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.

The Conflict of Representing and Prosecuting Officials
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 an article in the Phoenix New Times.

In an August 21 decision, the Superior Court for Maricopa County found that:

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.

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 Arizona Rules of Professional Conduct].

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."

Can Such a Conflict Simply End?
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.

In an earlier blog post, 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.

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?

Stamping Out Local Corruption, Locally
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.

Elected and Appointed Local Government Attorneys
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.

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.

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.

Needless to say, the county attorney has appealed the court decision to the state supreme court.

Robert Wechsler
Director of Research-Retired, City Ethics

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