When the chieftains at the Arizona law-and-lobby firm Fennemore Craig learned in 1992 that their partner Marc Spitzer intended to run for the state Senate, red flags unfurled.
Could Spitzer serve in a legislature whose decisions were influenced by his own firm's lobbyists? Fennemore Craig maintains a hefty roster of big-name clients--from mines to banks to Fortune 500 companies--and labors tirelessly to steer public policy in those clients' favor.
The conflict-of-interest law was weak enough to allow Spitzer to vote on almost all matters that would come before the legislature, but public perception was something else. So Fennemore Craig president Jim Powers set out to do some pre-emptive damage control. He wrote to the Arizona State Bar on Spitzer's behalf, requesting an ethics opinion.
"We wanted to be able to continue to have lobbyists go out and lobby the legislature, as long as everybody's out in the open and all the cards are on the table," Powers recalls. "And we also wanted to let one of our associates, Marc Spitzer, run for Senate and get elected. And there was no way to do both of those things . . . with assurances that there wouldn't be complaints. So I wanted to get a ruling that said it's okay. Finally did, though it took a heck of a lot longer than I imagined it was going to." In fact, Spitzer was more than halfway through his first Senate term by the time the Bar came up with an opinion Powers could stomach.
Bar ethics opinions are nonbinding, but Powers was still determined to change the Bar's opinion--which, in years past, had precluded lawyer-legislators from voting on bills their law firms had lobbied for or against.
Powers maintains that the Bar doesn't have the power to dictate what a lawyer acting in a nonlawyer capacity can do. While he never got a ruling quite to that effect, he did get what he wanted: Last December, the board of governors of the Arizona State Bar determined that legislators do not have a conflict per se in legislative matters involving their firms.
It was a long, heated battle, according to confidential correspondence and draft opinions obtained by New Times.
After his initial request on Spitzer's behalf, Powers received an informal opinion from Ben Ramson, in-house attorney for the State Bar, in July 1992. Ramson concluded that lawyer-legislators should recuse themselves from firm-related matters.
Not satisfied, Powers requested a formal opinion from the Bar's Committee on the Rules of Professional Conduct. In January 1993, committee member Bob Hoffman of Snell & Wilmer sent Powers a draft of the opinion he had written on behalf of the committee's members. Like Ramson, Hoffman opined that lawyer-legislators should automatically recuse themselves from firm-related matters.
Powers didn't like that, either. He wrote Hoffman twice trying to sway his decision. Hoffman wouldn't budge, so Powers requested that the committee allow him to withdraw his request for the opinion.
The concern about impropriety had heightened. Not only had Spitzer, Republican-Phoenix, been elected to the Senate, but Fennemore Craig had hired Senate President John Greene, Republican-Phoenix, also a lawyer.
Greene resigned from Fennemore Craig just days after news of his employment hit the front page of the Phoenix Gazette.
Despite Powers' insistence that his request for the ethics opinion be withdrawn, the State Bar conduct committee pressed on, issuing a formal opinion in July 1993. While the language had changed somewhat from Hoffman's draft, the message was clear: To avoid conflicts of interest, lawyer-legislators were advised to recuse themselves in all firm-related matters.
Finally, last October, Powers tasted victory. The Bar's board of governors rejected the committee's opinion and issued a new one in December. The new opinion allows that while there may be a conflict of interest involving lawyer-legislators and lobbying by their firms, there is no per se conflict.
Powers doesn't deny that he tried to influence opinion at the board-of-governors level, but shies away from the term "lobby." "You can try to personally persuade Bob Hoffman as a single person, but a board of governors is too big a group," he says.
Hoffman, who says he hasn't read the latest opinion, admits he opened himself up to attack by showing Powers his draft. "I think it probably was a mistake sharing the draft opinion in the sense that it got to be a debate rather than what normally happens in the committee," he says.
Hoffman's term on the committee expired last year.
In practical terms, the Bar's opinion hasn't had much effect. Senator Chuck Blanchard, Democrat-Phoenix, is an associate with the Phoenix law firm Brown & Bain. He always excuses himself on matters involving his firm. "My rule is that when my law firm lobbies for a bill or an amendment, it's simply inappropriate for me to participate, which I think is consistent with both Bar opinions," he says.
Spitzer does the same. He has a rule--no one from Fennemore Craig is to communicate with him on legislative issues. He still maintains, however, that the notion that a lawyer should necessarily recuse himself from firm matters is silly.
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"The problem is the fiction that everything that one member of a firm does is attributed to everyone else in the firm," he says, observing that some large firms employ hundreds of lawyers who don't speak to one another at all.
As for his colleagues at Fennemore Craig--though they are registered as lobbyists, "A hundred and ten of those lawyers don't know where the Capitol is," Spitzer says. While he didn't get his way, Hoffman chuckles--he's sure the new opinion won't affect business at the legislature.
"Notwithstanding the whole brouhaha in the Bar," he says, "the practical effect is they [lawyer-legislators] won't vote--they don't vote on any matter that they know that the firm that they're working for is engaged to do something for in front of the legislature."
". . . I think everybody adopts a very conservative attitude and doesn't want to push the envelope. It's not intelligent to push the envelope from a political standpoint."
Powers says it may be too soon to see the decision's impact.
"I don't know whether there are other lawyers now thinking about running who otherwise would not. . . . I think it'll happen," he says. Either way, he insists the Bar opinion sends a positive message.
"How bout the people who elected you [the lawyer]?" he asks. "They didn't elect you to excuse yourself. They elected you to go up there, vote and do right. And if you are involved in important public issues and say, 'Oh, well, I've got a partner who's got an associate who's got a colleague who's involved peripherally in saying I wish this legislation would pass' . . . if that is going to disqualify you from voting, you're--as far as I'm concerned--betraying your obligation to the people who elected you.