BEFORE THE PRESIDING DISCIPLINARY JUDGE OF THE SUPREME COURT OF ARIZONA IN THE MATTER OF MEMBERS PDJ-2011-9002 OF THE STATE BAR OF ARIZONA, ANDREW P. THOMAS, BAR NO. 014069, LISA M. AUBUCHON, BAR NO. 013141, and OPINION AND ORDER IMPOSING RACHEL R. ALEXANDER, BAR NO. SANCTIONS 020092 Respondents. [Nos. 09-2293, 09-2294, 09-2296, 10-0423, 10-0663, 10-0664] This case was heard as a result of a Complaint in attorney discipline being filed against Andrew P. Thomas, Lisa M. Aubuchon and Rachael R. Alexander. Formal hearings were held before the Hearing Panel over 26 days commencing September 12, 2011 and concluding November 2, 2011. As a result of the findings entered by the Honorable John S. Leonardo in State of Arizona vs. Wilcox, CR-2010-005423-001/OC-2010-005423-001, the Executive Director of the State Bar requested the appointment of independent counsel to investigate allegations of misconduct against then Maricopa County Attorney Andrew Thomas. Pursuant to Article VI of the Arizona Constitution and by Administrative Order No. 2010-41 entered on March 23, 2010, Chief Justice Rebecca White Berch of the Arizona Supreme Court appointed the Colorado Supreme Court Office of Attorney Regulation under the direction of Regulation Counsel, John Gleason, as Independent Bar Counsel. Mr. Gleason and other attorneys within that office designated by him were invested with “all the power and authority granted to Bar Counsel pursuant to rules, orders, or decisions of the Arizona Supreme Court.” Mr. Gleason was charged to investigate and, as he determined appropriate, prosecute allegations of ethical 1 misconduct against then Maricopa County Attorney Andrew Thomas or lawyers in his employ arising from multiple events occurring during his tenure as County Attorney. On March 8, 2010, by Administrative order 2010-33, Charles E. Jones, former Chief Justice of the Arizona Supreme Court (now retired), was appointed to serve as the Probable Cause Panelist to review any allegations arising from that investigation. As required by the Supreme Court Rules, Probable Cause Panelist Jones reviewed in its entirety Independent Bar Counsel’s “Report of Investigation and Request for Authority to File Formal Complaint.” On December 6, 2010, an independent finding of probable cause was entered by that Probable Cause Panelist. On February 3, 2011, Independent Bar Counsel filed a thirty three (33) claim complaint against Andrew Thomas, Lisa Aubuchon and Rachael Alexander regarding events occurring during his term as County Attorney. Mr. Thomas faced thirty (30) charges; Ms. Aubuchon faced twenty–eight (28) charges and Ms. Alexander seven (7) charges. The alleged violations included, but were not limited to, Conflict of Interest and Prosecutorial Misconduct. The parties stipulated on September 6, 2011 to multiple facts that are adopted by the Hearing Panel. Each of the Respondents is subject to the jurisdiction of the Arizona Supreme Court pursuant to Rule 31 of the Rules of the Arizona Supreme Court. Andrew P. Thomas was admitted to the Bar of the State of Arizona on October 26, 1991. His Bar Number is 014069. Lisa M. Aubuchon was admitted to the Bar of the State of Arizona on October 27, 1990. Her Bar Number is 13141. Rachel R. Alexander admitted to the Bar of the State of Arizona on May 19, 2000. Her Bar Number is 20092. 2 Mr. Thomas was elected Maricopa County Attorney in 2004. He was reelected in 2008. He resigned from that office effective April 6, 2010. Ms. Aubuchon worked at the Maricopa County Attorney’s Office from 1996 through 2010. Ms. Alexander worked at the Maricopa County Attorney’s Office from 2005 through 2010. Pursuant to Rule 52 of the Rules of the Supreme Court of Arizona, a three person Hearing Panel was appointed by the Disciplinary Clerk. The Hearing Panel was comprised of a volunteer public member, the Rev. Dr. John C. N. Hall, a volunteer attorney member, Mark S. Sifferman and by virtue of his position, the Presiding Disciplinary Judge, William J. O’Neil. Independent Bar Counsel appeared in person and presented evidence and argument in support of its position. Respondents each appeared in person or through counsel. Each Respondent through counsel presented evidence and argument in support of his or her respective individual positions. Closing arguments were permitted to be submitted in writing. The Hearing Panel heard and considered the extensive record and after receiving the closing arguments took the matter under advisement. INTRODUCTION In Arizona, “[t]he professional conduct of members shall be governed by the Model Rules of Professional Conduct of the American Bar Association” as amended by the Supreme Court of Arizona “and adopted as the Arizona Rules of Professional Conduct.” R. Sup. Ct. Ariz. 42. Every member of the Arizona Bar Association is subject to these rules regardless of how lofty or low a position they hold. The duties and obligations of members shall be: (a) Those prescribed by the Arizona Rules of Professional Conduct adopted as rule 42 of these rules. 3 (b) To support the constitution and the laws of the United States and of this state. (c) To maintain the respect due to courts of justice and judicial officers. (d) To counsel or maintain no other action, proceeding or defense than those which appear to him legal and just, excepting the defense of a person charged with a public offense. (e) To employ for the purpose of maintaining causes confided to him such means only as are consistent with truth, and never seek to mislead the judges by any artifice or false statement of fact or law. (f) To maintain inviolate the confidences and preserve the secrets of a client. (g) To avoid engaging in unprofessional conduct and to advance no fact prejudicial to the honor or reputation of a party or a witness unless required by the justice of the cause with which the member is charged. (h) Not to encourage either the commencement or continuation of an action or proceeding from any corrupt motive of passion or interest, and never to reject for any consideration personal to himself the cause of the defenseless or oppressed. R. Sup. Ct. Ariz. 41. TABLE OF CONTENTS This Decision addresses the Claims in the order they occur in the Complaint. For this reason, the narrative is not always in perfect chronological order. PREFACE PAGE 5 PROLOGUE PAGE 23 THE UTILIZATION OF OUTSIDE COUNSEL PAGE 30 THE DISPUTES WITH SUPERVISORS OVER COUNSEL PAGE 32 CLAIMS ONE THROUGH THREE PAGE 38 THE INVESTIGATION OF SUPERVISOR STAPLEY PAGE 47 THE PROSECUTION OF SUPERVISOR STAPLEY PAGE 60 CLAIMS FOUR THROUGH ELEVEN PAGE 64 4 THE COURT TOWER INVESTIGATION PAGE 93 CLAIMS TWELVE THROUGH FOURTEEN PAGE 100 THE RICO CASE PAGE 106 CLAIMS FIFTEEN THROUGH TWENTY PAGE 121 THE SECOND PROSECUTION OF DON STAPLEY (STAPLEY II) AND THE PROSECUTION OF MARY ROSE WILCOX PAGE 129 CLAIMS TWENTY-ONE THROUGH TWENTY-THREE PAGE 132 CLAIMS REGARDING JUDGE GARY DONAHOE PAGE 138 CLAIMS TWENTY-FOUR TO THIRTY PAGE 174 CLAIMS INVOLVING THE FINAL GRAND JURY PAGE 218 CLAIMS THIRTY-ONE TO THIRTY TWO PAGE 218 CLAIM THIRTY-THREE FAILURE TO COOPERATE PAGE 222 SANCTIONS PAGE 224 CONCLUSION PAGE 228 CONCURRING OPINION PAGE 233 PREFACE The way of a fool seems right to him, but a wise man listens to advice. A fool shows his annoyance at once, but a prudent man overlooks an insult. A truthful witness gives honest testimony, but a false witness tells lies. Proverbs 12:15–17. Like darkened clouds on the horizon, there were, in retrospect, certain events that gave fair warning to the then–impending storm this Complaint addresses. They are described in detail in this report. Always at the center is Mr. Thomas. 5 Several prior landmarks provide background and context to this man’s story: earning a law degree from a prestigious school, joining a prominent law firm, moving into the heights of the governmental corridors of power, suddenly falling from such lofty position, safely landing with a political appointment, resigning to run for state office and a far more personal fall in losing, being hired by a multi- term county attorney but tasked to do menial entry level work, observing Lisa Aubuchon during a new employee training, running for office and winning, hiring Rachael Alexander in his first year in office and perhaps committing to do whatever he determined was necessary to remain there. Attorney discipline is an inherently personal subject. The Supreme Court of Arizona has declared it sui generis, or unique to itself. It is not based on criminal or civil law but rather administrative rules. Each Respondent has been judged independently of one another. The category of individuals who act unethically is not the exclusive province of any single political party, nor is intelligence or its absence a predictor of unethical action. Such untoward conduct is not limited by race, nationality or creed. Until one decides that virtue matters—until it becomes a personal mission—no training will produce the commitment needed to pursue or maintain integrity. While in a discipline case conduct is measured against rules and standards, it is more than those regulations. Ignoring for the Moment the Charges Re: Supervisors Stapley and Wilcox In these prefatory comments we choose to set aside for later discussion the charges regarding Supervisor Stapley and Supervisor Wilcox. By our ruling we dismiss the charges related to allegations that either Mr. Stapley or Ms. Wilcox was represented individually by any Respondent. They were not. We explain our other rulings in detail regarding those two individuals. Our general comments regarding 6 ethics and discipline certainly apply to all. However, in these initial comments we choose to focus on the prosecutorial misconduct related to the charges involving multiple other individuals impacted by the actions of Respondents.