Lake and Finchem lawyers beat bar association in disciplinary proceedings

Two lawyers representing former gubernatorial candidate Kari Lake and former Secretary of State candidate Mark Finchem in their attempt to ban electronic voting systems ahead of the 2022 election were able to avoid disciplinary action following a ruling by the state's disciplinary panel.

Kurt Olsen and Andrew Parker were charged with five counts of ethics violations in a lawsuit aimed at banning electronic voting and counting machines in the 2022 election.

A state disciplinary panel, consisting of presiding disciplinary judge Margaret Downie, attorney Ralph Wexler and public member Randall Clark, dismissed the entire complaint against Parker and Olsen, citing recent state case law that prohibits penalizing attorneys for bringing cases with “unlikely prospects,” particularly involving election cases.

“There is no reason to believe that our Supreme Court would apply different or lesser standards in disciplinary proceedings against lawyers,” the panel wrote.

In the run-up to the 2022 election, Lake and Finchem filed suit against then-Secretary of State Katie Hobbs and the boards of supervisors of Maricopa and Pima counties, demanding that voting and counting machines be declared unconstitutional due to alleged security flaws.

The suit was ultimately dismissed by the District Court, finding that Lake and Finchem had no standing to sue “because they had only raised conjectures about possible damages” and were not entitled to state compensation under the Purcell doctrine that prohibits last-minute changes to election rules. The judge fined Parker and Olsen $122,200 and held attorney Alan Dershowitz liable for $12,200.

The Ninth Circuit affirmed the dismissal of the case but declined to order additional sanctions, and the Supreme Court declined to take up the matter on appeal.

In December, the prosecutor's disciplinary committee issued orders against Olsen and Parker, paving the way for the prosecution to file a formal complaint with the presiding disciplinary judge. And after an evidentiary hearing, lawyers for the prosecution and Parker and Olsen, who represented himself, met for a three-day hearing in June.

The bar alleged that Parker and Olsen violated rules that require competency, care and sound reasoning and that prohibit conduct involving dishonesty, fraud, deceit or misrepresentation, as well as conduct that precludes the administration of justice in light of missteps in the case. But it clarified that none of the alleged violations are related to the central claim in the lawsuit.

Rather, the bar association accused Parker and Olsen of ethical misconduct in its original complaint and in a motion for a preliminary injunction.

In the original complaint, the bar alleged that the two had relied on different case law, incorrectly cited findings related to the Internet connectivity of voting machines, made an unfortunate claim of standing, and selectively included information about testing of electronic voting systems.

And in the motion for a preliminary injunction, the bar claimed that Parker and Olsen filed the motion for a preliminary injunction too close to the 2022 election, lacked a good faith basis to seek the relief they sought — a ban on all electronic voting systems — that would “cause little or no harm to Defendants,” and failed to cite a case addressing the standard for mandatory injunctive relief.

But in a ruling Monday, Downie, joined by Wexler and Clark, dismissed the bar association's lawsuit against Parker and Olsen in its entirety.

The panel concluded that Parker and Olsen were competent and “collectively possessed the necessary legal knowledge, skill, thoroughness and preparation” to take on the case.

As for the case itself, the panel found that the case and the compensation sought were “hopeless,” but referred to the recent Arizona Supreme Court ruling in Republican Party of Arizona v. Richer, which protects lawyers from sanctions even in cases with “risk potential”.

They concluded: “Retrospective consideration of any complex litigation may reveal a degree of imprecision, legal arguments that may well be described as vague conclusions, excessive reasoning, and reliance on authorities that are in some respects distinguishable. Such is the case here.”

The Bar Association did not immediately respond to a request for comment.

“This completely justifies our work,” Parker said. “This complaint should never have been filed.”

Parker and Olsen are still appealing the $122,200 fine imposed by the district court and are due to appear before the 9th Circuit Court of Appeals on September 11 to present their arguments.