Election-related complaints to Arizona State Bar spur proposed change that could restrict information

A top state court administrator is advocating for a rule change that would add a step before some bar complaints against Arizona attorneys are investigated and would restrict access to information divulged during those investigations.

Dave Byers, director of the Administrative Office of the Courts, said he submitted the rule change petition in response to an "explosion of complaints" filed by people not directly connected to the underlying events.

"We've seen a significant increase in the number of complaints that have been filed regarding election cases, particularly filed by people who have no involvement with the case," Byers said. His petition, citing the bar, states there "have been at least 40 election-related cases submitted since November 2020."

The State Bar of Arizona investigated multiple attorneys in connection with the 2020 election, including a lawyer who was involved in assembling the fake electors who falsely claimed then-President Donald Trump won the state.

An Arizona judicial branch committee found there was probable cause that three lawyers who represented former gubernatorial candidate Kari Lake in election-related cases should face discipline after initial investigations by the State Bar.

Currently, Byers said, all people who file complaints are significantly involved in the investigative process.

"They get documents. They get to object to whatever the bar proposes as an outcome," Byers said. "But they also get information about these attorneys that I don't believe is necessarily appropriate. It could even be things like the lawyer's medical condition."

Byers said he believes people with partisan agendas have weaponized the process. In his petition, he raises the concern that people filing complaints "may be provided access to information that may otherwise be confidential until the conclusion of the investigation and then divulge it publicly before the discipline matter is finalized."

His proposed amendment would still allow anyone to file a complaint. But complaints filed by people not directly involved in the underlying event would be assessed first by the bar before being accepted for investigation.

Under the proposal, the bar would first determine whether the allegations constitute "serious misconduct, incapacity, overdraft of a trust account, or a criminal conviction." If the bar determines that the claims fall into one of those categories, then the bar itself would be substituted as the person filing the complaint, preventing the original complaint filer from accessing information obtained during the subsequent investigation.

Byers has asked for the petition to be considered on an emergency basis so it could be in place before the 2024 election.

"The 2024 election cycle is already generating media coverage, and the attorney disciplinary process may again see numerous allegations submitted by those not directly involved in the alleged misconduct," Byers wrote in his petition. "This presents a compelling circumstance for consideration of the proposed amendment ... andemergency adoption."

Attorney Dianne Post filed an opposition to Byers' proposed amendment. She said she believes she is among the people targeted by the proposed amendment because she and colleagues filed several bar complaints against attorneys tied to election challenges. But they only filed bar complaints after attorneys were sanctioned by a judge, Post said.

"This is a disgrace to lawyers," Post said of the proposed amendment. "One of the reasons that the rule of law exists and is upheld is because people need to believe that lawyers are ethical and honest and decent and will follow the law. That's why we have the procedures. And that's why we have other lawyers who have the ability to report on these lawyers."

Post said the proposed amendment is not the proper response to a group of lawyers who, she believes, acted out of concern for the integrity of their profession.

Attorneys are in a good position to identify and report wrongdoing by other lawyers, even if they are not directly involved in a particular situation, because they understand the ethics of the legal system, Post said.

The public comment period on Byers' proposal ends Friday. Byers said he is open to feedback. He must respond to comments by mid-June, and then the Arizona Supreme Court will review the proposal at a meeting in August.

Defiant actions: Facing license suspension, Kari Lake's lawyer skips discipline hearing on false election claims

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This article originally appeared on Arizona Republic: Proposal would change process for complaints against Arizona lawyers