Az Probable Cause Report Re Andrew Thomas 2010

The Habeas Citebook: Prosecutorial Misconduct - Header

Az Probable Cause Report Re Andrew Thomas 2010

• Topics: Attorneys, District Attorneys

Download original document:
Brief thumbnail

This text is machine-read, and may contain errors. Check the original document to verify accuracy.

John S. Gleason
Arizona State Bar
Independent Bar Counsel
Colorado Supreme Court
Office of Attorney Regulation Counsel
1560 Broadway, Suite 1800
Denver, Colorado 80202
(303) 866-6400
BEFORE THE PROBABLE CAUSE PANELIST
OF THE STATE BAR OF ARIZONA
Summary of Various Matters Referred to by Independent Bar Counsel
Andrew P. Thomas-Lisa Aubuchon-Rachel Alexander
1.

The Dispute over Spanish Speaking DUI Courts: Page 5; Probable Cause Report

In February 2006, Thomas and others filed a lawsuit in federal district court challenging the
creation (in 2002) of Spanish speaking DUI courts. Thomas named Judge Barbara Mundell and
other officers of the Arizona Superior Courts as defendants. The lawsuit was dismissed on
Thomas's appeal due to a lack of standing to bring the action. Judge Mundell was later a
defendant in the RICO action brought by Thomas and Aubuchon.
2.

The Dispute Over Appointment of Civil Attorneys: Page 6; Probable Cause

Report

This dispute between Thomas and the Board of Supervisors began around March, 2006.
Essentially, the Board of Supervisors directed Chair Donald Stapley to speak with Thomas
regarding the Board's perception that Thomas was making appointments of outside counsel to
his political allies. Additionally, the Board was concerned with the increasing cost related to
Thomas's appointment of outside counsel. The Board decided to remove Thomas from the
process and make the appointments themselves. This led to a series of letters from Thomas to
the Board and increasing tension between Thomas and the Board.
3.

Thomas Irvine, Esq.: Page 8 (and throughout); Probable Cause Report

Phoenix lawyer Thomas Irvine is referenced throughout the report in matters related to the court
tower project, the Board of Supervisors' hiring counsel, and other matters. Mr. Irvine was also a
named defendant in the RICO action filed by Thomas, Aubuchon, and Alexander.
4.

Dispute Related to the Dowling-Keen Matters: Page II; Probable Cause Report

On June 14, 2006, Thomas sued the Board of Supervisors in a declaratory judgment action
concerning the right of the Board of Supervisors to select and appoint outside counsel without
the input of the Coun1y Attorney. On the same day, Thomas released a public statement
1

regarding lawsuits brought against Maricopa County by Superintendent of Schools Dowling and
Medical Examiner Keen. Thomas stated in the release that the Dowling and Keen matters were
"unsupportable" and a reflection of the "unusual chairmanship of Supervisor Don Stapley."
Thomas made the statement notwithstanding the fact that the county and Supervisor Stapley
were his clients.
Stapley I and Stapley II: Page 14 and Page 57 (and throughout); Probable Cause
5.
Report
Stapley I: Page 14; Probable Cause Report. Lisa Aubuchon presented the Stapley I matter to a
Grand Jury. On December 3, 2008, Supervisor Stapley was served with a 118 count indictment
charging felonies and misdemeanors related to his yearly disclosures as a county supervisor
dating back to 1994. This was the first time in Arizona history charges such as these were
brought against a county supervisor. Many of the charges were outside the statute of limitations
and others were dismissed. {Some remaining charges are pending with the Yavapai County
Attorney's Office.}
Stapley II: Page 57; (and throughout) Probable Cau~e Report.
On December 7, 2009, Thomas and Aubuchon filed a second indictment against Stapley.
Thomas had earlier handed off the investigation of this matter to Yavapai County Attorney
Sheila Polk, but Thomas took it back from her in September 2009. The Stapley II indictment
alleges three areas of conduct upon which the charges were filed: Stapley's use of contributions
in his campaign to be elected to an office in the National Association of Counties; obtaining a
loan by fraud; and financial disclosure violations. There were 27 counts in the indictment. This
case was dismissed by the court on March 15, 2010, on Thomas's motion. Thomas made this
motion through deputy county attorney Kittredge because Judge Leonardo ruled that Thomas and
his office had a conflict of interest in the matter.
6.

The Dispute over the Arizona Meth Project: Page 18; Probable Cause Report

An Arizona television advertisement project implemented by the Board of Supervisors initially
featured Andrew Thomas as a figure-head in the advertisements. The Board later determined
that Mr. Thomas was using the advertisements for political purposes rather than the Board's
intended purpose. The Board's decision to exclude Thomas created tension between Thomas
and the Chair ofthe Board, Donald Stapley.
7.

Court Tower Investigation: Page 35 (and throughout); the Probable Cause Report

References to the "court tower" throughout the report refer to the building of the Maricopa
County court tower. Thomas initiated multiple "investigations" of the project and it is
referenced in matters related to Thomas Irvine, Supervisor Stapley, Judge Gary Donahoe,
County managers, and others in the Probable Cause Report.

"Dec Action" - Declaratory Action: Page 39; Probable Cause Report

On December 31, 2008, Thomas and Sheriff Arpaio sued the Board of Supervisors over the
Board's authority to hire lawyers. The complaint in the Dec Action asked for, among other
things, an order that the Board could not hire Mr. Irvine, or any other counsel to advise it about
Thomas's conflicts; that the Board could not choose its own counsel if there was conflict in
Thomas's representation of the Board; and that only the county attorney, not the Board, could
determine if he had a conflict of interest.
The Board, through Mr. Irvine, filed an Answer and a Counterclaim on April 6, 2009. The
Board asked the court to declare that Thomas's conflicts made him unavailable to act as the
Board's attorney, and to declare that the Board could choose its own counsel because the county
attorney was unavailable due to his conflicts.
9.

Quo Warranto Action: Page 40; Probable Cause Report

In December 2008, Thomas sued Thomas Irvine individually at the same time he sued MCBOS.
Thomas v. Irvine, Shughart Thomson & Kilroy and Richard Romley, CV2008-033193. This

action claimed that Irvine had usurped the authority of the County Attorney. No answer was
filed, and the case was voluntarily dismissed on December 7, 2009. The parties agreed that this
action would be determined by the outcome of the Dec Action, and for that reason there was no
substantive litigation of this matter.
10.

"Sweeps" Lawsuit: Page 40; Probable Cause Report

On February 27,2009, Arpaio and Thomas sued the Board in a new action about funds that had
been appropriated or encumbered by the supervisors. Arpaio and Thomas v. MeBDS, CV2009006709 (referred to as "the Sweeps" case). The general issue that led to this case was the State
needing to withhold funds from each county entity because of a budgetary crisis.
11.

Federal Civil RICO Matter: Page 44; Probable Cause Report

On December 1, 2009, Thomas and Aubuchon (Maricopa County Deputy County Attorney
Rachel Alexander participated in this matter) filed a federal civil RICO action against various
defendants. The purported plaintiffs in this action were Thomas and Sheriff Joe Arpaio. Lisa
Aubuchon signed the complaint. Thomas appears as both a plaintiff and the lawyer for plaintiffs
in this civil case.
The RICO complaint named the following defendants:
•
•
•
•

Maricopa Board of Supervisors, a body politic and corporate;
Fulton Brock, Supervisor;
Andrew Kunasek, Supervisor;
Donald T. Stapley, Supervisor;

•
•
•
•

Mary Rose Wilcox, Supervisor;
Max Wilson, Supervisor;
David Smith, County Manager;
Sandi Wilson, Deputy County Manager;
3

•
•
•
•
•
•
•

Wade Swanson, Office of General Litigation;
Judge Barbara Mundell, Superior Court;
Judge Anna Baca, Superior Court;
Judge Gary Donahoe, Superior Court;
Judge Kenneth Fields, Superior Court;
Thomas Irvine, attorney;
Edward Novak, attorney.

12.
Grand Jury 2010; Wetzel, Supervisor Kunasek, and Sandi Wilson; Judge Donahoe,
Thomas Irvine, and Connty Manager David Smith: Page 72; Probable Cause Report

On January 4, 2010, Aubuchon began a presentation to the Grand Jury about two areas: 1)
allegations that Stephen Wetzel, Andrew Kunasek and Sandi Wilson had illegally used public
monies on two separate occasions to conduct sweeps for electronic listening devices at county
offices; and 2) allegations that Judge Donahoe, Thomas Irvine and County Manager David Smith
had illegally conspired to hinder prosecution and obstruct a criminal investigation involving the
court tower. Testimony was taken on January 4, 2010. There were only two witnesses:
Detective Halverson and Chief Deputy Hendershott.

Andrew P. Thomas-Lisa Aubuchon-Rachel Alexander

Ethical Violation 1: Thomas-Page 10; Conflict of Interest, ER 1.7(a)(2). A lawyer shall not
represent a client if the representation involves a concurrent conflict of interest.
Thomas had a strong personal and political self -interest as Maricopa County Attorney to make
outside counsel appointments that benefited him without interference from the Board of
Supervisors. As such, he could not provide counsel to the Board of Supervisors on this very
Issue.
Ethical Violation 2: Thomas-Page 13; Confidentiality of Information, ER 1.6(a). A lawyer
shall not reveal information relating to the representation of a client unless the client gives
informed consent.
In two pending lawsuits against Maricopa County (Keen & Dowling), Thomas stated that the
county's position was unsupportable and that he believed the cases against the county had merit.
Thomas made the statements notwithstanding the fact that he had an attorney client relationship
with the Board and the County. Thomas made the disclosure for the sole reason of buttressing his
disputes with the Board of Supervisors.
Ethical Violation 3: Thomas-Page 14; Trial Publicity, ER 3.6(a).
In the Keen and Dowling matters, Thomas issued a press release that he knew or reasonably
should have known would have the likelihood of materially prejudicing an adjudicative
proceeding. June 14, 2006 press release as stated in Ethical Violation 2.
Ethical Violation 4: Thomas and Aubuchon-Page 17; Respect for Rights of Others, ER
4.4(a).
Thomas and Aubuchon filed charges against Supervisor Stapley that had no substantial purpose
other than to burden and embarrass him. Thomas and Aubuchon's efforts to attack and
embarrass Supervisor Stapley are based upon disputes that date back to at least March 2006. The
evidence will show that their investigations of Supervisor Stapley were personally and politically
motivated.
1

Ethical Violation 5: Thomas and Aubuchon-Page 19; Conflict of Interest, ER 1.7(a)(I).
Thomas and Aubuchon's personal animus against Supervisor Stapley precluded them from
providing conflict free representation to either the people of the state of Arizona or the Board of
Supervisors. Their personal conflicts precluded them from seeking the indictment of Supervisor
Stapley and later in prosecuting him.
Ethical Violation 6: Thomas and Aubuchon-Page 23; Misrepresentations to the Court, ER
3.3(a).
Aubuchon made misrepresentations to the court in pleadings that she filed (Motion for Voluntary
Recusal or if Denied Motion for Change of Judge for Cause) by alleging that Judge Fields had
filed a complaint against Thomas with the State Bar. (Stapley 1 Matter) Aubuchon filed the
motion with the approval of Thomas and with the knowledge that the allegations were false.
Ethical Violation 7: Thomas and Aubuchon-Page 25; Candor Toward the Tribunal, ER
3.3(a).
Aubuchon made misrepresentations to the court in pleadings that she filed (Motion for Voluntary
Recusal or if Denied Motion for Change of Judge for Cause) by alleging that Judge Fields had
filed a complaint against Thomas with the State Bar. (Stapley 1 Matter) Aubuchon filed the
motion with the approval of Thomas and with the knowledge that the allegations were false.

Ethics Violation 8: Aubuchon-Page 26; Misconduct, ER S.4(d).
On or about December 11, 200S, Aubuchon engaged in conduct prejudicial to the administration
of justice when Aubuchon wrote directly to Judge Baca and Judge Mundell requesting that both
judges submit to an interview and/or deposition regarding the selection of Judge Fields in the
Stapley 1 matter. This extraordinary act was done for no other reason than to intrude into
judicial discretion and to intimidate members of the judiciary.
Ethical Violation 9: Thomas and Aubuchon-Page 31; Misconduct, ER S.4(d).
Thomas and Aubuchon engaged in conduct prejudicial to the administration of justice by
charging Supervisor Stapley with 44 misdemeanors when they knew that the charges were barred
by the Arizona statute oflimitations.
Ethical Violation 10: Aubuchon-Page 32; Misconduct, ER S.4(c).
Aubuchon engaged in conduct involving dishonesty, fraud, deceit or misrepresentation when she
knowingly failed to tell the grand jury that many of the misdemeanor charges filed against
Supervisor Stapley were barred by the Arizona statute oflimitations.
Ethical Violation 11: Thomas-Page 35; Trial Publicity, ER 3.6(a).
Thomas made improper public statements on August 24, 2009 in the Stapley 1 matter before
Judge Fields that had the substantial likelihood of materially prejudicing an adjudicative
proceeding.
Ethical Violation 12: Thomas-Page 43; Respect for Rights of Others, ER 4.4(a).
In a letter dated December 5, 200S Thomas, through Deputy Phillip MacDonnell threatened
legal action against County Manager David Smith, Deputy County Manager Wilson, and Chief
2

Financial Officer Manos if they paid Thomas Irvine or his firm for representation of the Board of
Supervisors. This conduct had no other purpose other than to embarrass, delay or burden the
county officials.
Ethical Violation 13: Thomas and Aubuchon-Page 43; Respect for Rights of Others, ER
4.4(a).
A December 2008 grand jury subpoena issued to the Maricopa County Administration and a
FOIA request to Maricopa County were made for no other reason than to burden the county and
its employees. Thomas and Aubuchon issued the subpoena and the FOIA request to their own
client-Maricopa County.
Ethical Violation 14: Thomas and Aubucbon-Page 44; Conflict of Interest: Current Clients,
ER 1.7(a)(l) & ER 1.7(a)(2).
Court Tower Matter. While representing Maricopa County, Thomas and Aubuchon were
investigating their client, the Board of Supervisors, on the very issue on which MCAO had
previously represented the Board. Thomas and Aubuchon began the court tower investigation
based solely on their personal and political animosity toward the Board of Supervisors.

Ethical Violation 15: Thomas, Aubuchon and Alexander-Page 50; Respect for Rights of
Others, ER 4.4(a).
RICO Matter. The filing and continuation of the RICO matter against the Board of Supervisors
and its elected members, judges, county officials, and private individuals was filed for no
substantial purpose other than to embarrass, delay or burden the named defendants.
Ethical Violation 16: Thomas, Aubuchon and Alexander-Page 51; Meritorious Claims and
Contentions, ER 3.1.
RICO Matter. There was no good faith basis in fact or in law to support the filing of the RICO
case. Thomas, Aubuchon, and Alexander brought and furthered the action based solely on their
personal and political animosity toward the Board of Supervisors, judges, county officials, and
private individuals.
Ethical Violation 17: Thomas, Aubuchon and Alexander-Page 52; Competence, ER 1.1.
RICO Matter. The filing and continuation of the RICO matter exhibits a dramatic lack of even
basic legal competence. Notwithstanding the malicious and frivolous nature of the complaint
and response to motions to dismiss the lawyers lacked basic legal knowledge or skill.
Ethical Violation 18: Thomas, Aubuchon and Alexander-Page 53; Conflict of Interest:
Current Clients, ER 1.7(a)(I) & ER 1.7(a)(2).
RICO Matter. Thomas, Aubuchon and Alexander brought the RICO action against many of the
county attorney's clients and on behalf of another client, Sheriff Arpaio. Furthermore, their
individual personal and political interests limited (or eliminated) their ability to represent anyone
in the RICO matter. Thomas, Aubuchon and Alexander alleged that they represented the State of
Arizona, Thomas personally and Sheriff Arpaio in the RICO matter notwithstanding the fact that
they also contemporaneously represented many of the defendants in other matters.

Ethical Violation 19: Thomas, Aubuchon and Alexander-Page 55; Fairness to Opposing
Party and Counsel-Knowingly Disobeying an Obligation Under a Rule of a Tribunal, ER 3 .4(c).
RICO Matter. Arizona Supreme Court Rule 48(1) precludes any civil action predicated on the
filing of Bar complaints. Thomas, Aubuchon and Alexander alleged, in part, that the RICO
action was warranted based on Bar complaints filed against Thomas.
Ethical Violation 20: Thomas, Aubuchon and Alexander-Page 56; Misconduct, ER 8.4(d).
RICO Matter. Thomas, Aubuchon and Alexander sued four Maricopa County Superior Court
judges based solely on their judicial decisions in various matters. The RICO filing was an
unprecedented and unlawful effort to intrude upon the independence of the judiciary and the
decision-making process of judges. Furthermore, the RICO filing was an attempt to silence
judges through a misuse of their prosecutorial powers.
Ethical Violation 21: Thomas and Aubuchon-Page 57; Conflict ofInterest: Current Clients,
ER 1.7(a)(2).
Supervisor Mary Rose Wilcox Matter. {See Ethics Violation 14} Thomas and Aubuchon
brought criminal charges against Supervisor Wilcox notwithstanding a pending civil action
(RICO Matter) seeking damages because of alleged damage to Thomas. Furthermore, in
February 2010 Judge Leonardo of the Pinal County Superior Court ruled that Thomas and his
office could not serve as prosecutors in the Supervisor Wilcox matter.

Ethical Violation 22: Thomas and Aubuchon-Page 59; Respect for Rights of Others, ER
4.4(a).
Stapley II and Wilcox Matters. The charges in the Stapley II and Mary Rose Wilcox cases (both
Maricopa County Supervisors) were brought to embarrass and burden the two supervisors. The
evidence will reflect that there was no independent complaint or action that led to the
investigations of Supervisor Stapley. Rather, the personal and political animosity of Thomas and
Aubuchon drove the investigation and charging of the two individuals.
Ethical Violation 23: Thomas and Aubuchon-Page 60; Conflict of Interest: Current Client,
ER 1.7(a)(2).
Stapley II Matter. Thomas and Aubuchon sought and brought criminal charges against
Supervisor Stapley while at the same time seeking damages from him in a civil action (RICO
matter). Furthermore, Thomas's and Aubuchon's personal and political animosity against
Supervisor Stapley and the Board of Supervisors precluded the exercise of conflict-free decision
making.

Ethical Violation 24: Thomas and Aubuchon-Page 63; Special Responsibilities of a
Prosecutor, ER 3.8(a).
Maricopa County Superior Court Judge Gary Donahoe Matter. Thomas and Aubuchon brought
serious criminal charges against Judge Donahoe that were not supported by probable cause.
Thomas and Aubuchon engaged in prosecutorial misconduct by bringing charges of bribery,
hindrance, and obstruction against Judge Donahoe. The evidence will show that there was no
basis to begin an investigation of Judge Donahoe let alone charge him with serious crimes. The
evidence will show that there was no factual or legal basis for the charges.
4

Ethical Violation 25: Thomas and Aubuchon-Page 68; Respect for Rights of Others, ER
4.4(a).
Maricopa County Superior Court Judge Gary Donahoe Matter. The purpose for charging Judge
Donahoe was to embarrass and burden him so that he would be forced to recuse himself in a
matter important to Thomas and Aubuchon (Hearing of December 9, 2010). The evidence will
show that the motivation for the charges against Judge Donahoe was the personal and political
animosity that Thomas and Aubuchon held against Judge Donahoe.
Ethical Violation 26: Thomas and Aubuchon-Page 69; Misconduct, ER 8.4(c).
Maricopa County Superior Court Judge Gary Donahoe Matter. Thomas and Aubuchon engaged
in conduct involving dishonesty, fraud and deceit when they knowingly brought charges against
Judge Donahoe that were false and brought without any investigation or evidence.
Ethical Violation 27: Thomas and Aubuchon:-Page 69; Misconduct, ER 8.4(b) Perjury.
Maricopa County Superior Court Judge Gary Donahoe Matter. Thomas and Aubuchon knew
that the criminal charges against Judge Donahoe were false and they knew that Detective
Almanza to swore to a false complaint. Thomas and Aubuchon knew that the complaint was a
sworn document as defined by Arizona law. As such, Thomas and Aubuchon are criminally
accountable for the conduct of Detective Almanza because they knowingly caused him to sign
and file a false document.

Ethical Violation 28: Thomas and Aubuchon:---Page 70; Misconduct, ER 8.4(b) Conspiracy
to Commit Violation of Civil Rights.
Thomas and Aubuchon with each other and others to violate the Constitutional rights of Judge
Donahoe by charging him with crimes so that he would recuse himself in a matter.
Ethical Violation 29: Thomas and Aubuchon-Page 72; Conflict of Interest: Current Clients,
ER 1.7(a)(2).
Maricopa County Superior Court Judge Gary Donahoe Matter. Thomas and Aubuchon had a
concurrent conflict of interest in bringing criminal charges against Judge Donahoe. Their
personal and political animosity against Judge Donahoe, based on his judicial rulings, limited
their representation and judgment as attorneys for the state.
Ethical Violation 30: Thomas and Aubuchon-Page 72; Misconduct 8.4(d)
Judge Donahoe. Thomas and Aubuchon engaged in conduct prejudicial to the administration of
justice by charging Judge Donahoe with crimes for the sole purpose of compelling his recusal in
a pending civil matter.

Ethical Violation 31: Thomas and Aubuchon-Page 74; Conflict of Interest: Current Clients,
ER 1.7(a)(2).
Grand Jury investigation of Judge Donahoe, Thomas Irvine, Supervisor Andrew Kunasek,
County Manager David Smith and Deputy County Manager Sandi Wilson. Thomas and
Aubuchon had a concurrent conflict of interest because they filed a pending federal civil RICO
action against the named individuals seeking damages allegedly caused to Thomas.
Furthermore, their personal and political animosity against the named individuals limited their
representation and judgment as attorneys for the state.
5

Ethical Violation 32: Aubuchon-Page 75; Misconduct, ER 8.4(c) Dishonesty and
Misrepresentation.
Grand Jury matters 2010. On January 4, 2010 Aubuchon appeared before the Grand Jury
regarding two matters: 1) allegations that Maricopa County employee Stephen Wetzel,
Supervisor Andrew Kunasek, and Deputy County Manager Sandi Wilson illegally used county
funds to conduct sweeps for electronic listening devices in county offices; and 2) allegations that
Judge Donahoe, Thomas Irvine and County Manager David Smith conspired to hinder a criminal
investigation of the court tower project. The Grand Jury voted to "end the inquiry." On April 2,
2010, Aubuchon sent a letter to Gila County Attorney Daisy Flores regarding matters transferred
to Ms. Flores. Aubuchon, however, did not tell Ms. Flores that the Grand Jury had ended the
inquiry into the electronic listening sweeps and court tower matters. Aubuchon's failure to tell
Ms. Flores of the Grand Jury's decision was misleading and dishonest.

C)
6

John S. Gleason
Arizona State Bar
Independent Bar Counsel
Colorado Supreme Court
Office of Attorney Regulation Counsel
1560 Broadway, Suite 1800
Denver, Colorado 80202
(303) 866-6400

o
1

BEFORE THE PROBABLE CAUSE PANELIST
OF THE STATE BAR OF ARIZONA

2
3
4

5
6

In the Matter of Members of the Smith v. Thomas, 09-2293;
State Bar v. Thomas, 10-0423;
State Bar of Arizona,
Smith v. Aubuchon, 09-2296;
State Bar v. Aubuchon, 10-0663;
Andrew Thomas,
Smith v. Alexander, 09-2294;
Lisa M. Aubuchon and
State Bar v. Alexander, 10-0664
Rachel R. Alexander

Independent Bar Counsel's Report of
Investigation and Request for Authorit~
to File Formal Complaint

9
10
11

Independent Bar Counsel, John S. Gleason, Regulation Counsel for the

12 Colorado Supreme Court, acting by appointment of Rebecca White Berch, the Chief
13
14

Justice of the Arizona Supreme Court, as set forth in her Administrative Order No.
2010-41 entered March 23, 2010, respectfully submits his Report of his investigation

15
of respondent Andrew P. Thomas ("Thomas"), Lisa M. Aubuchon ("Aubuchon") and

16
Rachel R. Alexander ("Alexander"). Pursuant to Arizona Rules of the Supreme Court

17
18
19

54(b)(2), Independent Bar Counsel recommends the filing of a formal complaint
against Thomas, Alexander and Aubuchon and requests that the Probable Cause

20 Panelist approve the recommendation.

Colorado Supreme Court Office of Attorney

/~ 21 Regulation Chief Deputy Regulation Counsel James Sudler assisted Independent Bar
22 Counsel with the investigations. Independent Bar Counsel interviewed approximately
23

1 one hundred individuals, reviewed thousands of pages of documents, and reviewed
2 extensive pleadings and grand jury transcripts.

Independent Bar Counsel offered

3 Thomas, Aubuchon and Alexander each the opportunity to be interviewed about the
4
5
6

matters discussed herein; none of them took that opportunity.
The respondent lawyers filed multiple motions and requests with the Probable
Cause Panelist and the Arizona Supreme Court in an effort to limit, block or delay the

investigations. Additionally, the respondent lawyers filed mUltiple actions in an effort
8
to block access to their responses. All of the actions failed.
9

Independent Bar Counsel states as follows.
I. JURISDICTION

Andrew P. Thomas was admitted to the Bar of the State of Arizona on

13 October 26, 1991. His Bar Number is 014069. Lisa M. Aubuchon was admitted to
14 the Bar of the State of Arizona on October 27, 1990.

Her Bar Number is 013141.

15 Rachel R Alexander was admitted to the Bar of the State of Arizona on May 19, 2000.
16 Her Bar Number is 020092. Thomas, Aubuchon and Alexander are each subject to

17 the jurisdiction of the Arizona Supreme Court pursuant to Arizona Rules of the

lqd Supreme Court 31.
l
20

II. INTRODUCTION

Andrew Thomas was elected Maricopa County Attorney in 2004.

He was

23 reelected in 2008. He resigned from that office effective on April 6, 2010, in order to
. .~ 24 run for Arizona Attorney General.
25
2

Lisa Aubuchon began working at the Maricopa County Attorney's Office in

2 1996. In summer 2010 she was placed on administrative leave and was terminated
3 by Interim County Attorney Rick Romley in October 2010.

Rachel Alexander worked in the Maricopa County Attorney's Office from about
2005 to 2010.

6
This report concludes that Thomas, Aubuchon and Alexander committed
7
serious misconduct.

Independent Bar Counsel recommends that the Panelist find

8
9
10

that there is probable cause to file a formal complaint against Thomas, Aubuchon
and Alexander.! Pursuant to the American Bar Association Standards for Imposing

11 Lawyer Sanctions, the allegations of misconduct committed by Thomas and
Aubuchon, if proven, warrant disbarment. 2

III. ALLEGATIONS OF ETHICAL MISCONDUCT

A. Summary

In November 2008 Thomas and Aubuchon charged a county supervisor,

17
18
19

Donald Stapley, with 118 counts of criminal activity involving his failing to file
appropriate financial disclosures dating back to 1994. In December 2009, Thomas,
Aubuchon and Alexander pursued a federal civil RICO action alleging a criminal

conspiracy among 14 individuals including supervisors, superior court judges,
21
22

county employees and private attorneys, all of whom had been involved in disputes

23 ~ REDACTED BY - . -

COUNSEL.
.
_
,
ABA Standards §_5.21 states that disbarment is generally appropriate when a lawyer in an official or
governmental position knowingly misuses the position with the intent to obtain a significant benefit or
25 advantage for himself or another, or with the intent to cause serious or potentially serious injury to a
party or to the integrity of the legal process.

1 and disagreements with Thomas and Sheriff Arpaio. In December 2009, Thomas and

JAubuchon charged another county supervisor, Mary Rose Wilcox~ and filed additional
criminal violations against Supervisor Stapley.
4
5
6

In December 2009, Thomas and

Aubuchon also filed charges against a Superior Court Judge, Gary Donahoe. As set
forth in this Probable Cause Statement, there is reason to believe that Thomas,
Aubuchon and Alexander pursued these actions not in order to seek justice, but to

J7 retaliate

against those who had made decisions contrary to Thomas'§ perceived

interests. 3

Besides filing and pursuing these cases, Thomas and Aubuchon

committed various other acts that involved attorney misconduct.

Their actions

11 violated various Arizona Ethical Rules as described below.

12
B. Thomas's Disputes with Courts and Board of Supervisors

About a year after Thomas assumed office as County Attorney, disputes began

15 between him and the judges of the Superior Courts. He also had disputes with the
16 Maricopa County Board of Supervisors (referred to herein as "the Board" or

17
18

"MCBOS") beginning no later than early 2006. These disputes are relevant because
in December 2008 and December 2009 Thomas and Aubuchon charged individuals
with whom they disagreed with various crimes.

In December 2009, Thomas,

Aubuchon and Alexander also filed a federal RICO action against many of the people

21
22

--)
--

involved in these disputes.

23
24

ABA Criminal Justice Standards, §_3-1.2 states: The duty of a prosecutor is to seek justice, not merely
to convict.

Disputes with Superior Courts. Mr. Thomas admitted that tension between

2 him and the Maricopa County Judiciary began in 2007 over immigration issues. 4
3 This tension can be seen earlier, however. Thomas and others filed a lawsuit against
4

court violated his federal constitutional and statutory rights.

That matter was

8
dismissed by the trial judge and Thomas appealed to the Ninth Circuit Court of
9
10 Appeals. Thomas v. Mundell, 572 F.3d 756 (9 th Cir. 2009). In that lawsuit Thomas
11 challenged

the

establishment of Spanish-speaking DUI

12 established in 2002.
13 Superior Courts.

courts,

which were

Judge Mundell was Presiding Judge of the Maricopa County

Later she was also one of the defendants named by Thomas in

14 what is now commonly known as the RICO case filed in December 2009. See pp. 4515 56 below.

The Ninth Circuit Court of Appeals held that Thomas did not have

16 standing to bring this action against the courts. The Court of Appeals upheld the
17 trial court dismissal of the lawsuit. Thomas's lack of standing to bring a lawsuit was
18

raised again in two cases discussed below, the "Sweeps" case and the "RICO" case.
He was found to have no standing to bring the Sweeps case and his lack of standing

20
was raised as a defense in the RICO case.
21

Thomas also disagreed with the Superior Courts about Proposition 100 and its
22
23

'~)

application. This law effectively denies bail to persons charged with a crime who are
in the U.S. illegally. Thomas took the position that the courts were not enforcing the

25
4

RICO Complaint paragraph 31, described below.
5

1 law and he was vocal in the press about this.

On June 17, 2007, Judge Mundell

2 published an article in the Arizona Republic stating that Thomas had an obligation to
3 work through the courts, including appellate courts, if he did not agree with the way
4
5
6

the courts were implementing Prop. 100. She stated that prosecutors (in Thomas's
office) had created a politically motivated controversy, using the media to agitate the
pUblic.

She stated that Thomas's criticism was unfounded and unfair.

On about

June 22, 2007, Thomas filed a Special Action concerning this issue. This lawsuit
8

was dismissed soon after when a new law signed by then-governor Napolitano
9

established probable cause as the evidentiary standard to be applied to determine an

11 immigrant defendant's status.

In December 2008, Thomas and Aubuchon filed criminal charges against

13 Supervisor Donald Stapley.

At the outset of that case, they alleged in letters and

14 pleadings that Judge Mundell, Judge Baca and Judge Fields were assigning the case
15 to Judge Fields because he was biased against Thomas. They also alleged that Judge
16 Donahoe improperly handled a case involving Conley Wolfswinkle. They claimed that
17
18

Judge Donahoe took the case when he should not have done so.
Disputes with MCBOS. In or about March 2006, a dispute developed between

Thomas and the Board over the appointment of lawyers from outside MCAO to

20
represent the county. Occasionally, the county must be represented by an attorney
21
22

other than the elected county attorney due to conflicts of interest or other issues.
In early 2006 the Board believed that Thomas was making these appointments

'~ 24 for political reasons. The Board perceived that Thomas' appointments were based
25 upon who was favorable to him, not necessarily upon who was best qualified to

(J
1 represent the county. Additionally, the Board was concerned that the money spent
2 on outside counsel was increasing above what was acceptable.

Supervisor Stapley

3 was chair of the Board at this time and the Board asked him to talk to Thomas about
4

5
6

this situation. Stapley and Thomas met and Stapley explained the Board's concerns.
Stapley and Thomas did not reach an agreement about the Board's authority over the
appointment of outside counsel.

Thomas then wrote a series of letters to Stapley about this dispute. On March
8
2, 2006, Thomas wrote to Stapley stating among other things that he could not agree
9

to allow the Board to make the selection of counsel independently or to retain

11 counsel outside MCAO.

Stapley had taken the position that the Board had

12 supervisory authority over attorneys representing the county. The Board also wanted
13 to determine which counsel to hire if the County Attorney had a conflict.
14

On March 13, 2006, Thomas again wrote to Stapley about this subject.

15 stated, " ... let me emphasize once again that the Board of Supervisors does not have
16 the lawful authority to retain its own legal counsel outside the County Attorney's
17 Office, and that I have neither the authority nor the intention to consent to such an
18
arrangement."

Thomas further said that he would not meet again with Stapley if

Stapley wanted to discuss retention of private outside counsel. He also stated that a

20
proposed resolution of the Board to appoint General Counsel separate from the

21
22
23

County Attorney was unlawful and that if the Board did so it would be a violation of
Arizona statutes and case law. He then stated that Board members are immune from

24 suit when they rely in good faith upon opinions of the County Attorney, but no such
25 immunity would apply and they may be personally liable for actions on advice of
7

1 other counsel.

He stated he would be obliged to commence litigation against the

2 Board should the Board move forward to pay outside counsel.
3

A week later, on March 20, 2006, Thomas wrote to Stapley and stated that he

4 had learned that the Board planned to meet in executive session that day. He also

Irvine to represent the Board in the matter, and that Mr. Irvine could not provide
8
legal advice to the Board in either executive or open session. Thomas instructed his
9

civil division to delete Mr. Irvine from the agenda. Thomas wrote that his letter to Mr.

11 Stapley was to provide legal advice to the Board.

He stated that the Board was

12 entitled to separate legal counsel in only two limited situations: 1) if the County

13 Attorney's Office is unwilling or unable to represent the Board (which he claimed was

14 not the case); or 2) if there was an actual conflict of interest. He claimed that mere
15 disagreement by the Board with the County Attorney's opinion does not constitute a
16 conflict of interest.

He said no conflict existed.

He requested that the Board not

17 utilize Mr. Irvine in executive session that day. Nevertheless, Mr. Irvine attended that

18
19

meeting at the invitation of the Board.
On April 17, 2006, Thomas wrote to Stapley stating that the Board could not

20
amend the County Restated Declaration of Trust to allow the Board to select private
21

22
23

counsel for civil litigation.

The Board planned to amend the Declaration of Trust

concerning the self-insurance of the county to give itself more control over which

.•.~ 2 4 - - - - - 5 Mr. Irvine was also named as one of the defendants in the RICO action by Thomas and Aubuchon, as
25 discussed below. Thomas and Aubuchon have also claimed that Mr. Irvine was a target of a grand jury
investigation in December 2009.

1 lawyers would be selected. Thomas stated that his opinion was that the Board could
2 not select counsel to defend civil lawsuits without the consent of the County
3 Attorney's Office. He wrote,

4
5
6
7

It would be contrary to law for the Board to seek to exclude the

county attorney from the process of selecting counsel for opposing
claims against the county. Accordingly, should the Board seek to
take this action, our office would be obliged to initiate litigation.
As in my earlier correspondence to you on these matters, this legal
advice is offered merely in an attempt to explain the full legal
consequences of the proposed action.

8
9
10
11

12
13
11
15
16

I have decided to assign outside counsel to provide legal advice to
the Board on the sole issue of the legality of this proposed action,
and to defend against any lawsuit this office may initiate related to
same. Because our office did not learn of this possible action until
late last week, I have been unable to secure outside counsel prior
to the executive session scheduled for today. As I explained in
regard to Mr. Irvine's recent improper actions, you or other Board
members should not solicit legal advice from this counsel on
unrelated matters. I will instruct this counsel not to provide such
advice. You will be informed of which counsel has been selected
for this matter in the near future ...

The Board placed its proposed action on its agenda, and on May 18, 2006, the

17 Board did amend the Revised Restated Declaration of Trust for Maricopa County. In
18
19

a letter to Stapley on May 23, 2006, Thomas said that the Board had acted to give
itself the authority to manage, supervise and direct the County Attorney in the

20
exercise of his duties. He stated that it was inconceivable that the Board would be

21
22
23

(-j
'-

24
25

permitted to veto a decision made by the County Attorney pursuant to a clear
statutory mandate. He further stated the following:
Finally, the immunity granted to the Board by A.R.S. § 38-446
requires "good faith reliance on written opinions of . . . a county
attorney." Here, the Board has acted contrary to the written

opinions of this office and will not be entitled to immunity if it acts
in accordance with the invalid Trust Agreement.

2
Concerning the appointment of lawyers outside the county attorney's office,
3
4 Thomas viewed his rights and obligations and those of the MCBOS in one way;
5 MCBOS viewed them differently. Thomas wanted to make appointments on his own,
6 unimpeded by the Board.
7

In the above series of letters, Thomas advised his client, MCBOS, about how

8 his client should conduct itself in choosing counsel to represent it. Thomas's advice
9 concerned issues in which Thomas's personal interest and his interest as County
10 Attorney conflicted with the interests of his client. Nonetheless, Thomas counseled
11

his client not to take action that would compromise his own personal interests.

12
13
1.

Ethical Violation # 1
(Thomas) Conflicts of Interest 6

15
16
17

When he advised the Board about its rights and obligations in the appointment
of outside counsel, Thomas violated ER 1.7(a)(2). That rule provides that a lawyer

18 shall not represent a client if the representation involves a concurrent conflict of
19 interest. A concurrent conflict of interest exists if there is a significant risk that the
20 representation of one or more clients will be materially limited by the lawyer's
21 responsibilities to another client, a former client or a third person or by the personal
22 interest of the lawyer.
23

24
25

6 Each Ethical Violation charged herein is numbered separately and follows the relevant factual
discussion.

C)
1

Thomas advised the Board about matters in which he had a vested personal

2 interest.

He wanted to maintain the power to make the appointments of outside

3 counsel without the involvement of the Board.

The Board, however, wanted the

4 power to make those decisions. Thomas advised the Board that it could not do what
5
6

it wanted to do. This advice was limited by his own personal and political interests
as County Attorney. Thomas violated ER 1.7(a)(2).

8
C. Thomas v. Maricopa County Board of Supervisors, and Thomas's

Statement regarding Dowling v. County and Keen v. County.
10

The dispute between MCBOS and Thomas about appointment of outside
counsel continued. On June 14, 2006, Thomas filed a civil action against the Board
seeking a declaratory judgment concerning the relative rights and obligations of the

13
County Attorney and the Board about selection and appointment of outside private
14
counsel.

Thomas v. MeBOS, Maricopa County Superior Court, CV 2006-008971.

15
16
17

MCBOS was represented in this lawsuit by Tim Casey.
On June 14, 2006, the same day that he filed the action against the Board,

18 Thomas released a public statement that he was suing MCBOS. He stated that he
19 was doing so "to defend the County Attorney's Office against the board's unlawful
20 attempts to undermine the independence of the office that I hold." Thomas stated
21 that he had discussed on numerous occasions his concerns with all five supervisors
22 and had sent Stapley, the chairman of the Board, no fewer than five letters making

23 plain the illegality of "his" proposed actions.
24
25
11

The Board did not file an answer, and the matter was resolved in August 2006

2 by a Memorandum of Understanding (MOU) between the parties. The MOU contains
3 the following agreement:
4
5
6

The Board agrees, to the extent the law permits, not to file any
lawsuit, complaint, or action that in any manner or in any way
arises from, or is related to, the complaint, the County Attorney's
Statement dated June 14, 2006, or the conduct of the County
Attorney between June 14, 2006 and the date this MOU is signed
by the parties.

8 County Manager Smith alleges in his Bar complaint (State Bar No. 09-2293) that Mr.
9 Thomas obtained the agreement of the Board not to file a Bar complaint against
10 Thomas, as reflected in the above passage.

In the MOU Thomas agreed that he

11 would dismiss the action and that he and MCBOS would follow a system with regard
12
to appointment of outside counsel. The MOU expired by its terms on December 1,
13
2008.
14
In 2006, while the above dispute was occurring, two County officers sued the
15
County. Sandra Dowling, the County School Superintendant, filed one lawsuit, and

17 Philip Keen, the County Medical Examiner, filed the other. Thomas hired Tom Irvine
18 to defend the County in the Dowling case. The County hired other outside counsel to
19 represent it in the Keen case.
20

Thomas's June 14, 2006 statement addressed not only the suit Thomas

21 brought against the Board, but also the cases brought by Dowling and Keen.
22 Thomas stated that the County's position in those two cases was unsupportable,
23 despite the fact that Thomas had an attorney-client relationship with the Board.

/.]

24
25

Thomas added that his suit against the County was not unique and that it was the
third, including his, against County officers in less than a month. He stated that in
12

,:)
"

1 all three cases the Board had unlawfully sought to arrogate powers vested in other
2 County agencies. He said that he could not in good conscience defend MCBOS in the
3 Dowling and Keen actions and that he believed those complaints had merit:
4
5

6
7

It bears noting that these recent lawsuits [against the county] had
occurred during, and largely because of, the unusual
chairmanship of Supervisor Don Stapley. While respecting the
attorney-client relationship I hold with Mr. Stapley and other
members of the board, I would be remiss if I did not help the
people of Maricopa County understand why the board has
attracted so many costly lawsuits in such a brief period of time.

8
9
10

I cannot in good conscience defend the Board of Supervisors in the
two legal actions brought by Ms. Dowling and Mr. Keen, as I
believe these complaints [against the county] have merit.
(emphasis addedj7
Dowling's lawyers, David Cantelme and Aaron Brown, filed a Motion for
Summary Judgment in her case against the County on about June 9, 2006.

June 16, 2006, after Thomas made his public statement, Dowling's attorneys filed a
14

Motion for Leave to Supplement [Dowling's] Statement of Facts asking to include
15

16
17

Thomas's June 14, 2010 statement.

After the County objected, Judge Margaret

Downie did not permit Thomas's statement into evidence.

18
19

Ethical Violation #2
(Thomas) Disclosure of Confidential Information

20
21

Thomas violated ER 1. 6 (a) by publicly revealing information relating to the

22 representation of a client. The rule states that a lawyer shall not reveal information
23

'~ 24
7 Thomas and Aubuchon later charged Supervisor Stapley and Supervisor Wilcox with crimes. They
25 also investigated Supervisor Kunasek. Thomas and Aubuchon named all of the supervisors as
defendants in the RICO action described below.

:'J

1 relating to the representation of a client unless the client gives informed consent.
2 There are exceptions to this general rule that are not applicable. Thomas violated ER
3 1.6(a) by disclosing his opinion that the county's positions in these two lawsuits were
4
5
6

unsupported. Trust is the hallmark of the attorney client relationship. ER 1.6 cmt.
2. Thomas violated this trust by publicly revealing his opinion of his client's conduct.
Even though the County was represented by lawyers outside the County Attorney's

7
Office in the Keen and Dowling cases, the County Attorney still had an attorney-client
8
relationship with the Board and the County itself. Thomas formed his opinion based
9

10
11

on his view of his client's rights and obligations.

If Thomas actually thought the

County's position was unsupportable, he should not have made any public statement

12 about his views of his client's case.

Instead, Thomas used the Dowling and Keen

13 cases in an attempt to buttress his own position against the Board and the County.
14
15
16
17
18

Ethical Violation #3
(Thomas) Improper Public Statements

Thomas violated ER 3.6(a) by issuing his public statement about his view of the
Keen and Dowling cases. He made extrajudicial statements that he knew or
reasonably should have known would be disseminated by means of public

20
communication and would have a substantial likelihood of materially prejudicing an

21
22
23

adjudicative proceeding.

The information was not permitted to be disclosed under

the exceptions to the general rule contained in ER 3.6(b).

24
25
14

::]
D. Prosecution of Supervisor Stapley.

As outlined above, in 2006 Thomas began to see Supervisor Stapley as a foe. In

3 late 2008, Thomas and Aubuchon filed criminal charges against Stapley.s

4
5
6

Aubuchon presented this case to a grand jury. The grand jury returned an
indictment and it was filed in court on November 20, 2008. On about December 3,
2008, a summons was served on Stapley. The 118 count indictment charged Stapley

with felonies and misdemeanors regarding his yearly financial disclosures as a
8
county supervisor and his periodic candidate disclosures dating back to 1994. An
9

attorney for MCAO argued for the issuance of a warrant and the setting of a bond in

11 the amount of $100,000.

A commissioner denied that request and ordered the

12 issuance of a summons to Stapley. During a hearing about whether a summons or
13 warrant requiring bond should be issued to Stapley, a commissioner recognized that
14 there was a statute of limitations issue.
15

Thomas's written press release about the Stapley indictment stated that the

16 case was the result of investigations by the joint anti-corruption task force with the

17 Sheriff (Maricopa County Anti-Corruption Effort, "MACE"). Thomas announced that
18

the investigation was not over and that other county employees were also being
investigated.

20
Although Independent Bar Counsel has offered Aubuchon and Thomas the
21

22
23

opportunity to be interviewed in this matter, neither has accepted.

Therefore,

Independent Bar Counsel bases conclusions about when and why the Stapley

25
8

State v. Stapley, CR2008-009242.
15

1 investigation began on what was learned from sheriff's office personnel and
2 inferences from known facts.
3

No reason or explanation has been given to Independent Bar Counsel why the

4 investigation of Stapley was commenced.
5
6

The evidence does not support the

conclusion that the investigation began as a result of a tip or some information being
given to MCSO or MCAO about possible criminal activity. Rather, in 2007, the joint

task force between Thomas's office and the Sheriff's Office began to look into
8
Stapley's business dealings and his financial disclosures on their own initiative.
9

Chief Hendershott of the Sheriff's Office asked Sgt. Brandon Luth of the Sheriff's

11 Office to start looking at Stapley in January 2007, but to keep it confidential.
12 Aubuchon, if not another deputy county attorney, began in January 2007 to research
13 Stapley on the Internet.
14

Aubuchon stated in a pleading in the case that the matter was not initiated

15 through a confidential informant. 9 However, in that pleading she refused to disclose
16 who initiated the investigation or why it was initiated. She did state that much of the

17 evidence implicating Stapley was readily available through proper search of the
18

Internet.l o Her statement is important because, as noted above there is evidence that
Aubuchon herself initiated an investigation of Stapley by downloading documents

20
from the Internet as early as January 2007. If she did not initiate this investigation
21
herself, then it is likely that former deputy county attorney Mark Goldman did so.
22

24
9 State's Response to Defendant's Motion to Disqualify Maricopa County Attorney Andrew Thomas For
25 Improper Bias and Prejudice, p. 4, filed February 9,2009.
10 !d.

1 Goldman has been identified as attending MACE meetings and handing out
2 information about Stapley at one of those meetings in 2007. 11
3

The substance of the indictment returned by the grand jury against Stapley at

4 the direction of Aubuchon is itself evidence of Thomas's and Aubuchon's personal

5
6

and political attack on Stapley.
violations dating back to 1994.

The Indictment charges 118 separate criminal
It appears that this was the first time in Arizona

history that a county supervisor's financial disclosures were the subject of criminal
8
charges. As discussed below, Thomas and Aubuchon brought more than 40 of these
9
10

charges against Stapley after the statute of limitations had run. While prosecutors

11 have broad discretion to charge, the fact that Thomas and Aubuchon charged crimes

12 they knew were outside the statute of limitations and the fact that they charged so
13 many crimes, including felonies of forgery and perjury, for essentially the same types

14 of acts and omissions is evidence of their motive to retaliate, harm and burden

15 Stapley.

17
18
19

Ethical Violation #4
(Thomas and Aubuchon) Filing Charges Against Stapley to
Embarrass or Burden

ER 4.4(a) states that in representing a client, a lawyer shall not use means that
have no substantial purpose other than to embarrass, delay, or burden any other

20
person. Thomas and Aubuchon each violated this rule. There was no substantial

21
purpose to file the charges against Stapley other than to burden and embarrass him.
22
23

24
25

Mark Goldman is currently practicing in the Wilenchick law finn, and up until recently has
represented Aubuchon in this Bar complaint.
11

1 Thomas and Aubuchon did not prosecute Stapley to seek justice but rather to pursue
2 the political and personal interests of Thomas.
3

Thomas's and Aubuchon's motives to attack Stapley date back to at least

4 March 2006, when, as noted above, Thomas blamed "the unusual chairmanship of
5
6

Supervisor Stapley" for various lawsuits against the county, including the one
brought by Thomas against the Board.

7
There is further evidence of tension between Thomas and Stapley regarding the
8
Arizona Meth Project that had been implemented through the Board and Stapley.
9

Before this project, anti-drug television ads had featured Thomas as a figurehead

11 discouraging the use of methamphetamines.

At the direction of the Board and

12 Stapley, the television spots were changed to exclude Thomas in favor of an anti13 meth message based on the effects of the drug. The Board thought that Thomas had
14 been using the previous ads for political gain rather than for the purpose of
15 discouraging drug use.

According to Stapely, Thomas was not happy about this

16 change, which was spearheaded by Stapley.

17
18
19

Additionally, there were disputes between the Board, including Stapley, on one
side and Thomas and Sheriff Arpaio on the other during the time period before
Stapley was indicted.

The Board had initiated a freeze on capital spending and

20
Thomas and the Sheriff had refused to work with the Board on this issue.
21
Thomas and Aubuchon had several political motives for charging Stapley. As
22
23

I,)

noted above, Thomas had identified him as the supervisor whose "unusual

24 chairmanship" of the Board had led to the county being sued. Thomas also identified
25 Stapley along with other Board members as threatening Thomas's power to appoint

1 attorneys to represent the County without interference by the Board. At the time he
2 was indicted, Stapley was the Chair of the Board. All of this evidence indicates that
3 the 118 count indictment· against Stapley was politically motivated to burden and
4 embarrass Stapely.
5

Ethical Violation #5
(Thomas and Aubuchon) Conflicts of Interest

Thomas and Aubuchon violated ER 1.7(a)(1) because they represented one

8 client, the State, against another client - Supervisor Stapley - in the criminal case
9 against Stapely.

Even Thomas himself recognized that he had an attorney-client

10 relationship with Stapley.12 Thomas never terminated that relationship and never
11

advised Stapley about the conflict or sought a waiver.

Thomas and Aubuchon also violated ER 1.7(a)(2) in charging and prosecuting

13
Supervisor Stapley. The rule provides that a lawyer shall not represent a client if the
14
representation involves a concurrent conflict of interest.

A concurrent conflict of

15
16
17

interest is defined as existing if there is a significant risk that the representation of
one or more clients will be materially limited by the lawyer's responsibilities to

18 another client, a former client or a third person or by the personal interest of the
19 lawyer. (Emphasis added.) The evidence establishes that Thomas and Aubuchon did
20 have a personal conflict of interest in deciding whether to seek an indictment of
21 Stapley, and later in prosecuting the matter against him.
22
23

.~ 24
25
12

See news release ofJune 14,2006, quoted above at page 13.

Thomas and Aubuchon owed the State of Arizona the duty of conflict-free

2 representation. However, their representation was limited by their personal animus
3 against Supervisor Stapley.
4
5
6

Aubuchon argued in a pleading that the "Code of Professional Responsibility"
recognizes the County Attorney's statutory duties, and that government attorneys
such as the County Attorney must in some circumstances prosecute the officers they

represent. 13

Contrary to this statement, no provision of the Arizona Rules of

8
Professional Conduct authorizes a county attorney to represent anyone while a
9

conflict of interest limits his representation. Aubuchon was trying to urge the trial
10
11 court to consider case law from other jurisdictions concerning attorneys general who
12 prosecute state officers whom they sometimes represent. 14
13

This conflict issue was litigated further in the Stapley matter after Thomas had

14 transferred the case to Yavapai County Attorney Sheila Polk's office. See below, pp.
15 31-33.

On May 1, 2009, Stapley filed a Motion to Dismiss the indictment alleging

16 that MCAO had gained confidential information from Stapley and that it was a

17 violation of his due process for an attorney with a conflict of interest to represent the
18

State in front of the grand jury. On June 10, 2009, Judge Fields denied the Motion
to Dismiss.

He did find that there was an attorney-client relationship between

20
Supervisor Stapley and MCAO. But he found that it was "limited in scope." He ruled
21
22
23

::J

further that this "hybrid or limited scope attorney-client relationship" does not give
the same protection one would expect from representation by private counsel.

24
25

State's Response to Motions for Detennination of Counsel and Scheduling Order, p. 7.
14 1d. pp. 5-6 citing among other cases, State v. Klattenhoff, 801 P.2d 548 (Haw. 1990).
13

However, Judge Fields held that the evidence was undisputed that Stapley

2 consulted about his official duties with the deputy county attorneys assigned to the
3 MCAO's civil division.

He ruled that there was no evidence that any of the

4 information disclosed to a civil deputy was used to obtain the indictment.
5
6

Judge

Fields ruled that there was no doubt that the better practice would have been for the
Maricopa County Attorney to refer the entire investigation at its inception to another

state prosecuting agency. Judge Fields ruled that it was not reasonable under the
8
circumstances for Stapley to expect that MCAO was his attorney on all matters.
9

Judge Fields stated that the circumstances here were unlike those in the court tower

11 matter, 462 GJ 350, before Judge Donahoe, in which Donahoe disqualified MCA0.1 5
12 Judge Fields concluded that the MCAO was not attempting to use privileged
13 communications with its client or investigate the Board of Supervisors for activities
14 upon which MCAO gave advice.
15

Judge Fields's ruling is not conclusive about the existence of a conflict of

16 interest under the Rules of Professional Conduct. Judge Fields did not rule directly

17 on the issue of whether ER 1.7 had been violated; rather, he was ruling on a due
ll

q
d process

argument raised in a motion to dismiss the indictment.

His ruling

addresses primarily whether Stapley could expect that he was a client of MCAO. He

20
based his ruling on a definition of the attorney-client relationship that does not apply
21
22

to analyzing conflicts under attorney ethics principles.

Neither the Arizona Ethical

Rules nor the ABA Model Rules of Professional Conduct draw a distinction such as

21 the one drawn by Judge Fields.

There is no "hybrid" or "limited-scope" attorney-

25
15

See below, for discussion of Donahoe' s ruling and tbe court tower matter.
21

1 client relationship as he termed it for purposes of analyzing Thomas's and

2 Aubuchon's professional responsibility.1 6

Once Thomas had an attorney-client

3 relationship with Stapley, Thomas and Aubuchon could not then bring charges

4 against him. The pleadings in the Stapley case do not indicate that Judge Fields was
5
6

advised that Thomas himself acknowledged his attorney-client relationship with
Stapley.

Misrepresentation to Court re: "Chinese Wall".

On December 23, 2008,

Stapley's attorney Tom Henze filed a Motion for Determination of Counsel and Motion
9

for Scheduling Order. The Motion for Determination of Counsel argued that Thomas

11 should be disqualified as the prosecutor because of a conflict of interest under ER

12 1.7, and that his actions had the appearance of impropriety.

That issue was

13 resolved, as discussed above. The motion argued that Thomas and his office should
14 not be permitted to prosecute Stapley because there had been an attorney-client
15 relationship between MCAO and Stapley.

Aubuchon filed a response to the motion arguing among other things that the

17 case against Stapley was based upon public records only, and that there was a
18
19

"Chinese Wall"17 between the criminal and civil divisions of the County Attorney's
Office in the prosecution of the case. IS There is no evidence of any formal screening

20
21
ER 1.2(c) does allow an attorney to limit the scope of the representation; however, the client must
give infonned consent to that limitation. There is no evidence that MCAO ever tried to limit its
representation of any supervisor or obtained infonned consent to such limitation. Additionally, such
limitation must be reasonable under the circumstances.
17 The tenn "Chinese Wall" is more properly referred to as "screening" to describe how attorneys can be
isolated from involvement in a particular case.
18 State's Response to Motions for Detennination of Counsel and Scheduling Order, p. 7, lines 4-6:
"There has been and is a "Chinese wall" between the criminal and civil division of the County
Attorney's Office in the prosecution of this case."
16

22
23
..~

1 of some lawyers from others in the county attorney's office. Some lawyers have said
2 that there was no discussion between the two divisions; however, there is no evidence
3 of a formalized or written screening policy ever being implemented in general or in
4 particular about Stapley L Aubuchon's claim that such a formalized policy existed
5
6

was implicit in Aubuchon's pleading.

Aubuchon's statement to the court was

dishonest and a material misrepresentation because it implied that the County

7
Attorney had established screening precisely to guard against information being

8
9

shared by the civil division with the criminal division, and vice versa.

Ethical Violation #6
(Thomas and Aubuchon) Misrepresentation to Court

Aubuchon violated ER 3.3(a) because she knowingly made a misrepresentation

13
of fact to the court. She stated to the court in a pleading that a "Chinese Wall" had

14
been created between the civil and criminal divisions of the county attorney's office.

15
16
17

There is no evidence that there was ever such formalized screening. To the contrary,
there was no policy to shield the criminal lawyers handling the Stapely case from any

18 lawyer in the civil division including those advising Stapley and other supervisors.
19 Aubuchon's statement to the contrary was dishonest and self-serving.

Thomas

20 equally culpable for this misrepresentation to the court because, according to
21 Aubuchon, everything that she filed in court was approved by the County Attorney.1 9
22
23

24
25
19

Baker interview of Aubuchon, June 21, 2010, p. 27.
23

::)
,,~--

Motion to Recuse Judge Fields from the Stapley Case. After the Stapley [20

2 case was filed, Judge Mundell assigned it to retired Judge Kenneth Fields. Thomas
3 and Aubuchon asserted that the assignment of Judge Fields to the Stapley I case was

4 made because Judge Fields was biased against Thomas.
5
6

On December 10, 2008,

Aubuchon, on behalf of Thomas, filed a Motion for Voluntary Recusal Or If Denied
Motion for Change of Judge For Cause. In her motion Aubuchon stated that Judge

Mundell and Stapley had worked together closely on numerous fiscal and countywide
8

issues. Aubuchon stated that Judge Mundell had recently negotiated with Stapley
9

about the funding for the county court tower. Aubuchon alleged that Judge Mundell
had interjected herself into the Stapley case and had chosen Judge Fields who had a

12 history of bias and prejudice as well as judicial activism against Thomas and his
13 office.
14

In her motion Aubuchon stated, "Judge Fields is the complainant in an open

15 and pending State Bar matter that he initiated against County Attorney Thomas."21
16 Aubuchon knew that this statement was untrue because she attached to her motion
17 Judge Fields's letter to the Bar regarding attorney Dennis Wilenchik. This letter was

18
19

not about Thomas. Judge Fields never initiated a State Bar matter against Thomas.
Aubuchon had no evidence that Judge Fields had filed a bar complaint against

Thomas. Aubuchon's statement was a knowing misrepresentation to the court.
21

22
23

24-----------20 This case, CR2008-009242, is referred to as "Stapley F' to distinguish it from a second criminal case
25 Thomas and Aubuchon filed against Stapley in December 2009.
21 State's Motion for Voluntary Recusal, p.6, Dec. 10,2008, CR2008-009242.
24

Ethical Violation #7
(Thomas and Aubuchon) Misrepresentation to the Court

2
Aubuchon violated ER 3.3(a) because she knowingly made a misrepresentation

4 of fact to the court.

The rule prohibits a lawyer from knowingly making a false

5 statement of fact to a tribunal. Aubuchon stated that Judge Fields had initiated a

6 state bar complaint against Thomas when he had not. Aubuchon had no evidence to
7 support the claim. The letter she attached to her pleading was not about Thomas,
8 but was about another attorney, Dennis Wilenchick. Thomas is equally culpable for
9 this misrepresentation to the court because, according to Aubuchon, everything that
10 she filed in court was approved by the County Attorney.22
11

Aubuchon Sends Letters Directly to the Court.

On about December 11,

2008, Aubuchon wrote to Presiding Criminal Judge Anna Baca requesting that she

13
submit to an interview about the reasons for the selection of retired Judge Fields in

14
15
16
17

Stapley l. Judge Baca responded by order on about December 16, 2008, stating that
the court declined to accept or read the letter from the County Attorney since such
an off-the-record communication may relate to the case.

She directed that the

18 County attorney communicate in pleading form.
On about December 11, 2008, Aubuchon hand delivered a letter to Judge

20 Mundell requesting to interview her about the assignment of Judge Fields. 23 Judge
21 Mundell responded on December 15, 2008, stating that among other things lawyers
22 do not write letters that are not part of the public file; rather, they file motions.
23

/~ 24
Baker interview of Aubuchon, June 21,2010, p. 27.
23 Aubuchon's letter showed that Stapley was copied on it. At that time no attorney had entered an
appearance for Stapley.
22

1 Judge Mundell also stated that it was not appropriate for Aubuchon to attempt to
2 ascertain Judge Mundell's thought processes in making ajudicial decision. 24
3

4
5
6

Contrary to Thomas's and Aubuchon's assertions, Judge Mundell was not and
IS

not aware of any bias by Fields against Thomas or in favor of Stapley.

Judge

Mundell explained to Independent Bar Counsel that her choice of a retired judge was
based upon her concern about a potential conflict because of budget problems

affecting sitting judges that would ultimately be decided by the Board.

A retired

8
judge would not have a concern about those problems and would not have the
9
10

appearance of doing something to favor one of the supervisors. She had two judges
in mind and chose Fields because he called her back before the other judge did.
5.

Ethical Violation #8
(Aubuchon) Conduct Prejudicial to Administration of Justice

Aubuchon violated ER 8.4(d) in her contacts with the judges and in her
14

attempts to determine why Judge Fields had been appointed to Stapley 1. Aubuchon
15
16
17

requested by private letter to interview or depose Judges Mundell, Baca and Fields
concerning their thought processes in the assignment of Judge Fields to the Stapley I

18 case. The proposed inquiry intruded into judicial discretion and had the potential to
19 undercut the separation of powers between the judicial and executive branches of
20 Maricopa County government. The proposed depositions (with questions concerning
21 whether the Judges had conspired to appoint a Judge supposedly biased against
22 Thomas) also had the potential to intimidate the Judges and other judges of the
23 Superior Court .

.~ 24
25

Judge Mundell, Judge Baca and Judge Fields were later named as defendants in the RICO action by
Thomas and Aubuchon.
24

By requesting interviews of and moving for depositions of the Judges,

2 Aubuchon engaged in conduct prejudicial to the administration of justice (ER 8.4(d)).
3

Charging Stapley With Crimes Outside the Statute Of Limitations. The

4 evidence will show that Thomas and Aubuchon charged many of the misdemeanor

crimes alleged in the indictment against Stapley knowing that the statute of

limitations had run on those misdemeanors. The statue of limitations, A.R.S. § 137

107, provides:
8
(b) Except as otherwise provided in this section, prosecutions for
other offenses [i.e., homicide, violent sexual assault, among others]
must be commenced within the following periods after actual
discovery by the state or the political subdivision having
jurisdiction of the offense or discovery by the state or the political
subdivision that should have occurred with the exercise of
reasonable diligence, whichever first occurs:

9
10
11

12
13

1. For a class 2 through a class 6 felony, seven years.

2. For a misdemeanor, one year.

15
16
17

The investigation of Stapley began as early as January 2007. Brandon Luth, a
Maricopa County Sheriffs Department Sergeant, stated that he was told by Chief

18 Hendershott to look into Stapley on January 23, 2007. Hendershott told Luth that
19 he wanted to look into the business dealings of Don Stapley.

Luth stated that he

20 researched Stapley's business holdings and dealings for a couple of days in January
21 2007, and then stopped. Luth also remembers being asked in September 2007 about
22 his investigation of Stapley. Sgt. Luth has stated that he knew there was a statute of
23 limitations issue in the Stapley case when the charges were filed by Thomas and
24

Aubuchon.

25
27

The evidence will show that Aubuchon began investigating Stapley's financial

2 disclosures in January 2007. The evidence of her involvement is as follows:
3

Mark Stribling, who is now Chief of Investigations of MCAO, was contacted by

4 Thomas in early May 2008 and asked to work on an investigation of Stapley. Thomas
5 told Stribling that he would be working with Luth.
6

Stribling stated that he was

provided no information of how any of the information about the case came to the

attention of MCAO, but Thomas told him that Aubuchon had done Internet searches
8
on the properties owned by Stapley or his affiliates and that Aubuchon would be the
9
10

prosecuting attorney.
On May 14, 2008, Aubuchon, Luth, Stribling, another investigator from MCAO

12 (Tadlock), MCSO Captain James Miller, and MCSO Lieutenant Anglin attended a
13 meeting. Aubuchon handed out documents which she stated she had researched on
14 line that showed Stapley had filed false and/or incomplete disclosure statements.
15 Some of the documents that Aubuchon handed out showed that they had been

16 printed from the Internet in January or February 2007. The fact that Thomas told
17 Stribling that Aubuchon had already done research on the internet, and the fact that
18
19

she gave out documents that were printed out in January and February 2007, shows
that she had commenced an investigation of Stapley as early as January 2007, or

20
that she knew an investigation had been commenced by then.
21
At the May 14, 2008 meeting, Aubuchon also handed out a draft indictment
22
23

which set forth 79 counts. This draft indictment includes allegations of misconduct
by Stapley beginning in 1994. In order to prepare this indictment, investigation of

25 Stapley had to commence before May 14, 2008.
28

Sgt. Luth asked Aubuchon at the May 14, 2008 meeting if her handing out all

2 the information made her a witness in the matter. According to Luth, she responded,
3 "That's why we are going to have you guys [MCSO] do it." Lieutenant Travis Anglin of
4 MCSO remembers such a meeting and remembers he was concerned about the
5
6

statute of limitations issue. He asked Aubuchon about that issue and she assured
him it was okay. She also told him to use that date (probably May 14, 2008) as the

date for the MCSO report.
8
The only Sheriffs Departmental Report that has been discovered about the
D

10 Stapley I matter is dated May 14, 2008.

That report does not indicate why the

11 investigation was commenced or what research or investigation had been done before
12 that date.
13

There is additional evidence regarding the timing of the Stapley I investigation.

14 In June 2007, a notebook of information was given either to Bruce Tucker and/or
.15 Travis Anglin of MCSO. This notebook or a memo in it had a sticky note attached
16 saying that it was "rec'd Weds. June 20, 2007 @ 1600 from Sally Wells." Ms. Wells
17 was third in charge of MCAO behind Thomas and Phil MacDonnell.
18

She attended

weekly meetings of MACE in 2007. The information in the notebook includes a memo
with the following heading:

"Yavapai County Matters; Issues Related to MCSO

20
Investigation of Donald Stapley." Section IV of the memo is headed "Filing Financial
21
22
23

Disclosure Statements with False or Misleading Information."

Under that section

various criminal statutes are noted including forgery, theft and A.R.S. §§ 38-504, 38-

.~ 24 543 and 38-544.

The memo and the information in this notebook indicate that

25 Stapley's financial disclosures were under investigation earlier than June 20, 2007.

There is also evidence that Stapley was discussed at MACE (Maricopa County

2 Anti-Corruption Effort25 ) meetings in May and June 2007. Deputy County Attorney
3 Vicki Kratovil went to MACE meetings from December 2006 through about June
4 2007. She kept a notebook containing among other things the agenda for meetings.
5
6

These agendas were written by Bruce Tucker, formerly of MCSO. Stapley is listed on
the agenda for MACE meetings occurring May 9, May 23, June 6, June 13, June 20,

and June 27, 2007. After his name it is noted in parentheses that these matters are
8

being referred to Yavapai County. (This is not the same referral that was done later
9

10
11

in April 2009.) This notation is consistent with the memo in the notebook that was
described in the paragraph immediately above.

The meeting agenda for June 13,

12 2007, states that a public records request was to be drafted with the assistance of
13 "Deputy Maricopa County Attorney Mark Goldman."
The indictment of Stapley charges misdemeanor violations of A.R.S §38-542

15 and §38-544, Failure to File and/ or filing False or Incomplete Financial Disclosures.
16 As noted above the evidence establishes that the investigation began in January
17 2007, but no later than early June 2007.
18
19

Therefore, the State had to commence

prosecution of Stapley by June 2008 on 44 of the misdemeanors charged in the
indictment. 26 However, Stapley was indicted on November 20, 2008. The statute of

20
limitations had run on those charges.
21
22
23

~,J

MACE was a joint task force between MCSO and MCAO that started in about December 2006.
There were 9 misdemeanor charges regarding conduct of Stapley that allegedly occurred in January
25 2008. The state brought those charges within one year of the conduct and therefore within the statute of
limitations.
25

Ethical Violation #9
(Aubuchon and Thomas) Conduct Prejudicial to the
Administration of Justice

Aubuchon and Thomas charged Supervisor Stapley with 44 misdemeanors

4 when the Arizona statute of limitations barred those charges.

5
6

The State, through

Yavapai County Attorney, Sheila Polk has conceded that the statute of limitations
barred those charges. 27 The statute of limitations is triggered when the state actually

discovers, or through exercise of reasonable diligence should have discovered that
8
there was probable cause to believe that the offense was committed. As noted above,
9

Aubuchon and MCSO began the investigation of Stapley probably in January 2007,

11 but no later than June 2007.

In Arizona the court lacks jurisdiction to consider crimes against a person on

13 which the statute of limitations has run. State v. Fogel, 492 P.2d 742, 744 (Ariz. App.
14 1972). In that case the court stated the following:

Unlike a statue of limitations in a civil case, a criminal statute of
limitation is not a mere limitation on the remedy, but a limitation
upon the power of the sovereign to act against the accused. It is
jurisdictional (citations omitted).

16
17

Aubuchon and Thomas knew that most of the misdemeanor charges they

19 brought against Stapley were commenced outside the statue of limitations.

Their

20 conduct violated ER 8.4(d} because it was prejudicial to the administration of justice
21 to obtain an indictment knowing that the court did not have jurisdiction over Stapley
22 for those 44 alleged violations. Furthermore, Aubuchon never presented information

!:J

23 to the grand jury which returned the indictment that the statute of limitations had
24
25

See Appellant's Reply Brief, fu. I, State v. Stapley, Arizona Court of Appeals, I CA-CR 09-0682,
May 3,2010.
27

1 run. Aubuchon did not elicit any testimony from the one witness who testified in
2 front of the grand jury about the time frame of the investigation or who began it.
3 This is further evidence of conduct prejudicial to the administration of justice in
4 violation of ER 8.4(d).
5
7.

Ethical Violation #10
(Aubuchon) Dishonesty

ER 8.4(c) prohibits an attorney from engaging in conduct involving dishonesty,
8

misrepresentation, fraud or deceit. Aubuchon engaged in dishonesty by failing to tell
9

the grand jury that many of the misdemeanor charges were barred by the statute of

11 limitations. There is significant circumstantial evidence that she knew those charges

12 were outside the statute. Because the statute of limitations is a jurisdictional matter
13 in Arizona, if a prosecutor knows that charges are barred, then she must inform the
14 grand jury and should advise the grand jury not to indict on charges arising from
15 conduct outside the statute. Instead, Aubuchon presented an indictment listing all
16 of the charges including 44 barred by the statute.

Aubuchon's failure to tell the

17 grand jury about the State's lack of jurisdiction to act against Stapley on those
18

charges was dishonest.

19
20
Transfer of the Stapley Case to Sheila Polk. In March or early April 2009,
21
22
23

Thomas transferred Stapley I to the Yavapai County Attorney, Sheila Polk. At this
time Stapley's motion for determination of counsel was still pending in front of Judge

(~ 24 Fields.

25
32

C)
1

In addition to the challenge to MCAO's ability to act as counsel for the State in

2 the Stapley case, a bar complaint had been filed against Thomas alleging a conflict of
3 interest in that case.
4
5
6

See Bar Complaint 08-2289. The State Bar is named as the

complainant and the matter was filed in December 2008. That bar complaint was
transferred and assigned to retired Superior Court Judge Rebecca Albrecht to handle
as independent bar counsel. Judge Albrecht dismissed the matter on May 4, 2009,

on the condition that Thomas withdraw from the case and transfer it to Yavapai
8
County.

She stated in her letter, however, that the issues were highly concerning

and should similar conflict of interest concerns come up in the future, the file could

11 be reviewed anew.

On April 2, 2009, the Yavapai County Attorney, Sheila Polk, agreed with

13 Thomas to take over the prosecution of Stapley 1. She also agreed that she would
14 handle pending investigations regarding members of the board of supervisors
15 including allegations against Supervisor Wilcox and an investigation of the court
16 tower project.

17
18

On April 6, 2009, Thomas wrote to Supervisor Max Wilson and stated at the
top that it was "An Open Letter to the People of Maricopa County." He stated that he
referred the Stapley case to Polk and that he was also transferring to her the

completion of the investigation related to the Maricopa County Superior Court Tower
21

as well as current or future investigations or prosecutions involving the MCBOS or
22
23 county management.
Also on April 6, 2006, Thomas issued a News Release

'~ 24 captioned, "County Attorney Offers Compromise to End Infighting, Sends Stapley
25 case, Investigations to Yavapai County; Proposes Mediation."
(

Ms. Polk entered her appearance on April 15, 2009 and asked former Navajo

2 County Attorney Melvin Bowers to serve as the prosecutor in the case.
3

Although all of these matters, including Stapley, were transferred to Polk,

on the investigation of Supervisor Wilcox, Aubuchon said that she had, advised the
8

sheriffs office of that need.
9

Aubuchon responded to Independent Bar Counsel stating that she was not
10
11 aware of the Albrecht letter, she was not a party to it, and it did not pertain to her.
12 She has not disclosed when she became aware of the Albrecht letter. She has not
13 denied, however, knowing that Thomas had transferred the matter to Polk while
14 allegations of a conflicts of interests were pending against Thomas and her office.
15 Further, she has not denied that, notwithstanding the transfer to Polk, she stayed
16 involved in the Stapley matter.

17
18

Thomas' Public Statement About the Dismissal of Stapley I. Attorneys for
Mr. Stapley filed motions to dismiss the criminal charges against him based upon
grounds other than MCAO's conflicts of interest.

First, they asked the court to

20
dismiss the case for vagueness. They also filed a motion to dismiss based upon the
21
22

county's failure to follow the requirements of A.R.S. § 38-545 to promulgate
standards for financial disclosure.

On August 24, 2009, Judge Fields denied the

':,J 24 vagueness motion, but granted the second motion in part and dismissed many
25 counts. Thomas issued a public statement on the same day as Judge Fields's ruling.

1 Although Polk was the prosecutor for the State on that day, Thomas nevertheless
2 issued this press release. In his public statement he urged Ms. Polk to appeal the
3 ruling. Thomas further stated the following:
4
It is unjust and improper for this criminal defendant to be able to
claim that as a member of the board of supervisors, he failed to
properly pass or amend the very laws he's accused of violating.
For him to be able to take advantage of the improper performance
of his own public duties is wrong by any measure. It's equally
wrong that the people of Maricopa County have just been told
they're the only citizens of Arizona whose elected county officials
don't have to disclose their private business dealings to the voters.

5
6
7
8
9

The ruling today reinforces our office's concerns about the
impartiality of Judge Fields. He was handpicked for this case in
violation of the rules of court, despite his having filed a bar
complaint against the Maricopa County Attorney (which was
dismissed) and having campaigned for Mr. Thomas' opponent in
last year's election. Four esteemed experts in judicial ethics have
stated that Judge Fields was ethically required to recuse himself
from this case.

10
11

12
13
14
15

16
17

Ethical Violation #11
(Thomas) Improper Public Statements

Thomas violated ER 3.6(a) in making the above statement when Judge Fields

18 dismissed some of the counts against Stapley. ER 3.6(a) applies to a lawyer who is
19 participating or has participated in the investigation or litigation of a matter. Thomas
20 had participated in both the investigation and litigation of the Stapley I case.
21 Thomas made an extrajudicial statement that he knew or reasonably should have
22 known would be disseminated by means of public communication and that would
23 have a substantial likelihood of materially prejudicing an adjudicative proceeding in
24

the matter.

25
35

Occurrences at about the Time of Stapley Indictment and
Thereafter.

2
3

In December 2009, Thomas, Aubuchon and Alexander committed multiple

4 ethical violations by retaliating against members of the Board, judges and attorneys
5 who were involved in disputes with Thomas.
6

The following outline summarizes the disputes that occurred primarily during

7 2009 that led to further retaliation by Thomas, Aubuchon and Alexander against
8 Supervisor Mary Rose Wilcox, Supervisor Don Stapley, Superior Court Judge Gary
9 Donahoe, and against all of the defendants in the RICO case discussed below.
10

The Court Tower Investigation.

In late 2008, Thomas and the Maricopa

12 County Sheriff began to question the decision to build the new court tower, a

13 decision in which they had no official role.

They began to investigate the Court

14 Tower, and their decision to do so was personally and politically motivated.

According to Eric Dowell, who has acted as an attorney for Thomas, in late

16 2008 and early 2009 MCSO and others expressed concern about the County's
17 decision to cut jobs without making any cuts to the $347 million Court tower project.
18
19

Mr. Dowell stated that, accordingly, MCAO and MCSO launched a criminal
investigation into the Court Tower.28

Chief Hendershott testified in front of a grand jury in January 2010 that there
21

i:J

was concern at a MACE unit meeting that the Court Tower should not be built. 29

23
24 _ _ _ _ __
28 Dowell Letter to State Bar, April 1, 2010, Bar Complaint against Novak and Irvine, p. 3, Statement of
25 Information.
29 Jannary 4,2010, GJ transcript, p._44.

1 There also was some concern that attorney Thomas Irvine was being paid as a space
2 planner on the Court Tower.
3
4

5
6

In Aubuchon's words, the Court Tower investigation was initiated because it
was not clear why the Board would still be going forward with the project in the face
of an economic downturn. 3o

Ms. Aubuchon stated to Supervisor Kunasek in

February 2010 that it was "basically a little odd" that the Board slashed county

7
budgets, laid people off and went forward with a three hundred and fifty million
8
9
10

dollar project that was not really needed. 31 Aubuchon expressed concern about the
hiring of Mr. Irvine to assist with the court project. 32
As noted in a Maricopa County Sheriff's Office (MCSO) Departmental Report

12 ("DR") in the case against Judge Donahoe (Sheriff's Office Supplemental Report - DR#
13 09-225204), officials of both the sheriff's office and MCAO perceived that the Board
14 began "to act against the County Attorney" after the Stapley I indictment was served
15 or filed. The DR states that "they," meaning the Board, hired attorney Tom Irvine to
16 "block investigations and prosecutions directed toward them (Board Members)."
17
18
19

Sgt. Luth of the MCSO stated that he did not know who the complainant was
on the Court Tower investigation. He stated that he asked Lisa Aubuchon where the
complaint came from and she stated, "it was your guys' case."

20
Independent Bar Counsel found no evidence justifying the initiation of the
21
22
23

Court Tower investigation.

Independent Bar Counsel also discovered no evidence of

the slightest amount of criminal conduct by the Board, counsel for the Board, judges

24
Transcript of taped discussion between Kunasek, his attorney, and Aubuchon date February 10, 2010.
Id.
32 Id., p. 3
30

.~:J
1 or County employees. The evidence suggests that the motivation for initiating this
2 investigation was personal animosity by Thomas, Aubuchon and the sheriff against

3 the Board, county officials and attorney Thomas Irvine.
4

5
6

Ruling by Donahoe Re: GJ Subpoena.

On February 6, 2009, Judge Gary

Donahoe ruled in the Court Tower Grand Jury Case (Case No. 462 GJ 350). Judge
Donahoe's ruling covered three pending motions: 1) MCBOS's motion to quash the

subpoena duces tecum on the County; 2) Thomas and Aubuchon's motion to
8
disqualify Irvine's firm; and 3) Thomas and Aubuchon's motion to assign an out-of9
10

county judge to rule on the motion to quash and the motion to disqualify.

Judge

Donahoe denied the motion to appoint an out of county judge, stating that he had no

12 interest in the court tower project.

Judge Donahoe disqualified MCAO. He stated

13 that the issue was the ethical propriety of the Board's attorney (Thomas) seeking
14 documents from his client (MCBOS) as a part of a grand jury investigation. He found
15 that MCAO was counsel for the Board and gave the Board legal advice regarding the
16 court tower, and therefore they had a conflict of interest that disqualified MCAO from

17 conducting an investigation of its client on the very topic on which it gave legal advice
18

to its client.

Judge Donahoe also denied Thomas and Aubuchon's motion to

disqualify Irvine's firm.

20
Thomas and Aubuchon filed a special action requesting review of Donahoe's
21
rulings in the court of appeals, CA-SA 09-0056, and then in the Supreme Court, CV
22
23

09-0165 PRo The Court of Appeals declined to take jurisdiction in May 2009. The
Supreme Court declined to review it on December 1, 2009.

25 Aubuchon appealed the ruling. Judge Donahoe's ruling stands.

Neither Thomas nor

Hiring Irvine regarding Thomas Conflicts.

On about December 5, 2008,

2 four county supervisors (Stapley recused himself) met and decided to hire attorney
3 Tom Irvine to review Thomas' conflicts in representing the Board. It was generally

4
5

known that Irvine had been hired by the Maricopa County Superior Court to assist
with the court tower project. He had openly attended and noted his attendance in

6
writing to various meetings about the Court Tower project as working for the court.

7
Irvine's providing counsel to the courts became an issue later when Deputy County
8
9
10

Attorney, Elizabeth Ortiz, filed a pleading on behalf of MCAO claiming that it was
"newly discovered" that Mr. Irvine worked for the courts.

See Thomas v. Donahoe,

11 Amended Petition for Review, Supreme Court CV 09-0165 PRo This pleading did not

12 contain Lisa Aubuchon's signature, but she is identified on the cover page as one of
13 the lawyers representing the County Attorney.

MCBOS Acts to Manage Civil Litigation. On about December 23, 2008, the

15 Board voted to manage all of the civil legal actions in which the County was a party.
16 MCBOS delegated to County Manager David Smith the implementation of that action.

17 Eventually a civil litigation department separate from the county attorney's office was
18
19

established with Wade Swanson, Esq., as the director.

(Both Mr. Smith and Mr.

Swanson were also later named as defendants in the RICO action.)

Declaratory Judgment Action.

On December 31, 2008, Thomas and the

21
sheriff sued the Board over their authority to hire lawyers. Thomas and Arpaio v.
22
23 MCBOS, CV2008-033194 (commonly referred to as "the Dec Action," short for

24 declaratory judgment action.)

Thomas Irvine represented the Board in the suit.

25 MCAO was represented by three named lawyers at Ogletree, Deakins, Nash, Smoak &

1 Stewart, including Eric Dowell.

(Mr. Dowell represented Mr. Thomas m the bar

2 investigations of Mr. Thomas until recently.)
3

The complaint in the Dec Action asked for, among other things, an order that

4 the Board could not hire Mr. Irvine, or any other counsel to advise it about Thomas's
5
6

conflicts; that the Board could not choose its own counsel if there was conflict in
Thomas's representation of the Board; and that only the county attorney, not the

Board, could determine if he had a conflict of interest.
8
The Board, through Mr. Irvine, filed an Answer and a Counterclaim on April 6,
9

2009.

The Board asked the court to declare that Thomas's conflicts made him

11 unavailable to act as the Board's attorney, and to declare that the Board could

12 choose its own counsel because the county attorney was unavailable due to his
13 conflicts.
14

Judge Daughton ruled against Thomas in this case and in favor of the Board as

15 discussed below.

Quo Warranto Action.

In December 2008 Thomas sued Tom Irvine

17 individually at the same time he sued MCBOS. Thomas v. Irvine, Shughart Thomson

18
19

& Kilroy and Richard Romley, CV2008-033193. This action claimed that Irvine had

usurped the authority of the County Attorney. No answer was filed, and the case was

20
voluntarily dismissed on December 7, 2009.

The parties agreed that this action

22
23
.: ) 24

would be determined by the outcome of the Dec Action, and for that reason there was
no substantive litigation of this matter.
In addition to suing Irvine and the County over the hiring of Irvine, Thomas

25 sent letters to the county employees threatening them with criminal prosecution if

1 they paid any money to Irvine or his firm. In a letter to Supervisor Kunasek, dated
2 December 5, 2008, Thomas, through Deputy Philip MacDonnell, urged him to consult

3 about this issue with the Civil Division of the County Attorney, and that if the Board
4

5
6

hired Mr. Irvine's firm the Board would be performing an illegal act and subject the
Board to actions for recovery of money paid. In a letter to County Manager Smith,
Deputy Manager Wilson, and chief Financial Officer Manos, Thomas demanded that

they issue no warrants for outside counsel and stated that the Board's action taken
8
on December 5, 2008 was unlawful.

If any moneys were paid to Mr. Irvine's firm,

9
10

Thomas threatened legal action to recover funds from them personally.

"Sweeps" Lawsuit.

On February 27, 2009, Arpaio and Thomas sued the

12 Board in a new action about funds that had been appropriated or encumbered by the
13 supervlsors.

Arpaio and Thomas v. MCBOS, CV2009-006709 (referred to as "the

14 Sweeps" case). The case arose out of the State's decision to withhold funds from each

15 county entity because of a budgetary crisis.
16 represented by Eric Dowell's firm.
17
18
19

Both Arpaio and Thomas were

Irvine represented MCBOS.

In part the

defendants alleged that Thomas should be precluded from bringing this suit because
it essentially equated to a lawyer suing his own client for an act that he had
previously approved.

Judge Klein did not rule on this issue in his order, but he

granted summary judgment for the county on June 10, 2009, finding that Thomas
21
22

and Arpaio had no standing. This matter is on appeal and oral argument occurred in

23 May 2010.

Ruling by Daughton regarding Declaratory Judgment Action. On Aug. 27,

25 2009, Judge Daughton ruled on motions filed in the Dec Action. He found that the

1 County Attorney 1) was subject to the Rules of Professional Conduct; 2) that he had

opinion in this matter.

In summary the opinion upholds Judge Daughton's ruling

but remands it to the trial court to determine conflicts of interest on a case-by-case
9

basis.

Thomas Takes Stapley II and Other Cases Back From Polk. In September

12 2009, under pressure from Sheriff Arpaio, Thomas took back control of Stapley 1[,33
13 the investigation of Supervisor Wilcox, what is known as the court tower investigation
14 and the "bug sweep" investigation against county officials from Yavapai County
15 Attorney Sheila Polk. Thomas did so because he was pressured by the Sheriff who
16 thought that Ms. Polk was not cooperative in issuing subpoenas that were desired by

17 Sheriff's investigators.
18
19

Thomas never informed the State Bar or Judge Albrecht that he was doing so.
Judge Albrecht had dismissed the Bar complaint against Thomas because Thomas

20
represented that he had withdrawn from the matter. Even if Thomas did not agree
21
22

with Judge Albrecht's handling of the investigation, or her statement that his conduct

24
25

Stapley II refers to a second criminal investigation and the subsequent case filed against Donald
Stapely in December 2009, CR2009-007891.

1 raised serious concerns, he should have informed her or the bar that he was taking
2 these investigations back.
3

4
5
6

Thomas's Efforts to Appoint Special Prosecutors. After taking the cases
back Thomas wanted to appoint two lawyers from Washington, D.C. to investigate the
court tower matters and to handle Stapley L

This led to another fight with the

MCBOS because they would not approve his choice for outside counsel.

1.
8
9
10

Ethical Violation # 12
(Thomas) Using Means with no Substantial Purpose other than
to Embarrass, Delay or Burden

Thomas violated ER 4.4(a) by sending letters to Supervisor Kunasek and other

11 county employees threatening them that the payment to Mr. Irvine's firm would be

12 unlawful and would subject them to action recover the funds from them personally.
13 The sole purpose of Thomas' threats was to intimidate and to burden county
14 employees and Mr. Irvine.
15
16
17
18
19

Ethical Violation #13
(Thomas and Aubuchon) Issuing Grand Jury Subpoena and
FOIA Request to Burden County

The grand jury subpoena that Aubuchon and Thomas issued in December
2008 was broad and overreaching. The subpoena was directed to "Maricopa County

20
Administration" and was to the attention of David Smith, County Manager.

21
22
23

required the production of budgets; records about funding; documents regarding
proposed usage, occupancy, RFP's, contracts re: planning and design; contracts re:
construction; contracts re: consultants; and any and all documents, correspondence

25 and email referring to the Court Tower project. Aubuchon signed the subpoena. The
43

1 purported justification for this subpoena was that, as noted above, the Board was
2 going forward with the Court Tower project while in an economic downturn, and
3 Treasurer of the County, Hoskins, was unable to get information from the MCBOS
4

about how the money was being spent on the court tower; and general concern that
attorney Irvine was being paid too much money.

In addition to the grand jury subpoena, Thomas also issued FOIA requests to
7

the county. He was in essence making FOIA requests to his own client. The FOIA
8
9

requests were broad and burdensome.
Thomas and Aubuchon violated ER 4.4(a) in issuing the grand jury subpoena

11 and the FOIA requests. Considering the totality of the circumstances, including the

12 overbroad scope of the requests and the political motivations behind them, Thomas's
13 FOIA requests had no substantial purpose other than to burden the county and its
14 employees.

15
16

17
18

Ethical Violation #14
(Thomas and Aubuchon) Conflicts of Interest in Court Tower
Investigation

Thomas and Aubuchon violated ER 1. 7(a)(1) in investigating the court tower
matter.

They were representing the State as prosecutors and investigating their

20
client, the Board of Supervisors.

As found by Judge Donahoe, they were

(~ 24

investigating a matter about which MCAO had advised the Board. They represented
one client against another, which is a concurrent conflict of interest.
Additionally, Thomas and Aubuchon violated ER 1.7(a)(2) by initiating and

25 conducting the court tower investigation. Their representation of the State of Arizona

":J
'"

1 as prosecutors was limited by their own personal interests. They were motivated to
2 investigate the court tower because of their personal disagreement and hostility
3 toward the Board and others including Thomas Irvine.
4
5
6

This conflict of interest led to Thomas issuing needless ForA requests to the
County through county attorney employee Mike Scerbo (not a licensed lawyer). The
Sheriff had also made FOIA requests. These FOIA requests were sweeping and cost

7
the county hundreds of thousands of dollars in order to comply.
8
9
F. The RICO Case.

On December 1, 2009, Thomas and Aubuchon filed a federal civil RICO action

34 The purported plaintiffs in this action were Thomas
12 against various defendants.

13 and Sheriff Joe Arpaio. Lisa Aubuchon signed the complaint. The signature block
14 appears as:

ANDREW P. THOMAS
MARICOPA COUNTY ATTORNEY

By: s/Lisa M. Aubuchon
Lisa M. Aubuchon
Deputy County Attorney

17
18
19

Thomas appears as both a plaintiff and the lawyer for plaintiffs in this civil case.

20
The RICO complaint named the following defendants:
21
22
23

•
•
•

Maricopa Board of Supervisors, a body politic and corporate;
Fulton Brock, Supervisor;
Andrew Kunasek, Supervisor;

24
34 The day before this complaint was filed, Judge Gary Donahoe set a hearing to occur on December 9,
25 2009. The hearing would consider a motion to remove MCAO from handling criminal investigations of
county employees.

1
2
3
4
5
6

• Donald T. Stapley, Supervisor;
• Mary Rose Wilcox, Supervisor;
• Max Wilson, Supervisor;
• David Smith, County Manager;
• Sandi Wilson, Deputy County Manager;
• Wade Swanson, Office of General Litigation;
• Judge Barbara Mundell, Superior Court;
• Judge Anna Baca, Superior Court;
• Judge Gary Donahoe, Superior Court;
• Judge Kenneth Fields, Superior Court;
• Thomas Irvine, attorney;
• Edward Novak, attorney.

8
9

The complaint itself is confusing, difficult to analyze, and does not set out the

10 elements of a RICO civil action. The complaint is deficient because at a minimum it

11 fails to define an enterprise, fails to identifY the racketeering activity, and fails to
12 allege proper injury or damages.

13
14
15

The federal Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. §
1961 et seq., was passed in order to address the infiltration of legitimate businesses

by organized crime.

u.s. v.

Turkette, 425 U.S. 576, 591 (1981).

One provision of

16
RICO establishes a civil cause of action. The purpose of a civil RICO action is not
17
18
19

merely to compensate victims but to turn them into private attorneys general
dedicated to eliminating racketeering activity.

Rotella v. Wood, 528 U.S. 549, 557

20 (2000). The statute provides that any person injured in his business or property by
21 reason of a violation of 18 U.S.C. § 1962 shall recover threefold the damages he

22 sustains and the costs of the suit.

18 U.S.C. § 1964(c).

One seeking to recover

23 under the civil remedy must show that a violation of 18 U.S.C. § 1962 occurred.
24 Simply stated that provision prohibits: 1) using funds obtained through racketeering
25 to establish an enterprise; 2) acquiring an interest or control of an enterprise through
46

1 a pattern of racketeering activity; 3) conducting an enterprise's affairs through a
2 pattern of racketeering activity; and 4) conspiring to do the above activities.
3

To establish liability under a civil RICO claim, one must show that a defendant

was involved in (1) conduct (2) of an enterprise (3) through a pattern (4) of

5
6

racketeering activity.

Miller v. Yokohama Tire Corp., 358 F.3d 616, 620 (9th Cir.

2004).

The complaint filed by Thomas and Aubuchon does not establish what the
8
"enterprise" was.

Under RICO there are two categories of associations that come

9
10

within the purview of the "enterprise" definition. The first encompasses organizations

11 such as corporations, partnerships and other "legal entities." The second covers "any
12 union or group of individuals associated in fact although not a legal entity."
13 Turkette, 542 U.S. at 581-2.

u.s.

In paragraph 78 of the complaint Thomas and

14 Aubuchon concluded that all of the defendants were engaged in an enterprise, as
15 they were all related by contract, or they were a legal entity or a group associated in
16 fact. In the same paragraph they state that "these enterprises" engaged in activities
17
18
19

which affected interstate commerce. However, there are no specific allegations in the
complaint as to what the enterprise was and what its structure was. 35 There is no
evidence that the defendants were in an "enterprise" as defined by RICO.

Although Thomas and Aubuchon mentioned bribery and extortion in various
21
22

places in the RICO complaint, they did not specifically allege any conduct of a specific

24
35 "In order to avoid dismissal for failure to state a claim, a plaintiff must plead specific facts, not mere
25 conclusory allegations, which establish the existence of an enterprise." Elliott v. Fou/as, 867 F.2d 877,
881 (5th Cir. 1981).

1 defendant or enterprise constituting bribery or extortion. 36 Racketeering activity can
2 be bribery and extortion under state law if punishable by imprisonment for more
3 than one year.
4

activity.

18 U.S.C. § 1961(1).

However, there must be a pattern of such

The complaint fails to set forth any factual basis that establishes

racketeering activity as contemplated by the RICO statute.

A plaintiff in a RICO action can only recover damages to his business or

7
property by reason of the conduct of an enterprise through a pattern of racketeering
8
activity.

18 U.S.C. § 1964(c).

Thomas and Aubuchon alleged that some of the

defendants had instigated frivolous investigations of Thomas and MCAO prosecutors

11 with the State Bar of Arizona, or had threatened to go to the State Bar about
12 Thomas.37 MCAO deputy county attorney Rachel Alexander continued to make this
13 assertion in a response she filed to motions to dismiss. She argued that part of the
14 injury to Thomas was that the defendants attempted to deprive him of his license to
15 practice law. 38

In asserting these claims Thomas, Aubuchon and Alexander

16 disregarded Rule 48(1) of the Arizona Supreme Court which states that anyone who
17

complains to the State Bar about an attorney is immune from civil suit.

18
19

There is no evidence that an investigation was conducted into the facts alleged
m the complaint and no MCAO file has been produced to establish otherwise.

20
Aubuchon has admitted as much to attorney Kate Baker who conducted an
21
22

investigation into Aubuchon's conduct. 39

Rather, the inference to be drawn from the

23
/\

RICO Complaint, '\1'\11, 34, 70, 79 and 8l.
RICO Complaint, '\1'\131, 39, 58, 64, 70 and 76.
38 Plaintiffs' Response to Defendants' Motions to Dismiss, pp 29-3l.
25 39 Baker, Report of Personnel Investigation Re: Deputy County Attomey Lisa Aubuchon, p. 64.
(Hereinafter referred to as "Baker Report. ")
36

:--)
'--

1 lack of a file and the lack of an investigation is that Aubuchon and Thomas drafted
2 the RICO complaint based not on facts but on their personal animosity toward all the
3 defendants.

4
5
6

Many of the defendants filed motions to dismiss the RICO case. Alexander filed
a frivolous response to these motions and, as noted above, her response continued
the suit needlessly and without justification. Alexander's response was not based on

any facts. She did not obtain any facts or any investigative file on which to base her
8
argument that the complaint should not be dismissed. Alexander had been warned
9
10

by another Deputy County Attorney, Peter Spaw, that she needed to obtain the

11 investigation file for the matter so that she could determine what the facts were.
12 Unknown to Mr. Spaw at that time, there was no such file.

Alexander's efforts to

13 maintain the RICO case were meritless and frivolous.
14

Alexander also filed a First Amended Complaint

III

the RICO action.

15 version attempted to define the enterprise as the Board.

This

After the defendants

16 objected the court did not allow the First Amended Complaint.
17
18
19

Significant evidence shows that other lawyers in the MCAO did not think that
the RICO case had any factual basis or merit.

Thomas, Aubuchon and Alexander

were all aware of at least one other lawyer's views that the RICO case lacked merit.

20
Deputy County Attorney Spaw was asked to work on the RICO case both before and
21
22
23

/~ 24

after it was filed. Most of his involvement was after the case was filed. He advised
both Thomas and Aubuchon that the case lacked merit.
The RICO action was voluntarily dismissed in March 2010. At the same time

25 Thomas and Arpaio announced that they were turning the matter over to the Public
49

:~
1 Integrity Section of the U.S. Department of Justice.
2 referred nine "investigations."

It appears that they actually

Those matters were all transferred to the U.S.

3 Attorney's Office for Arizona. On October 22, 2010, Dennis Burke the United States
4
5
6

Attorney for Arizona wrote to County Attorney Romley stating that there was a total
lacking of any evidence that a federal crime was committed. He stated that in several
instances the evidence was so lacking as to make a theory of liability nearly

7
incomprehensible.
8
In the RICO action the evidence indicates that Thomas, Aubuchon and
9

Alexander were abusing their power and authority as county officers.4o They filed the

11 RICO case in retaliation against the defendants not based upon their criminal activity
12 as alleged but based upon the defendants' exercise of lawful authority that frustrated
13 and infuriated Thomas, Aubuchon and the sheriff.
1.

15
16

Ethical Violation 1115
(Thomas, Aubuchon and Alexander) Using Means That
Have No Other Purpose than To Burden or Embarrass A Person

ER 4.4(a) states that in representing a client, a lawyer shall not use means that

17 have no substantial purpose other than to embarrass, delay, or burden any other
18

person.

The purpose of the RICO case was to burden and/or embarrass the

defendants.

No factual or legal basis supported the filing of the RICO case.

The

20
motive for filing the RICO action was retaliation against those who had acted against
21
22
23

"::) 24

Thomas and MCAO. In filing and pursuing the RICO case, Thomas, Aubuchon and
Alexander each violated ER 4.4(a).

Paragraph I of the RICO complaint states in part: "This action arises from a concerted scheme to
hinder the criminal investigation and prosecution of elected officials and employees of Maricopa
25 County, Arizona and their attorneys in the course of committing the predicate offenses described herein
related to the finding and construction of the Maricopa County Superior Court Tower."
40

Ethical Violation #16
(Thomas, Aubuchon and Alexander) Filing a Frivolous Suit

2
3
4

The RICO case was meritless and frivolous.

There were no facts and no law

that supported the case for the following reasons:

•

Neither of the plaintiffs had standing to bring the action

•

There was no good faith basis in fact for the action

•

There was no good faith basis in law for the action

•

There was no statutory authority for Thomas to sue under the RICO
statute for himself or for Arpaio

•

Most of the defendants including the named judges and county
officials were immune from such an action.

9
10
11

ER 3.1 states that a lawyer shall not bring or defend a proceeding, or assert or

13 controvert an issue therein, unless there is a good faith basis in law and fact for
14 doing so that is not frivolous which may include a good faith and non-frivolous
15
16

argument for an extension, modification of reversal of existing law.

Thomas and

Aubuchon brought the RICO case, and Alexander defended it. In doing so each of
them violated ER 3.1.

18
Arizona statutes do not empower a county attorney to bring an action such as

19
the RICO case. The complaint states that it is brought in the name of Thomas and
20
21

Arpaio in their official capacities as County Attorney and as County Sheriff

22 respectively. Among the defendants is the county Board "as a body politic." One of
23 the requests for relief asks the federal court to award treble damages against all

24 defendants, and specifically damages to make Arpaio whole from the harm he had he
25 had allegedly suffered. A.R.S. §11-535 prohibits a county attorney from presenting a
51

::J

1 demand for allowance against the county or advocating the demand for an allocation
2 of another. Therefore, Thomas, Aubuchon and Alexander could not bring this action
3 against the Board. The suit was meritless on these grounds as well.
4

Ethical Violation #17
(Thomas, Aubuchon and Alexander) Competence

ER 1.1 states that a lawyer shall provide competent representation to a client.

8 Competent representation requires the legal knowledge, skill, thoroughness and
9 preparation reasonably necessary for the representation.

Thomas, Aubuchon and

10 Alexander each failed to provide competent representation in the RICO action. The
11

complaint that Thomas and Aubuchon filed was legally deficient. Further, there were
no facts that supported the RICO complaint.

Alexander's attempts to prolong and

continue the case were based upon incompetent reasoning.

She accepted the

conclusions based upon "facts" alleged in the complaint filed by Thomas and
15

Aubuchon without question.
At the end of the response to the motions to dismiss Alexander wrote the

18 following:
As a final alternative, and in the event plaintiffs cannot proceed at all
with this Complaint, plaintiffs seek guidance from this Court as to how
federal law may be changed to permit local law-enforcement officials to
challenge the complained-of conduct in federal court, so that plaintiffs
may petition Congress to amend federal law accordingly.41

19
20
21
22
23

Alexander's plea for guidance from the

u.s.

District Court about how to change

federal law to allow a challenge to the "complained-of' conduct is a telling admission

25
41

[d. at p. 45.

1 that she, Thomas and Aubuchon were fundamentally incompetent in bringing the
2 RICO action.
3
4
5
6
7

Alexander's continued efforts to argue that Thomas could sue the RICO
defendants because they had allegedly filed Bar complaints against him were
incompetent. 42 She also argued that judicial immunity did not apply to the judges
being sued because they had committed acts outside the scope of their judicial
duties. 43

Her argument was that the judges had issued rulings that ignored the

8
law. 44

Alexander's arguments in response to the motions to dismiss were

incompetent as was the original complaint.

Ethical Violation #1S
(Thomas, Aubuchon and Alexander) Conflicts of Interest

13
Thomas, Aubuchon and Alexander represented the State of Arizona in bringing

14
the RICO action against the Board of Supervisors, as a body, each of the individual

15
16
17

supervisors, the county manager and his deputy.45

However, they were all also

purportedly representing Thomas and Arpaio. 46 In so doing, Thomas, Aubuchon and

18 Alexander were suing various clients on behalf of at least one other purported client,
19
20
21

Plaintiffs' Response to Motions to Dismiss, p. 29 et seq., filed 2/01/10 in RICO case.
43 !d., at p.43 et seq.
42

22 44Id.
45

Aubuchon stated in a Response to Petition for Special Action, CV 09-00372 SA, that the County

23 Attorney, in his official capacity as a county law-enforcement officer, filed the RICO suit against the

defendants based in part on criminal conduct. She also stated that the County Attorney requested no

24 personal damages in the RICO case and sought relief only so he could effectively combat the corruption
25

that is being shielded from proper prosecution in the county court system. Response, pp. 11, 14.
46 On February 16, 2010, attorneys Elizabeth Fierman and Robert Driscoll substituted in to represent the
Sheriff Arpaio in the RICO action.
53

~'J

1 Arpaio.

In doing so, Thomas, Aubuchon and Alexander violated ER 1.7(a)(I); they

2 represented clients who were directly adverse to other clients.
3

In bringing and pursuing the RICO action against supervisors, judges and

4 attorneys, Thomas's, Aubuchon's and Alexander's representation of their client or
5

clients was limited by their own personal interests in violation of ER 1. 7 (a)(2). By the
time the RICO complaint was filed in early December 2009, Thomas and Aubuchon

had been involved in many disputes with the defendants they sued in the RICO
8
action. Judges who were defendants in the RICO action had ruled against Thomas
9

10
11

and his office.

personal and professional wishes of Thomas and his office. Each of these disputes

12 was resolved unfavorably to Thomas. Among the disputes and rulings were:
•

Thomas' and Aubuchon's unsuccessful attempts to depose
or interview Judge Mundell and Judge Baca about the
appointment of Judge Fields to the Stapley I case.

•

Thomas' and Aubuchon's unsuccessful attempts to remove
Judge Fields from the Stapley I case.

•

MCBOS (less Stapley) hired attorney Irvine to determine if
Thomas had conflicts of interest.

•

MCBOS determined to manage all the county's civil litigation
through county manager Smith.

•

Thomas sued MCBOS in the "Dec Action."

•

Judge Donahoe quashed the court tower grand jury
subpoena, and disqualified MCAO from that investigation.

•

Judge Daughton ruled against Thomas in the "Dec Action."

•

Thomas sued attorney Tom Irvine in the Quo Warranto
action.

•

Thomas sued MCBOS in the "Sweeps" action.

13
14
15
16
17
18
19

22
23

Supervisors had exercised their lawful authority contrary to the

24
25

•

Thomas fought with MCBOS over the appointment of special
prosecutors.

3
4 Each of the above disputes and rulings limited the representation that Thomas,

5 Aubuchon and Alexander could give to their clients in the RICO case. 47

Their

6 judgment was limited by their own self interest and personal animosity.

7
8
9

Ethical Violation #19
(Thomas, Aubuchon and Alexander) Disobeying an Obligation
Under a Rule of a Tribunal

10
11

12
13
14
15
16
17
18
19
20
21

Arizona Supreme Court Rule 48(1) provides:
Immunity from Civil Suit. Communications to the court, state
bar, commission, hearing committees or hearing officers,
mediators, the client protection fund, the peer review committee,
the fee arbitration program, the committee on the Rules of
Professional Conduct, monitors of the Member Assistance or Law
Office Management Assistance Programs, probable cause panelists
or state bar staff relating to lawyer misconduct, lack of
professionalism or disability, and testimony given in the
proceedings shall be absolutely privileged conduct, and no civil
action predicated thereon may be instituted against any
complainant or witness. Members of the board, commission,
hearing committees or hearing officers, mediators, the peer review
committee, client protection fund trustees and staff, fee arbitration
committee arbitrators and staff, the ethics committee, monitors of
the Member Assistance or Law Office Management Assistance
Programs, probable cause panelists, state bar staff shall be
immune from suit for any conduct in the course of their official
duties. (emphasis added)

22
23

':=)

24
47 As noted above, it is difficult to detennine who was the client in the RICO action. It is clear that at
25 least for a period of time, Thomas, Aubuchon and Alexander sought to represent the sheriff. Such

representation of the sheriff was not authorized by law.
55

::)
1

Thomas, Aubuchon and Alexander violated Rule 48(1) by predicating the RICO

2 action in part on alleged Bar complaints or statements to the Bar about Thomas and
3 other MCAO lawyers. By violating that rule they violated ER 3.4(c), which states that
4 a lawyer shall not knowingly violate an obligation under the rules of a tribunal.
5
6

Ethical Violation #20
(Thomas, Aubuchon and Alexander) Conduct Prejudicial to the
Administration of Justice

8
9

Thomas, Aubuchon and Alexander sued four judges of the Maricopa Superior

10 Court concerning their decisions in various matters.
11

By doing so they sought

damages against members of the judicial branch of government for carrying out their
obligations and duties. Even if those judges had made decisions in error they were

13
immune from civi11iability. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986).
14
The RICO suit was an unlawful effort to intrude upon the decision making of judges
15
16
17

and to intimidate them and retaliate against them. In doing so Thomas, Aubuchon
and Alexander vio1atedER 8.4(d).

Furthermore, the RICO suit was an attempt by

18 Thomas, Aubuchon and Alexander to silence the judges through misuse of their
19 power.

Criminal Prosecution of Mary Rose Wilcox.

In January 2010, a grand jury returned an indictment charging Supervisor

22 Wilcox with numerous crimes. MCAO initiated this matter, but it was transferred to
23 Sheila Polk (Yavapai County Attorney) along with the Stapley I matter and other
24

investigations.

Thomas took the Wilcox matter back, as described above, in

25
56

1 September 2009. The Wilcox matter was transferred to the Gila County Attorney,
2 Daisy Flores, as was Stapley IIin March 2010.
3
4
5
6

As with the other investigations, it is unknown why the investigation of Wilcox
was commenced. At the time the indictment was returned against Wilcox, Thomas
and Aubuchon had sued Wilcox along with other defendants for damages caused by
their alleged violations of the RICO statute. As noted above, Thomas alleged in the

7
RICO Complaint that the defendants had threatened his livelihood by bringing Bar
8
complaints against him, had threatened to sue him and his wife to recover legal fees,
9

10
11

and had conspired to cut the funding of MCAO by $6,000,000.

As analyzed below,

filing criminal charges against someone the prosecutor is suing civilly is prejudicial to

12 the administration of justice in part because the prosecutor can use the criminal case
13 to leverage a favorable settlement of the civil case for the prosecutor's benefit.
14
15

16
17
18

Ethical Violation #21
(Thomas and Aubuchon) Conflicts of Interest

Thomas and Aubuchon violated ER 1.7(a)(2) in bringing criminal charges
against Supervisor Wilcox. First, they had a concurrent conflict of interest because
they had a pending civil case seeking damages caused to Thomas and then filed

20
charges against her. Second, the analysis of conflicts stated in Ethical Violation 14
21
22

::J

applies here.

Furthermore, in February 2010, Judge Leonardo of the Pinal County Superior

24 Court ruled that Thomas and his office could not serve as prosecutors in the Wilcox
25 case.

As discussed below in Ethical Violation 22, Thomas and Aubuchon also

2 violated ER 4.4(a) by charging Wilcox.
3

H. Charging Stapley II (and an Additional Charge regarding the Wilcox

4 case).
5
6

On December 7, 2009, Thomas and Aubuchon obtained a second grand jury
indictment against Stapley. (Stapley

Il)48

Thomas had earlier handed off the

investigation of this matter to Yavapai County Attorney Sheila Polk, but Thomas took
8
9

it back from her in September 2009.
The Stapely II indictment alleges three areas of conduct upon which the

11 charges were filed: Stapley's use of contributions in his campaign to be elected to an

12 office in the National Association of Counties; obtaining a loan by fraud; and financial
13 disclosure violations. There were 27 counts in the indictment. The court dismissed
14 this case on March 15, 2010, on motion of Thomas.

Thomas made this motion,

15 through deputy county attorney Kittredge, because Judge Leonardo had ruled in the
16 case against Wilcox that Thomas and his office had a conflict of interest in that
17 matter.

The motion stated that the State intended to have a special prosecutor

review and decide about the prosecution.

Before the dismissal, the indictment in Stapley II was brought by Thomas as

20
County Attorney and signed by Aubuchon.
21
When the Stapley II and Wilcox indictments were filed Thomas and Aubuchon

22
23

had sued Stapley and Wilcox among others in the federal RICO action above.

~ 24

.•

25
48

State v. Stapley, No. CR 2009-007891.

1 Thomas and Aubuchon brought a criminal case against persons they had sued
2 seeking civil damages.
3
4

5
6

Ethical Violation #22
(Thomas and Aubuchon) Filing Charges Against Stapley and
Wilcox to Embarrass or Burden

ER 4.4(a) states that in representing a client, a lawyer shall not use means that

have no substantial purpose other than to embarrass, delay, or burden any other
8
person.

Thomas and Aubuchon violated this rule again in charging Wilcox and

10
11

Stapley in this second case.

There was no substantial purpose to file the charges

against each supervisor other than to burden and embarrass each of them. These

12 prosecutions were not done to seek justice but rather to intimidate the Board and to
13 pursue the political and personal interests of Thomas. When Thomas filed charges
14 against Stapley and against Supervisor Wilcox in December, 2009, Thomas and the
15 Board were involved in three civil lawsuits against each other: 1) the Dec Action; 2)
16 the Sweeps case; and 3) the RICO case. Additionally, Thomas had fought with the
17 Board over the appointment of special prosecutors, and the hiring of Thomas Irvine.
18
19

Thomas and Aubuchon had also lost their fight to investigate what they believed was
a conspiracy in the Court Tower matter. All of this evidence shows that Thomas and

20
Aubuchon charged Stapley and Wilcox for no substantial purpose other than to

21
22

embarrass and burden these two political officials.

::)

24
25
59

Ethical Violation #23
(Thomas and Aubuchon) Conflicts of Interest

2
3

Thomas and Aubuchon violated ER 1.7(a)(2) in bringing charges against

4 Stapley in December 2009. First, they had a concurrent conflict of interest because
5
they had a pending civil case seeking damages Stapley and others caused Thomas,

when they filed criminal charges against Stapley. Second, they had a conflict for all

7
the above reasons that limited their representation in the RlCO action.

8
9
10
11

Thomas and Aubuchon also had a conflict of interest in pursuing criminal
charges against Stapley in this second indictment for all the same reasons their
bringing the fIrst criminal case against Stapley, and the RlCO action naming Stapley

12 was a conflict of interest in violation of ER 1.7(a)(2).
13

I. Charging of Judge Gary Donahoe.

Aubuchon and an MCSO investigator filed a criminal case against Judge

15 Donahoe on December 9, 2009. The complaint was signed by Aubuchon and the

16 investigator, Gabe Almanza. It charged the judge with hindering, obstruction and
17 bribery. Attached to the complaint was a probable cause statement. The probable
18

cause statement was drafted by Detective Brandon Luth directly from a complaint

that Deputy Hendershott had written to the Judicial QualifIcations Committee about

20
Judge Donahoe. There was no investigation in this matter. The evidence indicates

21
22
23

that Aubuchon attempted to file the charges on December 8, 2009.
Thomas and Aubuchon wanted to file the charges against Judge Donahoe

24 because he had scheduled a hearing for the afternoon of December 9, 2009 regarding
25 a motion filed by attorney Edward Novak on behalf of the County. The motion sought
60

1 an order removing MCAO from all criminal matters involving Maricopa County
2 employees.

Thomas, Aubuchon, and others, believed that Judge Donahoe would

3 recuse himself from hearing that motion if they filed criminal charges against him.
4
5
6

There is evidence that Chief Hendershott called Sgt. Rich Johnson about filing
a case against Donahoe on the afternoon of December 8, 2009.

MCSO Sergeant

Brandon Luth and Sgt. Johnson both stated that they met with MCSO personnel and

they called Aubuchon on the afternoon of December 8, 2009, to ask her what was
8
9
10
11

going on and what they needed to charge. Aubuchon told him they needed a Form 4,
a DR (departmental report) and a probable cause statement. Aubuchon told him that
they would have to figure out what they were going to charge Judge Donahoe with,

12 "probably hindering, bribery and theft by extortion." Sgt. Luth told her they did not
13 have a case put together. Sgt. Luth stated that Aubuchon knew no investigation had
14 been done to support the criminal charges. Sgt. Luth's orders were to put the case
15 together and get it filed with an Initial Advisement judge that evening.

:J
18
19

Sgt. Luth said that later in the afternoon of December 8, 2009, he, Aubuchon,
and sheriff's deputies Terry Young, Rich Johnson and Chief Hendershott met. Sgt.
Luth said that Hendershott told them about the racketeering lawsuit, and that they
thought Judge Donahoe was going to throw MCAO off all county investigations.

20
Hendershott said that he had met with Thomas, Aubuchon, and Arpaio, and that
21
22

.:::J

Arpaio came up with the idea of charging the judge. Hendershott told Sgt. Luth to
use his judicial complaint letter for the Form 4.

24 complaint and wrote the charges on it.
25
61

Hendershott printed off the

Hendershott told them to describe the

C)
1 "benefit" that Judge Donahoe received for his illegal conduct as the Court Tower. In
2 other words, the bribe Judge Donahoe was receiving was a new court bUilding.
3
4
5
6

At about 5:00 p.m. Sgt. Luth took the documents to Aubuchon.

She read

them. She said that "it worked for her." Aubuchon signed the complaint as Deputy
County Attorney.

Aubuchon knew that no criminal investigation of the alleged

charges had occurred and that there was no factual basis for the charges.

Aubuchon attempted to have an investigator from MCAO file the complaint in
8
Superior Court in the late afternoon or early evening of December 8,2009. No MCAO
9

investigator involved would file the complaint because they had not been involved in

11 the matter.

When no MCAO investigator would sign the complaint and "walk it

12 through" Aubuchon turned to the sheriffs office to assist her in filing it.

Sgt. Luth

13 refused to file the complaint against Judge Donahoe because he did not want to
14 answer questions by the court about the case when it was filed. The complaint was
15 filed in the morning of December 9,2009. Detective Gabriel Almanza signed it under
16 oath.

Detective Luth stated that he told Almanza to sign it, but Almanza had not

17 been involved in drafting the complaint and he had no knowledge as to the truth or
18

falsity of the complaint.
The evidence indicates that the only attorneys in MCAO involved in the drafting

20
of the complaint against Judge Donahoe were Andrew Thomas and Lisa Aubuchon.
21
No other attorney has admitted involvement, and virtually each MCAO deputy
22

interviewed stated he or she was shocked when they heard Judge Donahoe had been

24 charged.

Ethical Violation #24
(Thomas and Aubuchon) Prosecuting a Criminal Charge
Without Probable Cause

3
4

ER 3.8(a) states that a prosecutor in a criminal case shall refrain from

5 prosecuting a charge that the prosecutor knows is not supported by probable cause.
6 Thomas and Aubuchon knew that the each of the charges against Judge Donahoe
7 was not supported by probable cause. There was no police or sheriffs investigation
8 into the matter.

The basis for the criminal charges was an unsupported judicial

9 complaint written by Hendershott that itself failed to allege any criminal activity and
10 failed to identify any criminal statute.
11

Specifically, there was and is no evidence that Judge Donahoe engaged in
bribery, hindrance or obstruction. Each of these alleged crimes is discussed below.

Bribery. A.R.S. § 13-2602 defines bribery as:
14
Bribery of a public servant or party officer;
15
16
17
18
19

A. A person commits bribery of a public servant or party officer if
with corrupt intent:
1. Such person offers, confers or agrees to confer any benefit
upon a public servant or party officer with the intent to
influence the public servant's or party officer's vote, opinion,
judgment, exercise of discretion or other action in his official
capacity as a public servant or party officer; or

20
21
22
23

24
25

2. While a public servant or party officer, such person
solicits, accepts or agrees to accept any benefit upon an
agreement or understanding that his vote, opmIOn,
judgment, exercise of discretion or other action as a public
servant or party officer may thereby be influenced.
B. It is no defense to a prosecution under this section that a
person sought to be influenced was not qualified to act in the
desired way because such person had not yet assumed office,
lacked jurisdiction or for any other reason.
63

"--

C. Bribery of a public servant or party officer is a class 4 felony.
2
3

There was no evidence that Judge Donahoe acted with corrupt intent.

The

5 probable cause ("PC") statement attached to the complaint does not describe any
6 corrupt intent by Judge Donahoe. At the very worst, the PC statement alleges that

7 Judge Donahoe was "biased" against Sheriff Arpaio; but bias is not evidence of
8 corrupt intent.

Further, there is no evidence supporting the conclusion that Judge

9 Donahoe was actually biased against the county attorney or the county sheriff.
10

There was no evidence described in the PC statement nor was there any
evidence that Judge Donahoe solicited, accepted or agreed to accept any benefit. One
theory that has been advanced by Thomas' attorneys is that the benefit to Judge

13
Donahoe was:

14
15
16
17
18
19

•

His keeping his position as Presiding Criminal Court Judge;

•

Maintaining a beneficial relationship with the Presiding
Judge of Maricopa county; and

•

Allowing the Superior Court to benefit from funding by the
Board for the court tower as well as other projects. 49

There is no evidence that Judge Donahoe's position as Presiding Criminal Court

20
Judge was in any jeopardy if he decided issues in a certain manner.

There is no

21
22
23

evidence that Judge Donahoe desired or sought to maintain a beneficial relationship
with Judge Mundell. There is no evidence that Judge Mundell ever communicated

24 with Judge Donahoe about her desires regarding the court tower. Further, there is
25
49

Legal Opinion of Bob Barr, Esq., 7-10, August 5, 2010.
64

1 no evidence that Judge Donahoe cared in the slightest about whether the court tower
2 was built.
3
4

There was no investigation into these alleged benefits. For instance, there was
no interview of any witness about whether Judge Donahoe cared about keeping his
position as presiding criminal court judge or whether he cared about any relationship

he might have with Judge Mundell.

Furthermore, there was no investigation into

7
whether Judge Donahoe would actually move into the new court tower when built. In
8
fact, Judge Donahoe planned to retire before completion of the court tower. There
9
10

was no evidence described in the PC Statement nor was there any evidence that

11 Judge Donahoe made a decision or issued a ruling because of a benefit he solicited,

12 accepted or agreed to accept.
13

There was and is no evidence at all, much less probable cause to believe that

14 Judge Donahoe engaged in bribery.
15
16
17
18
19
20

Hindering. A.R.S. § 13-2512 defines Hindering as:

Hindering prosecution in the first degree; classification
A. A person commits hindering prosecution in the first degree if,
with the intent to hinder the apprehension, prosecution, conviction
or punishment of another for any felony, the person renders
assistance to the other person.
B. Hindering prosecution in the first degree is a class 5 felony
[except in situations inapplicable here].

21
22

There was no evidence described in the PC Statement nor was there any

23 evidence that Judge Donahoe hindered the apprehension, prosecution, conviction or

24
25

punishment of anyone for any felony.

Thomas's attorneys have argued that there

was evidence of Hindering by Judge Donahoe because he had:

.::J

•

Disqualified the Maricopa County Attorney from the Court
Tower investigation;

•

Failed to transfer matters to a Superior Court Division
that "could document its lack of a conflict of interest
and/ or to courts in other Arizona counties, which would
not be burdened with the same conflicts that plagued the
Maricopa County judges;" and

•

Selected cases by method of cherry picking rather than by
the "normal, random assignment process."50

2
3
4
5

6
7
8

The charges against Judge Donahoe do not specify whom he intended to help

9 avoid prosecution, or conviction and for what crime. In his order disqualifying the
10

MCAO from handling the court tower investigation Judge Donahoe did not disqualify
MCSO, or order an end to the investigation.

He simply disqualified MCAO based

upon its conflict. No investigation was performed concerning the reasons that Judge

Donahoe disqualified MCAO from the court tower investigation beyond reading his
14
15

order.

However, the criminal charges against him assume that there was some

hidden motive not stated in his order. Instead of conducting any investigation into

17 Judge Donahoe's motive for hindering an investigation, Thomas and Aubuchon filed
18 unsupported charges.
19

There was and is no evidence at all, much less probable cause, to believe that

20 Judge Donahoe engaged in hindering.
21

Obstnl.ction: A.R.S. § 13-2409 defines Obstruction as:

A person who knowingly attempts by means of bribery,
misrepresentation, intimidation or force or threats of force to
obstruct, delay or prevent the communication of information or
testimony relating to a violation of any criminal statute to a peace

!~ 24
25
50

Legal Opinion of Bob Barr, Esq. 10-11, August 5, 2010.
66

1
2
3

officer, magistrate, prosecutor or grand jury or who knowingly
injures another in his person or property on account of the giving
by the latter or by any other person of any such information or
testimony to a peace officer, magistrate, prosecutor or grand jury is
guilty of a class 5 felony.

4
5

There was no evidence described in the PC Statement, nor was there any

6 evidence, that Judge Donahoe attempted to use bribery,

misrepresentation,

7 intimidation, force or threats of force to delay or prevent the communication of
8 information about a crime to any peace officer, prosecutor or grand jury. Thomas's
9 attorneys have argued that there was evidence of Obstruction by Judge Donahoe
10 because he had:
11

•

Inappropriately intervened in a case (which is believed to be
Conley Wolfswinkel's motion to controvert a search warrant);

•

Prevented the MCAO from assisting the MCSO and the grand
jury from investigating the court tower, Donald Stapley and
Conley Wolfswinkel;

•

Delayed and/ or prevented MCSO from obtaining information
related to the violation of criminal statutes.

12
13
14
15
16
17
18
19

Judge Donahoe's conduct was not Obstruction.

Obstruction requires three

people: a defendant [Donahoe]; a law enforcement officer, or other specified official;
and another, prospective informant or witness. Walker v. Superior Court In and For

County of Navajo, 956 P.2d 1246 (Ariz. App. 1998). There must be evidence that
21
22
23

(~ 24

Judge Donahoe attempted to prevent some person from communicating with a law
enforcement officer or grand jury. There never was any such evidence.
Judge Donahoe was not obstructing any witness from doing anything. When

25 he disqualified MCAO from the court tower investigation, Judge Donahoe simply

1 ruled MCAO could not be involved. There was no prospective informant or witness
2 whom he was preventing from communicating to anyone.

Furthermore, Judge

3 Donahoe's quashing of the grand jury subpoena did not prevent the communication
4 of any information to law enforcement.

5
6

It was a ruling that the subpoena was

invalid. Such a ruling does not prevent anyone from communicating with the police;
it simply means that the subpoena cannot be enforced.

7
There was and is no evidence at all, much less probable cause, to believe that
8
Judge Donahoe engaged in obstruction.

Thomas and Aubuchon knew that the

9
10
11

charges against Judge Donahoe were not supported by probable cause.

The charges

were filed for improper and unlawful reasons.
2.

12
13

Ethical Violation #25
(Thomas and Aubuchon) Using Means That Have No Other
Purpose than To Burden, Delay or Embarrass a Person

ER 4.4(a) states that in representing a client, a lawyer shall not use means that

15 have no substantial purpose other than to embarrass, delay, or burden any other
16 person. The purpose of charging Judge Donahoe was to burden or embarrass him in
17 order that he would remove himself from the matter he was handling the afternoon of
18
19

December 9, 2010. The purpose was also to burden and embarrass Judge Donahoe
in retaliation for decisions that Thomas and Aubuchon did not like and did not agree

20
with.
21
22
23

::J

24
25
68

Ethical Violation #26
(Thomas and Aubuchon) Engaging in Conduct Involving
Dishonesty

3
4

Aubuchon signed the complaint unlawfully charging Judge Donahoe with three

5 felonies.

She and Thomas knew that the charges were false and that they were

6 brought without the benefit of any investigation or evidence. Aubuchon arranged for
7 a Deputy Sheriff, Gabe Almanza, to sign the criminal complaint under oath. By doing
8 so Aubuchon engaged in dishonesty, misrepresentation, deceit and fraud in violation
9 of ER 8.4(c). Thomas had direct knowledge of what Aubuchon was doing, evidenced
10 at least by his press release announcing that Judge Donahoe had been charged. He
11

also knew because Chief of Investigators Stribling talked to Thomas about the filing
of the charges the night before they were filed. Thomas also engaged in dishonesty

13
by approving and ratifying Aubuchon's filing of false charges, and he thereby violated

14
ER B.4(c).

15
16
17
18

Ethical Violation #27
(Thomas and Aubuchon) Engaging in Criminal Conduct

ER B.4(b) states that it is professional misconduct for a lawyer to commit a
criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness
as a lawyer in other respects. Thomas and Aubuchon engaged in peIjury, a criminal

act that reflects adversely on their honesty, trustworthiness or fitness as a lawyer.
21

Perjury is defmed by A.R.S. § 13-2702:
A. A person commits peIjury by making either:
1. A false sworn statement in regard to a material issue, believing

it to be false.

.~
2. A false unsworn declaration, certificate, verification or statement
in regard to a material issue that the person subscribes as true
under penalty of perjury, believing it to be false.

2
3

B. Perjury is a class 4 felony.

On December 9, 2009, Thomas and Aubuchon knew that the criminal

6 complaint against Judge Donahoe was to be filed in Superior Court.

Both of them

7 knew that the complaint was to be signed by Gabriel Almanza under oath. Thomas

8 and Aubuchon knew that Detective Almanza would be swearing to facts and
9 allegations against Judge Donahoe that were false.

Thomas and Aubuchon knew

10 that Detective Almanza signed the complaint that was false and they knew that it was

filed in Superior Court.

Such complaint was a "sworn statement" as defined by

A.R.S. § 13-1701.

13
Under A.R.S. § 13-303, Thomas and Aubuchon are criminally accountable for
14
the conduct of Detective Almanza because they acted with the culpable mental state

15
16

for perjury and caused another, whether or not such other person was capable of

17 forming the culpable mental state, to engage in perjury.
18
19

Thomas and Aubuchon violated ER 8A(b).

Ethical Violation #28
(Thomas and Aubuchon) Engaging in Criminal Conduct

21
22
23

Thomas and Aubuchon also violated ER 8A(b) by engagIng m conduct that
violated a federal criminal statute, 18 U.S.C. § 241.

That statute provides in

.~ 24 pertinent part:
25

If two or more persons conspire to injure, oppress, threaten, or
intimidate any person in any State, Territory, Commonwealth,

1
2
3
4
5
6

Possession, or District in the free exercise or enjoyment of any
right or privilege secured to him by the Constitution or laws of the
United States, or because of his having so exercised the same;. . .
They shall be fined under this title or imprisoned not more than
ten years, or both.
Thomas and Aubuchon conspired with each other and with others to injure, oppress,
threaten or intimidate Judge Donahoe in the free exercise of his First Amendment

rights to freedom of speech, a right or privilege secured to him by the U.S.
8

Constitution and laws of the U.S., or they did so injure, oppress, threaten or
9

10
11

intimidate Judge Donahoe because he had exercised his right to freedom of speech.
Under 18 U.S.C. § 241 the gravamen of the violation is the conspiracy to injure,

12 oppress, threaten or intimidate someone from exercising a right under the U.S.
13 Constitution. See U.S. v. Lanier, 520 U.S. 259 (1997). In order to be criminally liable
14 under this statute it does not need to be shown that any actual injury, oppression or
15 intimidation occurred. It is the conspiracy to do so which is prohibited.
16

::)

A judge when issuing an opinion or a ruling is exercising his First Amendment

17 right to freedom of speech. Perry v. McGinnis, 209 F.3d 597 (6th Cir. 2000). The
18
intent of Thomas, Aubuchon and others was to muzzle Judge Donahoe so that he
19
would not rule on the motion to be heard on the afternoon of December 9, 2009.
20
Judge Donahoe also had a constitutional right to engage in his profession and
21
do his job as a judge. A conspiracy against a public officer in the performance of his
22
duties is a violation of 18 U.S.C. § 241. U.S. v. Patrick, 54 F. 338, 348-49 (C.C. Tenn.
23
24 1893). See also U.S. v. Davis, 103 F. 457 (C.C. Tenn. 1900) (conspiracy to deprive
25 U.S. Marshal and Deputy Marshal of their constitutional right to arrest a person on
71

1 legal process violates the statute). A judge when hearing a motion is exercising his
2 constitutional right to perform his function as a public officer.

By conspiring to

3 charge Judge Donahoe with a crime unsupported by any evidence, Thomas and
4 Aubuchon violated 18 U.S.C. § 241.

5
6

Ethical Violation #29
(Thomas and Aubuchon) Conflicts of Interest

8
Thomas and Aubuchon violated ER 1.7(a)(2) in bringing charges against Judge
9

Donahoe.

First, they had a concurrent conflict of interest because they had a

11 pending civil case against Judge Donahoe, among others, seeking damages caused to
12 Thomas at the time they then filed charges against Judge Donahoe.

Second, they

13 had a conflict because Judge Donahoe had ruled against them in disqualifying MCAO
14 from the Court Tower grand jury matter and quashing the SUbpoena. Their personal
15 animosity toward Judge Donahoe limited their representation and judgment as
16 attorneys for the State.

17
18

Ethical Violation #30
(Thomas and Aubuchon) Conduct Prejudicial to the
Administration of Justice

20
Thomas and Aubuchon engaged in conduct prejudicial to the administration of
21
22

justice in violation of ER 8.4(d) by charging Judge Donahoe with crimes in order to
burden him to the point where he recused himself from the pending motion.

25
72

J. Grand Jury Matters in 2010.

On January 4, 2010, Aubuchon began a presentation to the Grand Jury about

3 two areas: 1) allegations that Stephen Wetzel, Andrew Kunasek and Sandi Wilson

4
5
6

had illegally used public monies on two separate occasions to conduct sweeps for
electronic listening devices at county offices; and 2) allegations that Judge Donahoe,
Thomas Irvine and County Manager David Smith had illegally conspired to hinder

prosecution and obstruct a

criminal investigation involving the court tower.

8
Testimony was taken on January 4, 2010. There were only two witnesses, Detective
9
10 Halverson and Chief Deputy Hendershott. After the testimony, the Grand Jury asked

11 Aubuchon for a draft indictment.

Aubuchon provided a draft indictment, but the

12 Grand Jury did not reach any conclusion.
13

In the meantime, Judge Donahoe requested and received a stay on the

14 prosecution against him. Additionally, Judge Leonardo had disqualified MCAO from
15 prosecuting the case against Mary Rose Wilcox.

On March 3, 2010, Aubuchon appeared in front of the Grand Jury.

She

17 advised them of the stay in the Donahoe matter and of the disqualification in the
18

Wilcox case. She asked that the Grand Jury return the bug sweep and court tower

matters to MCAO so that when a special prosecutor was found, that prosecutor could

20
make a determination how to proceed. The Grand Jury asked for advice as to how it
21
22
23

could proceed. They were advised that they could ask for a draft indictment, end the
inquiry, or call for more witnesses or evidence.
inquiry.

The Grand Jury voted to end the

::]
1

In March 2010, Gila County Attorney Daisy Flores agreed to review the Wilcox

2 and Stapley II matters which had been dismissed by MCAO.
3

On April 1, 2010, Thomas announced his resignation as County Attorney

4 which he stated was effective April 6, 2010.
5
6

On April 2, 2010, Aubuchon sent Ms. Flores a letter, memorandum and
departmental report about the bug sweep investigation. She wrote in her memo that

7
the matter was presented to the county grand jury as part of an overall investigation
8
9
10
11

into local corruption. She wrote that the grand jurors had not finished deliberating
on an indictment when a judge entered a stay as to one of the suspects, Judge
Donahoe. Aubuchon stated that she asked the grand jurors to stop considering the

12 matter until that issue was resolved. She wrote further that her office was found to
13 have a conflict in the Mary Rose Wilcox case and that the office decided to dismiss
14 the matters relating to the other county officials. She said that if Ms. Flores decided
15 to go forward with the charges, parts of the grand jury presentation may need to be
16 accessed or disclosed after court order as it was all in a sealed grand jury proceeding
17
18

under number 494 GJ 156, January 4,2010. Aubuchon did not tell Ms. Flores that,
in fact, the grand jury had voted to end the inquiry.

19
20
1.

Ethical Violation #31
(Thomas and Aubuchon) Conflicts of Interest

22
23

Thomas and Aubuchon violated ER 1.7(a)(2) in pursuing a grand jury
investigation of Judge Donahoe, Thomas Irvine, Andrew Kunasek, David Smith and

25 Sandi Wilson. First, they had a concurrent conflict of interest because they had filed
74

1 a pending civil RICO case against these individuals seeking damages caused to
2 Thomas, and then they pursued a criminal investigation of them. Second, they had a
3 conflict for all the same reasons noted above that limited her representation in the
4 RICO action.
5
6

See Ethical Violation

14 above.

Additionally, Thomas's and

Aubuchon's representation of the State was limited by their personal animosity
toward these individuals.

Ethical Violation #32
(Aubuchon) Dishonesty and Misrepresentation

Aubuchon should never have disclosed to Ms. Flores any matters attendant the

12 grand jury.S1

However, once she did so, she had to be honest about what she

13 revealed. Aubuchon engaged in dishonesty and misrepresentation in violation of ER
14 8.4(c) because she knowingly failed to tell Ms. Flores that the grand jury had voted to
15 end the inquiry. Given that Aubuchon had told Ms. Flores that she had presented
16 matters to the grand jury concerning local corruption, her failing to inform Ms. Flores
17 that the grand jury had ended the inquiry was misleading and dishonest.
18
19
20
IV. CONCLUSION

21
Based upon the above, Independent Bar Counsel recommends that the

22
23

Probable Cause Panelist find that there is probable cause to believe the above

:J 24
29

A.R.S. §_13-2812 criminalizes disclosure of matters attendant a grand jury proceeding unless a
court order permits one to do so.
51

1 allegations and to approve the filing of a formal complaint against Andrew Thomas ,
2 Lisa Aubuchon and Rachel Alexander.

3
4

RESPECTFULLY SUBMITTED

thiski'~ay

5
6
7

John S. Gleason
Independent Bar Counsel

8
9
10
11

12
13
14
15
16
17
18
19
20
21
22
23

)

24
25
76

)

2010.

The Habeas Citebook Ineffective Counsel Side