Bill to protect ‘Big Lie’ lawyers from punishment advances with GOP support
Photo by Jerod MacDonald-Evoy | Arizona Mirror
A bill that would punish the State Bar of Arizona and the Arizona Supreme Court if they discipline attorneys for bringing baseless election fraud complaints in Arizona courts has continued to make its way towards becoming law.
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 are found to be in violation of the proposed law, each 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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Kern’s Senate Bill 1092 comes as attorneys across the country and in Arizona have faced disciplinary action, including disbarment, for bringing challenges to the election based on frivolous claims of election fraud as well as lawsuits against political rivals.
In testimony before the House Judiciary Committee Wednesday, Kern singled out the discipline of former New York City Mayor and Trump attorney Rudy Giuliani, who lost his law license in New York over bringing false election fraud claims.
Kern himself is no stranger to punishments from the court for filing a baseless lawsuit.
He joined with former state Rep. Mark Finchem and Congressman Paul Gosar in suing former lawmaker Charlene Fernandez for defamation after she and other Democratic members of the state House of Representatives sent a letter to the FBI in 2021 asking for an investigating into the trio’s role in the Jan. 6 insurrection. A judge called the lawsuit “groundless” and ordered the three Republicans 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 multiple times by the courts.
Rep. Analise Ortiz, D-Phoenix, asked Kern if that lawsuit was the basis for SB1092, to which Kern replied “absolutely not,” later adding that a misleading report by Fox News commentator Tucker Carlson showed that Jan. 6 was a “sham.” Kern was present at the U.S. Capitol that day and was caught on tape on the Capitol steps after rioters had breached the police line and broken into the building.
“No attorney in Arizona is subject to discipline because of his or her political speech or political views,” Lianna Garcia, a lobbyist for the Arizona Judicial Council, told the committee. Garcia said that attorneys are told to speak factually, use legal evidence and not use “conjecture.”
Garcia also said the bill would likely harm residents instead of the judges or people dispensing the punishments that Republicans are so angry at. One key role of the courts is licensing fiduciaries, she said, and taking money from the courts would inhibit their ability to do this.
“You would be taking money from a constitutional branch of government that is meant to protect its citizens,” Garcia said.
One Republican on the panel said the entire conversation was “awkward,” given that Kern used him as an example of why the law is needed.
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. Kolodin still has complaints outstanding against him.
“We always have random people filing Bar complaints against us,” Kolodin said of the firm he works for, saying that it is because he represents Republicans. “It does, indeed, make it a very aggravating situation.”
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, an issue brought up in Wednesday’s committee and addressed by Kern.
“Honestly, I don’t know if it would be the court or the legislature, but I will find that out, though,” Kern said when Ortiz asked him about enforcement.
The Arizona Supreme Court and the State Bar both have previously denounced the measure.
“Attorneys are not disciplined for bringing good faith claims,” the State Bar previously 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.”
The bill passed along a party-line vote out of the committee, with Republicans in support, and will head next to the full House for a vote.
“I feel like this bill is very inappropriate to be going after the judicial branch,” Ortiz said Wednesday, adding that she does have concerns about equity in the Bar complaint process but Kern’s bill is not the way to address it.
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