Arizona Rules of Professional Conduct, Rule 2.1, provides:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
When that lawyer is also the Attorney General, an executive level elected position in Arizona, there are also separation of powers considerations. The Arizona attorney general, similar to the U.S. attorney general, must be free to exercise unfettered independent professional judgment in pursuing the duties of the office, not subject to undue influence or political pressure from the governor or the state legislature.
Earlier this year, Troll Boy, Sen. John Kavanagh, introduced a bill to require the state attorney general to defend all laws, after Brnovich wouldn’t defend his:
After the attorney general last year refused to defend a new law making it a crime to take video of police officers in some situations, the law’s author is back with a proposal that would require the state’s top attorney to defend every law.
State Sen. John Kavanagh, R-Fountain Hills, said it was frustrating that then-Attorney General Mark Brnovich, a fellow Republican, decided not to defend the law he sponsored in 2022 that banned video recording of police officers within eight feet of where “law enforcement activity” is taking place.
When Brnovich and county prosecutors opted not to defend the law against a federal lawsuit, which legislative attorneys warned last year was likely unconstitutional because the restrictions flew in the face of previous court rulings, a federal judge granted a preliminary injunction and blocked the law from ever going into effect.
Note: The GQP-controlled legislature annually passes bills which are unconstitutional or otherwise conflict with federal law or Supreme Court decisions. There are a handful of attorneys in Arizona who have made a good living out of suing the GQP-controlled legislature to overturn their unconstitutional or otherwise unlawful bills, with a remarkable degree of success. The GQP controlled legislature has unnecessarily cost this state millions of dollars wasted on defending their unconstitutional or otherwise unlawful laws. The Arizona Attorney General, an executive level elected position in Arizona, must be free to exercise unfettered independent judgment in whether or not to defend facially unconstitutional or otherwise unlawful laws.
The Attorney General should not be dictated to by this wannabe tinpot dictator, Troll Boy.
Kavanagh said it wasn’t right that the attorney general can pick and choose which laws to defend. [Actually, it is.]
“Our lawyer should be our lawyer,” he told the Senate Government Committee on Wednesday.
In response, Kavanagh is pushing Senate Bill 1021, which requires the attorney general to “defend all laws…against all legal challenges.”
Sen. Priya Sundareshan, D-Tucson, wondered whether the requirement would infringe on the separation of powers, but Kavanagh said he wasn’t concerned with that because the AG is supposed to defend the state.
“Their role is to defend the actions of the legislature,” he said.
The Attorney General represents the state of Arizona, and this does include defending the laws of Arizona – which in the independent professional judgment of the Attorney General merits a defense. If it is a facially unconstitutional or unlawful law and would be an unnecessary waste of taxpayer money, the Attorney General can take these factors into consideration. The legislative branches frequently hire separate legal counsel to represent their own interests when there is a conflict with the AG.
Paul Weich, a Valley attorney and part-time journalist who covers politics and legal issues in Arizona, told the Arizona Mirror that Kavanagh’s bill would be bad public policy.
“It’s never a good idea to force an attorney to make an argument for you that they don’t want to make,” he said, adding that doing so could put attorneys in an ethical quandary if they’re required to defend clearly unconstitutional or illegal laws.
Kavanagh conceded that some laws are simply indefensible, and said that’s why his measure includes a way for the AG to avoid defending a law: He or she can seek permission from the Judiciary committees in both the state Senate and House of Representatives to not defend a statute. If two-thirds majorities of both committees agree, then the AG can stand down.
But the presumption, Kavanagh said, needs to be that the attorney general will defend every law.
This is not a serious option. It is a violation of the separation of powers doctrine. Legislative committees cannot dictate to an executive level elected office how the Attorney General must do their job. And in what world would two-thirds of the judiciary committees, currently controlled by MAGA Fascists, ever agree to the Attorney General not defending their facially unconstitutional or otherwise unlawful law that they enacted?
SB1021 passed the Government Committee on a 5-2 party-line vote with Republican support and Democratic opposition. It next heads to the floor for consideration by the full Senate.
Troll Boy’s personal vendetta bill passed the Senate in February on a party-line vote of 16-12 (2 not voting).
The bill passed the House Government Committee on a party-line vote of 5-4 on Wednesday.
— AZ Capitol Times (@AzCapitolTimes) March 16, 2023
The bill is expected to pass on a party-line vote in the full House.
Gov. Katie Hobbs must veto this unconstitutional bill (separate of powers).