By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Two attorneys who argued unsuccessfully for Kari Lake that voting machines should be outlawed in Arizona won’t be punished.

In a new ruling, a three-member panel that decides matters of lawyer discipline for the Arizona Supreme Court acknowledged the legal arguments presented by Kurt Olsen and Andrew Parker did not prevail in a federal court case that eventually went to the U.S. Supreme Court. And Margaret Downie, the presiding disciplinary judge, said the pair raised some debatable legal theories and allegations.

In fact, the trial judge in that case sanctioned the attorneys for filing what he said was a “frivolous” lawsuit, directing them to pay the $220,000 in legal fees racked up by Maricopa County in defending the lawsuit.

But Downie and the other two members of the disciplinary committee said in a new ruling the State Bar of Arizona, which filed the charges, failed to meet its burden to show, by clear and convincing evidence, there was any ethical misconduct.

Potentially more significant, Downie said the fact there may have been little likelihood the lawsuit would succeed does not mean the lawyers should be punished for pursuing it.

She cited a ruling earlier this year by the Arizona Supreme Court where the justices refused to impose sanctions against the Arizona Republican Party in an unsuccessful election-related lawsuit against Maricopa County Recorder Stephen Richer. There, the justices said, punishment is not appropriate as long as lawyers are “bringing debatable, long-shot complaints,” particularly in an election contest.

“A claim may lack winning merit without being sufficiently devoid of rational support to render it groundless,” Downie wrote. And that, she and the panel said, is the case here.

All this is about the lawsuit that Lake and Mark Finchem filed in 2022 alleging that the machines used to tally the paper ballots “cannot be deemed reliable secure and do not meet the constitutional and statutory mandates to guarantee a free and air election.” They also argued the use of components from other countries made them vulnerable to hacking.

They sued to have the 2022 election — the one in which Lake was running for governor and Finchem for secretary of state — conducted with paper ballots which would be counted by hand, calling it “the most effective and presently only secure election method.’’

U.S. District Court Judge John Tuchi rejected their claims. He said they amounted to a “long chain of hypothetical contingencies” — ones that never occurred in Arizona — that would have to take place for any harm to occur.

The pair had no better luck with the 9th Circuit Court of Appeals, which concluded they never presented any evidence that the machines used in Arizona to count ballots had ever been hacked. The Supreme Court refused to disturb that ruling.

That didn’t end the matter. The State Bar filed a complaint against the pair with a laundry list of accusations of ethical violations, ranging from relying on “conclusory or irrelevant information” in filing the lawsuit to arguments they presented a “dearth” of information.

But Downie and the panel rejected each of the detailed allegations.
In deciding not to pursue discipline against the pair, Downie said it is important to understand the nature of the lawsuit — and how the State Bar says in its complaint the pair violated the rules of ethics that govern attorneys.

For example, the Bar lawyers said Olsen and Parker ran afoul of the rules by claiming that all the voting machines “can be connected to the internet or cellular networks.”

It is true, Downie said, that a “special master” who reviewed the voting systems used in Maricopa County in 2020 actually concluded they could not be connected to the internet.

But she said that conclusion was not legally binding — and experts hired by Lake and Finchem “strongly disagreed.” So, Downie said, the attorneys did not violate any rules by failing to point that out in their complaints.

Downie was no more impressed by complaints by the State Bar that the attorneys omitted information about the testing of the voting machines. That, she said, was not an ethical violation.

She pointed out the attorneys acknowledged what testing legally had occurred. But Downie said they also had testimony from their own expert witness who explained, in his experience and expertise, the testing required by state law was not competent, neutral or objective.

“The State Bar offered no controverting evidence,” she wrote. And Downie said as long as they lawyers had “a good faith basis” for making the claims about the adequacy of the testing, they violated no ethical rules.

She also rejected arguments by the Bar the pair acted unethically in failing to present legal arguments and precedents that did not support their arguments.
Downie, however, said there’s no legal basis for that claim.

“It is not the nature of our adversary system to require lawyers to demonstrate to the court that they have exhausted every theory, both for and against their client,” she wrote.

Finally, Downie pointed out the State Bar never claimed it was unethical for the pair to claim that the state’s electronic voting systems are susceptible to intrusion and manipulation.

“The integrity of those systems is not an issue that is addressed or resolved in these proceedings,” Downie wrote.