No Immunity for Disbarred Arizona Lawyer

     (CN) – Maricopa County’s disbarred former attorney cannot claim immunity over charges he filed against political enemies of Sheriff Joe Arpaio, the 9th Circuit ruled Friday.
     Last year, a panel of the Arizona Supreme Court disbarred Andrew Thomas, along with former deputy county attorney Lisa Aubuchon, for ethical lapses related to an ongoing “political war” in the state’s most populous county. The present action stems from that war, which once pitted Thomas and Arpaio against the county’s Board of Supervisors.
     In 2009, after several years of corruption investigations and unsuccessful criminal charges allegedly meant to retaliate for budget cuts, public criticism and unfavorable court rulings, Thomas, Aubuchon and Arpaio accused 14 defendants, among them county board members and state court judges, of violating federal anti-racketeering law.
     The civil lawsuit alleged that now-former Supervisor Donald Stapley Jr. conspired with others to undermine Thomas and Arpaio’s corruption investigations related to a courthouse building project. Stapley and the other defendants allegedly did so by cutting the Maricopa County Attorney’s Office’s budget and falsely reporting Thomas to the state bar association, among other things.
     Though Thomas and the sheriff voluntarily dismissed the complaint just a few months later, they nevertheless declared a kind of victory. They claimed, falsely, that the U.S. Justice Department had agreed to take over the investigation, according to the ruling.
     Stapley and many of the other RICO defendants subsequently sued Thomas, Aubuchon, Arpaio and Maricopa County for malicious prosecution, false imprisonment and arrest, intentional infliction of emotional distress, unlawful search, and more.
     While most of the other plaintiffs have settled, Stapley and his wife kept the case going, reportedly seeking some $15 million in damages. Thomas and Aubuchon moved to dismiss the claims based the absolute immunity from prosecution sometimes afforded to government attorneys, but U.S. District Judge Neil V. Wake denied the motion in Phoenix.
     At a recent hearing in the 9th Circuit, Stapley’s attorney, Larry Wulken, urged a three-judge appellate panel to affirm the lower court.
     “There is something very antithetical to the notion that a prosecutor can file whatever the heck he wants in any court he wants that says, ‘well because I’m the prosecutor I can do that, I can make mistakes, I can be malicious,'” Wulken said. “I understand that the immunity should be applied broadly, but not when the prosecutor is skirting his authority.”
     The panel agreed in a unanimous ruling published Friday, finding that the RICO suit “was essentially a harassing public-relations ploy.”
     “Defendants filed baseless criminal suits against Stapley and others both before and after filing the RICO suit, seeking media publicity for their actions in connection with these suits,” Judge William Fletcher wrote for the panel. “Before initiating the civil RICO suit, defendants received warnings from attorneys both inside and outside their office that the suit had no basis in fact or law and would likely result in sanctions. Defendants had also been warned of ethical conflicts related to filing the suit.”
     Fletcher added that Thomas went ahead with the lawsuit despite all the warnings, and removed it “before the court had any opportunity to assess its validity.”
     Even if the RICO claims had been less speculative, however, the attorneys still wouldn’t be eligible for immunity, the panel found.
     “The federal RICO statute does not provide any special authorization for county attorneys to file civil RICO suits,” Fletcher wrote. “County attorneys may file civil RICO suits under 18 U.S.C. § 1964(c), but they have no status as plaintiffs different from private citizens.”
     Thomas and his attorney, Sarah Barnes, did not immediately return a request for comment. Thomas has filed paperwork with the Arizona Secretary of State to run for governor in 2014.

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