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Proposal would change the process for complaints against lawyers in Arizona

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A top state court administrator is advocating for a rule change that would delay a step in the bar's investigation of some complaints against Arizona lawyers and limit access to information disclosed in those investigations.

Dave Byers, director of court administration, said he filed the rule change request in response to an “explosion of complaints” from people not directly connected to the underlying events.

“We have seen a significant increase in the number of complaints filed in election cases, particularly by people unrelated to the case,” Byers said. His petition, citing the bar association, states that “at least 40 election-related cases have been filed since November 2020.”

The Arizona State Bar Association investigated several attorneys in connection with the 2020 election, including one who was involved in compiling the false electors who falsely claimed that then-President Donald Trump had won the state.

A committee of the Arizona State Judiciary concluded, following initial investigations by the bar association, that there was sufficient suspicion that disciplinary action should be taken against three lawyers who had represented former gubernatorial candidate Kari Lake in election-related cases.

Currently, Byers said, all persons who file complaints are significantly involved in the investigation process.

“They get documents. They can object to whatever the bar association suggests as an outcome,” Byers said. “But they also get information about these lawyers that I don't think is necessarily appropriate. It could even be things like the health of the lawyer.”

Byers said he believes people with partisan agendas have weaponized the process. In his petition, he expresses concern that people who file complaints “could gain access to information that would otherwise be confidential pending the completion of the investigation and then publicly disclose it before the disciplinary process is complete.”

His proposed amendment would still allow anyone to file a complaint, but complaints from people not directly involved in the underlying event would first be reviewed by the Bar before being accepted for investigation.

Under the proposal, the bar would first determine whether the allegations involve “serious misconduct, incapacity, overdraft of a trust account, or a criminal conviction.” If the bar determines that the allegations fall into any of these categories, it would itself act as the complainant and deny the original complainant access to information obtained during the subsequent investigation.

Byers has asked for the motion to be reviewed on an emergency basis so it can be ready before the 2024 election.

“The 2024 election cycle is already generating media coverage, and the disciplinary proceedings against attorneys could again be subject to numerous allegations by individuals who were not directly involved in the alleged misconduct,” Byers wrote in his petition. “This presents a compelling circumstance for consideration of the proposed amendment … and for emergency passage.”

Attorney Dianne Post filed an objection to Byers' amendment. She said she believes she is one of the people affected by the amendment because she and her colleagues have filed several complaints against attorneys involved in election challenges. But they only filed complaints after the attorneys were sanctioned by a judge, Post said.

“This is a disgrace for lawyers,” Post said of the proposed change. “One of the reasons the rule of law exists and is maintained is because people need to believe that lawyers are acting ethically, honestly and decently and following the law. That's why we have these procedures. And that's why we have other lawyers who have the opportunity to report on those lawyers.”

Post said the proposed change in the law was not the right response to a group of lawyers who she said had acted out of concern for the integrity of their profession.

Lawyers are in a good position to recognize and report misconduct by other lawyers, even when they are not directly involved in a particular situation, because they understand the ethics of the legal system, Post said.

The public comment period on Byers' proposal ends Friday. Byers said he is open to feedback. He must respond to comments by mid-June, and then the Arizona Supreme Court will consider the proposal at a meeting in August.

Defiant actions: Kari Lake's lawyer faces license suspension for missing disciplinary hearing on false election claims

Do you have a news tip? You can reach the reporter at jjenkins@arizonarepublic.com or 812-243-5582. Follow him on X, formerly known as Twitter, @JimmyJenkins.

Anna Harden

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