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County Attorney Andrew Thomas fights to seal Wilenchik's State Bar secrets

Andrew Thomas is in trouble. Facing a series of probes from the State Bar of Arizona, the county attorney has resorted to fighting back by crying "conspiracy." He's got experts opining that the Bar is on a witch hunt; he's managed to dupe the Arizona Republic into running editorials that...
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Andrew Thomas is in trouble.

Facing a series of probes from the State Bar of Arizona, the county attorney has resorted to fighting back by crying "conspiracy." He's got experts opining that the Bar is on a witch hunt; he's managed to dupe the Arizona Republic into running editorials that echo their complaints.

And his campaign has worked. The Bar blinked, announcing last week that it plans to give the Thomas probe to a special investigator rather than let its in-house staff continue.

Old news, right? But here's what you don't know.

Two of Thomas' big-name experts, the guys opining that the Bar complaints are meritless, are hardly objective or independent.

Thomas hired one guy's kid for a plum job in his executive suite. The other guy, former Bar president Ernest Calderon, is even more ethically compromised: Thomas' office is one of his biggest clients.

You read it here first.

So of course Ernest Calderon thinks Thomas is getting screwed. He has to say that to keep sucking on the public teat!

But here's the kicker.

You'd never know it to read the Republic, but it turns out this fight isn't about process so much as it's about a secret file. Thomas appealed to the Arizona Supreme Court, begging them to take over the investigation, in part because there's something he doesn't want you to see — something the Bar thought should be public, but that Thomas is desperate to keep hidden.

Get this: The secret file is tied to Dennis Wilenchik.

Remember him?

Thomas' former boss? Sheriff Joe Arpaio's favorite lawyer? The guy Thomas appointed "special prosecutor" in the New Times case, despite those glaring conflicts of interest, and then fired a few months later?

According to the special action Thomas filed with the Arizona Supreme Court, Dennis Wilenchik answered questions posed by the Bar's investigator. His responses totaled a staggering 63 pages; he also turned over "materials" related to his work for Thomas' office.

And Thomas is freaked about that.

Thomas' attorney, Leo Beus, acknowledges that the stuff Wilenchik turned over is a major issue. But he claims it's a matter of principle, that Thomas has to fight to keep all materials about his decision-making process hidden because, once secrecy is breached, any of the office's decisions could be subject to outside review. The stuff from Wilenchik, he claims, is nothing of interest.

"You'd be so disappointed if you read this stuff," he told me. "You wouldn't even get three lines out of it."

Beus wouldn't talk about the specifics, but here's what I could piece together based on Thomas' special action, the Bar's response, and other affidavits and documents in the public record.

Prior to filing his Hail Mary with the Supreme Court, Thomas went through a series of maneuvers to stop Wilenchik from sharing information with the Bar. First, he claimed Wilenchik was bound by attorney-client privilege — a ludicrous argument, considering that (at least in the New Times case) Wilenchik was supposedly hired because Thomas had a conflict of interest. Since when would the county attorney be a special prosecutor's client? That's like the Justice Department claiming Ken Starr had to keep its secrets.

Wilenchik must have realized just how silly this argument was, because in late January, he answered the questions — and apparently turned over some materials, too.

At that point, Thomas asked for a protective order to seal not just the materials and Wilenchik's responses, but the entire file, from public view.

When the Bar's probable-cause panelist denied that request as overly broad, Thomas went to the Arizona Supreme Court — begging the court not only to halt the Bar's investigation, but to return the "materials" provided by Wilenchik ASAP.

Again, you read it here first.

Just what, exactly, is Thomas so afraid of?

Frankly, I don't buy this "principle" business. Any time a politician is this intent on hiding documents, you know they've got to be juicy.

When Thomas' lawyers went on the offensive against the State Bar last month, they had three local experts carrying their water. Former Chief Justice of the Arizona Supreme Court Thomas Zlaket, former Arizona Attorney General Jack LaSota, and former State Bar President Ernest Calderon all filed affidavits with the Supreme Court, claiming they'd reviewed the complaints against Thomas and found no merit.

It's a prestigious list — until you dig a little deeper. Then you realize that two of the local experts have strong reasons for being biased in favor of Thomas. And that all three, at the time they wrote their affidavits, had incomplete information, at best.

Here's the details. When Thomas became county attorney in 2005, he promptly hired LaSota's son, Tim, as a special assistant. Both Jack and Tim have been longtime Thomas supporters; collectively, Father and Son LaSota and their wives have donated more than $2,000 to Thomas' campaign.

Calderon's work history is even more damning.

Both the Republic and the East Valley Tribune stupidly painted Calderon as a martyr. The former Bar president is a Democrat who doesn't approve of Thomas' immigration policies, the newspapers noted. He's never donated a dime to Thomas' campaign. Yet, after Calderon's affidavit became public, the Bar declined to reappoint Calderon as a delegate to its national convention. Boo hoo hoo.

Nowhere in the coverage was one important detail: Thomas' office has repeatedly hired Calderon.

The Calderon Law Firm is tiny — just Calderon himself and one other lawyer. Public records show that the firm has earned $231,000 working for the County Attorney's Office since Thomas took office.

Even beyond that, Thomas paid Calderon to write the affidavit! It says so right in Calderon's filing.

The guy is a paid witness, not an unbiased legal expert. (Calderon denied comment, saying that he will be an expert witness in the case — and "I don't want any more retribution from the Bar.")

This is the best Andrew Thomas could come up with?

The third expert, former Chief Justice Zlaket, doesn't appear to have any such conflicts. But there is one big hole in his conclusion that the complaints against Thomas are meritless.

Namely, Zlaket filed his affidavit before New Times even made its Bar complaint. He couldn't have been looking at the full roster of abuse that our lawyers outlined — the Bar didn't even have it yet.

Apparently, the Bar opened its own investigation into the New Times case based on information we published, namely the fact that Dennis Wilenchik, while acting as special prosecutor, attempted ex parte communication with a judge. Zlaket looked at that and decided that Thomas was off the hook. "Based on the information that I have received and reviewed, Mr. Thomas did not direct or ratify Mr. Wilenchik's conduct," Zlaket wrote.

Then, on May 1, according to the Bar's legal filing, Thomas was finally given a copy of the lengthy complaint that this newspaper filed with the Bar. That complaint didn't just deal with the ex parte meeting — it also focused on the fact that Thomas chose to appoint the sheriff's lawyer as a special prosecutor in a case in which the sheriff was the ostensible "victim." That's a clear conflict of interest.

Thomas' lawyer, Beus, says Zlaket has been updated on the latest allegations. But those allegations aren't, in fact, covered by the affidavit Zlaket filed in the case. That one, by its own admission, looks only at the ex parte issue — a small piece of what's on the table.

The sad thing is that Thomas' public relations blitz proved enough to win Round One. Scarred by Thomas' full-frontal attack on its credibility, and clearly worried about the Arizona Republic's damning coverage, the State Bar filed a response last week that defended its process — but agreed to remove both its probable-cause panelist and chief investigator from the probe.

Regardless of what the Supreme Court decides, that means the Bar's chief counsel, Bob Van Wyck, is off the case.

An even bigger victory for Thomas: The decisions made by probable-cause panelist Alan Bayham Jr. could be subject to another person's review, should the new investigator choose to re-examine them.

That includes the decision not to seal the Wilenchik materials — and whether to pursue even more materials from Thomas. Beus says the Bar's investigator demanded more documents and work product from Thomas. "They made it clear they were never going to end [the investigation of Thomas] until we gave up all this privileged material," he says. "That's why we're here."

Ed Novak, the newly elected president of the State Bar, tells me that the "confluence of facts," rather than any missteps by Van Wyck or Bayham, led to the decision.

Having an independent investigator review the case should increase public confidence in whatever happens next, Novak says.

"Out of concern for the integrity of the process, we thought it would be best to appoint an independent investigator," he says.

That's all well and good. But does the Bar honestly think Thomas is going to be happy just because they've agreed to appoint a new investigator and a new probable cause panelist? If the Supreme Court decides to let the independent investigator finish its investigation, and the new panelist agrees that Thomas' request to seal the file is overly broad, do you think Thomas will simply accept that ruling and let the investigation run its course?

Of course not.

The Bar is right to take the ethical high road. But that is not how Andrew Thomas is playing this game.

To the Bar, this is about integrity. To Thomas, it's about winning — and somehow, despite a near- disastrous first term in office, holding onto his seat this fall.

If that means hiring lackeys to prop up his point of view, and failing to disclose their quarter-million-dollar conflict-of-interest, fine by him.

If that means giving "experts" half the story, then quoting them as if they're talking about all of it, so be it.

And if that means stalling the investigation by getting the Supreme Court to intervene, that's okay, too.

For Andrew Thomas, this is war. And he obviously thinks he can't win if we learn the truth about what happened between him and Dennis Wilenchik.

He's got something to hide. And we can be damn sure he's going to do everything in his power to make sure we don't see it. At least, not until after November.

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