Maricopa County 4 - Local Government Attorney Prosecutions of Those They Represent
One of the more interesting battles in the civil war among Maricopa
County elected officials is the Battle of the Civil Division. When the
county attorney indicted County Supervisor Don Stapley in December
2008, the board of supervisors decided to take away the county
attorney's civil division and create a separate county civil law
department.<br>
<br>
<b>The Conflict of Representing and Prosecuting Officials</b><br>
The board's argument is that the county attorney ignored the conflict
it had between representing council members and bringing a criminal
action against them. The county attorney filed a cease-and-desist
action against the council, which he lost, according to <a href="http://blogs.phoenixnewtimes.com/valleyfever/2009/03/countys_new_civil_…; target="”_blank”"><b>an
article</b></a> in the Phoenix <i>New Times</i>.<br>
<br>
In <a href="http://blogs.phoenixnewtimes.com/valleyfever/Thomas%20Case.pdf" target="”_blank”"><b>an
August 21 decision</b></a>, the Superior Court for Maricopa County found
that:
<ul>The conduct of the County Attorney in
his relationship with the Defendant/Counterclaimant, Maricopa County
Board of Supervisors, has not complied with those professional
obligations during the time frame involved in this litigation.<br>
<br>
It is the contention of the County Attorney that it is he who
determines if there is a conflict in any given situation and if he
determines that there is a conflict it is he who selects counsel for
his client the Maricopa County Board of Supervisors. There is no
support for the contention under [the <a href="http://www.law.cornell.edu/ethics/az/code/" target="”_blank”"><b>Arizona Rules of
Professional Conduct</b></a>].</ul>
But the court also found that, although at the time it was okay for the
board to set up a separate law department to represent it, "when the
County Attorney follows the Ethical Rules in his relationship as
attorney for Maricopa County and the Board of Supervisors, his office
will then be the appropriate attorney of record for Maricopa County in
those cases in which no conflict of interest exists."<br>
<br>
<b>Can Such a Conflict Simply End?</b><br>
The catch for the county attorney is that the court has found that it
is not the county attorney who determines if there is a conflict, but
the client. And it doesn't sound like the client board is going to turn
over its legal work to the county attorney any time soon.<br>
<br>
In an <a href="http://www.cityethics.org/content/county-attorney-war-county-conflicts-…; target="”_blank”"><b>earlier
blog post</b></a>, I noted that the county attorney subpoenaed the board
regarding a matter on which he had advised the board. A judge found
that the county attorney was in conflict.<br>
<br>
Does the county attorney's conflict really end if he plays nice? That is, if the county attorney continues to indict, subpoena, and sue the county
legislature, can he suddenly stop and say there is no conflict anymore? How can
the legislators trust such an attorney will keep playing nice, that, for example, he may not use confidential information against them in civil or criminal proceedings?<br>
<br>
<b>Stamping Out Local Corruption, Locally</b><br>
It is laudable that the elected Maricopa County attorney is trying to
stamp out corruption in his county. But corruption is not about money,
it is about the misuse of office. Bringing proceedings against his own
clients seems to me a misuse of office, creating a double
conflict: a conflict with his clients and a conflict with the
goal of ending misuse of office in the county. An attorney who does
recognize his own conflicts cannot provide the ethical leadership necessary to responsibly deal
with others' conflicts.<br>
<br>
<b>Elected and Appointed Local Government Attorneys</b><br>
This dispute sheds light on a basic problem with government attorneys.
When they are hired by elected officials, they are often too loyal to
those who hire them, that is, to the individual over the office. When
they are separately elected, as in Maricopa County, they can sometimes act too independently.
No one wants to be represented by a lawyer who is competing with the
client for power in the local government.<br>
<br>
In addition, a local government attorney with authority to bring
criminal cases against local legislators will act and be seen
differently if elected or appointed. An appointed attorney is unlikely
to bring indictments against his or her appointing authority;
therefore, this power should be given to someone else. An elected
attorney might bring such indictments, but doing so will conflict with
representation of the legislators; therefore, this power should be
given to someone else.<br>
<br>
The bottom line is: no local government attorney, appointed or
elected, who represents officials should have the power to
investigate or indict those officials. If an elected attorney is given
this power, his or her office should not advise officials in any way.
You can't have it both ways.<br>
<br>
Needless to say, the county attorney has appealed the court decision to
the state supreme court.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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