Regents file bar complaint against Brnovich

Attorney General Mark Brnovich speaks at the 2020 Converge Tech Summit at the Waste Management Phoenix Open. (Photo by Gage Skidmore/Flickr)

The Arizona Board of Regents is asking that Attorney General Mark Brnovich be investigated and disciplined by the agency that regulates lawyers. 

In a complaint obtained by Capitol Media Services, board Chairman Larry Penley accused Brnovich, who strictly speaking is the legal counsel for the board and the universities, of actively criticizing and actually filing lawsuits against them. 

All that, Penley is telling the State Bar of Arizona, violates a series of rules that govern the ethical conduct of attorneys. 

That most immediately starts an investigation which could result in anything from no action through a reprimand or even a suspension or revocation of his ability to practice law. And if those last options were the outcome, Brnovich would lose his job because the Arizona Constitution requires that the attorney general be a licensed attorney. 

The complaint actually was filed last year but remained sealed under State Bar rules. 

A copy was obtained by Capitol Media Services Monday after Brnovich disqualified himself earlier this month from arguing a case against the regents and Arizona State University based on the complaint. 

Penley, in the complaint, said this isn’t just some isolated incident. 

“Over the past two years, Brnovich has mounted a litigation and media campaign against the board and Arizona’s public universities,” Penley wrote, particularly Arizona State University. 

“He has done so despite representing the Board of Regents and the universities in numerous pending lawsuits,” the complaint states. “And he has done so without seeking ABOR’s consent to the conflict and in fact over our repeated objections to his breach of his fundamental duty of loyalty.” 

And Penley had specifics. 

Consider the lawsuit Brnovich filed against the university system over what he contends is illegally high tuition. 

Larry Penley

“He threatened to ‘unleash the dogs of war’ ” if ABOR did not succeed in getting the lawsuit thrown out, Penley said. 

There also were what Penley called “mocking comments” in emails sent to ASU president Michael Crow and insults like calling board members “gimmicky yobs” and “ivory tower cake eaters.” 

“Most recently, Mr. Brnovich has taken to radio and social media to demand, with no factual basis, that his own clients, ABOR and ASU, be held ‘accountable’ for their ‘reckless’ and ‘irresponsible’ handling of the COVID-19 pandemic,” Penley told the State Bar. 

“He has falsely claimed that he talked to ABOR before making these accusations,” Penley continued. “And he insists that ABOR is not his client with respect to COVID-19 matters, even though his office is charged by statute with representing ABOR in any pandemic-related tort, employment or other covered risk management claims.” 

A spokesman for Brnovich, who is running to be the Republican nominee for U.S. Senate in 2022, said he is precluded from responding publicly to the State Bar complaint. 

This also isn’t the first complaint against the attorney general. A similar complaint was filed last year by Secretary of State Katie Hobbs. 

In that case, Hobbs said that the attorney general’s office had represented her agency, received confidential attorney-client communications and provided advice “and then withdrawn from representation and appeared in the same litigation on behalf of a different party asserting a position materially adverse to the secretary of state.” 

That complaint is still pending. 

Penley, in writing to the State Bar, said the board did not take action lightly. 

“AG Brnovich’s threats and insults are beneath the dignity of his office and are blatant violations of the standards of civility and professionalism that apply to all Arizona lawyers,” he wrote. “His initiation and aggressive pursuit of two major lawsuits against ABOR has been and remains unethical.” 

Penley said the board wants the State Bar to investigate “and take appropriate disciplinary action.” 

The 22-page complaint — 110 pages with supporting documentation — is full of specifics of how the regents believe that Brnovich has violated his obligations to his client. 

There are the two lawsuits. 

One is the bid by Brnovich to have the method of setting tuition at the state’s three universities declared unconstitutional and violating constitutional requirements that instruction be “as nearly free as possible.” He charged that board members were acting illegally by essentially deciding first how much they want to charge and then justifying the amount later. 

But courts ruled he had no right to sue. 

Still pending is that claim that it was illegal for ASU and the regents to enter into a deal to build a new hotel and conference center. 

“In both lawsuits, AG Brnovich is not only suing his own client, he is also flipping his position on the same issues that the AG’s office has previously defended ABOR on,” Penley wrote. 

Then there has been the Covid outbreak. 

Penley said that Brnovich made public statements last year “with utter disregard both for the truth and for the interests of the AG’s clients.” 

For example, he said, Brnovich said “the regents keep insisting on doing things that are contrary to law” and that “they just kind of make it up as they go along.” 

He also said that campus facilities should have been “closed sooner” and that “ASU needs to release more information to the public now.” 

“If AG Brnovich genuinely thought there was a problem, he could, and should, have shared his concerns with his clients,” Penley wrote. In fact, he said, had Brnovich asked he would have learned that the universities are in contact with local, state and federal officials to get public health guidance, including regarding contact tracing, notification, self-isolation and self-quarantine. 

“He may not, consistent with his professional obligations, blindside his clients with statements that undermine his clients’ ability to defend themselves in current and future matters,” Penley said. “It is difficult to imagine a more straight-forward violation of the duty of loyalty.” 

More to the point, he said Brnovich did not obtain the consent of ABOR before filing suit. 

“Rather, he sent ABOR’s counsel a letter explaining his position that as an elected official, he has ‘unique authority’ to disregard the Arizona Rules of Professional Conduct,” Penley said. 

“The board recognizes that AG Brnovich is a politician as well as the lawyer for the board, but his political ambitions provide no justification for his derogatory and harmful comments towards his clients,” he said. 

Theoretically, Penley said, the attorney general’s office could set up a “screen” to separate the part that was suing the universities and the part that is supposed to be its lawyer. But Penley said that doesn’t do any good if Brnovich, as the head of the office, is busy insulting those clients, including in the attorney general’s own reelection ads in 2018. 

“Because AG Brnovich’s statements go far beyond simply announcing the facts and theories of the litigation to attack the character and competence of ABOR and ASU, they can easily be used by plaintiffs in unrelated cases to undermine the credibility of the AG’s defense of ABOR in those cases,” he said.