Arizona Supreme Court reduces penalties for lawyers in political cases

Three current and former Republican lawmakers with links to the Jan. 6 attack on the U.S. Capitol may be able to escape paying the legal fees of a former Democratic state representative they sued.

The Arizona Supreme Court moved to reduce penalties for lawyers filing political cases.

The high court said that attorneys handling political issues should have more leeway to make their arguments and not automatically be forced to pay the other side’s legal fees.

The issue follows a case where Democrat Charlene Fernandez was sued after she called on the FBI to investigate Mark Finchem, Anthony Kern and Paul Gosar for their ties to Jan. 6.

The justices said by sanctioning parties for bringing debatable, long-shot complaints, courts risk chilling legal advocacy.

The state Supreme Court also adopted new rules designed to narrow the ability of people not directly involved in cases to file ethics complaints. David Byers, administrator of the Administrative Office of the Court, who crafted the rule, said it is designed to keep the disciplinary process from "being weaponized by partisans or the appearance of that occurring.''

In this new order, the justices directed the Court of Appeals to reconsider its 2023 ruling upholding a decision by Yuma County Superior Court Judge Levi Gunderson requiring Mark Finchem, Anthony Kern and Paul Gosar to shell out $75,000 that Charlene Fernandez, then a state representative from Yuma, had to pay her attorneys.

They had sued her for defamation after she called for the FBI and Department of Justice to investigate their actions around the riot which had sought to block certification of the 2020 election results showing that Joe Biden had defeated Donald Trump. Finchem and Kern, state lawmakers at the time, were in Washington and attended the Stop the Steal rally, though there is no evidence either breached the Capitol; there were allegations -- all unproven -- that Gosar, a member of Congress, was involved in planning the disturbance.

Gunderson tossed the case against Fernandez.

"Defendant had the right to express her concerns, both as an individual and as a state legislator,'' Gunderson said. "Defendant had the fight to petition the government, just as her constituents have the right to petition her.''

More to the point, the judge said their lawsuit "was brought for an improper purpose, having been filed against a political opponent primarily for the purposes of harassment.''

The trio never appealed the underlying ruling in favor of Fernandez. But they argued to the appellate judges that Gunderson's decision to force them to pay Fernandez's legal fees was not justified, saying that such sanctions "will stifle creative advocacy.''

The three-judge appellate panel disagreed, concluding the trio filed suit "without substantial justification'' and that "their pleadings were riddled with irrelevant allegations.''

But now the Supreme Court has ordered the appellate court to take a new look at this case.

It's all because the legal landscape has changed. The justices now want to give those who filed lawsuits in political cases more leeway to make their claims without fear they are going to be punished, either with having to pay the other side's legal fees or even being disciplined for ethical violations.

That's precisely what happened in the Fernandez case. The justices, in essence, told the appellate court to go back and read their decision in a case where the Arizona Republican Party had sued Maricopa County and others over some procedures used for the post-election hand count.

A lower court judge not only threw out the case as "groundless'' but concluded that it had been filed for the wrong reasons. He said the GOP admitted that "public mistrust following this election motivated this lawsuit.''

"The plaintiff is effectively admitting that the suit was brought primarily for an improper purpose,'' the wrote Judge John Hannah. " 'Public mistrust' is a political issue, not a legal or factual basis for litigation.''

And that, he said, meant the attorneys for the party had to pay more than $18,000 in legal fees.

But the Supreme Court set that award aside.

"Any suggestion that a party or an attorney faces enhanced risk of sanction merely because they couple political motives with a long-shot effort to vindicate a legal right in the election law context intolerably chills citizens and their attorneys precisely in an areas where we can least afford to silence them,'' wrote Justice John Lopez for the unanimous court.

It is that ruling that the justices are using to tell the appellate court to"reconsider'' that $75,000 award to Fernandez -- this time using the new standard.

Potentially more far reaching is the change in the procedure for filing ethics complaints against attorneys.

Strictly speaking, the new rule does not stop anyone from filing a complaint with the State Bar of Arizona.

But it says that those filed by individuals with direct knowledge of the issue -- judges, attorneys, parties and witnesses -- will be handled the traditional way, with the person who files the paperwork listed as the complainant and entitled to access to all information gathered by the Bar.

And everyone else? The Bar would review the complaint and make an initial determination if it had merit. Only in that case would the person who filed the complaint be part of the process, free to publicly disclose the fact that someone is under scrutiny or even be aware of the outcome.

The rule was just adopted by the Supreme Court on an emergency basis. And Byers said that's aimed at the upcoming election.

"Media coverage of election-related litigation litigation generated charges from individuals who were not directly involved in the underlying case,'' he said, with at least 40 such cases submitted since the 2020 general election. "We're seeing lots of complaints come in where somebody said, 'I read this in the newspaper that this lawyer did this, I'm filing a complaint with the bar over this.' ''

More to the point, Byers said, many of the complaints appear to have been filed largely for political reasons.

"It really became a weaponization of the system,'' he said, so far mostly with Democrats and their allies -- some from out of state -- filing complaints against lawyers representing Republicans who were trying to have elections overturned. And once these individuals have legal standing as a complainant, they not only get updates and get to object, they also can make public the fact that an attorney is being investigated -- even if there is no finding that the lawyer acted unethically.

Senate President Warren Petersen who is a member of the Bar submitted comments favoring adoption of the rule change.

"Not only can the current process be weaponized by partisans, but it also can be weaponized for any reason,'' said the Gilbert Republican.

But Dianne Post, an international human rights attorney, dismissed the concern about "weaponization'' of the complaint process.

She said lawyers who file frivolous complaints can be disciplined. And everyone else?

"The solution is not to punish those filing valid complaints but may not know how to investigate beyond news reports (nor is that their duty) but to reject those efforts to attack the rule of law,'' she said. "The State Bar could do so by expeditiously dismissing non-meritorious complaints filed for political purposes, and by communicating to the public via the news media the fact that certain individuals or groups are misusing the Bar complaint process improperly for political purposes.''

Amelia Cramer, a former chief deputy Pima County attorney now in private practice, had her own objections, including denying the right of some who file complaints from being informed of the outcome.

"More transparency, not less, regarding Bar discipline is warranted in these times of distrust of government institutions and misuse of the justice system for political purposes,'' she wrote. Those who submit Bar charges deserve to know ultimately what happened with respect to those charges.''

Tempe attorney Victor Aronow said the amendment "is purely political in nature and is intended to eliminate one more mechanism with the State Bar that could be used to preserve respect for the law, respect for the vote, and respect for the legal profession.''

And Ralph Adams, a former senior Bar counsel in Arizona, now retired, said it is "completely irrelevant'' whether someone has first-hand knowledge of the events.

"The First Amendment protects complainants' free speech rights,'' he said, including their right to comment about a complaint they have filed. And he said Byers' concern about 40 election-related complaints is no reason to change the rules: He said in the same four years the Bar processed more than 9,200 complaints.