In the Matter of Lisa M. Aubuchon , 233 Ariz. 62 ( 2013 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
IN THE MATTER OF A MEMBER
OF THE STATE BAR OF ARIZONA
LISA M. AUBUCHON
ATTORNEY NO. 13141
No. SB-12-0035-AP
Filed September 17, 2013
Appeal of Hearing Panel Opinion and Disciplinary Order from the
Office of the Presiding Disciplinary Judge
No. PDJ20119002
DISBARMENT ORDERED
COUNSEL:
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,* joined.
JUSTICE TIMMER, opinion of the Court:
¶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
42.1 Without question, Aubuchon failed to fulfill her responsibilities as a
1 Effective January 1, 2011, Arizona Supreme Court Rule 53, entitled
“Grounds for Discipline,” was renumbered and amended as Rule 54.
Throughout this opinion, we refer to the former version of the rules as
IN RE LISA M. AUBUCHON
Opinion of the Court
prosecutor, abused the public trust, and misused the justice system. Based
on the record and the aggravating and mitigating factors, we order
disbarment.
BACKGROUND
¶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).2
“former Rule ____” and the current version as “Rule ____.” Unless
otherwise indicated, we cite to the current version of the Rules.
2 The complaint also alleged thirty-three charges against Thomas and
six charges against Alexander, which resulted in orders by the hearing
panel disbarring Thomas and suspending Alexander. Although Thomas
did not appeal, Alexander did, and we ordered her suspension. In re
Alexander, 232 Ariz. 1, 15 ¶ 66, 300 P.3d 536, 551 (2013).
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IN RE LISA M. AUBUCHON
Opinion of the Court
¶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).
DISCUSSION
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
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IN RE LISA M. AUBUCHON
Opinion of the Court
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).
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Opinion of the Court
¶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 Judge O’Neil to consider recusing
himself pursuant to Arizona Code of Judicial Conduct Rule 2.11.
¶14 In any event, Aubuchon’s informal request lacked merit. We
presume that a judge is impartial, and “the party seeking recusal must
prove bias or prejudice by a preponderance of the evidence.” State v.
Carver, 160 Ariz. 167, 172, 771 P.2d 1382, 1387 (1989). Bias and prejudice
are evidenced by “a hostile feeling or spirit of ill-will, or undue friendship
or favoritism, towards one of the litigants.” State v. Myers, 117 Ariz. 79, 86,
570 P.2d 1252, 1259 (1977).
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IN RE LISA M. AUBUCHON
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¶15 Before his appointment as the presiding disciplinary judge,
Judge O’Neil served as a superior court judge. In that role, he (1)
temporarily stayed a criminal prosecution initiated by Aubuchon against
MCSC Judge Gary Donahoe, and (2) was assigned to preside over a grand
jury investigating Aubuchon. Both matters involved events related to
some of the disciplinary charges later filed against Aubuchon. She argues
that Judge O’Neil was required to recuse himself pursuant to Arizona
Code of Judicial Conduct Rule 2.11(A)(6)(d), which provides that “[a]
judge shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned, including but not
limited to the following circumstances: . . . [t]he judge . . . previously
presided as a judge over the matter in another court.” The “matter” at
issue, however, is the disciplinary complaint against Aubuchon and not
the criminal charges against Judge Donahoe or the grand jury
investigation of Aubuchon.
¶16 Additionally, Aubuchon did not demonstrate that Judge
O’Neil’s impartiality might reasonably be questioned or that he was
biased or prejudiced as a result of his limited roles in the related criminal
matters. See Ariz. R. Sup. Ct. 81, Code of Judicial Conduct Rule 2.11(A);
A.R.S. § 12-409(B)(5) (listing bias or prejudice as a ground for removal).
When issuing the temporary stay in the Donahoe prosecution, Judge
O’Neil stated that his ruling “doesn’t constitute the law of the case or
adjudication of any kind at all, and I will be happy to have it either
proceed back to me or to not come back to me, either way.” He did not
recall the grand jury investigation, and the record does not reflect whether
Judge O’Neil made any rulings during that assignment. Regardless, a
judge is not biased or prejudiced merely because the judge made rulings
in the same or related proceedings. See Liteky v. United States, 510 U.S. 540,
551 (1994) (holding that a judge is not biased or prejudiced if the judge
forms opinions as a result of knowledge obtained in earlier proceedings);
cf. Smith v. Smith, 115 Ariz. 299, 303, 564 P.2d 1266, 1270 (App. 1977)
(deciding that, generally, “the bias and prejudice necessary to disqualify a
judge must arise from an extra-judicial source and not from what the
judge has done in his participation in the case”). Judge O’Neil did not
abuse his discretion by denying Aubuchon’s informal request for recusal
under Rule 2.11(A)(6)(d).
¶17 Aubuchon also argues that Judge O’Neil exhibited personal
bias against her by directing her counsel to accelerate the hearing and
using “venomous” language in the opinion and order. We disagree.
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IN RE LISA M. AUBUCHON
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Judge O’Neil told counsel for both sides they were moving too slowly; he
did not single out Aubuchon. See Liteky, 510 U.S. at 555 (“[J]udicial
remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge.”). And although the panel’s
subsequent opinion sharply criticizes Aubuchon, it does not reflect “a
deep-seated favoritism or antagonism that would make fair judgment
impossible.” Id.; see also id. at 555–56 (“[E]xpressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the bounds of
what imperfect men and women, even . . . judges, sometimes display” do
not establish bias or partiality); Belue v. Leventhal, 640 F.3d 567, 575 (4th
Cir. 2011) (“But to argue that judges must desist from forming strong
views about a case is to blink [from] the reality that judicial decisions
inescapably require judgment. Dissatisfaction with a judge’s views on the
merits of a case may present ample grounds for appeal, but it rarely—if
ever—presents a basis for recusal.”).
¶18 Finally, Aubuchon argues that Judge O’Neil’s personal bias
is evidenced by the affidavit of Mark Dixon, which she obtained
approximately two weeks after the panel issued its opinion and order.
Aubuchon waived this issue by failing to raise it to the panel.3 See Crowe,
202 Ariz. at 116 ¶ 16, 41 P.3d at 654. Regardless, even if we assume the
truth of Dixon’s allegations, the affidavit does not overcome the
presumption that Judge O’Neil acted without bias or prejudice.
¶19 Dixon, a self-described friend and neighbor of Judge
O’Neil’s, avowed that while the two repaired a home fence in 2009, Judge
O’Neil said he was angry that MCAO was “criticizing” and
“investigating” his “friend,” Judge Donahoe. Judge O’Neil’s purported
expression of anger made privately to a friend approximately two years
before bar counsel filed the complaint does not prove personal bias. See In
re Guardianship of Styer, 24 Ariz. App. 148, 151, 536 P.2d 717, 720 (1975)
(“The fact that a judge may have an opinion as to the merits of the cause
or a strong feeling about the type of litigation involved, does not make the
judge biased or prejudiced.”); cf. Ariz. R. Sup. Ct. 81, Code of Judicial
3 Aubuchon contends she could not have produced the affidavit to
the panel because she learned of Dixon’s evidence only after the opinion
and order were issued. But Arizona Rule of Civil Procedure 60(c) applies
to disciplinary proceedings. Ariz. R. Sup. Ct. 48(b). Aubuchon could have
invoked that rule to move for relief based on Dixon’s affidavit.
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Conduct Rule 2.11(A)(5) (requiring a judge to disqualify himself or herself
if the judge has made a public statement that “commits or appears to
commit the judge to reach a particular result or rule in a particular way”).
D. Failure to Allow Character Witnesses
¶20 Judge O’Neil limited Aubuchon to seven character witnesses
from her pre-hearing list of sixty-four but stated he might permit
additional witnesses if justified. Aubuchon challenges that ruling but
offers no authority or explanation and fails to describe the content of the
precluded testimony. She has not established any error. Permitting
testimony of an additional fifty-seven people on the same topic would
have been needlessly cumulative. Ariz. R. Evid. 403 (“The court may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . needlessly presenting cumulative
evidence.”).
III. Professional Misconduct
¶21 Aubuchon argues that the panel misapplied the ERs and
made unsupported factual findings. We review questions of law de novo,
Ariz. R. Sup. Ct. 59(l); In re Johnson, 231 Ariz. 556, 557 ¶ 1, 298 P.3d 904,
905 (2013), but accept the panel’s factual findings unless they are clearly
erroneous, In re Alexander, 232 Ariz. 1, 5 ¶ 11, 300 P.3d 536, 540 (2013).
Also, we view the evidence and all reasonable inferences in the light most
favorable to sustaining the panel’s findings. See State v. Boyston, 231 Ariz.
539, 551 ¶ 60, 298 P.3d 887, 899 (2013).
¶22 The hearing panel found that Aubuchon violated multiple
ERs in handling several assignments from Thomas and violated supreme
court rules by failing to cooperate and furnish information during the
disciplinary screening investigation. Because we consider the most
serious misconduct when determining suitable disciplinary sanctions, see
In re Alexander, 232 Ariz. at 13 ¶ 50, 300 P.3d at 548, we focus our
discussion on Aubuchon’s arguments that the panel erred in finding she
violated ER 3.8(a) by “prosecuting a charge that the prosecutor knows is
not supported by probable cause” (charge twenty-four), and ER 8.4(d) by
“engag[ing] in conduct that is prejudicial to the administration of justice”
(charges eight, nine, twenty, and thirty). See infra ¶¶ 50, 58.
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A. First Prosecution of Stapley
¶23 In November 2008, Aubuchon obtained an indictment
charging Board Chairman Don Stapley with 118 criminal violations
relating to his public financial disclosures dating back to 1994 (“Stapley I”).
After the case was assigned to retired Judge Kenneth Fields, Aubuchon
unsuccessfully moved for his recusal and sought to interview him and
other judges to support her motion. Judge Fields eventually dismissed
fifty-one misdemeanor charges because they lacked merit. In the
subsequent appeal, the state, through different counsel, conceded that
forty-four of the misdemeanor charges were barred by the statute of
limitations.
¶24 The panel found that Aubuchon prejudiced the
administration of justice in violation of ER 8.4(d) by (1) obtaining an
indictment for the forty-four misdemeanor counts knowing the statute of
limitations had run and (2) seeking to interview the judges.
1. Statute of Limitations
¶25 The state must prosecute a misdemeanor within one year
after it discovers probable cause for the violation or, in the exercise of
reasonable diligence, should have discovered it. A.R.S. § 13-107(B)(2);
State v. Jackson, 208 Ariz. 56, 64–65 ¶ 30, 90 P.3d 793, 801–02 (App. 2004).
The panel found that Aubuchon knew no later than May 14, 2008, that the
one-year limitation period had commenced running approximately one
year earlier.
¶26 Aubuchon briefly contends the panel erred because the trial
court did not rule in Stapley I that the statute of limitations had run.
Whether Aubuchon knew the limitations period had run does not depend
on a court ruling that the claims were barred. In any event, such a
determination was unnecessary in light of the state’s later concession that
the limitations period had run on these charges.
¶27 Aubuchon also argues that no evidence shows she knew the
statute of limitations had expired when she sought the indictment in
November 2008. But ER 8.4(d) requires only a negligent mental state. In
re Alexander, 232 Ariz. at 11 ¶ 40, 300 P.3d at 546. Moreover, the record
supports the panel’s determination that she in fact knew the limitations
period had run.
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¶28 In January 2007, Thomas directed Special Assistant County
Attorney Mark Goldman to investigate whether Stapley had financial
dealings with an attorney. Goldman did not find a connection but
discovered “some sort of violation” in at least one of Stapley’s public
financial disclosures and irregularities in others. He reported his findings
in May to Thomas, who acknowledged at the hearing that the statute of
limitations had started to run for the purported violation. At Thomas’s
direction, Goldman presented his findings to the Maricopa Anti-
Corruption Enforcement (“MACE”) unit, which MCAO and the Maricopa
County Sheriff’s Office (“MCSO”) jointly operated, and where the matter
languished.
¶29 In March 2008, Thomas assigned the investigation to
Aubuchon and told her to determine within thirty days whether charges
could be filed. Aubuchon met briefly with Goldman to obtain the
research he had presented to MACE but did not discuss the investigation
with him. She also obtained MCAO Chief Assistant Sally Wells’s MACE
documents, which included Goldman’s research. Aubuchon noticed that
some of the internet-generated copies of Stapley’s financial disclosures
contained timestamps reflecting that Goldman had obtained them in
January and February 2007.
¶30 Aubuchon investigated further and presented her results
and a draft indictment to MACE on May 14, 2008. The indictment was
dated May 29, and Aubuchon stated they would have to move quickly.
MACE team members expressed concern that they had been given a draft
indictment before they had investigated or written a report. According to
a MACE officer, when Aubuchon was asked whether she had made
herself a witness by investigating the matter, she responded “something
to the effect of well, that’s why you’re going to recreate the books or redo
what we’ve already done.” When a MCSO lieutenant noted the age of
many disclosures and asked about the statute of limitations, Aubuchon
inaccurately told him that the limitations periods for any misdemeanor
charges started to run that day because that was when law enforcement
learned of the matter. Based on this representation, MCSO reported the
investigation as commencing May 14, 2008. When presenting the case to
the grand jury in November, Aubuchon did not present any evidence
regarding the age of the investigation or mention the statute of limitations.
¶31 This evidence permitted the panel to conclude that
Aubuchon knew that the state had either discovered probable cause to
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Opinion of the Court
charge the misdemeanors, or should have discovered it in the exercise of
reasonable diligence, more than one year before November 2008. First,
Aubuchon was aware of the age of the investigation, as evidenced by the
early 2007 dates on Goldman’s documents and MACE’s involvement in
2007. Second, Thomas’s knowledge that the limitations period had started
to run on at least one charge and his direction for quick work supported
an inference that he told Aubuchon about the limitations period. This
conclusion is bolstered by Aubuchon’s presentation at the May 14 MACE
meeting of a draft indictment dated two weeks later and her statement
that they needed to proceed quickly. Third, and finally, Aubuchon’s
efforts to describe the starting date of the investigation as May 14, 2008,
despite her having already completed an investigation sufficient to permit
her to draft an indictment, shows her knowledge that at least some
charges could have been barred by the statute of limitations. The panel
did not err by finding that Aubuchon violated ER 8.4(d) in handling
Stapley I.
2. Requests to Interview Judges
¶32 MCSC Presiding Judge Barbara Mundell assigned Judge
Fields to Stapley I. Aubuchon asked Judge Fields to voluntarily recuse
himself and, if he refused, moved for his recusal pursuant to Arizona Rule
of Criminal Procedure 10.1(a), which requires “a change of judge if a fair
and impartial hearing or trial cannot be had by reason of the interest or
prejudice of the assigned judge.” After Judge Fields refused to voluntarily
recuse himself, Aubuchon wrote to Judge Mundell, Judge Anna Baca, who
presided over MCSC’s criminal division, and Judge Fields, stating that his
appointment was outside “the normal criminal case assignment process”
and asking to interview them in preparation for a possible hearing on the
Rule 10.1 motion. She also asked to interview Judge Fields about his
“ability to fairly and impartially preside over this matter.” The judges
either ignored or declined these requests. Aubuchon then filed a motion
to interview or depose the judges, which Judge Baca denied. Judge Baca
then denied the Rule 10.1 motion without prejudice because Aubuchon
had failed to comply with the rule. Aubuchon renewed her motion, but
before the court could hold a hearing, MCAO was disqualified as counsel
due to a conflict of interest, and the motion became moot.
¶33 The panel found that Aubuchon prejudiced the
administration of justice by seeking to ascertain the judges’ thought
processes and intimidate them. Aubuchon asserts that her request was
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permissible because she did not seek to question the judges about a
judicial ruling; she only sought to question them about an administrative
assignment.
¶34 The record supports the panel’s determination. First, it is
improper to probe the mental processes engaged in by judges in making
decisions because doing so “would be destructive of judicial
responsibility.” United States v. Morgan, 313 U.S. 409, 422 (1941).
Aubuchon cites no authority supporting her contention that parties may
question judges about decisions not involving the merits of a case, and
other courts have not made this distinction. See, e.g., In re Sanai, 225 P.3d
203, 208–09 ¶ 24 (Wash. 2009) (“Judges are under no obligation to divulge
the reasons that motivated them in their official acts; the mental processes
employed in formulating the decision may not be probed.”) (citation
omitted); State ex rel. Kaufman v. Zakaib, 535 S.E.2d 727, 735 (W. Va. 2000)
(“[J]udicial officers may not be compelled to testify concerning their
mental processes employed in formulating official judgments or the
reasons that motivated them in their official acts.”). Compelling a judge to
explain the reasons for administrative or procedural decisions relating to
cases could undermine judicial responsibility in a similar manner as
asking about merits rulings and is therefore improper. Aubuchon’s
requests to interview the judges about the reasons for Judge Fields’s
assignment were improper because she sought to probe Judge Mundell’s
mental processes in making a decision in performance of her duties as the
presiding judge. Moreover, Aubuchon’s requests to question Judge Fields
about his ability to rule without bias effectively sought to discover his
reasons for refusing her request to voluntarily recuse himself, and was
therefore improper.
¶35 Second, the panel was justified in concluding that
Aubuchon’s improper requests prejudiced the administration of justice
because they appeared designed to pressure the court to assign Stapley I to
another judge. Aubuchon’s inquiries about Judge Fields’s assignment
seemingly did not relate to whether he could conduct a fair and impartial
hearing. See Ariz. R. Crim. P. 10.1(a). The panel reasonably inferred that
the real purpose of the requests was to compel the court to reassign the
case as a way to avert a Rule 10.1 hearing.
¶36 The panel did not err by finding that Aubuchon violated ER
8.4(d) by repeatedly requesting to interview or depose the judges.
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B. Civil RICO Lawsuit
¶37 On December 1, 2009, Aubuchon filed a RICO lawsuit on
behalf of Thomas and Maricopa County Sheriff Joseph Arpaio against the
Board, its members, four MCSC judges, and others. She alleged that the
defendants committed bribery and extortion as part of a conspiracy “to
hinder the investigation and prosecution of elected officials, county
employees, and their attorneys concerning the funding and construction
of a court tower in Maricopa County.” In re Alexander, 232 Ariz. at 4 ¶ 5,
300 P.3d at 539. Because Aubuchon had a potential conflict of interest,
Thomas re-assigned the lawsuit to Alexander a few days later. The
plaintiffs later voluntarily dismissed the case.
¶38 The panel found that Aubuchon prejudiced the interests of
justice in violation of ER 8.4(d) by filing the complaint against judges who
were absolutely immune from a civil damages lawsuit based on their
judicial acts. According to the panel, Aubuchon, along with Thomas and
Alexander, “pursued the RICO action to retaliate against the named
judges and to intimidate the judges of the Superior Court.”
¶39 Like Alexander, Aubuchon argues that the panel erred
because no evidence shows she intended to retaliate against or intimidate
judges, and the judges were not immune from suit because they acted in
non-judicial capacities. For the reasons explained in In re Alexander, 232
Ariz. at 11 ¶¶ 39–42, 300 P.3d at 546, we reject these arguments.
Aubuchon violated ER 8.4(d) by filing the RICO lawsuit against the
judges.
C. Prosecution of Judge Donahoe
¶40 Upon Judge Baca’s retirement in January 2009, Judge
Donahoe was named as the presiding judge for the MCSC’s criminal
division. In that role, he made rulings adverse to MCAO and MCSO and
allegedly acted unprofessionally towards MCSO officers. As a result,
MCSO Chief Deputy David Hendershott filed a judicial conduct
complaint against Judge Donahoe on November 30, 2009, and Aubuchon
filed the civil RICO complaint the following day against Judge Donahoe
and others.
¶41 About the same time, Judge Donahoe scheduled a December
9 afternoon hearing on various motions concerning MCAO’s authority to
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appoint independent special deputy county attorneys to pursue a grand
jury investigation of alleged acts of county corruption. On the morning of
the scheduled hearing, Aubuchon filed a criminal complaint against Judge
Donahoe charging him with hindering prosecution, obstructing criminal
investigation, and bribing a public servant. She then moved for the judge
to recuse himself from grand jury matters in light of the pending charges,
Hendershott’s judicial conduct complaint, and the RICO lawsuit. After
Judge Donahoe was served with the complaint, he vacated the afternoon
hearing and recused himself. The court dismissed the criminal complaint
against Judge Donahoe in March 2010.
¶42 The panel found that Aubuchon violated her responsibility
as a prosecutor in violation of ER 3.8(a) and prejudiced the administration
of justice in violation of ER 8.4(d) by knowingly filing the criminal
complaint without probable cause and for the purposes of avoiding the
December 9 hearing and compelling Judge Donahoe’s recusal. Aubuchon
does not contest the panel’s finding that she filed the complaint to compel
Judge Donahoe to vacate the December 9 hearing and recuse himself from
grand jury matters, and we therefore accept that finding. Rather, she
argues that the complaint was supported by probable cause, and imposing
discipline for filing it therefore improperly infringes on the authority of
the executive branch to make charging decisions. She alternately argues
that the panel erred by finding a violation of ER 3.8(a) because she did not
know when she filed the complaint that probable cause was lacking.
¶43 Sufficient evidence shows that the criminal complaint was
not supported by probable cause. First, the probable cause statement filed
with the complaint did not support the charges. The allegations criticize
how Judge Donahoe performed his judicial duties, but nothing links his
actions to the elements of the charged crimes.4 Specifically, none of the
allegations would lead a reasonable person to believe the complaint’s
4 Aubuchon asserted that Judge Donahoe (1) failed to disclose an
attorney-client relationship with attorneys appearing before him on a
grand jury investigation, (2) refused to hold Stapley in contempt for
disclosing grand jury information to his attorney, (3) improperly presided
over motions in Stapley I, (4) threatened to bypass MCSO by encouraging
criminal defense attorneys to move to release in-custody clients and then
tell the media that MCSO was to blame for failing to adequately perform
its transportation duties, (5) exhibited bias against MCSO by his rulings,
and (6) scheduled the December 9 hearing.
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IN RE LISA M. AUBUCHON
Opinion of the Court
charge that Judge Donahoe (1) “provid[ed] [others] with money,
transportation, weapon[s], disguise[s], or other means of avoiding
discovery, apprehension, prosecution, or conviction” (hindering
prosecution), (2) obstructed a criminal investigation “by means of bribery,
misrepresentation, intimidation, force, or threats of force” (obstruction of
criminal investigation), or (3) “solicited, accepted, or agreed to accept a
benefit” in exchange for influencing his judgment (bribery). Cf. State v.
Dixon, 153 Ariz. 151, 153, 735 P.2d 761, 763 (1987) (holding that probable
cause to arrest exists if the arresting officer possesses “reasonably
trustworthy information sufficient to lead a reasonable person to believe
that an offense has been committed and that the person to be arrested
committed it”).
¶44 Second, the rushed circumstances surrounding the filing of
the complaint highlight the lack of probable cause. Thomas directed
Aubuchon to file the complaint the day before she did so, and neither
MCAO nor MCSO investigators had conducted an investigation.
Regardless, Aubuchon asked MCSO officers to immediately prepare a
departmental report and probable cause statement. At Aubuchon’s
direction, Hendershott directed an officer to use the judicial conduct
complaint as the basis for the probable cause statement. Aubuchon told
officers they “would have time to put the case together” after the
complaint was filed.
¶45 Third, others did not believe the complaint was supported
by probable cause. Several MCAO lawyers and MCSO officers read the
complaint, concluded it was unsupported by the probable cause
statement, and refused to sign or file it. Yavapai County Attorney Sheila
Polk testified that even if the allegations in the probable cause statement
were true, they did not constitute probable cause.
¶46 Aubuchon argues that because Thomas, Arpaio, and
Hendershott believed probable cause existed, and MCAO Detective
Timothy Cooning testified he would have signed the complaint had he
known “things” in the complaint were true, the panel erred by finding
that no probable cause existed. We disagree. The subjective opinions
expressed by these interested individuals do not overcome the above-
described evidence showing a lack of probable cause.5
5 Contrary to Aubuchon’s assertion, only Thomas and Hendershott
testified that probable cause supported the complaint. The record does
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IN RE LISA M. AUBUCHON
Opinion of the Court
¶47 The record also supports the panel’s finding that Aubuchon
knew the complaint lacked probable cause. Her knowledge can be
inferred from the circumstances. See In re Alexander, 232 Ariz. at 5 ¶ 13,
300 P.3d at 540 (“A lawyer’s motives and knowledge can be inferred from
the frivolousness of a claim.”). She was an experienced prosecutor who
had supervised charging decisions for five years at the time she filed the
complaint. Although she undoubtedly knew how to support a complaint
with an adequate probable cause statement, she blatantly failed to do so.
See supra ¶ 43. And she ignored the concerns of members of her own
office and MCSO officers about the complaint, stating they “would have
time to put the case together” later. See supra ¶¶ 44–45. The panel
reasonably found that an experienced prosecutor like Aubuchon knew
that the complaint was not supported by probable cause.
¶48 Throughout these proceedings, Aubuchon has steadfastly
maintained that Judge Donahoe’s conduct evidenced criminal
wrongdoing. She might have subjectively suspected as much and hoped
to discover confirming evidence before the court ruled on probable cause.
But Aubuchon’s responsibility as a prosecutor was to ensure probable
cause existed when she filed the charges. This she did not do, thereby
justifying the panel finding a violation of ER 3.8(a).
¶49 In sum, Aubuchon violated ERs 3.8(a) and 8.4(d) by filing
the criminal complaint against Judge Donahoe without probable cause in
order to compel him to recuse himself from grand jury matters.
D. Remaining Violations
¶50 Aubuchon’s violations of ERs 3.8(a) and 8.4(d), standing
alone, justify the sanction of disbarment. Consequently, even if
Aubuchon’s arguments challenging the panel’s findings of other
violations have merit, because our assessment of an appropriate
disciplinary sanction would not change, we need not address them in
detail. But because those other findings would be relevant to any future
application by Aubuchon for reinstatement to the State Bar, see Ariz. R.
Sup. Ct. 64, 65, we address them summarily.
not reflect that Arpaio testified about probable cause, and Aubuchon does
not cite any evidence of his opinion on the matter. And Cooning’s
testimony does not support Aubuchon as he testified that “[a]fter reading
the probable cause statement it wasn’t clear to me what the crimes were.”
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IN RE LISA M. AUBUCHON
Opinion of the Court
¶51 We reject the panel’s determination that Aubuchon
committed professional misconduct by violating the following ERs:
 ER 1.7(a)(2) (charges five, eighteen, and twenty-nine):6 The
record does not contain clear and convincing evidence that Aubuchon’s
personal interests materially limited her representation in the matters
underlying these charges. And Thomas’s personal interests were not
properly imputed to Aubuchon pursuant to ER 1.10(a). See In re Alexander,
232 Ariz. at 10 ¶ 35, 300 P.3d at 545 (describing when a conflict of interest
based on another’s personal interests can be imputed).
 ER 3.3(a) (charge seven): The evidence does not clearly and
convincingly show that Aubuchon knowingly made a false statement in
her motion to recuse by describing Judge Fields as “the complainant in an
open and pending State Bar matter that he initiated against . . . Thomas.”
Although Judge Fields did not directly complain about Thomas, he sent
the State Bar material that prompted an investigation, and the State Bar
considered Judge Fields the complainant. Aubuchon’s language, although
imprecise, does not reflect an attempt to knowingly mislead the court.
 ER 8.4(b) (charge twenty-seven): Aubuchon did not compel
a MCSO detective to commit perjury by asking him to sign under oath the
criminal complaint filed against Judge Donahoe. The record does not
reflect that the detective gave a false sworn statement “believing it to be
false.” A.R.S. § 13-2702(A)(1) (defining perjury). He signed the complaint
on “information and belief,” and no evidence shows he believed the
allegations were false.
 ER 8.4(b) (charge twenty-eight): Although the record
supports a finding that Aubuchon agreed to file the criminal and civil
cases against Judge Donahoe to compel his recusal from Stapley I, these
acts did not constitute a conspiracy to prevent him from enjoying a right
or privilege secured by the Constitution in violation of 18 U.S.C. § 241.
Judge Donahoe’s recusal did not deprive him of his right to expression or
impair his employment as a judge. See Nevada Comm’n on Ethics v.
Carrigan, 131 S. Ct. 2343, 2349 (2011) (“[T]here do not appear to have been
any serious challenges to judicial recusal statutes as having
unconstitutionally restricted judges’ First Amendment rights.”); Conn v.
6 We agree with the panel that Aubuchon violated ER 1.7(a)(1),
which also underlies charge eighteen.
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IN RE LISA M. AUBUCHON
Opinion of the Court
Gabbert, 526 U.S. 286, 291–92 (1999) (noting that cases recognizing a liberty
interest to engage in an occupation “deal with a complete prohibition of
the right to engage in a calling” and not merely a “brief interruption”).
 ER 8.4(c) (charge thirty-two): There is no clear and
convincing evidence that Aubuchon knowingly misrepresented the status
of a grand jury inquiry to a special prosecutor by failing to relate that the
grand jury had voted to “end the inquiry.” See In re Owens, 182 Ariz. 121,
125, 893 P.2d 1284, 1288 (1995) (holding that ER 8.4(c) requires “knowing”
misconduct). Whether the grand jury ended the inquiry due to a lack of
evidence would not have precluded the special prosecutor from
resubmitting charges to a future grand jury. State v. Young, 149 Ariz. 580,
585, 720 P.2d 965, 970 (1986) (“[A]bsent prohibition by statute or rule, the
prosecutor can resubmit a case before the grand jury after the same charge
has been dismissed or a ‘no bill’ returned.”). And the circumstances
surrounding the vote suggest the grand jury might have complied with
Aubuchon’s request that it release the case for assignment to a special
prosecutor.
¶52 We reject Aubuchon’s arguments that the panel incorrectly
found that she committed professional misconduct as set forth in the
remaining charges not explicitly addressed in this opinion.
IV. Sanction Imposed
¶53 Aubuchon alternately argues that disbarment is not
warranted because Judge O’Neil excluded pertinent mitigation evidence
and the panel failed to give appropriate weight to presented mitigation.
We review the imposed sanction de novo as a matter of law. In re
Alexander, 232 Ariz. at 13 ¶ 48, 300 P.3d at 548.
¶54 The panel appropriately followed the standards set forth in
the American Bar Association’s Standards for Imposing Lawyer Sanctions for
determining an appropriate disciplinary sanction. Ariz. R. Sup. Ct. 58(k);
see In re Alexander, 232 Ariz. at 13 ¶¶ 49–50, 300 P.3d at 548 (describing the
process for deciding sanctions). In doing so, the panel identified
disbarment as the presumptive sanction. After finding six aggravating
factors and one mitigating factor, the panel decided that the presumptive
sanction of disbarment applies.
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IN RE LISA M. AUBUCHON
Opinion of the Court
¶55 Aubuchon does not challenge the panel’s determination that
disbarment is the presumptive sanction or its finding of six aggravating
factors. Instead, she argues that the panel did not give appropriate weight
to mitigation evidence because Judge O’Neil prevented her from
presenting all listed character witnesses, the panel ignored the mitigation
evidence presented, she had never had a prior disciplinary complaint
proceed past the screening stage, and these proceedings were not initiated
by a bar complaint.
¶56 For the reasons previously explained regarding Judge
O’Neil’s ruling on the number of character witnesses permitted, we reject
Aubuchon’s argument on that point. See supra ¶ 20.
¶57 We also reject Aubuchon’s remaining arguments. The panel
found that Aubuchon’s lack of a prior disciplinary record was a mitigating
circumstance, so her argument that the panel failed to credit this fact is
baseless. And although witnesses testified to Aubuchon’s good character,
the panel was justified in not finding this a mitigating circumstance in
light of evidence regarding the events underlying these proceedings,
which reflected poorly on her character. Finally, the manner in which the
disciplinary proceedings were initiated has no bearing on whether the
presumptive sanction of disbarment is appropriate.
¶58 Aubuchon’s most serious misconduct was filing a criminal
complaint against Judge Donahoe in violation of ER 3.8(a) and engaging
in conduct prejudicial to the administration of justice in violation of ER
8.4(d). Although the panel properly found that Aubuchon also violated
several other ERs, we consider those particular violations the most
egregious in light of the public trust placed in prosecutors to wield their
considerable power fairly and for the public good. After considering
Aubuchon’s mental state when engaging in the misconduct, the potential
and actual injuries suffered, and the aggravating and mitigating
circumstances, we are compelled to impose the presumptive sanction.
¶59 We order Aubuchon disbarred.
* Chief Justice Rebecca White Berch recused herself from this case.
Pursuant to Article 6, Section 3 of the Arizona Constitution, the Honorable
Lawrence F. Winthrop, Judge of the Court of Appeals, Division One, was
designated to sit in this matter.
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