Attorney discipline could be battle ground in 2024 election

A state Supreme Court ruling and ongoing attorney discipline proceedings stand to shape how courts and the State Bar dole out discipline for attorneys involved in unsuccessful election cases.

Though the courts, the bar and attorneys can discern the merits of a given case using existing ethical rules and statutory framework, a level of subjectivity still comes into play in whether a case was truly brought in good faith.

The Arizona Supreme Court only recently defined “not made in good faith” in the state’s sanctions law. And the State Bar is still in the process of mulling complaints against attorneys in key election contests and challenges brought in 2022.

The disciplinary matrix evolving between the judiciary and election lawsuits comes into sharper focus in assessing both the posture of ongoing election cases and in approaching a potentially litigious aftermath of the 2024 election.

Supreme Court Defines “Not Made in Good Faith”

State sanctions law allows courts to grant attorney fees if a party brings or defends a claim without substantial justification or solely or primarily for delay or harassment, unreasonably expands or delays proceedings, or engages in abuse of discovery. A separate provision of the statute construes “without substantial justification” to mean that the claim or defense is “groundless and is not made in good faith.”

The phrase “not made in good faith” went undefined in case law until May 2, when the state high court reversed more than $27,000 in sanctions levied against the Republican Party of Arizona.

Justices unanimously found the 2020 election challenge to hand count audit procedures was not “groundless” nor brought in “bad faith,” contrary to prior rulings from the Superior and Appeals courts.

The party brought a lawsuit contending Maricopa County broke state law by sampling voting centers instead of precincts in the post-election hand count audit, as statute requires precincts, while the Election Procedure Manual allows the use of voting centers.

The Superior Court dismissed the case, finding the state party failed to name the Secretary of State, improperly sought mandamus relief and challenged pre-election procedure post-election, and sanctioned the state party for bringing the case for “political reasons,” namely mistrust in the elections. AZGOP was hit with more than $18,000 in attorneys fees. And on appeal, the Appellate Court affirmed and tacked on about $9,000.

The state high court found the claim was not “groundless,” even if the claim and request for relief were a “long shot.”

Justices then zeroed in on state sanctions law and defined “not made in good faith” a claim that is “groundless and the party or attorney knows or should know that it is groundless, or is indifferent to its groundlessness, but pursues it anyway.”

The opinion then addressed the “political reason” contention by the Superior Court too and penned some guidance on how the courts should treat election contests and challenges.

“Courts should focus on the legal and factual merits of a claim and the party’s and attorney’s conduct in the course of the litigation. Any suggestion that a party or attorney faces enhanced risk of sanction merely because they couple political motives with a long-shot effort to vindicate a legal right in the election law context intolerably chills citizens and their attorneys precisely in an arena where we can least afford to silence them,” Justice John Lopez wrote.

He continued, “Our courts should be cautious that, in their zeal to ensure that election challenges are properly grounded in fact and law under the guise of defending an ‘election’s legitimacy,’ they do not inadvertently inflict real damage to our republic by slamming the courthouse door on citizens and their counsel legitimately seeking to vindicate rights, which is also important to maintaining public confidence in elections.”

Sanctions Translate to Discipline

Elections attorney Kory Langhofer said he believed the state Supreme Court was looking to align written rules on court sanctions with grounds for professional discipline.

But Langhofer noted existing unwritten rules can work to create some level of subjectivity.

“We have widely understood norms of behavior in the law, and in politics, that are impossible to write down,” Langhofer said. “But virtually everyone knows when something is out of bounds, not because of an objective fact, but because you have a sense of what’s fair and what’s not.”

Langhofer compared criminal and civil courts.

“For example, if you have a criminal defendant who wants to argue that the way they acquired evidence violated the Fourth Amendment, the court will allow you to make some really long-shot arguments in favor of that criminal defendant, because this guy’s an underdog and we’re going to tolerate a lot of nonsense from these guys just to make sure we’re not screwing anyone over,” Langhofer said. “Then you have powerful politicians who know very likely that, almost to a certainty, that they will not win an election, yet they insist on litigating it.”

Michael Teter, managing director for the 65 Project, a bipartisan group filing bar complaints across the country against “Big Lie” attorneys in the wake of 2020, said there is no “defined line” in discerning a good faith election challenge, but noted they look for lawsuits with allegations of widespread voter fraud premised on a “fraudulent made up set of facts” attached to disproportionate requests for relief.

Ongoing Attorney Discipline Cases

In December, the Attorney Discipline Probable Cause Committee entered orders of probable

cause against Kurt Olsen, Andrew Parker, and Bryan Blehm, attorneys for losing gubernatorial candidate Kari Lake, a move which allowed the State Bar to file formal complaints, which are assigned to the state’s presiding disciplinary judge.

Blehm’s complaints deal with a social media post in which he claimed the state Supreme Court and the State Bar sought to silence attorneys claiming election fraud on direction from the federal government, and his role in Lake’s election contest.

He and Olsen are both facing discipline for twice claiming it was an “undisputed fact” 35,500 ballots were inserted into the 2022 election count in Lake’s election contest. The Arizona Supreme Court sanctioned Olsen and Blehm for the assertion.

The State Bar alleges Blehm and Olsen broke rules of professional conduct requiring attorneys to act with reasonable diligence and bring meritorious claims, and avoid making false statements to the court, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and conduct prejudicial to the administration of justice.

Blehm also faces an alleged violation of a rule barring lawyers from making a “statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a legal office” for his social media post.

Olsen and Parker, meanwhile, are facing disciplinary action in relation to a federal case seeking to ban the use of tabulation machines and electronic voting systems brought by Lake and former Secretary of State candidate Mark Finchem. The two were similarly sanctioned by the U.S. District Court for Arizona for claiming the state does not use paper ballots.

In recent filings, Blehm contends he never sought to mislead the Arizona Supreme Court and was “doing nothing more than basic math” in supporting Lake’s election contest.

And he continues to stick to claims that federal agencies are seeking to “censor” certain election attorneys by way of the Arizona Supreme Court.

Blehm then filed a later-striked counterclaim against the State Bar, claiming the bar sought to tarnish his reputation, “restrain opposition political voices,” and target “unfavorable speech.”

He claims, pursuing the complaint on the social media post is an “an unethical power grab intended to give the SBA mafia or cartel like power to remove members for criticizing the organization and/or its leadership.”

Blehm unsuccessfully subpoenaed David Byers, director of the administrative office of the courts, Maricopa County Board of Supervisors, election director Rey Valenzuela, Runbeck Election Services and the administrative office of the courts.

Olsen, meanwhile, sent out subpoenas to the Maricopa County Clerk of the Board of Supervisors for information on the ballot count, in relation to the injection claim and logic and accuracy testing, and tabulation machines.

And Olsen sought communications between the county and the Arizona State Bar, the Cybersecurity & Infrastructure Security Agency, the FBI, former elections director Kori Lorick, attorney Marc Elias, and two national democracy groups, the 65 Project and States United Democracy Center with any mention of Olsen, Parker, Lake, Finchem, Blehm and Alan Dershowitz.

In the initial complaint against Parker and Olsen, the State Bar alleges the two violated five ethical rules in bringing the suit, and separately filed for summary judgment against Parker for violations of four ethical rules.

The bar claims arguments in Lake and Finchem’s case were frivolous and Parker relied on misinterpretations of case law that any “reasonable attorney” would see is not analogous to the case at hand.

The State Bar zeroes in on Parkers’ argument for standing and the request for injunctive relief in the case failed as they sought sweeping relief based on only the “potential for harm” and brought the case in close proximity to the 2022 election, noting in similar cases, with more developed records and evidence, were dismissed on the same grounds.

The filing notes Parker “acknowledged that ‘scientific analysis by objective experts’ could determine that a particular electronic voting machine “is secure from manipulation or intrusion,’ which would eliminate the factual bases for seeking injunctive relief” and contends Parker failed to conduct “appropriate factual research, legal analysis, and exercise of professional judgment” in failing to assess issues initially raised by the county and misapplying existing precedent.

As far as the facts of the case, the State bar claims Parker claimed Arizona’s voting machines could be connected to the internet and the voting systems lacked “objective evaluation”, despite evidence contradicting both of those claims.

The State bar took issue with the argument that the requested relief, abandoning voting systems in 2022 and subsequent elections, would “cause little, if any harm.”

They instead claim Parker’s conduct “caused actual harm by attacking the integrity of Arizona voting systems based on a distorted view of the applicable facts and law that undermined public confidence in the system, and burdened the defendants and the court and sought relief that could have imposed substantially greater injury on the defendants and the public.”

Parker contends there were “ample legal grounds” to bring the suit and the dismissal based on lack of standing was fairly milquetoast.

“If Lake v. Hobbs involved anyone else and was filed in a different environment, dismissal for a lack of standing would likely be the end of the matter, especially as far as the Bar is concerned,” Parker writes. “But the otherwise unremarkable dismissal of a federal lawsuit on standing grounds resulted in a sprawling Complaint by the Bar accusing Mr. Parker of multiple violations.”

The presiding disciplinary judge has yet to set hearings in Blehm, Olsen or Parker’s cases.

The 65 Project filed an ethics complaint against Olsen for his conduct in both her election contest and federal lawsuit with former secretary of state candidate Mark Finchem to bar the use of electronic voting systems in the 2022 election and beyond. The group similarly filed a complaint against Lake and Finchem attorney Parker in Minnesota for his role in the federal suit.

Teter said the goal of the 65 Project is to deter and dissuade “future abuse of the judicial system” and generally help steer precedent in future cases.

“If this is going to become a tactic, or tool in a politician’s toolbox then the bars need to be ready to make clear that it will not be tolerated lending our steam, our integrity to an effort to disrupt the rule of law,” Teter said. “In 2024, I think that we can successfully demonstrate ahead of time that there are potential professional consequences.”

 

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