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by Rachel Alexander | June 3rd, 2008
The Bar retaliates by removing its own former Bar President from leadership, and state legislators call for restructuring the Bar to eliminate much of its power.
After several legal ethics experts issued opinions declaring that the AZ State Bar's investigation of Maricopa County Attorney Andrew Thomas was meritless, the Bar took swift action against one of those experts – its own former Bar president Ernest Calderon. Calderon's opinion was issued on Wednesday, May 28. The Bar retaliated against him by removing him from his position representing the Bar nationally the next day.
The state legislature jumped into the fray yesterday, with 15 legislators issuing a statement lambasting the Bar for abusing and overstepping its authority with a "witch hunt" against Thomas. The legislators called for removing the authority of the Bar over disciplinary matters, "The State Bar and its disciplinary counsel acting as an unsupervised form of the judiciary branch of government is violating the principles of separation of powers by this attempt to restrict the free speech rights of a member of the executive branch, mainly the County Attorney."
Calderon, a Democrat who did not vote for Thomas and who does not agree with Thomas on illegal immigration, told the East Valley Tribune the Bar retaliated against him "because I said something positive about Andy Thomas."
The current State Bar President, Dan McAuliffe, defended the Bar's decision to retaliate against and remove Calderon, telling the newspaper, "Maybe he shouldn't have filed the affidavit." It is disturbing that the Bar thinks retaliating against one of its own for not going along with a clearly unethical investigation is acceptable. Five impressive legal ethics experts, including a former liberal Chief Justice of the Arizona Supreme Court, have determined the Bar's investigations of Thomas are meritless.
Unfortunately, the State Bar is colluding with retired judges who asked the Bar to "do something about Thomas" because they disagreed with his efforts to require the judiciary to enforce Proposition 100, no bail for illegal immigrants who commit serious crimes. This is an improper interference of the balance of powers. As County Attorney, it is Thomas's job to uphold the laws. The County Attorney is part of the Executive Branch of government. The judiciary and the Bar, which is a quasi-private entity under the Supreme Court, have no business interfering with Thomas's duty to enforce the law. If the judges and State Bar don't like the laws against illegal immigration, they need to convince the legislature or people to change the laws. But they know they can't, because Proposition 100 was passed with 78% of the vote. That is why they are resorting to the dirty tactics of trying to destroy Thomas personally with meritless investigations.
Another one of the Bar's meritless investigations of Thomas is that he violated the Bar's Rule of Professional Conduct ER 8.2. That rule says in part, "(a) A lawyer shall not make 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 judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office." Putting aside the fact that Thomas clearly didn't violate this rule since the Superior Court was found to have blocked enforcement of Proposition 100, this rule is probably unconstitutional. A similar rule was struck down in another state for violating free speech.
Ironically, some of the very accusers who are attacking Thomas for violating this rule have also criticized Thomas in public, notably McAuliffe. They may have violated their own rule, because "public legal officer," probably includes Thomas (I could not find the definition in Arizona law, but in California law it is very broadly defined and includes elected prosecutors).
The Arizona Supreme Court needs to step in and investigate the actions of the Bar, as Thomas has asked for in his Special Action. When a former Supreme Court Justice, whose responsibilities included oversight of the Bar, is saying the Bar's investigation is not justified, there is a serious problem.
Rachel Alexander is a Deputy County Attorney with the Maricopa County Attorney's Office. To read the original article, click here. Visit illegalimmigrationjournal.com for updated news on illegal immigration, and sign up for the free weekly newsletter.