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Ethical Concerns Raised Against Lawyers Who Brought Arizona Elections Cases

By Ben Giles
Published: Thursday, December 17, 2020 - 5:05am
Updated: Thursday, December 17, 2020 - 2:30pm

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Arizona Supreme Court building
Lauren Loftus/KJZZ
Arizona Supreme Court building.

As lawsuit after lawsuit challenging election results in Arizona have failed, some have called for accountability for the attorneys who’ve helped bring those cases to trial.

At least two letters have been sent to the Arizona state Bar alleging misconduct by lawyers for the Trump campaign and the state Republican Party, including one letter sent by New Jersey Congressman Bill Pascrell.

His letter notes that ethical rules for attorneys require that they only bring claims to court if they have merit. 

Put another way, the claims must have a good-faith basis in law or fact.

Pat Sallen, a Phoenix-based ethics lawyer, says the ethical rules governing attorney conduct are essential to holding lawyers accountable and keeping the broader legal system humming.

“It’s incredibly important that lawyers, inside court, outside of court, are held to standards so that judges can rely on them. Other lawyers can rely on them. Clients can rely on them,” Sallen said.

"It’s incredibly important that lawyers, inside court, outside of court, are held to standards so that judges can rely on them. Other lawyers can rely on them. Clients can rely on them."
— Pat Sallen, a Phoenix-based ethics lawyer

However, Sallen said complaints that result in a lawyer facing sanctions, suspensions or disbarment are rare.

As high as the standards are for attorneys, the standards for punishing attorneys are equally rigorous. The state bar is responsible for investigating complaints to determine if the allegations are true, and, if so, what rule may have been violated.

Then the bar has to prove with clear and convincing evidence that a rule was broken, Sallen said.

“By the time it gets to the end, there really aren’t many lawyers who are formally disciplined,” she said.

The losses racked up by attorneys for Trump’s campaign and sympathizers are also by no means a smoking gun. Losing a case, in any circumstance, does not automatically equate wrongdoing by the losing attorney, Sallen said.

“It doesn’t mean the lawyer has been incompetent, let alone engaged in some kind of fraud or misconduct,” she said. “It means the lawyer presented a case, and the judge disagreed with what the lawyer wanted, or the relief the lawyer was looking for.”

Short of ethical consequences, there’s the potential for financial trouble for attorneys.

Secretary of State Katie Hobbs, as the chief election official in Arizona, has been the defendant or intervened in these election lawsuits. Hobbs’ attorney, Roopali Desai, said attorneys fees can be used as a form of accountability.

It's not just the plaintiff who bears the cost of those fees. A judge can order attorneys themselves to be personally, financially responsible.

Desai’s legal team used that financial threat to get one attorney to withdraw an election lawsuit that she said was woefully ignorant of the law. Defending against those claims would have been a waste of time and resources, she said.

“The lawyer needs to understand that if you make us incur the expenses and time of having to do that, we’re going to ask the court to not just award these fees against your client, but also against you as the attorney for allowing the case to be filed in the first instance,” Desai said.

Roopali Desai
Coppersmith Brockelman
Roopali Desai

Legal fees as a form of accountability can be particularly important in these election challenges because of the nature of the case, she said.

“These cases that go to the heart of the public’s confidence in our democracy, in our election, are critical to be taken seriously and to be brought seriously,” Desai said.

There’s also the matter of the time and expense incurred by the state defending itself. That’s not just the price of hiring a lawyer. It’s the man-hours spent by staff preparing evidence and following judges’ orders.

“You are requiring a significant amount of public resources to be spent,” Desai said.

In certain circumstances, a judge may invite a defendant to make a request for fees. 

That was the case in one of the lawsuits brought by the Arizona Republican Party. Hobbs has asked the judge to award her office $18,000, to be paid by the state GOP and its attorneys.

Desai said it’s still up to the judge to determine what amount, if any, will be awarded.

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