When lawyers face complaints, the public deserves to know why
When lawyers face complaints, the public deserves to know why
The Arizona State Bar is investigating election deniers and denying the public’s ability to know about it.
Former Arizona Attorney General Mark Brnovich is facing no fewer than 18 complaints to the Arizona State Bar for burying and misrepresenting his investigators’ findings about claims of fraud in the 2020 election from the Cyber Ninjas and the state Senate.
But good luck getting your hands on those complaints, or really, any information about lawyers accused of misconduct in Arizona.
The Arizona State Bar is a nonprofit corporation operated and controlled by the Arizona Supreme Court. It’s tasked with licensing attorneys and investigating ethical complaints against them. (Technically, it’s the court that disciplines attorneys). The unique quasi-judicial, quasi-governmental entity is governed by obscure court rules that make it among the most tight-lipped regulatory organizations in the state.
It’s not required to disclose the source of complaints against lawyers or the content of the complaint. In fact, the only way the Bar will even confirm if a lawyer has a complaint against them is if you already know what the complaint is about.
For example, when we asked the Bar how many complaints Brnovich faces, the Bar’s rules prevented spokesman Joe Hengemuehler from answering. But when we asked how many Bar complaints he faces “due to the interim report” debacle, we got this response:
“Sixteen1 charges have been submitted against Brnovich regarding the election audit issues. Those charges are in the pre-screening process. There is no additional public information available,” Hengemuehler told us via email. “We cannot answer your (other) question about other possible pending charges against Brnovich unless you inquire about specific conduct.”
The Bar argues that this level of secrecy surrounding its investigations furthers its mission of protecting the public because it “protects the integrity of the investigation which benefits both the public and the lawyer being investigated.”
But those rules aren’t designed to serve the public. The public has a right to know when the state’s top prosecutor or other public lawyers are accused of unethical conduct and why.
It’s not just about politicians. Your divorce lawyer is going to know every detail of your life, finances, marital history, even what kind of parent you are. Your business attorney will know exactly how much you’re worth and where you keep your money. Your criminal defense lawyer may know information that could put you on death row.
We trust lawyers with a lot of very sensitive, personal information. Citizens should have a way to verify whether those lawyers are worthy of their trust.
The secretive nature of the complaints also leaves those on both sides of the complaint process in high-profile cases feeling like they got the short end of the stick, and some argue it damages the Bar’s credibility at a moment when it’s already facing a crisis of credibility.
The Bar’s disciplinary process has always been a hot-button topic among partisan legal geeks, and conservatives have long felt the organization is liberal-leaning and stacked against them. Nearly every year, there are legislative attempts to make membership in the Bar voluntary, rather than mandatory. But the issue has taken on heightened interest since 2020, when dozens of conservative lawyers involved in bogus election contests across the nation began catching complaints for their work.
Last year, Gov. Doug Ducey signed a law requiring the Bar to pay the legal fees of those who are investigated but win their cases, which Republican lawmakers said was necessary because Bar complaints had been “weaponized” against conservatives. This year, Republican Sen. Anthony Kern has a proposal to impose steep fines on the Bar if it infringes on “political speech rights” by disciplining a lawyer for bringing a good-faith argument.
In Arizona, roughly two dozen attorneys have been hit with Bar complaints based on their election lawsuits in the 2020 and 2022 elections — and those are just the ones we know about through media reports. The majority of those complaints have been tossed out, though a few, including against state Rep. Alexander Kolodin, are still pending.
The black-box nature of Bar investigations doesn’t give either side much faith that the system is truly working fairly.
Kory Langhofer, an attorney who worked for the 2020 Trump campaign in Arizona, was the subject of a Bar complaint by two former presidents of the Bar and a member of the Bar’s Board of Governors, among others. The complaint was thrown out during the earliest phase of the process. Had the complaintants not sent their charge to the press as well, he wouldn’t have even known about it until after it was dismissed.
“I learned about it when reporters started calling me to ask about it,” Langhofer said. “And the only thing that I ever heard from the Bar about it was a letter notifying me that they had dismissed the complaint without asking me to respond.”
Democrats, meanwhile, are concerned that the Bar’s standard of evidence is so high, and the threshold for misbehavior so lenient, that serial offenders who frequently file frivolous or bad-faith lawsuits are never held accountable, even when they’re arguing something as dangerous as stolen election conspiracies.
Dianne Post, one of the several attorneys who signed onto the complaint against Langhofer and several others, said the Bar’s secrecy, slow pace and unwillingness to discipline attorneys who she thinks are clearly breaking legal ethics don’t instill confidence and don’t serve the public, the accused or the complainants.
“It is empowering lawyers who are doing this to keep on and to go even further,” Post said. “They're not protecting the public at all by the failure to act.”
The lack of disclosure can mislead the public, too.
A potential client looking up a lawyer to see if they have any red flags on the Bar’s discipline record search could come away believing their attorney has no history of problems, even when that’s not true.
If you look up Brnovich, for example, in the state Bar database, it says “Discipline: None.” It doesn’t mention the pending Bar complaints against him or any other complaints that have been lodged against the state’s top prosecutor during his eight years in office.
Nowhere is it disclosed that Brnovich entered into a court-ordered “diversion agreement” last year. The agreement came after then-Secretary of State Katie Hobbs and a member of the Arizona Board of Regents each filed a Bar complaint against him alleging Brnovich violated ethics rules.
The Bar doesn’t consider diversion agreements to be a disciplinary record because the agreement is in lieu of possible discipline. The public still doesn’t know which of the allegations against him the Bar found credible or the terms of the agreement Brnovich signed. It’s impossible to say if anything in the latest round of complaints against him, which also aren’t public, could potentially violate the terms of his previous undisclosed diversion agreement.
While records about ongoing investigations are almost completely confidential, under Arizona Supreme Court Rule 702, which largely governs disclosure of Bar records, Hengemuehler said that “most discipline records become public when the investigation has concluded.”
That’s technically true. Much of the documents that the Bar considers “discipline records” do become public information after an investigation is complete and if it results in discipline. But swaths of documents that would normally be considered public records in any kind of law enforcement investigation are excluded from that definition.
About 2,300 complaints were filed against Arizona’s 25,000 active attorneys in 2021, according to the Bar’s most recent annual report. Only about 70 cases resulted in “discipline actions” that stay as permanent, public black marks on a lawyer’s record. Another 200 were “dismissals with comment,” basically a low-level talking-to that gets wiped from a lawyer’s record in six months. The other 2,000 were either dismissed with no comment or entered into diversion programs that are not publicly disclosed.
None of the records become public unless or until the Bar has officially completed its investigation and disciplined an attorney.
Two years before being elected to represent Scottsdale in the Arizona House of Representatives, Alexander Kolodin was the go-to attorney for the Arizona Republican Party, the Cyber Ninjas and other election-denying litigants. He was counsel on a series of lawsuits that got forcefully tossed out of the courts, including his conspiracy-based “Sharpiegate” and “Kraken” lawsuits, the latter of which claimed President Joe Biden’s team “engaged in the systemic adaptation of old-fashioned ‘ballot-stuffing,’” among other completely unverified claims.
The average Bar investigation takes about six months, but the Bar’s investigation into Kolodin election lawsuit shenanigans has been dragging on for about 26 months. Kolodin is still practicing law, and he’s now making laws in the Legislature.
“The investigation regarding Kolodin is being handled by independent bar counsel. There is no public information available,” Hengemuehler replied to questions about why that investigation is taking so long.
Post, who signed the complaint against Kolodin as well, said two-plus years is an unacceptable amount of time to wait for the results. The Bar has refused tell her or others why it’s taking so long.
“As far as the outcome, no, we are absolutely not happy with it,” she said. “Because there's been no outcome. That's the problem.”
The public and press know about complaints against Brnovich and Kolodin because they’re high-profile political figures and at least some of their opponents sent press releases in tandem with their complaints.
That’s part of the problem, according to Langhofer, who beat a complaint for his work on a 2020 Trump campaign. In low-profile lawsuits, like a family matter that will never gain press attention, the secretive process the Bar employs for vetting and disclosing complaints makes sense. But when everyone knows you have a Bar complaint against you, the Bar’s secrecy is really not helpful, he said.
“Any responsible lawyer would know before submitting that complaint that it was complete bullshit, and that’s why the Bar dismissed it without even asking for a response,” Langofer said. “But if you Google me, that’s not what you see. You see, ‘Trump attorney who tried to overturn election now faces very serious Bar issue.’ And that Google footprint will never be cleared up.”
Although Google will always remember his Bar complaint, the Bar’s website doesn’t. At this point, he would like the entire complaint file, including the dismissal letter that cleared him, to be publicly available on the Bar’s website just to rebut his Google results, he said. (Post said she filed a complaint to the objection, but never heard back from the Bar.)
Post agrees with Langhofer on one point: Lawyers, especially those in emotionally charged settings like family or criminal law, get hit with a lot of frivolous Bar complaints that probably don’t need to be explicitly disclosed to the public. She’s faced a few frivolous complaints herself.
But without knowing anything about the complaints, the public just has to trust that the Bar is investigating the meritorious ones and dismissing the frivolous ones. Post isn’t sure the Bar has earned that trust.
She suggested the Bar could allow more disclosure without highlighting individual bad complaints against good lawyers by offering a compilation report summarizing what the roughly 2,000 undisclosed complaints a year were about, as well as why they were thrown out and in what area of law they dealt with.
That at least would offer the public some level of oversight, rather than having to just trust that the Bar is making the right calls about who to investigate and why.
“It would be better for them to be open rather than hunker down,” Post said. “When you hunker down, it just gives the impression that you got something to hide.”
The total count was later upped to 18.
The Bar’s Board of Governors has the right to waive its own rules of disclosure, but rarely does.
I went into withdrawal when the Agenda didn't come out ~6 AM. Sorry about that - you should get some slack!
As usual, though, a thoughtful and important report.
Yes, and they wonder why the public doesn't trust lawyers.