In politics, there’s the ‘third rail,’ a metaphor for topics so charged that like a train’s exposed electrical conductor, they’re too dangerous to touch. For at least some lawyers, the profession’s ‘third rail’ is the lawyer discipline system.
The closest most want to brush against lawyer discipline is a glance at the list of sanctioned lawyers in the monthly bar magazine. And that’s just in case there’s someone there they know.
By comparison, bar websites in neighboring California, Nevada, and New Mexico don’t have such front-page listings. But true to its express mission of protecting the public from its lawyers, the Arizona bar additionally sends press releases publicly identifying the drubbed and the defrocked.
Afraid of the system.
But ask an Arizona lawyer to explain how discipline works or to state how many bar prosecutors there are or how much money is spent each year protecting the public and chances are good you’ll get a headlight-caught Bambi expression. More than “don’t ask” — afraid of bad karma it’s “don’t tell me — I don’t want to know.”
Take the financial piece, for example. Lawyer discipline takes the biggest chunk of member dues. In Arizona, the number runs about $5M annually.
But if there’s a detailed financial accounting explaining how, what, why and where those monies are expended, I wouldn’t know about it.
To be fair, that doesn’t mean such a report doesn’t exist. I may just be the last person in Arizona to know it. All the same, whether you’re talking legal elites or state or local government, transparency hasn’t been big here.
Consequently, it may simply be that run-of-the-mill members even if they’re paying for the whole kaboodle aren’t supposed to be privy to it — sort of like questions above their pay grade.
On the bar’s website, however, at least there’s an 11-page April 30, 2013 Annual Report of the Attorney Regulation Advisory Committee to the Arizona Supreme Court. Admittedly, it’s not a financial statement. It’s a statistical report of admission and discipline cases for the year. It’s also about one-fifth the size, for example, of the Washington Bar’s 2012 Lawyer Discipline System Annual Report. The Washington state report, by contrast, is replete with cost and discipline expense data.
“Ethics allegations about judge . . . .”
But the real reason to bring up lawyer discipline today is not because I have a pent-up hankering for self-administered third-rail electrocution. It’s because of Wednesday morning’s front-page news story concerning a persistent non-lawyer named Mark Dixon and the bone he’s been picking with the state’s lawyer discipline chieftain, presiding disciplinary judge Hon. William “Bill” O’Neil.
According to news sources, Dixon’s been complaining about Judge O’Neil since at least 2009. Indeed, almost 2 years ago Dixon even filed an affidavit in support of Lisa Aubuchon’s disbarment appeal. For those who forgot, Aubuchon was the former deputy county attorney ultimately disbarred for her role in former Maricopa County Attorney Andrew Thomas’ prosecutorial misconduct against county officials.
None of this was news to me. I caught a whiff a couple of years ago when Phoenix New Times ran an unflattering account, “Mark Dixon Disses Disciplinary Judge William O’Neil, Who He Says was a “Close” Friend, in Affidavit Filed by Lisa Aubuchon. New Times reporter Ray Stern put Dixon in a less than credible light.
But now comes this week’s news account in the Arizona Republic, “Divorce case stirs ethics allegations about judge.” Talk about an attention-grabber — especially if you’re a lawyer. So naturally, the interest of legal community types was piqued, especially when the allegations weren’t just directed at any judge but the one charged with disciplining lawyers. Even so, these were only allegations and ones that had been previously dismissed out-of-hand. So inasmuch as Dixon’s beeves had been grilling for a while and that he’d become a minor cause célèbre among local Tea Party types, why was the mainstream newspaper now taking this on? Slow news day?
I doubt it’s because the Arizona Tea Party and its supporters have that much pull, if any, with the state’s largest newspaper. Moreover, their support of Dixon is colored. They’re still picking their own Brontosaurus-sized bone with the state bar and the court’s disciplinary arm for defrocking their hero, former county attorney Andrew Thomas.
So it’s a mystery to me. But as for the Republic story, writer Dennis Wagner did a terrific job time-lining events and giving equal time to both sides.
Most importantly, in detailing the series of events, coincidences, and timing of the real estate short sale of Judge O’Neil’s mother-in-law’s house to his friend and subsequent business partner and the judge’s purchase thereafter of a half-interest in the home for $25,000, Wagner was smart to raise the relevant “appearance of impropriety” ethics standard.
It’s CANON 2 of the Arizona Supreme Court Code of Conduct,“A judge shall avoid impropriety and appearance of impropriety in all of the judge’s actions.” Section A of Canon 2 of the Code; rule 81, Arizona Rules of the Supreme Court, further provides: “A judge should … conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” whereas section B of Canon 2 provides in part: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”
To Judge O’Neil’s inestimable credit, though, when asked about the appearance of impropriety involving the short sale transaction and subsequent purchase, Judge O’Neil told the news reporter, “In hindsight, would I have done this? The answer is ‘No’.”
No props, though, for straight-faced zealous advocacy from the judge’s lawyer, who when told by the reporter of the judge’s woulda-coulda-shoulda said, “I hate to contradict the good judge, but . . . there isn’t any appearance of impropriety.”
But no need to go into the rest of the story here. Read Wagner’s account instead.
And while this may not necessarily be open discussion at law firm water coolers, I think even lawyers apprehensive about a ‘third rail’ fan kick might by now found the wherewithal to sneak a peek at the news report — at least from under the covers.