Attorneys for the Republican Governors Association and the Arizona GOP may have committed multiple ethics violations this week when they recorded an attorney-to-attorney conversation with a Maricopa County attorney about ballot counting, made a perceived threat and then followed through on it by releasing video of the conversation.
|Ben Mehr speaking with Tom Liddy, from video
The Maricopa County Attorney’s Office had “no additional comment” when asked by Arizona’s Law on Saturday whether it (or any of its attorneys) would be filing complaints with the State Bar of Arizona against Tim LaSota or other disciplinary agencies against RGA staff attorney Benjamin Mehr.
Liddy spoke with Washington Post reporter Yvonne Wingett Sanchez about the conversation and perceived threat. Liddy and MCAO also noted that the snippet of the 12 minute conversation was taken out of context. (The leaked portion of the conversation is embedded in the WaPo article.)
One day after Steve Bannon and a Kari Lake Senior Advisor promised fellow election deniers that the defeated Arizona gubernatorial candidate would be “more aggressive” than simply pursuing legal action (because “the courts are not on our side”), a Lake twitter account released video (taken or posted by former Trump attorney Jenna Ellis) of an attorney’s conversation with Tom Liddy, the Chief of the Civil Division of the Maricopa County Attorney’s Office.
The conversation had taken place on Monday, with Mehr asking several questions about the Election Day problems. Mehr told Liddy he was “worried” about what they would have to tell supporters if Liddy was not “giving us good information.”
Liddy perceived that as a threat and used some choice expletives in response: “If I don’t get these answers to you quickly, you’re not going to be able to tell the crazy people that I’ve been helpful. I don’t give a fuck.”
The release of the snippet of the recording the day after Lake’s day of meetings at Trump’s Mar a Lago club seemed to confirm both Mehr’s comment that he would be reporting to supporters and Caroline Wren’s promise to be more aggressive.
The recording clearly shows that people on both sides of Mehr were recording the conversation with their phones, making it highly likely that Mehr was aware of and approved of them. Arizona election attorney LaSota confirmed to the Washington Post that he was also present for the call and heard both sides of the conversation.
Arizona attorneys are bound by ethical rules adopted by the Arizona Supreme Court, and other attorneys are similarly bound. While Arizona permits recording of conversations without consent of the person being recorded, attorneys are prohibited from recording conversations with other counsel. (We are also prohibited from secretly recording most other conversation with others.)
The prohibition is derived from Ethical Rule 8.4, which says it is “professional misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” In 1995, the State Bar issued an opinion making it clear that recording another attorney involves elements of “deceit and misrepresentation.”
The content of the perceived threat to Liddy, followed by the release of the recording – an apparent confirmation that Liddy correctly perceived a threat – may also be grounds for an ethical complaint. As an attorney standing next to Mehr during the conversation, LaSota’s (in)actions could also be questioned.
The MCAO – run by a Republican and defending Republican Supervisors and officials – forcefully defended the 2020 election administration against lawsuits, legislative/Ninja “audits” and various threats. The leaked conversation shows that these confrontations will continue as we head towards 2022 lawsuits, challenges and various threats.
In fact, the MCAO currently has a Rule 11 Motion for Sanctions pending against a different set of attorneys for Kari Lake and Mark Finchem. Their lawsuit sought to prohibit machines from the 2022 election and force ballots to only be counted by hand. The sanctions motion claims that Lake’s/Finchem’s attorneys falsely stated that Maricopa County does not already use paper ballots. The case was dismissed and has been appealed to the 9th Circuit. (Rule 11 Motions often overlap with complaints of unethical behavior.)
Ethics complaints were filed with the Arizona State Bar against many of the attorneys who filed post-2020 election actions (including LaSota), alleging that the lawsuits were knowingly not filed in good faith. It is unclear what stage those complaints are at.
On Saturday, Arizona’s Law also asked Mehr and LaSota questions and to present their perspectives on the situation. Updates to this article will be published as warranted.
“AZ Law” includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona’s Politics on the internet.