America First Legal (AFL) sent a letter to Maricopa County Attorney Rachel Mitchell last week informing her that her legal analysis stating that AFL cannot represent Maricopa County Recorder Justin Heap in his lawsuit against the Maricopa County Board of Supervisors (MCBOS) is incorrect.
AFL copied the State Bar of Arizona in its letter, accusing her of violating three attorney ethics rules and demanding she “issue a retraction to all journalists to whom you sent your letter, delete any public posts of the letter, and post a public apology on X and your office’s website acknowledging your mistake.”
AFL sued the MCBOS earlier this month on behalf of Heap due to the supervisors’ refusal to give Heap back parts of his office that were negotiated away last fall by his predecessor, Recorder Stephen Richer and MCBOS. The MCBOS is attempting to get the lawsuit dismissed.
After the lawsuit was filed, Mitchell sent AFL a cease and desist letter demanding it drop their representation of Heap, claiming she controls what legal counsel he is allowed to use.
AFL’s Senior Counsel James Rogers responded, “Your letter made bold claims about your authority while citing to A.R.S. § 11-532(A), but without quoting any of the actual language from the statute. Indeed, nowhere in that statute is there any language conferring on you the authority you claim.”
Section (A) of that statute lists the powers and responsibilities of county attorneys, and says nothing about representing other county officials other than the MCBOS. Section (E) addresses representing other county officials, but says nothing about it being the county attorney’s sole discretion.
The relevant part of (E) provides, “The county attorney may provide civil legal services to another county or other political subdivision of this state or an officer, employee or agency of a political subdivision of this state at the request of that county’s or political subdivision’s elected or appointed general counsel or pursuant to an intergovernmental agreement entered into by the county and the other political subdivision as provided in chapter 7, article 3 of this title at the request of the county attorney.“
AFL reminded Mitchell, “Indeed, it is surprising you are even trying to claim broad power to control who represents the Recorder. Starting in the 1970s, your predecessors have tried multiple times to convince courts to accept the same argument. Every single time, they have failed, and Arizona courts have held the opposite.”
AFL cited relevant precedent, including Maricopa County. v. Biaett, which involved the same circumstances, the recorder suing the MCBOS and the MCBOS claiming the recorder did not have the authority to choose his attorney.
“The Court of Appeals rejected the BOS’s argument, holding that not only did the County Recorder have the authority to choose his own lawyer to represent him in litigation, but that the BOS had to pay the attorney’s fees as well,” AFL said. “The Court of Appeals explained that ‘[t]o hold otherwise would leave the recorder at the complete mercy of those desirous of improperly usurping his functions.’”
Mitchell cited Bd. of Sup’rs of Maricopa Cnty. v. Woodall in her letter. However, in that case, AFL pointed out that the court held that “the BOS could independently choose its own outside attorney, regardless of the wishes of the County Attorney.”
Rogers expressed confusion about why Mitchell referenced that case.
“Quite frankly, it is puzzling that you cited Woodall in your letter to support your argument, as that case held the precise opposite of what you claim it does,” Roger stated.
He said the portion of the opinion that Mitchell mentioned only addressed the MCBOS’ authority to hire in-house counsel, which “has no bearing here” since Heap did not hire AFL for “general ‘in-house’ advice.”
The second part of the court’s opinion, which Mitchell’s letter ignored, “could not have been clearer that county officers are not required to use the County Attorney to represent them in litigation and that they do have the authority to choose their own outside counsel.” There, the court stated the MCBOS could select its own counsel.
The letter quoted the court, “Since there is no specific prohibition against it in the statutes, we think [Arizona statute] gives implied authority to the board of supervisors in its discretion to employ counsel in the handling of all matters to which the county is a party.”
AFL said a later ruling broadened that holding. In Romley v. Daughton, the court stated that “when the county attorney has conflicts of interest that render him ‘unavailable’ to represent the county in certain matters, the board may retain outside counsel to advise the Board in those matters.”
The AFL letter accused Mitchell of violating Arizona Rule of Professional Conduct 1.1 and 1.3. ER 1.1 states that attorneys shall provide “competent” representation to their clients. ER 1.3 requires an attorney to provide “diligent representation” to their clients. “By sending a letter with such obviously flawed legal reasoning, you appear to have violated both rules,” AFL said. “Indeed, the fact that you cited a case that held exactly the opposite of what you claimed raises troubling questions. Did you actually read Woodall before citing it? If not, why not?”
Rogers brought up a third alleged ethical violation. “Even worse is that you publicly released your letter to journalists, which suggests you may be attempting to influence the outcome of Recorder Heap’s dispute with the BOS in favor of the Board,” Roger stated.
He said Mitchell only allowed former Arizona Supreme Court Justice Andrew Gould to represent Heap in a non-litigation capacity, and her attorneys tried to duck Gould’s questions about whether the representation included litigation.
Rogers said, “Any attempt to influence Recorder Heap’s dispute with the BOS would be a severe violation of your duty of loyalty to your client, Recorder Heap,” citing Rule 1.7.
That rule states that an attorney shall not represent a client if they have a conflict of interest. The notes after the rule provide, “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person or from the lawyer’s own interests.”
The last letter from MCBOS’s attorney Emily Craiger to Heap, which was sent before he filed the lawsuit, made various claims. She said moving early in-person voting back under the recorder would double the costs because the county “would be forced to duplicate all of these resources at massive expense to taxpayers.” However, her letter failed to explain how the costs were double prior to 2019. That year, the MCBOS transferred early and mail-in voting from the recorder to itself due to then-Recorder Adrian Fontes botching the 2018 election. Previously, there wasn’t any duplication of functions under the recorders.
The MCBOS is attempting to negotiate with Heap some more after the lawsuit was filed, but has had no success.
The Arizona Senate advanced a budget item on June 17 that included $4.1 million for Heap’s office to cover operational costs. The MCBOS’ proposed budget would reduce Heap’s budget by $4.4 million. Yuma County Recorder David Lara, who is facing similar budget cuts from the county supervisors, would also receive funding, specifically $1 million for operating expenses. Lara conducted investigations into election wrongdoing before becoming recorder.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to .
Photo “Rachel Mitchell” by Maricopa County Attorney’s Office.
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