Can Brnovich sue ASU?

Arizona Attorney General Mark Brnovich on Thursday filed a lawsuit claiming massive real estate deals done by Arizona State University violate state law, but ASU and others are arguing he cannot sue his own client.

“Arizona’s confused and confusing attorney general has once again sued his own client,” ASU said in a statement after the lawsuit was filed. “Apparently the law is not how he wants it to be.”

Critics have also pointed to an Arizona Bar Association ethical rule that states an attorney cannot sue their own client.

But the answer to whether Brnovich can sue a state university isn’t clear.

Ethic rules and state laws

In a letter sent today to the Arizona Board of Regents, the Attorney General’s Office outlined its legal rationale that allows them to move forward with the lawsuit, despite the State Bar’s ethics rules that require written consent from ASU and the Board of Regents in order to sue them.

“The governing ethical rules and Arizona case law both make it clear that the Attorney General’s Office is not treated the same as a private law firm for purposes of imputing conflicts,” Angela Paton, ethics counsel for the Attorney General’s Office, said in her letter. “[W]hen the Attorney General has statutory authority to sue a state agency, it may do so even if the state agency is otherwise a client.”

The Attorney General’s Office is arguing the Bar’s ethics rules don’t apply to it, citing an Arizona Supreme Court case from 1960 in which the court acknowledged that the way ABOR and the attorney general’s office interacts is different from that of a private law firm and its client, and thus the AG can sue a client it represents.

“Both in the superior court and in the brief we filed on Monday in the court of appeals, we noted that the Attorney General’s side switching has ethical implications,” Paul Eckstein, the attorney representing the Arizona Board of Regents, said in a response to Paton’s letter.

Ethical complaints are not decided by a judge overseeing a lawsuit, so this argument could lead to an investigation by the State Bar, but may not lead to the case being thrown out.

“I would hope that, if officials affiliated with ABOR feel compelled to raise such allegations, they would raise them in comt, or not at all,” Paton said in the office’s response to the allegations.  

In Eckstein’s response, he noted that ABOR has brought up the ethical issues it sees with Brnovich’s suit, as well as what it sees as inconsistencies with the litigation and Brnovich’s own stances.

Specifically Eckstein brought up when Brnovich said in his inauguration speech earlier this month that “being Attorney General is enforcing the law as it is and not as you may want it to be.”

“The Attorney General’s lack of professionalism and his willingness to sue his own client without so much as the courtesy of a discussion before doing so, is, I believe, a matter you should review,” Eckstein said.

However, there is a state law that could also make that argument null and void, as well and one brought up by Paton.

State law dictates which state agencies do and do not have to use the attorney general as legal counsel.

Among the state agencies exempted from using the attorney general is the Arizona Board of Regents.

In her letter, Paton stated that Brnovich’s office “possesses no confidential client information” relevant to the land deals that are the subject of the lawsuit, and said that the only representation the Attorney General’s Office provides the university is from a risk management standpoint, which is handled by separate attorneys in a separate building.

However, a different lawsuit against the Board of Regents filed by Brnovich last year was thrown out for a lack of standing.

In an interview Thursday with the Mirror, Brnovich expressed his intent to continue to appeal that decision.