Board of Regents files lawsuit against Arizona AG


PHOENIX – The Arizona Board of Regents is calling for Attorney General Mark Brnovich to be investigated and disciplined by the state agency that regulates lawyers.

In a complaint obtained by Capitol Media Services, the chairman of the board, Larry Penley, accused Brnovich, who, strictly speaking, is the legal adviser to the board of trustees and the universities, of actively criticizing and bringing prosecution against them.

All of this, says Penley at the Arizona State Bar, violates a series of rules that govern the ethical conduct of lawyers.

This most immediately begins an investigation which could result in anything from inaction to a reprimand or even a suspension or revocation of his ability to practice law. And if those latter options were the result, Brnovich would lose his job because the Arizona Constitution requires the attorney general to be a licensed attorney.

The complaint was actually filed last year but remained sealed under state bar rules.

A copy was obtained by Capitol Media Services on Monday after Brnovich disqualified himself earlier this month from arguing a case against the Regents and Arizona State University based on the complaint.

Penley, in the complaint, said it was not an isolated incident.

“Over the past two years, Brnovich has mounted a legal and media campaign against the Arizona board of trustees and public universities,” Penley wrote, particularly Arizona State University.

“He did so despite having represented the Council of Regents and the universities in numerous pending lawsuits,” the complaint said. “And he did so without seeking ABOR’s consent to the conflict and in fact despite our repeated objections to his violation of his fundamental duty of loyalty.”

And Penley had details.

Consider Brnovich’s lawsuit against the university system for what it claims to be illegally high tuition fees.

“He threatened to ‘let go of the hounds of war'” if ABOR failed to overturn the lawsuit, Penley said.

There were also what Penley called “mocking comments” in emails to ASU President Michael Crow and slurs like calling board members “fancy stuff” and “cake eaters.” Ivory tower”.

“More recently, Mr. Brnovich has taken to radio and social media to demand, without any factual basis, that his own clients, ABOR and ASU, be held ‘accountable’ for their ‘reckless’ and ‘irresponsible management’ “of the COVID-19 pandemic,” Penley told the State Bar.

“He falsely claimed he spoke to ABOR before bringing these charges,” Penley continued. “And he insists that ABOR is not his client when it comes to COVID-19 matters, even though his office is mandated by law to represent ABOR in any liability claims. civil, employment or management risks covered related to a pandemic. “

A spokesperson for Brnovich, a Republican candidate for the US Senate in 2022, said he could not publicly respond to the state bar complaint.

This is also not the first complaint against the Attorney General. A similar complaint was filed last year by Secretary of State Katie Hobbs.

In this case, Hobbs said the attorney general’s office represented his agency, received confidential communications between solicitor and client, and provided advice “then withdrew from representation and appeared in the litigation that arose in court. name of another party asserting a materially unfavorable position to the Secretary of State. “

This complaint is still pending.

Penley, writing to the State Bar, said the board had not taken the action lightly.

“AG Brnovich’s threats and insults are below the dignity of his office and are flagrant violations of the standards of civility and professionalism that apply to all Arizona lawyers,” he said. writing. “His initiation and aggressive pursuit of two major lawsuits against ABOR have been and remain unethical.”

Penley said the board wanted the state bar to investigate “and take appropriate disciplinary action.”

The 22-page complaint – 110 pages with supporting documentation – is full of details about how the regents believe Brnovich violated his obligations to his client.

There are the two trials.

One is Brnovich’s offer to have the method of setting tuition fees at the three state universities declared unconstitutional and violating the constitutional requirements that education should be “as free as possible”. He accused board members of acting illegally by essentially deciding how much they want to charge first and then justifying the amount later.

But the courts have ruled that he has no right to sue.

This claim that it was illegal for ASU and the regents to strike a deal to build a new hotel and conference center is still pending.

“In both lawsuits, AG Brnovich is not only suing its own client, it is also slipping its position on the same issues on which the AG office has already defended ABOR,” Penley wrote.

Then there was the COVID epidemic.

Penley said Brnovich made public statements last year “with complete disregard for both the truth and the interests of the AG’s clients”.

For example, he said, Brnovich said that “the regents keep insisting on doing what is against the law” and “they sort of make it up as they go.”

He also said campus facilities should have been “closed earlier” and “ASU must release more information to the public now.”

“If AG Brnovich sincerely believed there was a problem, he could and should have shared his concerns with his customers,” Penley wrote. In fact, he said, if Brnovich had asked, he would have learned that universities are in contact with local, state and federal officials for public health advice, including regarding contact tracing, notification, self-isolation and self-quarantine.

“He cannot, in accordance with his professional obligations, blind his clients with statements that undermine his clients’ ability to defend themselves in current and future affairs,” said Penley. “It is difficult to imagine a simpler violation of the duty of loyalty.”

Specifically, he said Brnovich did not obtain ABOR’s consent before filing a complaint.

“Rather, he sent ABOR’s attorney a letter explaining his position that as an elected official he has ‘sole authority’ to ignore Arizona rules of professional conduct,” said Penley.

“The board recognizes that AG Brnovich is a politician as well as the board’s lawyer, but his political ambitions do not justify his derogatory and damaging comments towards his clients,” he said.

Theoretically, Penley said, the attorney general’s office could set up a “screen” to separate the party suing the universities from the party who is supposed to be his lawyer. But Penley said it is no good if Brnovich, as head of the bureau, is busy insulting these clients, including in the Attorney General’s own 2018 re-election announcements.

“Because AG Brnovich’s statements go far beyond merely announcing the facts and theories of the litigation to attack the character and jurisdiction of ABOR and ASU, they can easily be used by plaintiffs in legal proceedings. unrelated cases to undermine the credibility of AG’s defense of ABOR in these cases, ”he said.

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