In the Matter of a Member of the State Bar of Arizona Lisa M. Aubuchon Attorney No. 13141
Appeal of Hearing Panel Opinion and Disciplinary Order from the Office of the Presiding Disciplinary Judge No. PDJ20119002
Lisa M. Aubuchon, In Propria Persona, Tempe.
John S. Gleason, Independent Bar Counsel, Alan C. Obye, Independent Bar Counsel, James S. Sudler, Independent Bar Counsel, Office of Attorney Regulation Counsel, Denver, Colorado, for the State Bar of Arizona
JUSTICE TIMMER authored the opinion of the Court, in which VICE CHIEF JUSTICE BALES, JUSTICE PELANDER, JUSTICE BRUTINEL, and JUDGE LAWRENCE F. WINTHROP J. [*]
¶1 Lisa M. Aubuchon appeals from a disciplinary panel's opinion and order disbarring her. The record fully supports the panel's determination that Aubuchon violated several Arizona Rules of Professional Conduct ("ERs"), as set forth in Arizona Supreme Court Rule 42. Without question, Aubuchon failed to fulfill her responsibilities as a prosecutor, abused the public trust, and misused the justice system. Based on the record and the aggravating and mitigating factors, we order disbarment.
¶2 Aubuchon was admitted to the State Bar of Arizona in 1990. She joined the Maricopa County Attorney's Office ("MCAO") in 1996, where she served as a prosecutor until she left in 2010. After Andrew Thomas was elected the Maricopa County Attorney in 2004, he promoted Aubuchon to serve as chief of the pretrial division.
¶3 Starting in 2006, the MCAO engaged in well-publicized disputes, lawsuits, investigations, and criminal prosecutions involving various members of the Maricopa County Board of Supervisors (the "Board"), judges serving in the Maricopa County Superior Court ("MCSC"), and others. These disciplinary proceedings primarily concern Aubuchon's roles in several criminal investigations and prosecutions and in a federal civil racketeering ("RICO") lawsuit.
¶4 In March 2010, at the request of the State Bar's Executive Director, Chief Justice Rebecca White Berch appointed independent bar counsel to investigate and, as appropriate, prosecute allegations of ethical misconduct against Thomas and other MCAO lawyers. Pursuant to former Rule 54(b)(4), bar counsel submitted a report of the investigation to a probable cause panelist, who subsequently found probable cause for a formal complaint against Thomas, Aubuchon, and Deputy County Attorney Rachel R. Alexander. Bar counsel filed a complaint in February 2011, alleging in twenty-eight charges that Aubuchon violated several ERs and former Rule 53(d) and (f).
¶5 Because bar counsel filed the complaint after the effective date of new rules governing disciplinary complaints, a three-person hearing panel composed of the presiding disciplinary judge, a lawyer, and a non-lawyer conducted the disciplinary hearing. Ariz. R. Sup. Ct. 52. After a twenty-six-day hearing, the panel issued its opinion and order finding that bar counsel had proven almost all charges against Aubuchon. It then disbarred her, and Aubuchon timely appealed. We have jurisdiction pursuant to Article 3 and Article 6, Sections 1, 5(3), and 5(4) of the Arizona Constitution and Arizona Supreme Court Rule 59(a).
I. Non-conforming Briefs
¶6 In her briefs filed with this Court, Aubuchon repeatedly violates applicable court rules by failing to develop arguments and support them with "citations to the authorities, statutes and parts of the record relied on." Ariz. R. Civ. App. P. ("ARCAP") 13(a)(6); see Ariz. R. Sup. Ct. 59(g) (requiring all briefs to conform to ARCAP 13). Although this Court granted Aubuchon's request to double the briefing page limit, she asks us to "thoroughly review the record, " cites to lengthy documents without specificity, broadly invites us to review her closing argument for "details of her argument, " fails to provide any authority for many contentions, and states she "cannot possibly be expected to refer to four months of testimony to disprove every false finding" in the panel's order. As we have emphasized: "We are not required to look for the proverbial 'needle in the haystack'. We must insist that a bona fide and reasonably intelligent effort to comply with the rules be manifest." In re Hesse's Estate, 65 Ariz. 169, 171, 177 P.2d 217, 218 (1947). We have done our best to discern and address Aubuchon's arguments, but we consider waived those arguments not supported by adequate explanation, citations to the record, or authority.
II. Constitutional Claims
A. Pre-complaint Investigation
¶7 Aubuchon contends she was deprived of procedural due process because (1) the State Bar's Executive Director lacked authority to initiate an investigation, (2) Chief Justice Berch wrongly appointed a Colorado attorney not licensed in Arizona to conduct the investigation as bar counsel (3) Chief Justice Berch improperly assigned that attorney to investigate attorneys rather than allegations in a bar complaint, (4) bar counsel refused to produce exculpatory evidence found during the investigation, and (5) bar counsel asked Aubuchon to respond to "allegations" rather than evidentiary facts in a letter sent during his investigation. Because disciplinary proceedings are "quasi-criminal in nature[, ] . . . the requirements of procedural due process must be met." In re Brady, 186 Ariz. 370, 373, 923 P.2d 836, 839 (1996). Aubuchon was afforded due process if she was given fair notice of the charges and a meaningful opportunity to defend against them. In re Peasley, 208 Ariz. 27, 34 ¶ 26, 90 P.3d 764, 771 (2004); Webb v. State ex rel. Ariz. Bd. of Med. Exam'rs, 202 Ariz. 555, 558 ¶ 9, 48 P.3d 505, 508 (App. 2002).
¶8 We reject Aubuchon's initial three arguments because she fails to show how the alleged pre-complaint actions deprived her of notice or an opportunity to defend the charges. See In re Peasley, 208 Ariz. at 34 ¶ 26, 90 P.3d at 771. Aubuchon waived the fourth argument by raising it for the first time on appeal, see Crowe v. Hickman's Egg Ranch, Inc., 202 Ariz. 113, 116 ¶ 16, 41 P.3d 651, 654 (App. 2002), and by failing to substantiate it with citations to the record, ARCAP 13(a)(6).
¶9 The fifth argument lacks merit. Bar counsel was required by Supreme Court Rule 55(b) to inform Aubuchon that she was "under investigation, " describe "the nature of the allegations, " and give her an opportunity to respond. Bar counsel complied with that rule by setting forth factual allegations in a pre-complaint letter to Aubuchon's counsel. Rule 55(b) did not require bar counsel to substantiate the allegations with evidence at that stage.
B. Application of New Discipline Rules
¶10 Aubuchon argues that applying the new disciplinary rule procedures to the complaint violated the Ex Post Facto Clause of the United States Constitution because the new rules were promulgated after the alleged misconduct. We disagree. The new procedures did not alter the substantive ERs that Aubuchon was charged with violating. Even if we were to hold that the Ex Post Facto Clause applies to disciplinary proceedings, it does not prohibit a change to procedural rights. See State v. Beltran, 170 Ariz. 406, 408, 825 P.2d 27, 29 (App. 1992).
¶11 Aubuchon also contends that filing the probable cause petition under the former rules but filing the complaint under the new rules violated her rights to procedural due process and equal protection because she was treated differently than attorneys who proceed through a single, unaltered system. But Aubuchon fails to describe how the changes to the disciplinary system deprived her of notice or an opportunity to defend the charges. And she fails to provide any authority suggesting that such different treatment deprived her of equal protection. Applying the new rules to a complaint filed after their adoption satisfies equal protection because it is rationally related to the state's interest in using a more procedurally efficient process. See Simat Corp. v. Ariz. Health Care Cost Containment Sys., 203 Ariz. 454, 458 ¶ 15, 56 P.3d 28, 32 (2002) (discussing rational relationship standard for cases not involving suspect classes or fundamental rights).
C. Informal Request for Recusal
¶12 Aubuchon argues that Presiding Disciplinary Judge William O'Neil deprived her of a fair trial by denying her "informal request" that he "consider" recusal due to his role in criminal cases related to the disciplinary proceedings. We review Judge O'Neil's ruling for an abuse of discretion. Cf. State v. Schackart, 190 Ariz. 238, 257, 947 P.2d 315, 334 (1997) (reviewing denial of motion to recuse in criminal case for abuse of discretion).
¶13 A party who seeks to remove the presiding disciplinary judge from a case must file an affidavit demonstrating grounds set forth in A.R.S. § 12-409(B). Ariz. R. Sup. Ct. 51(d). Thereafter, the disciplinary clerk must designate a volunteer attorney member to decide whether cause for removal exists. Id. Aubuchon neither filed such an affidavit nor cited § 12-409(B). Instead, she asked ...