State senator wants to punish courts who sanction attorneys

And the only example he cited of problems when the House Judiciary Committee approved his SB 1092 on Wednesday was the 2021 decision by the New York State Bar to suspend the law license of Trump attorney Rudy Giuliani for making false claims about the 2020 election.

Still, Kern insisted that lawyers in this state are subject to pressure not to take certain kinds of cases or make public statements on certain topics, like "the mutilation of children and the transgender issues and the fact that our public schools are hiding this from parents."

"To my recollection, the (Arizona) State Bar has sent out an email stating that attorneys should be quiet on that and should not be representing clients on that issue," he told colleagues.

"That's very interesting," responded Rep. Analise Ortiz, D-Phoenix. "I would love to see that email."

But a spokesman for the State Bar called the allegation "as patently untrue as it is offensive."

"This isn't even a subject that would be a discussion in this organization," he continued. "It's irresponsible to make such a baseless claim."

Kern did not respond to a request to produce the email.

At the heart of the issue is the contention by Kern and some conservatives that the judicial system – and the State Bar which handles attorney discipline subject to Supreme Court review – is hostile to their issues.

This has come into sharp focus in the wake of not just state but also federal judges slapping financial penalties on both litigators and their clients who have filed various actions challenging election results.

In 2021, a judge ordered the Arizona Republican Party and its attorneys to pay $18,000 in legal fees for filing what he called a groundless lawsuit brought in bad faith done possibly to undermine the legitimacy of the 2020 election.

More recently, a federal judge said attorneys hired by Kari Lake and Mark Finchem are on the hook for the legal fees incurred by Maricopa County after he tossed their lawsuit which claimed it is illegal to use machines to count ballots.

And still pending is whether Lake may be forced to pay the legal fees of those she is continuing to sue in her bid to overturn the results of the 2022 gubernatorial race.

But Rep. Alexander Kolodin, R-Scottsdale, who is an attorney, said it goes beyond legal fees to the other part of SB 1092 which would penalize the State Bar of Arizona for disciplining lawyers for filing what the legislation says are "meritorious" lawsuits.

"As is well known, our firm engages in many politically charged cases," said Kolodin, who sits on the Judiciary Committee and voted to advance Kern's measure to the full House. That includes ongoing litigation he filed on behalf of the Arizona Republican Party that a 1991 law allowing anyone to vote early is unconstitutional, a claim that has so far failed to gain traction with the courts.

"We always have random people file Bar complaints against us," Kolodin said. And they're not coming from clients.

"It's just random people who are pissed off that conservatives are getting a voice – or at least the conservatives they don't like are getting a voice in court," he said. "And so it does, indeed, make it a very aggravating situation."

Kern said SB 1092 protects the "free speech" of attorneys.

"This is a good bill to stop the State Bar from bringing discipline regarding political speech," he said.

But the measure isn't aimed only at the Bar. It also says if the Supreme Court disciplines an attorney over filing a claim it would lose 10% of its budget – a figure an attorney for the court said would equal $5.8 million.

Ortiz asked Kern whether the $75,000 in sanctions imposed on his lawyers over his lawsuit against Charlene Fernandez, then a state representative from Yuma, "inspired" him to propose this measure.

"Absolutely not," he responded. Kern said he has been doing battle with the State Bar for years and what he sees as its policies of going after attorneys who handle unpopular issues.

Ortiz pursued the issue.

"I guess I'm just trying to understand in which case we would determine the attorney was targeted because of political speech versus the fact that it was a frivolous lawsuit or the claim should not have been brought, which I believe may have been the basis of why your attorney was forced to pay $75,000," she said.

All that stems from the claim by Kern, former state Rep. Mark Finchem and Congressman Paul Gosar that Fernandez defamed them by sending a letter to federal law enforcement officials asking them to investigate the activities of the trio in connection with the events around the Jan. 6 riot and breach of the U.S. Capitol.

Yuma County Superior Court Judge Levi Gunderson, in tossing the case and assessing the fees, said Fernandez had an absolute constitutional right to send the letter. More to the point, Gunderson said the lawsuit "was brought for an improper purpose, having been filed against a political opponent primarily for the purposes of harassment."

On Wednesday, Kern, who was at the Capitol that day, launched into a defense of what happened there.

"The Jan. 6 thing, as you know, you've probably seen Tucker Carlson and Fox News, it's all a sham," he said. That refers to Carlson airing selected security tapes from the Capitol that day and at one point calling it "mostly peaceful chaos."

The 5-3 party-line vote to advance Kern's legislation came despite testimony from attorney Liana Garcia who lobbies for the Arizona Judicial Council, an arm of the Arizona Supreme Court.

She pointed out that any move to financially penalize the court system over what Kern's bill considers unacceptable discipline would not affect the judges involved, as their salaries are set by state law. Instead, Garcia said, the only ones who would be hurt are those who seek the services of the court.

And there's a more practical question.

Kolodin said the measure would essentially require the Supreme Court to determine if it had violated the terms of SB 1092 in disciplining an attorney. He said that is likely unworkable, suggesting that if the legislation goes forward there might need to be a mechanism for something like a "special master" who would have the final say.