BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
EDWARD P. MORIARITY, WSB #4-1163, Respondent
E. JAMES BURKE, Chief Justice.
ORDER OF PUBLIC CENSURE
[¶1] This matter came before the Court upon a " Report and Recommendation for Public Censure," filed herein January 14, 2015, by the Board of Professional Responsibility for the Wyoming State Bar. The Court, after a careful review of the Board of Professional Responsibility's Report and Recommendation, and the file, finds that the Report and Recommendation should be approved, confirmed, and adopted by the Court, and that Respondent, Edward P. Moriarity, should be publicly censured for his conduct. It is, therefore,
[¶2] ADJUDGED AND ORDERED that the Board of Professional Responsibility's Report and Recommendation for Public Censure, which is attached hereto and incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further
[¶3] ADJUDGED AND ORDERED that Edward P. Moriarity is hereby publicly censured for his conduct, which is described in the Report and Recommendation for Public Censure; and it is further
[¶4] ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Mr. Moriarity shall reimburse the Wyoming State Bar the amount of $50.00, representing the costs incurred in handling this matter, as well as pay the administrative fee of $500.00. Mr. Moriarity shall pay the total amount of $550.00 to the Wyoming State Bar on or before April 1, 2015; and it is further
[¶5] ORDERED that the Clerk of this Court shall docket this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, as a matter coming regularly before this Court as a public record; and it is further
[¶6] ORDERED that, pursuant to Section 4(a)(iv) of the Disciplinary Code for the Wyoming State Bar, this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further
[¶7] ORDERED that the Clerk of this Court cause a copy of this Order of Public Censure to be served upon Respondent, Edward P. Moriarity.
[¶8] DATED this 19th day of February, 2015.
BY THE COURT:[*]
REPORT AND RECOMMENDATION FOR PUBLIC CENSURE
THIS MATTER came before the Board of Professional Responsibility on the 13th day of January, 2015, for consideration of the recommendation of Bar Counsel that the Board file a report and recommendation for a public censure of Respondent, Bar Counsel's recommendation was made pursuant to Section 20 of the Disciplinary Code for the Wyoming State Bar as a result of Bar Counsel's investigation of Respondent's Arizona disciplinary proceeding, in which Respondent consented to disbarment in Arizona.
Upon receipt of Bar Counsel's recommendation for a public censure, the Board issued an order to Respondent to file a written response to Bar Counsel's recommendation, showing cause, if any exists, as to why the recommendation of Bar Counsel should not be adopted by the Board. Respondent filed a timely response, consenting to the recommendation for public censure. For the reasons that follow, a quorum of the Board unanimously recommends that an order of public censure be issued in this matter.
Overview. Respondent was admitted to the Wyoming State Bar in 1970. He is also licensed to practice in Montana, Utah and Arizona. The events that give rise to this recommendation occurred in Arizona, and resulted from Respondent's representation of Lisa M. Aubuchon, a former deputy Maricopa County attorney who was disbarred in 2013 for numerous ethical violations relating to abuse of her position. Respondent represented Aubuchon in her disbarment proceedings, and also filed a lawsuit on her behalf in the Superior Court of Maricopa County, Aubuchon, et al v. Brock, et al. ( Aubuchon ) Among the defendants named in Aubuchon were Phoenix attorneys, Edward Novak and Thomas Irvine, as well as their law firm, Polsinelli Shughart P.C. (collectively, the " Polsinelli Defendants" ).
After the claims asserted against the Polsinelli Defendants were dismissed with prejudice as lacking any factual or legal basis--and after Aubuchon's disbarment--disciplinary proceedings were brought against Respondent by Arizona bar counsel, alleging that Respondent had filed and maintained Aubuchon in bad faith; that Respondent acted improperly in allowing Aubuchon to sign the Aubuchon complaint on Respondent's behalf; and that Respondent lied when he told Arizona Bar Counsel that he was representing Aubuchon on a pro bono basis when in fact he had a contingent fee agreement in the case. Respondent decided not to contest the disciplinary proceedings and signed a Consent to Disbarment which was quickly followed by a Final Judgment of Disbarment This investigation followed.
Aubuchon v. Brock Aubuchon, the lawsuit filed by Respondent in 2011 while he was representing Aubuchon in her disbarment proceeding, was largely a reprise of a lawsuit filed by Aubuchon in 2009 while she was a deputy district attorney in the Maricopa County Attorney's Office (" MCAO" ). The earlier lawsuit, Arpaio, et al v. Maricopa County Board of Supervisors, et al (the " RICO Action" ), was filed by Aubuchon on behalf of the Maricopa County Sheriff, Joseph M. Arpaio, and the Maricopa County Attorney, Andrew Thomas, against the Board of Supervisors, its members, four Maricopa County Superior Court judges, the Polsinelli Defendants and others. In the RICO Action, Aubuchon alleged that the defendants committed bribery and extortion as part of a conspiracy " to hinder the investigation and prosecution of elected officials, county employees, and their attorneys concerning the funding and construction of a court tower in Maricopa County" (the so-called " Court Tower Conspiracy" ). The RICO Action and its underlying controversies received national press coverage.
Shortly after the RICO Action was filed, the Maricopa County Attorney, Andrew
Thomas, reassigned the case from Aubuchon to a different MCAO deputy, Rachel R. Alexander. Three months later, the plaintiffs voluntarily dismissed the RICO Action in March 2010. Aubuchon's filing of the RICO Action was part of the basis for a disciplinary proceeding initiated by Arizona bar counsel against Thomas, Aubuchon and Alexander in February 2011, in which Aubuchon was represented by Respondent.
While Aubuchon's disciplinary case was pending, Respondent filed Aubuchon in August 2011, naming as plaintiffs Aubuchon, Aubuchon's husband, and David Hendershott and Anna Hendershott, husband and wife. David Hendershott was second in command in the Maricopa County Sheriffs Office. The new case essentially re-pled the Court Tower Conspiracy with the same defendants as the RICO Action (including Polsinelli Defendants Edward Novak, Thomas Irvine and their law firm), except that the Superior Court judges were omitted and several MCAO staff members were added as defendants.
Aubuchon's disciplinary hearing commenced in September 2011 and concluded in December of that year. The case had generated so much notoriety that the hearing was televised. The Arizona hearing panel issued its findings in February 2012. The panel found with respect to the RICO Action, " The allegation that there was a conspiracy driving the Court Tower Project was factually impossible." The hearing panel found that Aubuchon prejudiced the interests of justice in violation of Rule 8.4(d) by filing the RICO Action against judges who were absolutely immune from a civil damages lawsuit based upon their judicial acts. According to the Arizona hearing panel, Aubuchon " pursued the RICO Action to retaliate against the named judges and to intimidate the judges of the Superior Court." In re Aubuchon, 233 Ariz. 62, 309 P.3d 886, 894 (Ariz. 2013). This ethical transgression along with others led to Aubuchon's disbarment per order of the Arizona Supreme Court in October 2013. Id.
The Arizona disciplinary proceedings against Respondent. In May 2012, three months after the hearing panel issued its findings in Aubuchon's disciplinary case, Maricopa County Superior Court Judge Sally Duncan issued a minute order in Aubuchon dismissing the claims that had been asserted against the Polsinelli Defendants. The order stated, " No legal or factual basis ever existed to file a Complaint against [the Polsinelli Defendants] and THE COURT FURTHER FINDS the Complaint was filed for vexatious purposes." The order directed the Polsinelli Defendants to file a motion for attorneys' fees.
Later that month, on May 31,2012, the Polsinelli Defendants (Edward Novak, Thomas Irvine and Polsinelli Shughart managing shareholder, Marty Harper) filed a complaint with the Arizona State Bar against Respondent, submitting Judge Duncan's minute order along with other documents from Aubuchon in support of the complaint. Five months later, on November 5, 2012, Arizona bar counsel gave Respondent written notice that Respondent was under investigation and apprised Respondent of the nature of the allegations. Respondent responded on January 11, 2013, through counsel, denying misconduct and submitting more than 1,600 pages of accompanying documents. In the meantime, on November 12, 2012, Judge Duncan awarded the Polsinelli Defendants $185,126.50 in attorneys' fees and $1,437.50 in costs, jointly and severally, a against the Aubuchon plaintiffs, Respondent, and Respondent's law firm.
Nothing further was done in the disciplinary investigation of Respondent until September 2013, when Arizona bar counsel wrote to Respondent with additional questions and follow up document requests. Though Respondent produced " more than 6,000 electronic files' worth" of additional documents, Arizona bar counsel concluded, " None of the information submitted established any reason to doubt the accuracy of Judge Duncan's May 8, 2012 findings that Plaintiffs' claims against the Polsinelli Defendants lacked any legal or factual basis and were asserted for vexatious purposes."
On January 29, 2014, the Attorney Discipline Probable Cause Committee of the Arizona
Supreme Court issued a Probable Cause Order authorizing the filing of a disciplinary complaint against Respondent. Six weeks later, on March 14,2014, the formal disciplinary complaint was filed. On April 3, 2014, Respondent filed an answer generally denying all allegations of misconduct on his part. A court-ordered settlement conference, with a former Superior Court judge serving as mediator/settlement officer, was held in late June 2014 and resulted in an agreement that Respondent would consent to disbarment in Arizona rather than proceed to a disciplinary hearing. On July 10, 2014, Respondent signed a " Consent to Disbarment" which stated:
I, Edward P. Moriarity, residing at 973 St. Andrews Drive, Bozeman, Montana 59715, voluntarily consent to disbarment as a member of the State Bar of Arizona and consent to the removal of my name from the roster of those permitted to practice before this court, and from the roster of the State Bar of Arizona.
I acknowledge that a formal complaint has been filed against me. I have read the complaint, and the charges made against me. I further acknowledge that I do not desire to contest or defend the charges, but wish to consent to disbarment. I have been advised of and have had an opportunity to exercise my right to be represented in this matter by a lawyer. I consent to disbarment freely and voluntarily and not under coercion or intimidation. I am aware of the rules of the Supreme Court with respect to discipline, disability, resignation and reinstatement, and I understand that any future application by me for admission or reinstatement as a member of the State Bar of Arizona will be treated as an application by a member who has been disbarred for professional misconduct, as set forth in the complaint filed against me.
On July 15,2014, Acting Presiding Disciplinary Judge, Sandra E. Hunter, signed a Final Judgment of Disbarment terminating Respondent's membership in the Arizona State Bar.
On July 21, 2014, Bar Counsel for the Wyoming State Bar received an email from Maret Vessella, Chief Bar Counsel for the Arizona State Bar, to which were attached copies of Respondent's Consent to Disbarment and the Final Order of Disbarment. Bar Counsel immediately inquired whether Respondent was willing to consent to an order of disbarment in Wyoming as well. Respondent promptly responded to Bar Counsel, " It is my intent to fight the disbarment in Wyoming where I believe I can get a fair hearing." Respondent also notified the state bars of Montana and Utah of his Arizona disbarment, as well as the federal district and circuit courts of appeal in those jurisdictions. Bar Counsel thereupon opened an investigation and began assembling documents from Respondent's disciplinary proceeding in Arizona.
On September 24, 2014, Respondent filed a motion for relief from the Final Judgment of Disbarment in Arizona pursuant to Rule 60(c)(6) of the Arizona Rules of Civil Procedure which, like Wyoming's comparable rule, allows for relief from a judgment or order for " any other reason justifying relief. . . " The motion was supported by Respondent's detailed declaration, under penalty of perjury, setting forth the circumstances behind his decision to consent to disbarment, including most significantly Respondent's reliance upon assurances that the consent to disbarment was not an admission of wrongdoing and would therefore not result in reciprocal discipline in the other jurisdictions in which Respondent was licensed. Respondent's motion and supporting materials pointed out that when he consented to disbarment, Respondent was in extreme mental and emotional turmoil, compounded by the fact that his wife was battling a recurrence of breast cancer. Citing relevant case law, Respondent argued that the sanction of disbarment was disproportionate to the misconduct with which Respondent was charged. Respondent pleaded for the opportunity to defend the disciplinary complaint on the merits.
Meanwhile, upon receipt of Respondent's notification of the Arizona disbarment, the Honorable Nancy D. Freudenthal, Chief United States District Judge for the District of Wyoming, issued a notice ...