Maricopa County Manager David Smith wants to know whether certain employees at the County Attorney's Office are writing anonymous blog posts and comments.
Smith sent a letter today to County Attorney Andrew Thomas and several of his employees, demanding the blog information. He also wants those staff members' e-mails to and from news media members and 36 county staff under criminal investigation.
He's not making a public-records request, mind you. Smith makes his demands based on the court-mandated rules on professional conduct for lawyers.
Yes, this resembles a bare-fisted attempt by Smith to pummel his foes into silence. On the other hand, we can see how it might be unethical for an attorney to go home at night and anonymously blast his or her clients online -- or worse, divulge clients' secrets.
"I'm just concerned about them representing Maricopa County in an ethical way," Smith tells New Times.
But is the county still the client of the County Attorney's Office?
Smith and the Board of Supervisors essentially fired Thomas as their attorney and hired new lawyers in his place. Their actions were backed up by a ruling from Superior Court Judge Donald Daughton. But now Smith wants to claim Thomas' office still represents the county.
Thomas, meanwhile, has argued in lawsuits that the Board of Supervisors can't fire him as its attorney, and he's appealing Daughton's decision. But now Thomas wants to claim that Smith's new demands are irrelevent because Thomas' office no longer represents the county.
"They're not our client now, because they won't let us be," says Barnett Lotstein, one of Thomas' top aides.
Wrong, says Wade Swanson, civil litigation director for the county. (Remember, the Board of Supervisors created Swanson's position after stripping Thomas of the power to handle civil cases).
"They still have legal and ethical obligations to us," Swanson says.
Apparently, Thomas still has 19 attorneys working on civil cases.
Smith and Swanson are worried that employees at the County Attorney's Office are passing along information via the Internet that should be protected under attorney-client privilege, an ancient legal concept that prohibits attorneys from disclosing confidential things they discuss with clients without first getting the clients' approval. Click here for Smith's letter and here for the attachment to Smith's letter (a copy of a records request made in January by the Sheriff's Office).
Lotstein tells us that Smith's demand letter was sent to:
*Phil Macdonnell, chief deputy county Attorney
*Sally Wells, assistant deputy county attorney
*Barnett Lotstein, aide to Thomas
*Bruce White, head of what's left of Thomas' civil division
*Rachel Alexander, deputy county attorney and prolific blogger
*Lisa Aubuchon, the deputy county attorney who handled the criminal case against County Supervisor Don Stapley before it was transferred to Yavapai County
*Michael Scerbo, the public information officer for the County Attorney's Office
We've long suspected that Lotstein and Alexander write anonymous posts on right-wing blogs like Sonoran Alliance to pump up Thomas' image. (And we're not the only ones with that suspicion). We're not sure why Aubuchon, a criminal prosecutor, is on the list -- we're willing to bet Smith and the county leaders believe she leaked stuff about Stapley.
One odd thing about this list is that Scerbo isn't a lawyer. Swanson says that doesn't matter, because Thomas' office is responsible for making sure Scerbo adheres to the ethical rules that attorneys have to live by.
Interestingly, Swanson claims that even the public release this afternoon by Thomas' office of the Smith letter is a possible violation of attorney-client privilege.
Lotstein, meanwhile, calls the demand a "frontal assault" on the First Amendment and says the news media ought to be outraged. "They want to intimidate this office into not communicating with the media," he says.
Swanson and Smith disagree with that perspective, claiming they're only interested in stopping the abuse of the attorney-client privilege by Thomas' office. (Swanson says he has evidence that such an abuse happened but wouldn't elaborate).
We're torn on this issue: We don't want to see Thomas' office release even less information to us than the scant amount it does now. But if the folks working for Thomas are doing something unethical on county time, that should be made public.