Political Rival Calls On AG Mark Brnovich To Waive Confidentiality Of His State Bar ‘Diversion Agreement’ For Unethical Conduct

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Update to Michael Bryan’s post about AZ Attorney General Mark Brnovich Found to Have Violated Ethics Rules by Arizona Bar.

Arizona’s partisan hack Attorney General Mark Brnovich aka “Nunchucks” (or is it Numbnuts?) is rightly taking flak from a primary opponent who is rightly calling on this unethical attorney to release the terms of his Arizona state bar “diversion program.” You would want to know this before hiring him as an attorney, you sure as hell should want to know this before ever voting for him.

The Arizona Republic reports, McGuire calls on Brnovich to release records related Bar complaints:

Former Arizona National Guard leader Michael “Mick” McGuire is calling on state Attorney General Mark Brnovich, his U.S. Senate campaign rival, to make public records tied to an investigation of Brnovich and his attorneys stemming from a State Bar of Arizona investigation.

“The public has a right to know, one, about the specific ethical violations, two, what were the findings of the investigation and three, what diversion or rehabilitation training has been accepted,” McGuire, a retired Air Force major general, said.

Brnovich announced he had reached agreements with the State Bar of Arizona, which licenses and regulates attorneys, stemming from two ethics complaints filed against him and attorney general lawyers by Secretary of State Katie Hobbs, a Democrat vying for her party’s gubernatorial nomination, and the Arizona Board of Regents.

Broadly, the complaints filed in 2020 alleged among other things, unethical litigation, disparaging comments about clients, sabotaging election-related cases and misrepresenting Hobbs’ office.

Note: I am not aware of any previous sitting Arizona Attorney General being disciplined by the Arizona State Bar while in office. I believe this may be a historical first.

Brnovich won’t face formal discipline on his record if he completes certain terms of the diversion agreements, which are private.

A spokesperson for the State Bar on Monday said it won’t provide documents related to the investigation, citing confidentiality rules.

There is no mea culpa or act of contrition by AG Nunchucks. “Brnovich has said he plans on pursuing a rule change before the Arizona Supreme Court to seek to change rules that Hobbs and the Board of Regents asserted he violated.” Seems to me this is an aggravating factor requiring sterner dispiline from the Bar.

[W]ithout mentioning that the agreements require corrective action, Brnovich on Friday sought to cast the resolutions as “a rebuke for anyone attempting to weaponize the system” for political purposes.

But the complaints against Brnovich and his attorneys marked more than a partisan falling out: they raised serious questions about whether he and his office had adequately represented the interests of the state.

McGuire said the resolutions and agreed-upon resolutions will help the public better understand Brnovich’s performance as the state’s chief attorney, a record he is brandishing in his bid for the U.S. Senate.

“Mr. Brnovich wants you to trust him despite the fact the Arizona State Bar determined he needed some ‘undisclosed’ corrective action because of some ‘undisclosed’ misdeeds while serving as the AG,” McGuire said. “Release the records now, Mr. Brnovich.”

The Republic has asked Brnovich’s office to provide documents pertaining to the resolution of the complaints under the Arizona Public Records Law.

The Arizona Supreme Court describes diversion as a way to correct attorney practices and procedures that do not comply with the Arizona Rules of Professional Conduct for attorneys.

The call for releasing the records is taking place as McGuire and Brnovich are seeking the Republican nomination to take on Sen. Mark Kelly, D-Ariz.

Rachel Leingang and Hank Stephenson write at the Tucson Weekly, Brnovich Should Tell Us What’s in the Bar Agreement:

If the lawyer representing you struck an agreement with the State Bar over ethics complaints, you’d want to know what exactly they agreed to do to fix their ethical problems.

Arizona Attorney General Mark Brnovich, by virtue of his position as the state’s top elected lawyer, represents all Arizonans in court. Yet we have no idea what his recent Bar “diversion agreement” entails because he won’t say.

Brnovich entered the diversion agreement after the Arizona Board of Regents and Arizona Secretary of State Katie Hobbs filed ethics complaints against Brnovich.

The regents say Brnovich acted unethically by suing the universities while also representing them as a client. And Hobbs said the AG’s office would act counter to her instructions and acting against her office.

Diversion is an alternative to discipline, provided that an attorney completes the terms set out by an agreement, the Arizona Supreme Court’s guidelines for the program say. It is meant to protect the public and improve attorneys’ work through “education, remedial and rehabilitative programs so that attorneys modify practices, procedures or other conduct” that doesn’t comply with Bar rules.

Such agreements are confidential under Supreme Court rules. But Brnovich could waive that confidentiality — and he’s the only one who can. The Bar can’t release the information, and the parties who filed complaints don’t know the terms of agreements either.

For a guy who usually has a lot to say about his political disagreements — like when he’s called the regents “gimmicky yobs” or “ivory tower eggheads” — he’s been quiet about the details. His office cast the agreement as a “win” and said he wants to work on solidifying the ethics rules for government lawyers.

A “win” in the sense that he was not suspended or disbarred from the practice of law. The state bar did not dismiss the complaints for lack of substance.

And the AG’s office has cast the complaints as playing politics, which is ironic considering how Brnovich has used the office lately to shore up his MAGA bonafides heading into a heated U.S. Senate primary.

That’s the thing about an elected, partisan attorney, though: It is a political office. The rules for conflicts of interest in the private sector are cut and dry, and the way he’s acted would’ve run him into trouble there for sure.

But ethical guidelines for lawyers do at least recognize the differences of being a government lawyer. The preamble and scope of the American Bar Association’s Model Rules of Professional Conduct note this, saying that government lawyers “may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients.”

The issue isn’t new, and we’ve written about it many times by now. Some legal experts we spoke to in previous years noted how state attorneys general often act differently than the private sector attorneys we typically see.

Still, something about these recent ethics complaints warranted a diversion agreement, one that Brnovich will need to complete.

The diversion plan could be a simple requirement for more training or a more complex set of steps he needs to take. It could be benign or serious. The truth is, we have no idea. But we deserve to know — because we’ve placed Brnovich in a position of public authority, because he’s using our money, because elected officials supposedly are set to higher standards.

The AG’s office didn’t respond to our questions on Thursday about whether Brnovich will release the details of the agreement and if not, why not. Not a great sign, but we’ll keep pushing.





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