IN THE SUPREME COURT OF THE STATE OF ARIZONA In the Matter of a Member File #: Smith v. Aubuchon 09-2296 f the State Bar of Arizona, Seared tee (Oral Argument Requested) Lisa M. Aubuchon, Esq. Petitioner, v. Hon. Charles Jones, Appointed Probable Cause Panelist, Respondent, and John Gleason, on behalf of the Arizona State Bar, Real Party in Interest, Real Party in Interest. PETITIONER’S APPENDIX TO PETITION FOR SPECIAL ACTION TO REVERSE PANELIST’S RULING REGARDING MOTION FOR PROTECTIVE ORDER Mark D. Goldman, Esq. State Bar No. 012156 Kathleen E. Rapp, Esq. State Bar No. 023982 Amanda A. Sarli, Esq. State Bar No. 026558 Edwin G. Anderson, Esq. State Bar No. 027292 Wilenchik & Bariness, P.C. 2810 North Third Street Phoenix, Arizona 85004EXHIBIT 1B “4 rr 16 18 0 20 a FILED AUG 24 2010 BEFORE THE PROBABLE CAUSE PANELIST STATE BABOF gz ‘THE STATE BAR OF ARIZONA Lode € Mott IN THE MATTER OF A MEMBER Nos. 09-2296; 10-0663 OF THE STATE BAR OF ARIZONA, LISA AUBUCHON Bar No. 013141 RULING ON RESPONDENT'S SECOND MOTION FOR Respondent. PROTECTIVE ORDER AND REQUEST TO SEAL PURSUANT TO RULE 70(e) Respondent, Lisa Aubuchon, through counsel, submitted her second Motion for Protective Order and Request to Seal pursuant to Rule 70(g), Ariz.R.Sup.Ct. Independent Bar Counsel filed a response. Respondent submitted a reply. The undersigned Probable Cause Panelist has fully considered the arguments set forth in Respondent's second Motion for Protective Order filed July 9, 2010, and the information advanced in the July 8, 2010 unredacted letter from Respondent’s counsel, attached to the Motion both in unredacted and redacied form, The Panelist has also considered Independent Bar Counsel’s Response and the Respondents’s Reply. Respondent re-urged her motion for protective order, asserting three grounds for relief: 1) public policy does not require disclosure; 2) Andrew Thomas has an executive [privilege and a deliberative process privilege which Respondent Aubuchon is ethically required to honor. Sheriff Arpaio is protected by the attorney-client privilege between the Office of the Maricopa County Sheriff and the Maricopa County Attorney; and 3) no harm1s 16 "7 18 19 20 aa n 23 Dy 25 will come about by granting a protective order, but great harm could result absent a protective order. Independent Bar Counsel responded and stressed the importance of allowing complainants to review Respondent's unredacted response, stating that without such information, Independent Bar Counsel will be unduly impaired in his ability to elicit evidence concerning Respondent’s conduct. With regard to the assertion of executive privilege, Independent Bar Counsel argued that such privilege is not absolute and must yield to Independent Bar counsel’s need to obtain evidence relevant to the allegations. Independent Bar Counsel cited recent case law that the Arizona Court of Appeals, jhas determined not to adopt the deliberative process privilege. See Rigel Corporation v Arizona Department of Revenue, No. | CA-TX 08-0006. With respect to the attorney-client privilege claimed by Sheriff Arpaio, Independent Bar Counsel noted that Respondent has provided nothing that delineates which portions of ‘her Response refer to attorney-client communications with the Sheriff and under what circumstances the cornmunications took place. Indeed, many of the arguments and information set forth in the Motion and ‘attachments are inapplicable to the issues presented in the instant matter. ‘This Panolist concludes that none of the privileges urged by Respondent can be properly applied to information she has disclosed to date. Moreover, in bar disciplinary proceedings involving, attomeys holding public office, discharging public duties and exercising the power of office, ‘here is of necessity a separate interest ~ a public interest — that should be considered in order to ensure adequate protection of the public at large. It is true, the privileges mentioned,u 2 “ 15 16 20 2 24 particularly the attomey-client privilege, are of vital importance to the justice system. But, the application of any privilege must be established as a matter of law, something which. Respondent has failed to accomplish, Finally, regarding the three privileges claimed, Respondent Aubuchon, once again, Jhas not given the specifics of communications claimed to be privileged — by whom, to whom, what was communicated, and the circumstances. These deiails are critical to the determination of a protective order. In considering the bases upon which Respondent moved for a protective order, the undersigned Panelist has closely reviewed and compared Exhibit 1 (unredacted response) with Exhibit 2 (redacted response). Neither the unredacted nor redacted information fills into any of the above-enumerated bases claimed by Respondent. ITIS ORDERED: 1, Respondent’s Motion for Protective Order and Request to Seal are DENIED. 2. This Ruling is stayed until five o’clock p.m. (5:00 pm) Tuesday, August 31, 2010 per Respondent's request, in order to allow Respondent an opportunity to seek special action review of the Ruling by the Supreme Cour! of Arizona, Should Respondent not seek such review, Independent Bar Counsel may, after August 31, 2010, send Exhibit 1 (unredacted response) to complainant, DATED. this 2Y tay of August, 2010. Gi frm — aries E, Jones3 “ 15 16 7 18 9 23 24 28 Original filed this 24” Gay of August, 2010, with: Sandra E. Montoya ‘Lawyer Regulations Record Manager State Bar of Arizona 4201 N. 24" St, Ste. 200 Phoenix, AZ 85016-6288 rh Copies emailed and mailed this 2'Y ‘day of August, 2010, to: John S. Gleason Regulation Counsel Colorado Supreme Court 1560 Broadway, Suite 1800 Denver, CO 80202 John Gleason@ese. stale.co,us Dennis Wilenchik ‘Mark Goldman ‘The Wilenchik & Bariness Building 2810 N. 3 St. Phoenix, AZ 85005 Attomeys for Lisa Aubuchon admin@wb-law.com Mark.goldman(@iwb-law.com by: Saadben MaskingEXHIBIT 2Bevus Gussrr Leo rR. Bus. 18 March 2008 416-7441 Robert B, Van Wyok, Esq, (Chief Bar Comnsel ‘State Ber of Arizona 4201 N. 24” St, Suite 200 Phocnix, AZ 85016-6288 Re: Maricopa County Attorney's Office Dear Mr. Van Wyck: On Mondey, 17 March 2008, 1 left your assistant, Pam Johngon, a message asking you to return the phone call. As of today, you bivo not retuned that phono call. T have a-yery simple question, tn the “ Order of Stay signed by the Probable Cavst Panelist, the Pancibt suid at lines 13-18 "[]he State Bar shall not release Respondent's response(s) to the named complainant (if auy), or 10 the ‘general public, pending disposition of Respondent's appeal of the.Panelist’s order.” (Our best scholars have tied fo determine our sigh of appesl. We have concluded that there is no right to appeal except by way of special sction to the Arizona Supreme Court, ‘Do You shace thot view nod, if not, will you please provide us authority suggesting we have some other appellate right other than a special action to the Arizona Supreme Conn’? Wonld you be kind enough to give us your written view as to what our appellate rigbls are and any precedent ‘supporting thoss appellateights? We tertninly do not went to have issues with the State Bar Cousel ever procedural matters. ssoiurescesecoiias EXHIBIT 2‘Robert B. Van Wyck, Beg, 18 March 2008 Page? ‘Thaskiog you in advance, Toth LRBipg ec: Daniel B, Croccbioto, Bag, sooueebecracouhty Very trily yours, EUS GILBERT ric Leo R. BensLaDonna Johnson From: Sent Roborta Teppar {roberta tappor@stal.azbar.org] Tuosday, Merch 48, 2008 3:25 PM To: Leo Beus Cc: Robert Vanwwyck Subject: Your laiter of March 18 ‘Your inquiry of March 17 and 18 regarding an appeal of the Penelist's order was referred to me for response, as Bob VanWyck has been out of the office since March 1th, and was therefore unaware of your call. T've conferred with other Senior Bar Counsel and there is no provision in the Rules that slows foran appecl of the panelist order; however, if one were inclined to appeal nonetheless, a special action to the Court would likely be the most appropriate vehicle. Roberta Tepper Senior Bar Counsel State ar of Artzana 4205 N. 2th Street, Sulte 200 Phoenix, AZ 85016-5200 (802) 340-7247 Phone (602) 416-7451 Fox: Roberta. Teppor@staff.aabar.org PRICATIONS PRIVACY ACT, 18 U.S.C. §52520~ ‘OHEMVERE, pROTECTeO FRow raciOcue 76 Gitone. se oy “ins electnonac all on 37 EDveaits BY FouSERS SINEE you hive RECEIVES TIE besaace 2y EMR, PLEASE HOTZEY Us HNTEIIN RECORDS. THEN PLEASE OLLETE WHE OREGIRA RESSIEE, Mang 5/9/2008EXHIBIT 3i) ABSIT Assistant's Direct Line: (602) 340-7233 ‘November 18,2009 Lisa M. Aubuchon, Esquire ‘Maricopa County Attomey's Office 301 W. Jefferson Strovt, 8th Floor Phoenix, Arizona 85003 Ret Inquiry from Maricopa County Manager’s Office Dear Ms. Aubuchon: ‘This letter is to inform you that we have received the enclosed information fom Mavicopa, County Manager David Smith, It will take us several days to review the submission and determine whether or not to initiate a screening iavestigation or take any other action, ‘No response or other information is necessary ftom you at this time, The purpose of this lotter is simply to inform you of our receipt of this information. We will keep you advised. of any decisions regarding this matter. Sincerely, nw traa edly Maret Vessella Chief Bar Counsel MV/abd Enclosure ce: David R. Smith (w/o enc.)bbe: Joba F. PhelpsEXHIBIT 4‘March 2, 2010 ‘The Honorsble Rebecca White Berch Chief Justice Supreme Court of Arizona 1501 West Washington Sueet Phoenix, Arizona 5007-3231 Dear Chief Justice Berch: Based on information that has come to my attention and pursuant to my authority and responsibilities under Rule 51, Arizona Supreme Court Rules, I heve determined that it is nscessary to initiate an investigation into matters associated with the recent Arizona Superior Court ruling by Judge John Leonardo (CR-2010-005423-001), dated ‘24 February 2010, Judge Leonardo’s findings implicate potential violations of the Arizona Rulos of Professional Conduct (Rules) by Maricopa County Attorney Andrew Thomas. Consistent with the State Bar’s responsibilities to investigate and ‘when approprinte prosecute violations of the Rules, we are prepared to take immediate and deliberate action by commencing an investigation into Mr. Thomas? actions as described in Judge Leonardo's ruling, ‘As you know, some prior charges against Mr. Thomas prompted the appointment of outside counsel to avoid a perceived confiot of interest. 1 believe the conditions that influenced that appointment have been elimincted. 1 ‘must acknowledge, however, that a member of our Board of Governors, Rdward Novak, whose firm represants the Maricopa County Board of Supervisors, has been named c9 a defendant in a federal complaint filed by Me. ‘Thomas. In addition to allegations made by Mr. Thomas aguinst Mr. Novak, the complaint alleges tha the State ‘Bor was improperly influenced, as part fa conspiracy, to take action against Mr, Thomas. 1find no credible basis to support these allegetions. However, because these allegations are adverse to a member of our Board and the Bar in general, it may be appropriate to again consider the appointment of an independent counsel to investigate Ms. Thomas, Ifan independent counsel were appointed, it may be appropriate to include current charges pending against Mr. ‘Thomas and others relating fo similar matters in the investigation, have every confidence that our organization can fairly and effectively act inthis regard. 1 also appresiate the need to protect this process from any appearance of a conflict of interest, and would therefore ask that you ‘consider appointing an independent counsel to investigate the above matters. The Stale Bar will refrain from faking further action regarding Mr. Thomas until [receive your guidance. ‘Very respectiylly, (cE John’. Photps (Chief Excoutive Officer & Bxecutive DirectorEXHIBIT 5April 27, 2010 RE: Anomey-elient pr vilege communication regarding potential harm to criminal inves ions and prosecutions Deur i Aubuchon, WW has come to my altention thal the State Bur of Arizona conducting’ in investigation into aetions taken by Mr. Thomas durin his tenure as the Maricopa County Atomey, including possible inquiries into the pencinw criminal investigations and/or prosecutions of Donald Siapley, Mary Rase Wilco: and Judue Citry Donahoe. See Supreme Court Administrative Order mectia th] have_nead indicates thot you-are subject of the Bar's investi may be paragraph potential 150 ion and may also be subject off another investigation bycthe-thrrent”CotihiyattoMmey Rick Rowley. This letier is nnenUed Te adios you that {Uo not consent to you revealing any information provided to you by my Office. reyardless of any personal incentive to breach the attorney-client privih My office worked very closely with you and the Maricopa lo investigate anu prosecute violations © pending “ethical” investiyations seek investigations my of! ‘ounly Atiomey jaw al every evel. Should any of the information regarding the criminal }ee sent to you for investiyalion oF prosecution, | demand that you keep my confidences and not reveal any information that was communicated ta you hy me, my Office. my deputies. my agents or representatives. | also demond that you maintain as confidential any and all information that you learned! during your investigation and/or prosecution of criminal maiters referred by my Office. The Arizona Rules of Professional Conduct demand thal you maintain a. confidential all “information relating to the representation of a client..." ER 1.6 My Office communicated freely with the Maricopa County Allomey's Office prior (o und in the process of fling criminal matters. with the expectation thal we were consulting our statwiorily appointed lawyer ond seeking from the County Aulomey's Office professional legal advice. It was my express belief that ail matters related to these cases were protected by the atlomey-client privilege and would be kep! confidential as required by Ethical Rule 1.6. Please be awere that neither myself nor my office consems to the clistribution of any information regarding these matters. As you well know, an aitomey is required to keep confidential all information related to representation oF a client, e ven informationLISA. AUBUCTION Pac TWO APRIL 27, 20L0 ayy be it Us public revoru. thies Op. 87 atlomey-elient priv Bar 1th) extends the go even to mutters being investigated by’ the Arizona Stale Jani concerned dhat the present inquities tumerous cies thal my deputies inst Stopley and Wilea: Number 2010. inlg your conduct may jeopardize worked tirelessly to investigaie, including the The Supreme Court's Administrmive Orer | spevifically references Save Hifeox, While the criminal ‘tapley and Wileos have been transterred ty the La Paz County Auorney for farther investivation and prosecution, you still have a duty to my Olive as a former efiem in those muters, Ian inguizy is made, please be advised that any infiormenion thar yout received from my Olfiee. or during an invest thnale at the request of any Olfiee. is subject 16 the attorney-client privilege do not eynsent tue sutt divulging ny privileged intirn including the Arigonce-Stite Bar aritsinsestigatars~ anion rand ian to a Uhivd-party, These privileges apply i any Sherifi"s Office reterredl 10 the Mi: RICO eases, Any invest ined al cases that the M spa Coumy Auwre; ion inte the action forieopa Coumy i w the of the lead) prosecutors far these isk of damaging the eases fled on behall af the ind the RICO cases, there is the possibilily: tha wwuifidential information, could be relensed + eases presents he sensitive reling numerous pending criminal nly your prosecutorial actions. Any release sly jeupardizes serieus fons, 1 also fhe possibility chat this confidential infisrmation could be wnwsmitted to the subjects of the investigations, This is especially ue when it comes tu the public corruption investgations which were sefrred ta your office, the subjects uf whieh Mwy have contiels at the Stawe Bar or the current County Atworney"s Otfice, {Worse get. as yout are aware, two subjects of those investigations appointed the current Coumy Atiorney.) This is ubsolutely unaceeplable. My responsibility ta the public under Arizona statute is to kuep the peace andl to investi for prosecution those who have viokited! Arizont standing ot public offive id reir of their political the fav and | information that will put these evinsinal nd that, under your ethical ubligations ag an auuiiey, yl tke whatever action is necessary to protect the vomtidentin unfiariation acquired chasing the pursuit of these eases 1 iis yn your hest interest 1w do su. ‘There is no excuse for Pailin veal aligns at risk. As such, Tale wall not inlerate anyone: invest indlesss UP yehether oF nolLISA AUBUCHON PAGE THRE APRIL 27, 2010) Arizona how recogni it Would jeopard 's the importance of nol revealing information where ize the best interests of the stue. Op. jen. No, 78231 (Members of the public are entitled to inspect only those records which would not be detrimental te the state.) ‘The law further makes it clear that in matters wf criininal investigations and prosecutions, the premature revelation of inforimatien can be devastating and accordingly criminali such information, Be advised thn should you disclose uny informution that eaulel hrm any pendin Criuinal investigations, [ will eousider charging yow with violations «applica statutes, including potential violations of ARS. $8 15-2409. 13.2510 15. 13-2812, and 1-283, Covent yoursell'aceordin Sincerely. Ce Joseph M. Arpaio. Duly Bh wd Sheriff of Maricopa CountyEXHIBIT 6COLORADO SUPREME COURT ATTORNEY REGULATION COUNSEL Regulation Counsel John 8. Gleason Chief Deputy Regulation Counsel James C. Coyle Chief Deputy Regulation Counsel James §. Sudler ‘Attorneys’ Fund for Client Protection Unauthorized Practice of Law Asian Reclalon Counsel Any C.DeVen ‘Adam J. Espinosa Stephan R Fatange: isa E. Fronket Margarei 8. Funk ‘km Eee Ezabeth Espinosa Krupa ‘ynbiaD. Mares Apa NL Mewurey ‘Charles E. Mortimer, J. atinew A. Samuaison Louise Cutberson-Snith May 20, 2010 VIA US MAIL AND EMAIL Ernest Calderén, Esq. Calderon Law Offices 2020 North Central Avenue Phoenix, AZ 85004 Re: Andrew Thomas Dear Mr. Calderén: Thank you for your May 18, 2010 letter. I will address your concerns. First, let me correct an earlier request | made regarding the filing of pleadings. Please file any pleadings directly with the Arizona State Bar and to the attention of Sandra Montoya. Ms. Montoya is versed in handling matters in which the State Bar is conflicted and in which an Independent Bar Counsel has been appointed. You should, of course, copy us with your pleadings, but Ms. Montoya will ensure that Justice Jones receives anything you file. You mention resolving matters informally and the fact that you have been unable to do so. We are not sure what matters you are talking about. If you are talking about resolving the underlying issues of alleged misconduct, we are happy to talk at your convenience. If you are talking about the various assertions of privilege by Mr. Thomas, we agree with you that those issues must be litigated. We do not believe there is a legal basis for any of the privileges. Of course, Justice Berch’s May 11, 2010 Order resolves the issue of interviews to this point. You state that Mr. Thomas is unable to respond within the time frame set forth in the Rules, We read your April 30" letter as well and do not understand what the delay is. You may seek whatever documents you need or interview whomever you wish to provide Mr. Thomas’s response. We are willing to extend the time period for Mr. Thomas's response until May 28, 2010. We also want Mr. Thomas to know that absent a showing of “good cause” we believe that we are obligated to provide a copy of his response(s) to the complainants pursuant to Rule 52(b)(1). Although you ask us not to provide a copy, you provide no explanation of good cause. Although we have not provided your 1560 Bevan, S StH)» Denver, Colorato URU2 » (303) $6400 « Tl fue (877) SRI 70 Website « ws.Ernest Calderén, Esq. ‘May 20, 2010 Page 2 of 2 letters to the complainants, our intention is to do so absent such a showing. You also state that you will be withdrawing from representing Mr. Thomas on or about May 30, 2010. I respectfully urge Mr. Thomas to seek and obtain legal counsel at, the earliest possible time. Regarding your assertion that ‘many of AACJ’s charges” are unrelated to Mr. Thomas, we believe my letter to you asking for a response is clear about the allegations related to Mr. Thomas. In closing, we want to state again that at any point Mr. Thomas wants to talk to us we will make ourselves available, Sincerely, Bh Hore Jolnn S. Gleason Independent Bar Counsel Arizona State BatEXHIBIT 7nee FILE 3 JUN 0.8 2010 JUN 09 ie (jj BEFORE THE PROBABLE CAUSE PANELIST OF 2 (Du), (Nd STATE BAR OF ARIZO) WILENCHIE BA ess PG. ‘THE STATE BAR OF ARIZONA ly, G, buehow “|| Dv-THE MATPER OF A MEMBER Nos. 09-2293; 10-0423; 5 || OF THE STATE BAR OF ARIZONA, 10-518; 10-0782; 09-2296; 10-0663; 09-2294; 10-0664 ¢ || LISA AUBUCHON Bar No. 013141 7 ‘Respondent. RULING ON RESPONDENT’S: 8 MOTION FOR PROTECTIVE, ORDER ey AND REQUEST TO SEAL H PURUSANT TO RULE 70(¢) ul 2 rey “ 15 16 7 18 y 2s Respondent, Lisa Aubuchon, through counsel, submitted her motion for protective ‘Order and request to seal pursuant to Rule 70(g), Ariz.R.Sup.Ct, Independent Bar Counsel filed a response. Rule 70(g) provides in relevant part: ‘Upon request by a party . . . fram whom the information or evidence was obtained, and for good cause shown, the panelist. .. may make an order . . . sealing a portion of the record and/or sate bar file... (emphasis added). Before a protective order or a motion to seal can be granted, the information must first be obtained from Respondent Aubuchon. The attachments to Independent Bar Counsel's response showed that Respondent Aubuchon has not responded; she has simply indicated that she cannot respond absent a protective order. Respondent claimed two grounds exist for the issuance of a protective order. The first is attorney-client privilege. Respondent asserts that the Maricopa County Sheriff's Office and Sheriff Arpaio “routinely communicated with [Respondent] with the confidenceu 2 3 4 16 7 1B » 20 a entrusted in an attomey-client relationship” and thus, Respondent is precluded from revealing such privileged information, absent consent, which Sheriff Arpaio has expressly not given. Respondent Aubuchon’s claim of an attomey-client relationship with the Sheriff’ is incorrect. The County Atiomey’s office has no attomey-client relationship with the Sheriff, or other Jaw enforcement personnel, A prosecutor's discussions with law enforcement personnel are not considered client confidences under ER 1.6. See Ariz. Ethics Opinion 01-13; 94-07. Respondent's claim for a protective order because of the attomey- client privilege fails. Respondent's second claim is that disclosure of information would not be in the “best interests of the State due to the unique and on-going nature of the matters addressed in the pending screening investigation.” Rule 48(f), ArizR Sup.Ct, provides, in relevant past, ‘that the processing of a discipline matter shall not be delayed because of substantial similarity to the material allegations of pending criminal or civil litigation (emphasis added). Therefore, Respondent's claim for a protective order because of “state interest” fails. Independent Bar Counsel points out in his response that Respondent Aubuchon bas not yet responded to bar counsel’s request for a response and therefore, the request for a protective order and the request to seal are premature. Independent Bar Counsel’s position is well taken. Respondent Aubuchon was informed by bar counsel’s letier dated April 13, 2010, that Respondent may make a request that certain information in Respondent's response remain confidential pursuant to Rule 70(g). Respondent Aubuchon was further Girected that any such request must be made in a letter separate fiom her response and must set forth the factual and legal basis for the request. Respondent is also to specify whether2 3 “4 15 16 "0 18 » 20 au 2 the information is to be kept from the public, but not the complainant, or fiom both the public and the complainant. Independent Bar Counsel’s letter sets forth the applicable procedure used in soreening investigation regarding disclosure of information for which a protective order might be sought. Instead of responding in accordance with this procedure and providing one response which contains all information responsive to Bar Counsel's questions, and one response which deletes all information that should remain protected, coupled with a detailed explanation of why such information should be protected and from who the information is to be kept, Respondent Aubuchon has refused to respond. Respondent Aubuchon’s motion for protective order and request to seul is denied as premature. Respondent Aubuchon is directed to respond in accordance with the procedures set forth in Independent Bar Counsel's letter dated April 13, 2010, Should Respondent Aubuchon desire that certain information be protected, she must provide the information to Bar Counsel, and at the same time, detail the factmal and legal basis for the request for a protective order, and specify from whom the information is to be protected. d] DATED this ¥"_day of June, 2010. ELL Gotin Hon. Charles E. Jones (rei) Probable Cause Panelist Original fed this 5” day of June, 2010, with: Sendra E, Montoya Lawyer Regulations Record Manager State Bar of Atizona 4201 N. 24” St. Ste. 200 Phoenix, AZ 85016-628810 n 2 13 “ 16 id 18 9 24 2s Copies emailed and mailed thi Bt day of June, 2010, to: John S. Gleason ‘Regulation Counsel Colorado Supreme Court 1560 Broadway, Suite 1800 Denver, CO 80202 John. Gleason(@ese.state.co.us Dennis Wilenchike ‘Mark Goldman. ‘The Wilenchik & Bartness Building 2810N. 3 St, Phoenix, AZ 85005 Attorneys for Lisa Aubuchon admin@wb-law.com Mark.goldman@wib-law.com L. Erie Dowell Ogletree Deakins, P.C. 2415 E. Camelback Rd. Ste. 800 Phoenix, AZ 85016 Atiomey for Andrew Thomas and Rachel Alexander sric.dowell@ouletreedeakins.com, ey \— by: loEXHIBIT 8COLORADO SUPREME COURT ‘Assisiant ar FoRReY RESULATON COUNSEL eee fet can ae meee sonnei nee ee use Aunt Cat rete ieee Unauthorized Practice of Law Louise Culberson-Smith some 8: Svelor Chief Deputy Regulation Counsel Nancy L. Cohen: Deputy Regulation Counsel James C. Goyie April 13, 2010 Alexis Pheiffer, Esq, Ogletree Deakins 2415 East Camelback Road Suite 800 Phoenix, AZ 85016 RE: Smith v. Aubuchon, 09-2296 State Bar v. Aubuchon, 10-0663 Dear Ms, Pheiffer: I write to you in your capacity’as counsel for Lisa Aubuchon. My assumption is that you will share this letter with other counsel for Ms. Aubuchon. Pursuant to Chief Justice Berch’s March 23, 2010 Order, as Independent Bar Counsel | am investigating allegations of professional misconduct by Ms. Aubuchon. One of the trial attorneys from my Supreme Court office in Colorado, James Sudler, is assisting me in the investigations. State Bar Rule 51(b)(1), Ariz. R. Sup. Ct. requires Bar Counsel to investigate all information coming to the attention of the State Bar that, if true, would be grounds for discipline. This includes information from any source, whether or not the individual providing the information is a party to the underlying action or conduct. At this time the matters are not considered formal complaints, but rather, a charge or allegation that is under a “screening investigation”. At the conclusion of our screening investigation we will recommend that the matter(s) be dismissed, resolved via informal means, or referred for formal disciplinary action. Pursuant to ER 8.1(b) and Rule 53(d) & (, Ariz, R. Sup. Ct., Ms. Aubuchon has a duty to cooperate with this investigation. Failure to do so is grounds for discipline. 1560 Broadway, Suite 1800 + Denver, Colorado $0202 » (303) 866-6400 + oll fee (877) 888-1370 wWebsite « nuw.colonlasunnemesoun somAlexis Pheiffer, Esq. April 13, 2010 Page 2 of 2 We are currently conducting screening investigations concerning the complaint filed by David Smith and under the name of the State Bar of Arizona in the following areas: 1. It is alleged that Ms. Aubuchon engaged in misconduct, including a conflict of interest, as found by Judge Gary Donahoe on February 6, 2009 (462% Maricopa County Grand Jury Proceedings, 462GJ350); It is alleged that Ms. Aubuchon violated her duty of loyalty and confidentiality to her client, Board of Supervisors, through anonymous use of internet websites and blogs. Please see Bar Complaint 09-2296, copy enclosed; Whether Ms. Aubuchon participated in issuing a press release dated October 27, 2009, and revealed confidential client communications between Maricopa County Manager David Smith and the Maricopa County Attorney’s Office; It is alleged that Ms. Aubuchon and Andrew Thomas knowingly violated the ethical rules by failing to honor the terms of Judge Rebecca Albrecht’s May 4, 2009, letter dismissing allegations of a serious conflict in Bar Complaint 08-2289, State vs. Stapley I; It is alleged that Ms, Aubuchon improperly continued to represent the State and advise the Sheriff in the Stapley I matter after it was. transferred to the Yavapai County Attorney Sheila Polk in April 2009; It is alleged that Mr. Thomas assumed jurisdiction over the Stapley I matter in October 2009 and Ms. Aubuchon’s involvement placed her in direct conflict with a client, Mr. Stapley and the Maricopa County Board of Supervisors; It is alleged that Ms. Aubuchon violated the Bthical Rules in Arpaio & Thomas vs, Maricopa County Board of Supervisors, et al., United States District Court for the District of Arizona, Case No. 09-CV- 02492-GMS, by: a. Failing to represent her client competently; b. Filing a claim that lacked merit;Alexis Pheiffer, Esq. April 13, 2010 Page 3 cf 3 c. Engaging in conduct prejudicial to the administration of justice; Engaging in conduct that had no purpose other than to delay, burden or harass another; and c. _ Representing a client while she had a conflict of interest. It is alleged that Ms. Aubuchon violated the ethical rules in State vs. Wilcox, Case Nos. CR-2010-005423-001 and CR-2009-007892- 001. See, Order of Judge Leonardo dated February 24, 2010; In the Wilcox matter it is also alleged in Ms. Wilcox’s Motion to Remand to the Grand Jury for a Redetermination of Probable cause dated January 21, 2010 that Ms. Aubuchon engaged in misconduct in presenting the case to the grand jury; and 10. It is alleged that Ms. Aubuchon violated the ethical rules in State us. Donahoe, Case No. CR2009-008332-001, specifically that she: @. engaged conduct prejudicial to the administration of justice; b. prosecuted a charge not supported by probable cause; c. used means that have no substantial purpose other than to embarrass, delay, or burden another; and d. brought a proceeding without a good faith basis in law or fact. 1 anticipate opening additional investigations and will notify you should that occur. Please submit a written response to the allegations outlined above within 20 days of the date of this letter. Please forward your responses to me at the Supreme Court Offices in Colorado. Please do not forward any information to or through the Arizona State Bar Office. Please do not send a copy of your response to the complainant. Please submit an original and one copy of your written response. Your written response.should focus on alleged violations of the following Ethical Rules: 1.1 (Competence); 1.7 (Conflicts); 3.1 (Meritorious Claims); 3.6 (Trial Publicity]; 3.8(a) (Prosecuting a Charge Not Supported by Probable Cause); 4.4 (Using Means that Have No Substantial Purpose Other than to Embarrass, Delay, or Burden Another); 8.2 (False Statements about a Judicial Official); 8.4{c) (Dishonest Conduct}; and, 8.4(d) (Conduct Prejudicial to the Administration of Justice). Please be advised that our investigation may implicate additional ethical rules.Alexis Pheiffer, Esq. April 13, 2010 Page 4 of 4 A copy of Ms. Aubuchon’s response will be sent to the Complainant and will become public record upon disposition of the matters. You may make a request that certain information in Ms. Aubuchon’s response remain confidential pursuant to Rule 70(g) Ariz. R. Sup. Ct. Any such request must be made in a letter separate from her response and must set forth the factual and legal basis for the request. Please specify whether the information is to be kept from the public, but not the complainant, or from both the public and the complainant. At the time such a request is made, please submit the information for which confidentiality is requested as part of your request. Also submit a redacted copy to remain in the public portion of the file. Requests for confidentiality are rarely granted and only upon a showing of good cause. If the request for confidentiality is denied the information or documents in question will not be returned, but will become public upon resolution of the matter. We look forward. to working with you. Sincerely, kl herr John 8. Gleason Independent Bar Counsel Arizona State Bar JSG/nme enclosureEXHIBIT 9AFFIDAVIT OF ROBERT B. VAN WYCK STATE OF ARIZONA) )ss: COUNTY OF MARICOPA ) ROBERT B. VAN WYCK, having first been duly sworn, hereby deposes and says: With respect to the investigation and rules and procedures under which the regulatory department operates, I offer the following: 1. Tam the Chief Bar Counsel of the State Bar of Arizona and have served in thet capacity since July 1, 2002. 2, The State Bar of Arizona’s regulatory department has conducted its investigations regarding the Thomas matters at all times in accordance with the mandate and Rules adopted by the Supreme Court. Those rules are found at 17A, ARS., Rules of the Supreme Court of Arizona, Rules 31-80. 3. By Constitution, the Supreme Court has exclusive jurisdiction over the practice of law. The Supreme Court established the State Bar's regulatory arm and the office of Chief Bar Counsel for the express purpose of providing for the regulation and discipline of persons engaged in the