An attorney involved in the legal dispute over whether Cochise County could do a full hand count of ballots now is seeking to have the State Bar of Arizona sanction the county attorney who had told the supervisors the move would be illegal.
The complaint against Brian McIntyre has its roots in a bid by Peggy Judd and Tom Crosby, the two Republicans on the Cochise County Board of Supervisors, to do a hand count. All that was an outgrowth of unsubstantiated complaints by former President Donald Trump and others that the tabulating machines were not certified and could not be trusted.
McIntyre, a Republican, warned the board that he did not believe it had the authority to authorize the hand count under state law.
"Because I have advised you that there is no legal basis for this, I cannot ethically defend you against any claims over this action,'' he told the board at a public meeting when the proposal was discussed.
In a complaint filed Monday, Alexander Kolodin, now a lawmaker representing Scottsdale, said that McIntyre also sent a letter to an outside group that successfully challenged a recount plan pushed by two county supervisors. He said that letter detailed criminal laws McIntyre believed the supervisors, his client, had broken. That violated rules that prohibit an attorney from revealing information about a client unless that client has given approval.
Kolodin, who represented Cochise County Recorder David Stevens in the dispute — Stevens supported a full hand count — acknowledged that rule does allow a lawyer to violate the attorney-client privilege "to prevent wrongdoing under certain circumstances.'' But he said that was not the case here.
"This revelation was not a necessary preventative for many reasons, not the last of which was that the permissibility of the board's proposed action was already in litigation,'' Kolodin wrote to the State Bar. "In addition, Mr. McIntyre's letter consisted almost entirely of legal analysis and, upon information and belief, contained no assertions of non-public fact.''
McIntyre called the complaint by Kolodin "interesting in light of his recent matters with the Bar.''
That refers to a decision by the organization this past week to place Kolodin on probation for 18 months for his role in three unsuccessful lawsuits challenging the results of the 2020 election and in representing Republican lawmakers in their ill-fated defamation claim against a Democratic lawmaker.
"I should probably refrain from further comment, though, while the process plays out,'' McIntyre said of the complaint against him. "This isn't exactly the Christmas present I was hoping for,'' he quipped.
Kolodin also alleges that McIntyre apparently tried to justify his actions in disclosing he had advised the supervisors that what they were doing is illegal.
“Mr. McIntyre sent a letter to counsel for the plaintiffs (the adverse party) stating he was writing ‘out of a concern as the public prosecutor of Cochise County of the potential criminal acts that would be inherent in the proceeding with the expanded hand count,’” Kolodin wrote in his complaint to the State Bar. “His letter then went on to outline a list of laws that he believed his clients might be violating.'”
That, he said, also was a violation of the ethical obligations McIntyre had to the supervisors.
The complaint alleges more than a violation of rules about confidentiality of a client's information.
Kolodin also said there would be another violation "if Mr. McIntyre's actions were motivated by personal or external interests conflicting with the board's interests.'' But his complaint does not spell out what he believes were those conflicting interests.
And Kolodin said that another rule says that McIntyre, as a public legal officer, "has an enhanced duty to act in a manner that promotes public confidence in the integrity and impartiality of the legal system.''