AG Brnovich escapes Bar sanctions, enters ‘diversion agreement’

AG Brnovich escapes Bar sanctions, enters ‘diversion agreement’

Katie Hobbs, left, and Mark Brnovich.

The State Bar of Arizona will not punish Attorney General Mark Brnovich over claims that he acted unethically in his representation of two state agencies. 

But that doesn’t necessarily mean he did nothing wrong in his dealings with Secretary of State Katie Hobbs and the Arizona Board of Regents. 

On Friday, Brnovich’s press aide said he had “reached an agreement … to resolve the Bar complaints.” 

In each case, Katie Conner said, both complaints will be dismissed “with no sanctions or findings of professional conduct.” 

What Conner did not say, however, is that Brnovich and his attorneys have entered into a “diversion agreement.” 

In a letter, James Lee, senior counsel for the Bar, said the terms of that agreement are confidential. 

But the Bar’s own documents show that this outcome is not a finding that the lawyer did nothing wrong. 

“Diversion is intended as an alternative to disciplinary sanction,” according to the Bar. More to the point, it says the primary purpose is to identify lawyers who have violated the Rules of Professional Conduct “and whose cases involve minor misconduct.” 

Hobbs said she believes that this will prove critical to preventing the kind of problems she was having with Brnovich that caused her to file the complaint in the first place. 

“Diversion is designed to remedy the lawyer’s problem and prevent recurrence,” she said in a prepared statement. 

“Although the terms of this diversion agreement are confidential, the State Bar is helping to prevent these ethical lapses from occurring again,” Hobbs said. “And that is justice.” 

There was no immediate response from the Board of Regents. 

Both cases stem from complaints that Brnovich violated those ethical rules by acting on one hand as the attorney for the two agencies while also taking action contrary to their interests.
Hobbs said that the Attorney General’s office, in its role representing her agency, had received confidential attorney-client communications and provided advice. The problem, she said, is that the AG’s office then withdrew from representing her and the Secretary of State — and then took a legal position “materially adverse to the secretary of state.” 

Brnovich clearly was not pleased with the finding. 

Conner said her boss will now seek a change in those ethical rules — the ones that Hobbs and the Board of Regents accused him of violating — to say that his duties as a constitutionally elected state official and the chief attorney for the state are different than a private lawyer hired by a client. 

And Conner took a swat at how Hobbs is describing the diversion agreement. 

“The secretary of state is once again trying to spin a story,” she said. “We entered an agreement with the State Bar today that soon will result in the dismissal of each complaint with no finding of professional misconduct,” Conner continued, saying that “cooperation is always the best approach for resolving difficult issues.” 

But Lyndel Manson, chairman of the Board of Regents, made it clear he sees the resolution as does Hobbs. 

“The State Bar of Arizona recognized that the attorney general’s professional conduct required corrective action by entering into a diversion agreement with the Attorney General,” she said in her own prepared statement. “Contrary to the Attorney General’s assertion, the Bar’s decision is not a vindication of the attorney general’s conduct.”

“Contrary to the Attorney General’s assertion, the Bar’s decision is not a vindication of the attorney general’s conduct.”

Lyndel Manson, chairman of the Board of Regents

In the other case, the main issue in the complaint was that Brnovich actually filed suit against the regents over a deal made by Arizona State University for a hotel and conference center on university property. That lawsuit, which is still pending, involves claims that the deal amounted to an illegal gift of public funds. 

But there’s more, including Brnovich publicly blasting the board over what he contends are overly high — and potentially illegal — tuition increases. 

Brnovich has argued all along that he is different than any other attorney by virtue of his constitutional duties and powers. 

While Brnovich did not address the diversion, he declared the outcome to be in his favor — and a slap at Hobbs and the regents. 

“This is a victory for the rule of law and a rebuke for anyone attempting to weaponize the system for regulating lawyers for their own political purposes,” he said in his prepared statement. “No one working for our office should have been subjected to these Bar complaints, which put their reputations and livelihoods in jeopardy merely for doing their jobs as public servants.” 

The finding comes just days after Sen. Vince Leach, R-Tucson, introduced legislation that would financially penalize anyone who files a Bar complaint that is not borne out, making that person liable not only for the attorney’s legal fees but also any damage to reputation.

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 This article was updated Feb 7, 2022 at 1:40 p.m. for clarity.