Sanctions for bogus election lawsuits spurs GOP proposal to protect attorneys from punishment
The State Bar and the AZ Supreme Court both say there’s no problem needing to be fixed
Photo by Jim Small | Arizona Mirror
Angry at lawyers being disciplined for making baseless election fraud complaints in Arizona courts, a Republican legislator says the State Bar of Arizona and the Arizona Supreme Court should be barred from punishing those attorneys and be heavily fined if they do so.
The bill from Sen. Anthony Kern, R-Glendale, prohibits both the State Bar and the Arizona Supreme Court from “infringing” or “impeding” on 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.”
If they’re deemed to be in violation of the proposed law, they would forfeit 10% of their revenue. For the Bar, that would come from the money it raises through attorney membership dues, while the Supreme Court would see its budget cut as punishment. The penalties would equate to about $1 million for the Bar and nearly $10 million for the Supreme Court.
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Courts typically enforce civil laws like the one Kern is proposing, but it’s unclear who would determine if the court or the Bar is in violation of this measure. The legislation is silent on the matter.
The Arizona Supreme Court and the State Bar both denounced the measure.
“Attorneys are not disciplined for bringing good faith claims,” the State Bar said in a statement provided to the Arizona Mirror. “The professional ethics rules governing the conduct of legal professionals prohibit attorneys from bringing frivolous litigation that is not in good faith.”
The Bar said the law is “unnecessary.” and noted that courts exist “to provide forums to fairly resolve disputes within the bounds of professional ethics rules” and should not be a “general forum for political expression.”
The Supreme Court also said there was no problem needing to be fixed by this proposed law.
“Lawyers are not — nor have they ever been — subject to discipline because of their political views or speech,” the Arizona Supreme Court said in a statement to the Mirror. “Current court rules are quite clear on the reasons why an attorney might be subject to disciplinary action — political speech is not one of them.
“The court is a forum with a purpose to fairly resolve disputes within the bounds of professional ethics rules. The courts are not a forum for political speech when that speech does not have a basis in fact or law.”
Kern’s Senate Bill 1092 comes as attorneys across the country and in Arizona have faced disciplinary action and revocation of their licenses for bringing challenges to the election based on frivolous claims of election fraud as well as lawsuits against political rivals.
Kern, who chairs the Senate Judiciary Committee, told senators that one inspiration for his proposal is that a member in the state House of Representatives almost had his license revoked for bringing a lawsuit. He also admitted that he did not like the State Bar of Arizona.
“I don’t like what they do and I don’t like how they’re set up,” Kern said.
Newly elected state Rep. Alexander Kolodin, R-Scottsdale, has been a go-to attorney for Republicans for a number of 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.
There’s also a personal ax to grind for Kern. Along with former state legislator Mark Finchem and U.S. Rep. Paul Gosar, he brought a lawsuit against former Democratic lawmaker Charlene Fernandez accusing her of defamation for a letter that she signed with 43 other Democratic members of the legislature asking for the Department of Justice to investigate the trios role in the January 6 riot at the U.S. Capitol.
The three Republicans lost the suit and were told to pay $75,000 in attorney fees to Fernandez. They are asking for the case to be appealed and reinstated.
Finchem himself has been sanctioned twice by the courts.
“I believe in free speech and I don’t want to see people get penalized,” Kern told his colleagues when the Senate Judiciary Committee considered his measure on Feb. 9, adding that “wokeness” creates issues for attorneys. “Your profession should not be penalized no matter what you believe.”
Democratic Sen. Mitzi Epstein keyed in on Kern’s concern about “wokeness” and asked him to define what it means. He replied that it was a philosophy that aims to “ruin structures that have been in place for years…under the guise of Marxism, socialism.”
Sen. John Kavanagh, R-Fountain Hills, used the crowdsourced website Urban Dictionary, which has been known to host racist content due to lax moderation policies, to define the word “woke.”
“I, myself, have not formulated my own personal definition,” Kavanagh admitted to the committee after reading two definitions from the website.
The bill passed along party lines and will head next to the full Senate for consideration.
***CORRECTION: A copy editing error in an earlier version of this story inadvertently removed Sen. Mitzi Epstein’s name.
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