Heading into the 2024 election, the Arizona Supreme Court has granted a request to change the rules about who can submit a bar complaint against an attorney in the state.
Why? There was “an explosion of complaints” filed by people who had no direct connection to the underlying events.
That’s according to a top state court administrator who asked for the change.
Jimmy Jenkins has the story for the Arizona Republic, and he joined The Show to talk about it.
Full conversation
LAUREN GILGER: So tell us, first of all about who asked for this change and this quote “explosion of complaints” that motivated him to do it.
JIMMY JENKINS: This was requested by Dave Byers, who is the director of the Administrative Office of the Courts. He submitted the rule change petition in response to what he told me was an explosion of complaints, like you said. He said that there were, by his count, 40 election-related cases were submitted from November 2020 to May of this year. And the way he saw, sees it is that a lot of these cases are filed by people who don't have direct ties to the case.
And, so, you know, he thought that this was problematic, could be kind of gumming up the works. And so this motion was meant to kind of curtail the number of people filing these bar complaints as well as curtail and limit the amount of information that they have available to them.
GILGER: So, does he think these were politically motivated essentially?
JENKINS: He didn't go that far. But the, one of the people, attorney Diane Post, who I spoke with, who believes that she is one of the people who are kind of being targeted by this rule change. She does feel that in turn, you know, I think that this is, she is being maybe politically, you know, gone after to stop filing these complaints.
She and her colleagues have filed a lot of these election-related complaints against attorneys who they believe were acting inappropriately who were involved in efforts to overturn the election. But her view is that, you know, this is, you know, attorneys are in the courtrooms, were in the legal community. We know each other. It's our duty to kind of hold each other responsible.
GILGER: So tell us then how exactly these changes will affect things? Like how did the process work before? How will it work now?
JENKINS: Before you could file a bar complaint even if you weren't directly related to a case and you could attain standing as a complainant. And by doing so as the investigation moved forward, you had access to lots of different kinds of information, you know, like the discovery process, things that come about in a normal lawsuit or complaint process.
Now, if someone who is not directly involved in a case files a complaint, it will be reviewed by the state Bar, they will make the decision based on different things. Like did the allegations constitute serious misconduct, incapacity, overdraft of a trust account or a criminal conviction?
If they determine that the claims fall in one of those categories, then the Bar itself will be the person who is substituted as the person filing the complaint, which would prevent the original person, like say a Diane Post from accessing information obtained during the subsequent investigation.
GILGER: For now, these changes are just temporary just until the election or around then, it sounds like?
JENKINS: That's right, Mr. Byers requested an emergency rule change so that it would take effect before the election. Post believes that this was done because the courts expect a slew of challenges, which, you know, she thinks that she and her colleagues would then file complaints about, you know, if they were deemed to be inappropriate.
So it will be temporary but it will take effect before the election and then the state Bar will vote on it again in a meeting that I believe that they're going to have this December. But the (Arizona Supreme Court) Chief Justice Ann Timmer has opened this process back up to public comment. So you can go on their website, check out the rule change and if you feel strongly about it, you can add your two cents.
GILGER: Let me ask you about the cases in which we've seen this happen, right, Jimmy, like we've seen the state Bar investigate attorneys in connection with the 2020 election. In fact, the charges against some of those attorneys for Kari Lake and Mark Finchem were just dismissed.
JENKINS: That's right. And one of the arguments from Diane Post, she, you know, she told me that she believes the state Bar has been “derelict.” That was her word in its duty to hold attorneys accountable. I reached out to the state Bar for a response, but I haven't received one yet.
You know, I think they would obviously say that they're doing their due diligence to keep an eye on their members. But yeah, Post is one of several people who are saying the state Bar we don't think is doing enough on this on their own as far as launching investigations and as far as holding people accountable. And she actually went so far as to say, you know, by not holding people accountable for what happened in 2020, you're actually going to embolden people to do it more and more in subsequent elections like the one we have coming up,
GILGER: What were the, what was the rationale for dismissing those charges we just mentioned?
JENKINS: You know, those are all posted online in the different investigations that you mentioned. But you know, the, the state Bar has decided that the people that complaints were filed against did not meet, you know, the certain benchmarks like we talked about before for being held accountable, for being sanctioned.
GILGER: Let me ask you about more about what Diane Post was asking for here, you mentioned, you know, some of her arguments, she's also calling for more transparency in this process. Is it a transparent process? Like how much, especially with these changes, will the public be able to know?
JENKINS: Well, I would just say as a reporter who has looked into this process, you know, it is, we don't know a lot about the bar complaint process. You don't normally see a bar complaint unless you're looking for something specific, it's kind of hard to figure out, you know, where things are in the process or what the result was.
And so, attorneys like posters saying, you know, we are citizen advocates out here, we are attorney advocates. We are you know, keeping an eye on this process and watch-dogging it and making it available to the public. So her argument was a lot of the information that you could get through the investigation and discovery process is not even going to be available to them anymore. Let alone the limited availability to information that the rest of us have.
