Republicans are still trying to protect attorneys behind bogus election lawsuits from punishment

Senate Republicans are, again, attempting to take power away from the State Bar of Arizona and the state Supreme Court, the entities that have disciplined several attorneys over the past few years for taking on baseless election fraud cases. 

For the second year in a row, Sen. Anthony Kern, R-Glendale, has a proposal that would prohibit both the State Bar and the Arizona Supreme Court from “infringing” on or “impeding” the political speech of an attorney or an attorney’s clients by disciplining them or revoking their licenses for “bringing a good faith, non frivolous claim that is based in law and fact to court.” 

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If either entity violates the proposed law, they would have to give up 10% of their revenue, which would amount to about $1 million from the State Bar and nearly $10 million for the Supreme Court. 

“Unfortunately, the State Bar has been weaponized against attorneys who advocate for noble issues,” Sen. Wendy Rogers, R-Flagstaff, told the Senate Judiciary Committee on Thursday. “This cannot stand. And if the shoe were on the other foot I’m sure my friends across the aisle would be in agreement.”

Rogers has built her political brand as a 2020 and 2022 election denier. 

Both the State Bar and the Supreme Court denounced the proposal last year, saying that attorneys are not disciplined for bringing good faith claims or for their political views, and the State Bar has taken a stance against the bill again this year. The 2023 measure failed in the House, where it fell one vote short of passing.

Kern told senators last year that one source of inspiration for the bill was the experience a member of the House of Representatives had in almost having his license revoked for bringing a lawsuit.

Rep. Alexander Kolodin, R-Scottsdale, has previously been a go-to for Republicans who bring election-related lawsuits. He was also one of nine attorneys that had Bar complaints filed against them for representing Donald Trump’s 2020 campaign in a failed lawsuit that falsely claimed overvotes impacted the Arizona election. 

In November, Kolodin entered into a settlement over the suit, accepting admonition and agreeing to 18 months of probation and to pay $2,700 in court costs. 

An Arizona Supreme Court disciplinary panel found that Kolodin “violated his duty to the legal profession, the legal system, and the public” by bringing cases that were backed by no evidence, misrepresented Arizona law and sought relief that would be illegal.

The Arizona Supreme Court has also sanctioned the lawyers representing Kari Lake in her trial to attempt to overturn the results of the 2022 race for governor that she lost, for making false claims in their court filings. And a lawyer who represented failed GOP candidate for Secretary of State in 2022, Mark Finchem, was ordered by the state Supreme Court to retire for at least a year for bringing a suit that was in “bad faith.” 

“I never did like the State Bar,” Kern said, explaining why he brought Senate Bill 1145 this year. “I think they also abuse their power.”

He added that he believes the State Bar and Supreme Court are chilling attorney’s and their client’s rights to free speech by imposing sanctions against attorneys who they’ve concluded have brought bad faith lawsuits that are not based on evidence. 

Sen. Justine Wadsack told the senators that she “ran this bill” last year and that it “got so much attention that they tried to recall me over it,” but the Tucson Republican was not listed as a sponsor on Kern’s 2023 bill, although she is a co-sponsor this year. 

Wadsack introduced a different bill last year that would end the requirement for Arizona attorneys to be members of the State Bar, and would instead put the state Supreme Court in charge of licensing attorneys. 

Last year, Wadsack claimed that the proposal was inspired by the State Bar’s message to attorneys that they would be disbarred if they took any COVID-related court cases. The State Bar denied that ever happened and Wadsack refused to provide any proof

“The Bar doesn’t do anything when a citizen goes to complain about a bad attorney,” Wadsack said. “Nothing is ever done. So, bad attorneys continue to do their jobs and good attorneys get politically persecuted and go through pointless hearings to try and disbar them. It’s a backwards system.”

Joe Hengemuehler, a spokesman for the State Bar, refuted Wadsack’s claims. 

“The proposed law is unnecessary,” he said in a statement to the Arizona Mirror. “Current rules provide a basis for discipline for filing frivolous claims in bad faith — legal professionals are not disciplined for good faith, nonfrivolous claims.” 

Hengemuehler said that the State Bar’s disciplinary team follows the Arizona Supreme Court’s rules for evaluating and prosecuting discipline charges. Those rules, he explained, set a framework that requires violations be proved by clear and convincing evidence, due process to respondent lawyers at each level of the process, the right for complainants to be heard.

And the ultimate decision-making authority on attorney discipline belongs not to the Stat Bar, but to the court’s disciplinary judge — and his or her ruling is subject to appellate review, he added

Wadsack’s bill was passed by the Republican majorities in the House and Senate but last year met its end at the desk of Democratic Gov. Katie Hobbs, who vetoed it. 

By a vote of 4-3, along party lines, the Senate Judiciary Committee on Thursday moved Kern’s bill forward. It will next head to the full Senate.

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