had properly investigated the allegations underlying the RICO lawsuit, and she worked under Spaw's supervision.

¶ 15 The involvement of other lawyers in filing the RICO complaint did not relieve Alexander of her ethical obligation to ensure the RICO lawsuit was supported in law and fact.“What is required of lawyers ... is that they inform themselves about the facts of their clients' cases and the applicable law and determine that they can make good faith and nonfrivolous arguments in support of their clients' positions.”ER 3.1 cmt. 2.Alexander relies on Unioil, Inc. v. E.F. Hutton & Co., which held that reliance on co-counsel“may in certain circumstances satisfy an attorney'sduty of reasonable inquiry” imposed by Federal Rule of Civil Procedure 11. 809 F.2d 548, 558(9th Cir.1986), overruled in part on other grounds, Townsend v. Holman Consulting Corp.,929 F.2d 1358, 1362(9th Cir.1990), as recognized byIn re Keegan Mgmt. Co.,78 F.3d 431, 434–35(9th Cir.1996).But Alexander ignores Unioil's warning that when relying on another lawyer, “counsel must ‘acquire [ ] knowledge of...