Ethical complaints against attorneys representing Kari Lake dismissed

Two attorneys who represented Kari
Lake in a bid to get tabulators banned from the 2022 election will not
face discipline for their claims in that case, a disciplinary panel
ordered on Monday. 

Presiding Disciplinary Judge Margaret Downie authored the ruling of a three-member panel which dismissed the complaints. The dismissal follows a three-day hearing in June. 

The panel found that the Arizona
State Bar — which brought the complaints — “did not prove by clear and
convincing evidence” that attorneys Kurt Olsen and Andrew Parker engaged
in conduct “involving dishonesty, fraud, deceit, or misrepresentation”
or that their conduct was prejudicial to the administration of justice. 

Olsen, a Washington, D.C., employment
attorney, and Parker, a Minnesota attorney, represented Lake and
then-candidate for Arizona Secretary of State Mark Finchem in a spring
2022 lawsuit aimed at barring Maricopa and Pima counties from using electronic tabulators to count ballots in the November 2022 election. 

Lake, a Republican who is currently running for U.S. Senate, was at the time running for Arizona governor. She lost that race to Democrat Katie Hobbs. 

In their lawsuit, Lake and Finchem
claimed that the electronic tabulators used to count ballots in Arizona
were “hackable” and asked the courts to place an injunction on their use
ahead of the November 2022 election. Arizona law requires their use.

In August 2022, U.S. District Court Judge John Tuchi threw out
the tabulator case and issued a scathing ruling, saying that Lake and
Finchem’s claims amounted to mere “conjectural allegations of potential
injuries.” He later ordered $122,000 in sanctions against the attorneys
in the case.

In October 2023, the 9th Circuit Court of Appeals concurred with Tuchi’s decision to throw out the case, agreeing that it was “frivolous.”  

The State Bar of Arizona filed a
complaint against Olsen and Parker in January, alleging that they had
violated their ethical obligations as attorneys practicing law in the
Grand Canyon State. 

But the three-member disciplinary
panel — including Downie, an attorney member and a member of the public
—  that dismissed the complaint in a Monday ruling wrote that the State
Bar failed to prove its case against them. 

“Retrospective scrutiny of any
complex litigation may reveal some measure of imprecision, legal
arguments fairly characterized as long shots, puffery in advocacy, and
reliance on authorities that are distinguishable in some respects,”
Downie wrote. “Such is the case here…But for the hearing panel to
conclude that objective attorneys would not have acted as Respondents
did in that context, significantly more evidence would be necessary —
particularly given the State Bar’s high burden of proof…”

The only witnesses that the State Bar
called in the late June hearing were Olsen and Parker themselves, and
Downie pointed out in the ruling that, obviously, neither of them
admitted to violating their ethical commitments as attorneys. 

Downie noted in the ruling that the hearing panel was bound by a recent Arizona Supreme Court opinion, which orders the courts not to sanction lawyers — particularly in election cases — “for bringing debatable, long-shot complaints.”

Such a claim “may lack winning merit
without being sufficiently devoid of rational support to render it
groundless,” the high court wrote in Arizona Republican Party v. Richer. 

The hearing panel was also barred
from taking the federal judge’s previous sanctions against Olsen and
Parker into consideration. 

“(The law) mandates that these
disciplinary proceedings go forward on a clean slate, with the State Bar
bearing the burden of independently proving its allegations of ethical
misconduct,” Downie wrote. 

In its complaint against Olsen and
Parker, the State Bar claimed that they “had no good faith basis to
assert” that banning the use of tabulators four months prior to an
election would “cause little, if any, harm” to state and county election
officials. 

“Read in isolation, the assertion
that the requested injunctive relief would cause ‘little, if any, harm
to the Defendants’ might be viewed as hyperbolic or even disingenuous,”
Downie wrote. “But when the entirety of the (lawyers’) argument is
considered, along with the hearing evidence, the hearing panel cannot
find by clear and convincing evidence that Respondents violated (the
law).”

During the hearing, Olsen and Parker
argued that, because Arizona already uses paper ballots, and counts some
of those ballots by hand at 2% of voting locations as part of a
post-election audit, they believed it wouldn’t cause much harm to
election officials to count every ballot by hand. Officials disagreed,
saying it would be a logistical nightmare and cause soaring costs for additional election workers to tabulate all of the ballots. 

Parker and Joseph Pull, another
attorney from his firm, “testified that the point they were trying to
convey was that the constitutional importance of correct election
results substantially outweighed any administrative costs that might
befall the defendants,” Downie wrote. “According to Mr. Parker, the
relative harm stemming from the asserted constitutional violation was
‘far and away more weighty’ than defendants’ cost-related concerns.”

The hearing panel also determined
that Parker and Olsen had no obligation to include certain information
in their arguments to the court — including that Arizona’s tabulators
are objectively evaluated before each election — as the State Bar
alleged they should have. 

During the June hearing, Parker and
Olsen said that, while they acknowledge that testing takes place, they
do not believe it to be “objective, neutral, or expert.”

“Whether plaintiffs’ claims about
deficiencies in Arizona’s testing were substantively correct is not an
issue to be decided in these proceedings,” Downie wrote. “The question
before the hearing panel is whether Respondents had a good faith basis
for including the challenged statements in the (lawsuit). The hearing
evidence established that they did.” 

In a written statement to the Arizona
Mirror, Parker praised the panel for protecting and reinforcing
“fundamental principles of our justice system.” 

“During this time of acute
polarization where fundamental pillars of our justice system have come
under frequent attack, this decision pushes back and says, no more,”
Parker wrote. “For over 35 years, I have had a reputation for integrity
and aggressive advocacy. This decision underscores the unwarranted
accusations that were leveled in this matter. The charges, all of which
were thrown out by the Panel, should never have been brought.” 

He alleged that the “weaponization of
state agencies” to deter lawyers from bringing “far-reaching and
sometimes novel, yet legitimate, legal arguments that may challenge
mainstream or popular opinion” must be rejected, as was done in this
case. 

Olsen did not immediately respond to a
request for comment on the panel’s decision, but Lake took to the
social media site X to celebrate the news. 

“Today, my attorneys received a total
exoneration and a full case dismissal against the spurious charges
brought against them by the Arizona Bar Association,” she posted
Monday night. “This is a complete victory against the increasingly
politicized Bar, which attempts to punish and deter cases that call out
our government for corruption and that work to protect our sacred vote
and our liberties. I pray for all of the Attorneys who are taking on the
difficult cases that are so important for the survival of this
country.” 

Downie previously found
that Olsen and Bryan Blehm, who both represented Lake in her lawsuit
challenging the results of the 2022 election for governor, had violated
their ethical duties in that case by lying to the courts about illegal
ballots being counted. 

Blehm’s law license was suspended for 60 days, after he did not attend a May hearing to determine how he would be disciplined. 

The panel, which was set for a hearing on July 30, has not yet determined what, if any, discipline Olsen will face.