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Thomas disbarment hearing gains momentum: counter-charges of misconduct and ‘piling on’

The panel hearing the Thomas disbarment case, from left, Judge Bill O'Neil, Mark Sifferman and John Hall listen during the first day of the Arizona State Bar Association's disciplinary hearings against Andrew Thomas on Monday, Sept. 12, 2011 in Phoenix. Thomas is accused of bringing criminal cases against two county officials to embarrass them and charging a judge with bribery when Thomas knew the charges were false. All three cases collapsed in court. (AP Photo/The Arizona Republic, Jack Kurtz)

Attorney Tom Irvine was working in his law office on the afternoon of Dec. 31, 2008, when a process server dropped two lawsuits on him, filed by then-Maricopa County Attorney Andrew Thomas.

That set off a flurry of phone calls that afternoon, a mountain of work for the next year-and-a-half and copious amounts of stress, he said.

But the worst was yet to come. A year later, he and his law firm were accused in yet another lawsuit of participating in a criminal conspiracy.

Irvine, the sole witness on the third day of Thomas’ attorney disbarment hearing, described the experience of being targeted by the former county attorney.

“I assumed I was going to be charged with a crime,” Irvine said Sept. 14.

Irvine was one of four witnesses to kick off the first week of the hearing. Attorneys for the State Bar of Arizona have brought out testimony that showed the personal toll on people who had disputes with Thomas and were later accused of misconduct.

“If you crossed the paths of Mr. Thomas, (Maricopa County) Sheriff (Joe) Arpaio or (chief deputy) David Hendershott, expect to be sued or criminally charged or both,” said John Gleason, the Colorado attorney hired to prosecute the case for the State Bar.

Gleason is seeking to have Thomas and former deputy county attorney Lisa Aubuchon stripped of their law licenses and to suspend former deputy county attorney Rachel Alexander.

The three defendants intend to counter the accusations by showing they acted reasonably and are now the victims of “overcharging and piling on” by Gleason.

Gleason has the burden of proving the 33 allegations of ethical violations by clear and convincing evidence, the second-highest standard of proof in the justice system. He also has to prove the defendants acted with bad intentions.

Gleason said in opening statements that the allegations stem from disputes between Thomas and the Board of Supervisors and Maricopa County Superior Court that spanned from January 2006 to April 2010, when Thomas resigned to make what became an unsuccessful run for attorney general.

Gleason said Thomas abused his power in getting indictments of County Supervisors Don Stapley and Mary Rose Wilcox, filing a criminal complaint against former Judge Gary Donahoe, and filing a federal lawsuit against 16 defendants, which included judges and county supervisors, and alleging violations of the Racketeer Influenced and Corrupt Organizations Act, or RICO.

Testimony in the first week of trial touched heavily on the RICO suit, which Thomas’ attorney, Donald Wilson, said was filed because the Board of Supervisors continually “stonewalled and stymied” the former county attorney’s investigation.

“He believed he could only get his relief in federal court,” Wilson said. “He was not looking for money damages; he wanted to do his job.”

The lawsuits against Irvine on Dec. 31, 2008, had to do with whether the Board of Supervisors could hire Irvine without Thomas’ approval since Thomas was the board’s lawyer by statute.

The lawsuits were a professional nightmare, Irvine said, but the personal nightmare came almost a year later when Irvine and his firm, Polsinelli Shughart, were named as defendants in the RICO case.

The suit, which was later dropped by Thomas, alleged that four senior judges conspired with the Maricopa County Board of Supervisors to have the court tower built and pay Irvine and his law firm to hinder criminal investigations into the $340 million tower’s financing. It also alleged Irvine and his firm hindered criminal investigations of Stapley and other county officials.

“The evidence will show this was no racketeering,” Gleason said in opening statements on Sept. 12.

Wilson said in his opening remarks that Thomas was suspicious of Irvine because he had heard that Stapley strongly persuaded former Maricopa County Superior Court Presiding Judge Barbara Mundell to hire Irvine to represent the court.

Wilson said that Thomas asked attorney Mark Goldman to “research” a connection between Irvine and Stapley in early 2007. Wilson said it wasn’t an investigation, just online research, and the results were put into a notebook and forgotten.

Wilson said the $340 million court tower project was suspicious because it was being built during an economic downturn, and Irvine was getting paid $350 an hour to be a “space planner” on the project and not for any legal work.

Irvine said he learned about the RICO suit when started getting a rash of media calls on Dec. 1, 2009.

The firm had already spent a year in preparing to comply with a grand jury subpoena seeking all documents related to the tower project, and later spent $280,000 defending itself in the RICO matter.

He said he fretted over whether to resign or whether he would get fired.

Irvine tapped into the equity on his home to have $300,000 in cash available in case he became unemployed and needed to hire an attorney.

To this day, he believes he’s lost business because he was accused of racketeering.

“It’s still on Google,” he said.

• • •

Retired Maricopa County Superior Court Judge Kenneth Fields testified about his similar experience.

He, too, was named as a defendant in the RICO suit and accused of being one of the judges in the alleged cover-up conspiracy.

By the time Fields had been served with the complaint, fellow Judge Gary Donahoe had already been charged with bribery and perjury for his alleged part in the conspiracy.

“Just because of the way things were going,” Fields said. “I knew I may be the next one in line.”

He also hired a lawyer and went so far as to arrange for someone to take possession of his guns because people who have been arrested aren’t allowed to have them.

Fields was the judge presiding over the 118-count grand jury indictment brought against Stapley in November 2008, alleging he did not file financial reports required of elected officials.

Fields dismissed nearly half of the counts in September 2009, rendering the rest of the counts useless since they were dependent upon the dismissed ones.

The Yavapai County Attorney’s Office, which had taken over the case from Thomas, eventually dismissed the entire matter.

Aubuchon, however, asked Fields early on in the case to disqualify himself or allow another judge to decide whether he should be disqualified.

Aubuchon, who worked on the RICO matter in its early stages and prosecuted Stapley, alleged that Fields was biased against Thomas because he had publicly criticized him in the media and had given money to Tim Nelson, Thomas’ 2008 Democratic challenger.

Thomas and Aubuchon also questioned the way in which Fields ended up on the case since it wasn’t assigned randomly like other cases.

Fields said he was retired at the time and was occasionally called on to work special cases or trials. He said Mundell called three other retired judges.

“I was the first one to return her call,” he said.

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