In the Matter of Lisa M. Aubuchon

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

IN THE MATTER OF A MEMBER

OF THE STATE BAR OF ARIZONA

LISA M. AUBUCHON

ATTORNEY NO. 13141

No. SB-12-0035-AP

Filed September 17, 2013

Appeal of Hearing Panel Opinion and Disciplinary Order from the

Office of the Presiding Disciplinary Judge

No. PDJ20119002

DISBARMENT ORDERED

COUNSEL:

Lisa M. Aubuchon, In Propria Persona, Tempe

John S. Gleason, Independent Bar Counsel, Alan C. Obye, Independent

Bar Counsel, James S. Sudler, Independent Bar Counsel, Office of

Attorney Regulation Counsel, Denver, Colorado, for the State Bar of

Arizona

JUSTICE TIMMER authored the opinion of the Court, in which VICE

CHIEF JUSTICE BALES, JUSTICE PELANDER, JUSTICE BRUTINEL, and

JUDGE LAWRENCE F. WINTHROP,* joined.

JUSTICE TIMMER, opinion of the Court:

¶1 Lisa M. Aubuchon appeals from a disciplinary panel’s

opinion and order disbarring her. The record fully supports the panel’s

determination that Aubuchon violated several Arizona Rules of

Professional Conduct (“ERs”), as set forth in Arizona Supreme Court Rule

42.1 Without question, Aubuchon failed to fulfill her responsibilities as a

1 Effective January 1, 2011, Arizona Supreme Court Rule 53, entitled

“Grounds for Discipline,” was renumbered and amended as Rule 54.

Throughout this opinion, we refer to the former version of the rules as

IN RE LISA M. AUBUCHON

Opinion of the Court

prosecutor, abused the public trust, and misused the justice system. Based

on the record and the aggravating and mitigating factors, we order

disbarment.

BACKGROUND

¶2 Aubuchon was admitted to the State Bar of Arizona in 1990.

She joined the Maricopa County Attorney’s Office (“MCAO”) in 1996,

where she served as a prosecutor until she left in 2010. After Andrew

Thomas was elected the Maricopa County Attorney in 2004, he promoted

Aubuchon to serve as chief of the pretrial division.

¶3 Starting in 2006, the MCAO engaged in well-publicized

disputes, lawsuits, investigations, and criminal prosecutions involving

various members of the Maricopa County Board of Supervisors (the

“Board”), judges serving in the Maricopa County Superior Court

(“MCSC”), and others. These disciplinary proceedings primarily concern

Aubuchon’s roles in several criminal investigations and prosecutions and

in a federal civil racketeering (“RICO”) lawsuit.

¶4 In March 2010, at the request of the State Bar’s Executive

Director, Chief Justice Rebecca White Berch appointed independent bar

counsel to investigate and, as appropriate, prosecute allegations of ethical

misconduct against Thomas and other MCAO lawyers. Pursuant to

former Rule 54(b)(4), bar counsel submitted a report of the investigation to

a probable cause panelist, who subsequently found probable cause for a

formal complaint against Thomas, Aubuchon, and Deputy County

Attorney Rachel R. Alexander. Bar counsel filed a complaint in February

2011, alleging in twenty-eight charges that Aubuchon violated several ERs

and former Rule 53(d) and (f).2

“former Rule ____” and the current version as “Rule ____.” Unless

otherwise indicated, we cite to the current version of the Rules.

2 The complaint also alleged thirty-three charges against Thomas and

six charges against Alexander, which resulted in orders by the hearing

panel disbarring Thomas and suspending Alexander. Although Thomas

did not appeal, Alexander did, and we ordered her suspension. In re

Alexander, 232 Ariz. 1, 15 ¶ 66, 300 P.3d 536, 551 (2013).

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IN RE LISA M. AUBUCHON

Opinion of the Court

¶5 Because bar counsel filed the complaint after the effective

date of new rules governing disciplinary complaints, a three-person

hearing panel composed of the presiding disciplinary judge, a lawyer, and

a non-lawyer conducted the disciplinary hearing. Ariz. R. Sup. Ct. 52.

After a twenty-six-day hearing, the panel issued its opinion and order

finding that bar counsel had proven almost all charges against Aubuchon.

It then disbarred her, and Aubuchon timely appealed. We have

jurisdiction pursuant to Article 3 and Article 6, Sections 1, 5(3), and 5(4) of

the Arizona Constitution and Arizona Supreme Court Rule 59(a).

DISCUSSION

I. Non-conforming Briefs

¶6 In her briefs filed with this Court, Aubuchon repeatedly

violates applicable court rules by failing to develop arguments and

support them with “citations to the authorities, statutes and parts of the

record relied on.” Ariz. R. Civ. App. P. (“ARCAP”) 13(a)(6); see Ariz. R.

Sup. Ct. 59(g) (requiring all briefs to conform to ARCAP 13). Although

this Court granted Aubuchon’s request to double the briefing page limit,

she asks us to “thoroughly review the record,” cites to lengthy documents

without specificity, broadly invites us to review her closing argument for

“details of her argument,” fails to provide any authority for many

contentions, and states she “cannot possibly be expected to refer to four

months of testimony to disprove every false finding” in the panel’s order.

As we have emphasized: “We are not required to look for the proverbial

‘needle in the haystack’. We must insist that a bona fide and reasonably

intelligent effort to comply with the rules be manifest.” In re Hesse’s Estate,

65 Ariz. 169, 171, 177 P.2d 217, 218 (1947). We have done our best to

discern and address Aubuchon’s arguments, but we consider waived

those arguments not supported by adequate explanation, citations to the

record, or authority.

II. Constitutional Claims

A. Pre-complaint Investigation

¶7 Aubuchon contends she was deprived of procedural due

process because (1) the State Bar’s Executive Director lacked authority to

initiate an investigation, (2) Chief Justice Berch wrongly appointed a

Colorado attorney not licensed in Arizona to conduct the investigation as

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bar counsel, (3) Chief Justice Berch improperly assigned that attorney to

investigate attorneys rather than allegations in a bar complaint, (4) bar

counsel refused to produce exculpatory evidence found during the

investigation, and (5) bar counsel asked Aubuchon to respond to

“allegations” rather than evidentiary facts in a letter sent during his

investigation. Because disciplinary proceedings are “quasi-criminal in

nature[,] . . . the requirements of procedural due process must be met.” In

re Brady, 186 Ariz. 370, 373, 923 P.2d 836, 839 (1996). Aubuchon was

afforded due process if she was given fair notice of the charges and a

meaningful opportunity to defend against them. In re Peasley, 208 Ariz.

27, 34 ¶ 26, 90 P.3d 764, 771 (2004); Webb v. State ex rel. Ariz. Bd. of Med.

Exam’rs, 202 Ariz. 555, 558 ¶ 9, 48 P.3d 505, 508 (App. 2002).

¶8 We reject Aubuchon’s initial three arguments because she

fails to show how the alleged pre-complaint actions deprived her of notice

or an opportunity to defend the charges. See In re Peasley, 208 Ariz. at 34 ¶

26, 90 P.3d at 771. Aubuchon waived the fourth argument by raising it for

the first time on appeal, see Crowe v. Hickman’s Egg Ranch, Inc., 202 Ariz.

113, 116 ¶ 16, 41 P.3d 651, 654 (App. 2002), and by failing to substantiate it

with citations to the record, ARCAP 13(a)(6).

¶9 The fifth argument lacks merit. Bar counsel was required by

Supreme Court Rule 55(b) to inform Aubuchon that she was “under

investigation,” describe “the nature of the allegations,” and give her an

opportunity to respond. Bar counsel complied with that rule by setting

forth factual allegations in a pre-complaint letter to Aubuchon’s counsel.

Rule 55(b) did not require bar counsel to substantiate the allegations with

evidence at that stage.

B. Application of New Discipline Rules

¶10 Aubuchon argues that applying the new disciplinary rule

procedures to the complaint violated the Ex Post Facto Clause of the

United States Constitution because the new rules were promulgated after

the alleged misconduct. We disagree. The new procedures did not alter

the substantive ERs that Aubuchon was charged with violating. Even if

we were to hold that the Ex Post Facto Clause applies to disciplinary

proceedings, it does not prohibit a change to procedural rights. See State v.

Beltran, 170 Ariz. 406, 408, 825 P.2d 27, 29 (App. 1992).

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¶11 Aubuchon also contends that filing the probable cause

petition under the former rules but filing the complaint under the new

rules violated her rights to procedural due process and equal protection

because she was treated differently than attorneys who proceed through a

single, unaltered system. But Aubuchon fails to describe how the changes

to the disciplinary system deprived her of notice or an opportunity to

defend the charges. And she fails to provide any authority suggesting

that such different treatment deprived her of equal protection. Applying

the new rules to a complaint filed after their adoption satisfies equal

protection because it is rationally related to the state’s interest in using a

more procedurally efficient process. See Simat Corp. v. Ariz. Health Care

Cost Containment Sys., 203 Ariz. 454, 458 ¶ 15, 56 P.3d 28, 32 (2002)

(discussing rational relationship standard for cases not involving suspect

classes or fundamental rights).

C. Informal Request for Recusal

¶12 Aubuchon argues that Presiding Disciplinary Judge William

O’Neil deprived her of a fair trial by denying her “informal request” that

he “consider” recusal due to his role in criminal cases related to the

disciplinary proceedings. We review Judge O’Neil’s ruling for an abuse of

discretion. Cf. State v. Schackart, 190 Ariz. 238, 257, 947 P.2d 315, 334 (1997)

(reviewing denial of motion to recuse in criminal case for abuse of

discretion).

¶13 A party who seeks to remove the presiding disciplinary

judge from a case must file an affidavit demonstrating grounds set forth in

A.R.S. § 12-409(B). Ariz. R. Sup. Ct. 51(d). Thereafter, the disciplinary

clerk must designate a volunteer attorney member to decide whether

cause for removal exists. Id. Aubuchon neither filed such an affidavit nor

cited § 12-409(B). Instead, she asked Judge O’Neil to consider recusing

himself pursuant to Arizona Code of Judicial Conduct Rule 2.11.

¶14 In any event, Aubuchon’s informal request lacked merit. We

presume that a judge is impartial, and “the party seeking recusal must

prove bias or prejudice by a preponderance of the evidence.” State v.

Carver, 160 Ariz. 167, 172, 771 P.2d 1382, 1387 (1989). Bias and prejudice

are evidenced by “a hostile feeling or spirit of ill-will, or undue friendship

or favoritism, towards one of the litigants.” State v. Myers, 117 Ariz. 79, 86,

570 P.2d 1252, 1259 (1977).

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IN RE LISA M. AUBUCHON

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¶15 Before his appointment as the presiding disciplinary judge,

Judge O’Neil served as a superior court judge. In that role, he (1)

temporarily stayed a criminal prosecution initiated by Aubuchon against

MCSC Judge Gary Donahoe, and (2) was assigned to preside over a grand

jury investigating Aubuchon. Both matters involved events related to

some of the disciplinary charges later filed against Aubuchon. She argues

that Judge O’Neil was required to recuse himself pursuant to Arizona

Code of Judicial Conduct Rule 2.11(A)(6)(d), which provides that “[a]

judge shall disqualify himself or herself in any proceeding in which the

judge’s impartiality might reasonably be questioned, including but not

limited to the following circumstances: . . . [t]he judge . . . previously

presided as a judge over the matter in another court.” The “matter” at

issue, however, is the disciplinary complaint against Aubuchon and not

the criminal charges against Judge Donahoe or the grand jury

investigation of Aubuchon.

¶16 Additionally, Aubuchon did not demonstrate that Judge

O’Neil’s impartiality might reasonably be questioned or that he was

biased or prejudiced as a result of his limited roles in the related criminal

matters. See Ariz. R. Sup. Ct. 81, Code of Judicial Conduct Rule 2.11(A);

A.R.S. § 12-409(B)(5) (listing bias or prejudice as a ground for removal).

When issuing the temporary stay in the Donahoe prosecution, Judge

O’Neil stated that his ruling “doesn’t constitute the law of the case or

adjudication of any kind at all, and I will be happy to have it either

proceed back to me or to not come back to me, either way.” He did not

recall the grand jury investigation, and the record does not reflect whether

Judge O’Neil made any rulings during that assignment. Regardless, a

judge is not biased or prejudiced merely because the judge made rulings

in the same or related proceedings. See Liteky v. United States, 510 U.S. 540,

551 (1994) (holding that a judge is not biased or prejudiced if the judge

forms opinions as a result of knowledge obtained in earlier proceedings);

cf. Smith v. Smith, 115 Ariz. 299, 303, 564 P.2d 1266, 1270 (App. 1977)

(deciding that, generally, “the bias and prejudice necessary to disqualify a

judge must arise from an extra-judicial source and not from what the

judge has done in his participation in the case”). Judge O’Neil did not

abuse his discretion by denying Aubuchon’s informal request for recusal

under Rule 2.11(A)(6)(d).

¶17 Aubuchon also argues that Judge O’Neil exhibited personal

bias against her by directing her counsel to accelerate the hearing and

using “venomous” language in the opinion and order. We disagree.

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Judge O’Neil told counsel for both sides they were moving too slowly; he

did not single out Aubuchon. See Liteky, 510 U.S. at 555 (“[J]udicial

remarks during the course of a trial that are critical or disapproving of, or

even hostile to, counsel, the parties, or their cases, ordinarily do not

support a bias or partiality challenge.”). And although the panel’s

subsequent opinion sharply criticizes Aubuchon, it does not reflect “a

deep-seated favoritism or antagonism that would make fair judgment

impossible.” Id.; see also id. at 555–56 (“[E]xpressions of impatience,

dissatisfaction, annoyance, and even anger, that are within the bounds of

what imperfect men and women, even . . . judges, sometimes display” do

not establish bias or partiality); Belue v. Leventhal, 640 F.3d 567, 575 (4th

Cir. 2011) (“But to argue that judges must desist from forming strong

views about a case is to blink [from] the reality that judicial decisions

inescapably require judgment. Dissatisfaction with a judge’s views on the

merits of a case may present ample grounds for appeal, but it rarely—if

ever—presents a basis for recusal.”).

¶18 Finally, Aubuchon argues that Judge O’Neil’s personal bias

is evidenced by the affidavit of Mark Dixon, which she obtained

approximately two weeks after the panel issued its opinion and order.

Aubuchon waived this issue by failing to raise it to the panel.3 See Crowe,

202 Ariz. at 116 ¶ 16, 41 P.3d at 654. Regardless, even if we assume the

truth of Dixon’s allegations, the affidavit does not overcome the

presumption that Judge O’Neil acted without bias or prejudice.

¶19 Dixon, a self-described friend and neighbor of Judge

O’Neil’s, avowed that while the two repaired a home fence in 2009, Judge

O’Neil said he was angry that MCAO was “criticizing” and

“investigating” his “friend,” Judge Donahoe. Judge O’Neil’s purported

expression of anger made privately to a friend approximately two years

before bar counsel filed the complaint does not prove personal bias. See In

re Guardianship of Styer, 24 Ariz. App. 148, 151, 536 P.2d 717, 720 (1975)

(“The fact that a judge may have an opinion as to the merits of the cause

or a strong feeling about the type of litigation involved, does not make the

judge biased or prejudiced.”); cf. Ariz. R. Sup. Ct. 81, Code of Judicial

3 Aubuchon contends she could not have produced the affidavit to

the panel because she learned of Dixon’s evidence only after the opinion

and order were issued. But Arizona Rule of Civil Procedure 60(c) applies

to disciplinary proceedings. Ariz. R. Sup. Ct. 48(b). Aubuchon could have

invoked that rule to move for relief based on Dixon’s affidavit.

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Conduct Rule 2.11(A)(5) (requiring a judge to disqualify himself or herself

if the judge has made a public statement that “commits or appears to

commit the judge to reach a particular result or rule in a particular way”).

D. Failure to Allow Character Witnesses

¶20 Judge O’Neil limited Aubuchon to seven character witnesses

from her pre-hearing list of sixty-four but stated he might permit

additional witnesses if justified. Aubuchon challenges that ruling but

offers no authority or explanation and fails to describe the content of the

precluded testimony. She has not established any error. Permitting

testimony of an additional fifty-seven people on the same topic would

have been needlessly cumulative. Ariz. R. Evid. 403 (“The court may

exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . needlessly presenting cumulative

evidence.”).

III. Professional Misconduct

¶21 Aubuchon argues that the panel misapplied the ERs and

made unsupported factual findings. We review questions of law de novo,

Ariz. R. Sup. Ct. 59(l); In re Johnson, 231 Ariz. 556, 557 ¶ 1, 298 P.3d 904,

905 (2013), but accept the panel’s factual findings unless they are clearly

erroneous, In re Alexander, 232 Ariz. 1, 5 ¶ 11, 300 P.3d 536, 540 (2013).

Also, we view the evidence and all reasonable inferences in the light most

favorable to sustaining the panel’s findings. See State v. Boyston, 231 Ariz.

539, 551 ¶ 60, 298 P.3d 887, 899 (2013).

¶22 The hearing panel found that Aubuchon violated multiple

ERs in handling several assignments from Thomas and violated supreme

court rules by failing to cooperate and furnish information during the

disciplinary screening investigation. Because we consider the most

serious misconduct when determining suitable disciplinary sanctions, see

In re Alexander, 232 Ariz. at 13 ¶ 50, 300 P.3d at 548, we focus our

discussion on Aubuchon’s arguments that the panel erred in finding she

violated ER 3.8(a) by “prosecuting a charge that the prosecutor knows is

not supported by probable cause” (charge twenty-four), and ER 8.4(d) by

“engag[ing] in conduct that is prejudicial to the administration of justice”

(charges eight, nine, twenty, and thirty). See infra ¶¶ 50, 58.

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A. First Prosecution of Stapley

¶23 In November 2008, Aubuchon obtained an indictment

charging Board Chairman Don Stapley with 118 criminal violations

relating to his public financial disclosures dating back to 1994 (“Stapley I”).

After the case was assigned to retired Judge Kenneth Fields, Aubuchon

unsuccessfully moved for his recusal and sought to interview him and

other judges to support her motion. Judge Fields eventually dismissed

fifty-one misdemeanor charges because they lacked merit. In the

subsequent appeal, the state, through different counsel, conceded that

forty-four of the misdemeanor charges were barred by the statute of

limitations.

¶24 The panel found that Aubuchon prejudiced the

administration of justice in violation of ER 8.4(d) by (1) obtaining an

indictment for the forty-four misdemeanor counts knowing the statute of

limitations had run and (2) seeking to interview the judges.

1. Statute of Limitations

¶25 The state must prosecute a misdemeanor within one year

after it discovers probable cause for the violation or, in the exercise of

reasonable diligence, should have discovered it. A.R.S. § 13-107(B)(2);

State v. Jackson, 208 Ariz. 56, 64–65 ¶ 30, 90 P.3d 793, 801–02 (App. 2004).

The panel found that Aubuchon knew no later than May 14, 2008, that the

one-year limitation period had commenced running approximately one

year earlier.

¶26 Aubuchon briefly contends the panel erred because the trial

court did not rule in Stapley I that the statute of limitations had run.

Whether Aubuchon knew the limitations period had run does not depend

on a court ruling that the claims were barred. In any event, such a

determination was unnecessary in light of the state’s later concession that

the limitations period had run on these charges.

¶27 Aubuchon also argues that no evidence shows she knew the

statute of limitations had expired when she sought the indictment in

November 2008. But ER 8.4(d) requires only a negligent mental state. In

re Alexander, 232 Ariz. at 11 ¶ 40, 300 P.3d at 546. Moreover, the record

supports the panel’s determination that she in fact knew the limitations

period had run.

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¶28 In January 2007, Thomas directed Special Assistant County

Attorney Mark Goldman to investigate whether Stapley had financial

dealings with an attorney. Goldman did not find a connection but

discovered “some sort of violation” in at least one of Stapley’s public

financial disclosures and irregularities in others. He reported his findings

in May to Thomas, who acknowledged at the hearing that the statute of

limitations had started to run for the purported violation. At Thomas’s

direction, Goldman presented his findings to the Maricopa Anti-

Corruption Enforcement (“MACE”) unit, which MCAO and the Maricopa

County Sheriff’s Office (“MCSO”) jointly operated, and where the matter

languished.

¶29 In March 2008, Thomas assigned the investigation to

Aubuchon and told her to determine within thirty days whether charges

could be filed. Aubuchon met briefly with Goldman to obtain the

research he had presented to MACE but did not discuss the investigation

with him. She also obtained MCAO Chief Assistant Sally Wells’s MACE

documents, which included Goldman’s research. Aubuchon noticed that

some of the internet-generated copies of Stapley’s financial disclosures

contained timestamps reflecting that Goldman had obtained them in

January and February 2007.

¶30 Aubuchon investigated further and presented her results

and a draft indictment to MACE on May 14, 2008. The indictment was

dated May 29, and Aubuchon stated they would have to move quickly.

MACE team members expressed concern that they had been given a draft

indictment before they had investigated or written a report. According to

a MACE officer, when Aubuchon was asked whether she had made

herself a witness by investigating the matter, she responded “something

to the effect of well, that’s why you’re going to recreate the books or redo

what we’ve already done.” When a MCSO lieutenant noted the age of

many disclosures and asked about the statute of limitations, Aubuchon

inaccurately told him that the limitations periods for any misdemeanor

charges started to run that day because that was when law enforcement

learned of the matter. Based on this representation, MCSO reported the

investigation as commencing May 14, 2008. When presenting the case to

the grand jury in November, Aubuchon did not present any evidence

regarding the age of the investigation or mention the statute of limitations.

¶31 This evidence permitted the panel to conclude that

Aubuchon knew that the state had either discovered probable cause to

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charge the misdemeanors, or should have discovered it in the exercise of

reasonable diligence, more than one year before November 2008. First,

Aubuchon was aware of the age of the investigation, as evidenced by the

early 2007 dates on Goldman’s documents and MACE’s involvement in

2007. Second, Thomas’s knowledge that the limitations period had started

to run on at least one charge and his direction for quick work supported

an inference that he told Aubuchon about the limitations period. This

conclusion is bolstered by Aubuchon’s presentation at the May 14 MACE

meeting of a draft indictment dated two weeks later and her statement

that they needed to proceed quickly. Third, and finally, Aubuchon’s

efforts to describe the starting date of the investigation as May 14, 2008,

despite her having already completed an investigation sufficient to permit

her to draft an indictment, shows her knowledge that at least some

charges could have been barred by the statute of limitations. The panel

did not err by finding that Aubuchon violated ER 8.4(d) in handling

Stapley I.

2. Requests to Interview Judges

¶32 MCSC Presiding Judge Barbara Mundell assigned Judge

Fields to Stapley I. Aubuchon asked Judge Fields to voluntarily recuse

himself and, if he refused, moved for his recusal pursuant to Arizona Rule

of Criminal Procedure 10.1(a), which requires “a change of judge if a fair

and impartial hearing or trial cannot be had by reason of the interest or

prejudice of the assigned judge.” After Judge Fields refused to voluntarily

recuse himself, Aubuchon wrote to Judge Mundell, Judge Anna Baca, who

presided over MCSC’s criminal division, and Judge Fields, stating that his

appointment was outside “the normal criminal case assignment process”

and asking to interview them in preparation for a possible hearing on the

Rule 10.1 motion. She also asked to interview Judge Fields about his

“ability to fairly and impartially preside over this matter.” The judges

either ignored or declined these requests. Aubuchon then filed a motion

to interview or depose the judges, which Judge Baca denied. Judge Baca

then denied the Rule 10.1 motion without prejudice because Aubuchon

had failed to comply with the rule. Aubuchon renewed her motion, but

before the court could hold a hearing, MCAO was disqualified as counsel

due to a conflict of interest, and the motion became moot.

¶33 The panel found that Aubuchon prejudiced the

administration of justice by seeking to ascertain the judges’ thought

processes and intimidate them. Aubuchon asserts that her request was

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permissible because she did not seek to question the judges about a

judicial ruling; she only sought to question them about an administrative

assignment.

¶34 The record supports the panel’s determination. First, it is

improper to probe the mental processes engaged in by judges in making

decisions because doing so “would be destructive of judicial

responsibility.” United States v. Morgan, 313 U.S. 409, 422 (1941).

Aubuchon cites no authority supporting her contention that parties may

question judges about decisions not involving the merits of a case, and

other courts have not made this distinction. See, e.g., In re Sanai, 225 P.3d

203, 208–09 ¶ 24 (Wash. 2009) (“Judges are under no obligation to divulge

the reasons that motivated them in their official acts; the mental processes

employed in formulating the decision may not be probed.”) (citation

omitted); State ex rel. Kaufman v. Zakaib, 535 S.E.2d 727, 735 (W. Va. 2000)

(“[J]udicial officers may not be compelled to testify concerning their

mental processes employed in formulating official judgments or the

reasons that motivated them in their official acts.”). Compelling a judge to

explain the reasons for administrative or procedural decisions relating to

cases could undermine judicial responsibility in a similar manner as

asking about merits rulings and is therefore improper. Aubuchon’s

requests to interview the judges about the reasons for Judge Fields’s

assignment were improper because she sought to probe Judge Mundell’s

mental processes in making a decision in performance of her duties as the

presiding judge. Moreover, Aubuchon’s requests to question Judge Fields

about his ability to rule without bias effectively sought to discover his

reasons for refusing her request to voluntarily recuse himself, and was

therefore improper.

¶35 Second, the panel was justified in concluding that

Aubuchon’s improper requests prejudiced the administration of justice

because they appeared designed to pressure the court to assign Stapley I to

another judge. Aubuchon’s inquiries about Judge Fields’s assignment

seemingly did not relate to whether he could conduct a fair and impartial

hearing. See Ariz. R. Crim. P. 10.1(a). The panel reasonably inferred that

the real purpose of the requests was to compel the court to reassign the

case as a way to avert a Rule 10.1 hearing.

¶36 The panel did not err by finding that Aubuchon violated ER

8.4(d) by repeatedly requesting to interview or depose the judges.

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B. Civil RICO Lawsuit

¶37 On December 1, 2009, Aubuchon filed a RICO lawsuit on

behalf of Thomas and Maricopa County Sheriff Joseph Arpaio against the

Board, its members, four MCSC judges, and others. She 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.” In re Alexander, 232 Ariz. at 4 ¶ 5,

300 P.3d at 539. Because Aubuchon had a potential conflict of interest,

Thomas re-assigned the lawsuit to Alexander a few days later. The

plaintiffs later voluntarily dismissed the case.

¶38 The panel found that Aubuchon prejudiced the interests of

justice in violation of ER 8.4(d) by filing the complaint against judges who

were absolutely immune from a civil damages lawsuit based on their

judicial acts. According to the panel, Aubuchon, along with Thomas and

Alexander, “pursued the RICO action to retaliate against the named

judges and to intimidate the judges of the Superior Court.”

¶39 Like Alexander, Aubuchon argues that the panel erred

because no evidence shows she intended to retaliate against or intimidate

judges, and the judges were not immune from suit because they acted in

non-judicial capacities. For the reasons explained in In re Alexander, 232

Ariz. at 11 ¶¶ 39–42, 300 P.3d at 546, we reject these arguments.

Aubuchon violated ER 8.4(d) by filing the RICO lawsuit against the

judges.

C. Prosecution of Judge Donahoe

¶40 Upon Judge Baca’s retirement in January 2009, Judge

Donahoe was named as the presiding judge for the MCSC’s criminal

division. In that role, he made rulings adverse to MCAO and MCSO and

allegedly acted unprofessionally towards MCSO officers. As a result,

MCSO Chief Deputy David Hendershott filed a judicial conduct

complaint against Judge Donahoe on November 30, 2009, and Aubuchon

filed the civil RICO complaint the following day against Judge Donahoe

and others.

¶41 About the same time, Judge Donahoe scheduled a December

9 afternoon hearing on various motions concerning MCAO’s authority to

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appoint independent special deputy county attorneys to pursue a grand

jury investigation of alleged acts of county corruption. On the morning of

the scheduled hearing, Aubuchon filed a criminal complaint against Judge

Donahoe charging him with hindering prosecution, obstructing criminal

investigation, and bribing a public servant. She then moved for the judge

to recuse himself from grand jury matters in light of the pending charges,

Hendershott’s judicial conduct complaint, and the RICO lawsuit. After

Judge Donahoe was served with the complaint, he vacated the afternoon

hearing and recused himself. The court dismissed the criminal complaint

against Judge Donahoe in March 2010.

¶42 The panel found that Aubuchon violated her responsibility

as a prosecutor in violation of ER 3.8(a) and prejudiced the administration

of justice in violation of ER 8.4(d) by knowingly filing the criminal

complaint without probable cause and for the purposes of avoiding the

December 9 hearing and compelling Judge Donahoe’s recusal. Aubuchon

does not contest the panel’s finding that she filed the complaint to compel

Judge Donahoe to vacate the December 9 hearing and recuse himself from

grand jury matters, and we therefore accept that finding. Rather, she

argues that the complaint was supported by probable cause, and imposing

discipline for filing it therefore improperly infringes on the authority of

the executive branch to make charging decisions. She alternately argues

that the panel erred by finding a violation of ER 3.8(a) because she did not

know when she filed the complaint that probable cause was lacking.

¶43 Sufficient evidence shows that the criminal complaint was

not supported by probable cause. First, the probable cause statement filed

with the complaint did not support the charges. The allegations criticize

how Judge Donahoe performed his judicial duties, but nothing links his

actions to the elements of the charged crimes.4 Specifically, none of the

allegations would lead a reasonable person to believe the complaint’s

4 Aubuchon asserted that Judge Donahoe (1) failed to disclose an

attorney-client relationship with attorneys appearing before him on a

grand jury investigation, (2) refused to hold Stapley in contempt for

disclosing grand jury information to his attorney, (3) improperly presided

over motions in Stapley I, (4) threatened to bypass MCSO by encouraging

criminal defense attorneys to move to release in-custody clients and then

tell the media that MCSO was to blame for failing to adequately perform

its transportation duties, (5) exhibited bias against MCSO by his rulings,

and (6) scheduled the December 9 hearing.

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IN RE LISA M. AUBUCHON

Opinion of the Court

charge that Judge Donahoe (1) “provid[ed] [others] with money,

transportation, weapon[s], disguise[s], or other means of avoiding

discovery, apprehension, prosecution, or conviction” (hindering

prosecution), (2) obstructed a criminal investigation “by means of bribery,

misrepresentation, intimidation, force, or threats of force” (obstruction of

criminal investigation), or (3) “solicited, accepted, or agreed to accept a

benefit” in exchange for influencing his judgment (bribery). Cf. State v.

Dixon, 153 Ariz. 151, 153, 735 P.2d 761, 763 (1987) (holding that probable

cause to arrest exists if the arresting officer possesses “reasonably

trustworthy information sufficient to lead a reasonable person to believe

that an offense has been committed and that the person to be arrested

committed it”).

¶44 Second, the rushed circumstances surrounding the filing of

the complaint highlight the lack of probable cause. Thomas directed

Aubuchon to file the complaint the day before she did so, and neither

MCAO nor MCSO investigators had conducted an investigation.

Regardless, Aubuchon asked MCSO officers to immediately prepare a

departmental report and probable cause statement. At Aubuchon’s

direction, Hendershott directed an officer to use the judicial conduct

complaint as the basis for the probable cause statement. Aubuchon told

officers they “would have time to put the case together” after the

complaint was filed.

¶45 Third, others did not believe the complaint was supported

by probable cause. Several MCAO lawyers and MCSO officers read the

complaint, concluded it was unsupported by the probable cause

statement, and refused to sign or file it. Yavapai County Attorney Sheila

Polk testified that even if the allegations in the probable cause statement

were true, they did not constitute probable cause.

¶46 Aubuchon argues that because Thomas, Arpaio, and

Hendershott believed probable cause existed, and MCAO Detective

Timothy Cooning testified he would have signed the complaint had he

known “things” in the complaint were true, the panel erred by finding

that no probable cause existed. We disagree. The subjective opinions

expressed by these interested individuals do not overcome the above-

described evidence showing a lack of probable cause.5

5 Contrary to Aubuchon’s assertion, only Thomas and Hendershott

testified that probable cause supported the complaint. The record does

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IN RE LISA M. AUBUCHON

Opinion of the Court

¶47 The record also supports the panel’s finding that Aubuchon

knew the complaint lacked probable cause. Her knowledge can be

inferred from the circumstances. See In re Alexander, 232 Ariz. at 5 ¶ 13,

300 P.3d at 540 (“A lawyer’s motives and knowledge can be inferred from

the frivolousness of a claim.”). She was an experienced prosecutor who

had supervised charging decisions for five years at the time she filed the

complaint. Although she undoubtedly knew how to support a complaint

with an adequate probable cause statement, she blatantly failed to do so.

See supra ¶ 43. And she ignored the concerns of members of her own

office and MCSO officers about the complaint, stating they “would have

time to put the case together” later. See supra ¶¶ 44–45. The panel

reasonably found that an experienced prosecutor like Aubuchon knew

that the complaint was not supported by probable cause.

¶48 Throughout these proceedings, Aubuchon has steadfastly

maintained that Judge Donahoe’s conduct evidenced criminal

wrongdoing. She might have subjectively suspected as much and hoped

to discover confirming evidence before the court ruled on probable cause.

But Aubuchon’s responsibility as a prosecutor was to ensure probable

cause existed when she filed the charges. This she did not do, thereby

justifying the panel finding a violation of ER 3.8(a).

¶49 In sum, Aubuchon violated ERs 3.8(a) and 8.4(d) by filing

the criminal complaint against Judge Donahoe without probable cause in

order to compel him to recuse himself from grand jury matters.

D. Remaining Violations

¶50 Aubuchon’s violations of ERs 3.8(a) and 8.4(d), standing

alone, justify the sanction of disbarment. Consequently, even if

Aubuchon’s arguments challenging the panel’s findings of other

violations have merit, because our assessment of an appropriate

disciplinary sanction would not change, we need not address them in

detail. But because those other findings would be relevant to any future

application by Aubuchon for reinstatement to the State Bar, see Ariz. R.

Sup. Ct. 64, 65, we address them summarily.

not reflect that Arpaio testified about probable cause, and Aubuchon does

not cite any evidence of his opinion on the matter. And Cooning’s

testimony does not support Aubuchon as he testified that “[a]fter reading

the probable cause statement it wasn’t clear to me what the crimes were.”

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IN RE LISA M. AUBUCHON

Opinion of the Court

¶51 We reject the panel’s determination that Aubuchon

committed professional misconduct by violating the following ERs:

 ER 1.7(a)(2) (charges five, eighteen, and twenty-nine):6 The

record does not contain clear and convincing evidence that Aubuchon’s

personal interests materially limited her representation in the matters

underlying these charges. And Thomas’s personal interests were not

properly imputed to Aubuchon pursuant to ER 1.10(a). See In re Alexander,

232 Ariz. at 10 ¶ 35, 300 P.3d at 545 (describing when a conflict of interest

based on another’s personal interests can be imputed).

 ER 3.3(a) (charge seven): The evidence does not clearly and

convincingly show that Aubuchon knowingly made a false statement in

her motion to recuse by describing Judge Fields as “the complainant in an

open and pending State Bar matter that he initiated against . . . Thomas.”

Although Judge Fields did not directly complain about Thomas, he sent

the State Bar material that prompted an investigation, and the State Bar

considered Judge Fields the complainant. Aubuchon’s language, although

imprecise, does not reflect an attempt to knowingly mislead the court.

 ER 8.4(b) (charge twenty-seven): Aubuchon did not compel

a MCSO detective to commit perjury by asking him to sign under oath the

criminal complaint filed against Judge Donahoe. The record does not

reflect that the detective gave a false sworn statement “believing it to be

false.” A.R.S. § 13-2702(A)(1) (defining perjury). He signed the complaint

on “information and belief,” and no evidence shows he believed the

allegations were false.

 ER 8.4(b) (charge twenty-eight): Although the record

supports a finding that Aubuchon agreed to file the criminal and civil

cases against Judge Donahoe to compel his recusal from Stapley I, these

acts did not constitute a conspiracy to prevent him from enjoying a right

or privilege secured by the Constitution in violation of 18 U.S.C. § 241.

Judge Donahoe’s recusal did not deprive him of his right to expression or

impair his employment as a judge. See Nevada Comm’n on Ethics v.

Carrigan, 131 S. Ct. 2343, 2349 (2011) (“[T]here do not appear to have been

any serious challenges to judicial recusal statutes as having

unconstitutionally restricted judges’ First Amendment rights.”); Conn v.

6 We agree with the panel that Aubuchon violated ER 1.7(a)(1),

which also underlies charge eighteen.

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IN RE LISA M. AUBUCHON

Opinion of the Court

Gabbert, 526 U.S. 286, 291–92 (1999) (noting that cases recognizing a liberty

interest to engage in an occupation “deal with a complete prohibition of

the right to engage in a calling” and not merely a “brief interruption”).

 ER 8.4(c) (charge thirty-two): There is no clear and

convincing evidence that Aubuchon knowingly misrepresented the status

of a grand jury inquiry to a special prosecutor by failing to relate that the

grand jury had voted to “end the inquiry.” See In re Owens, 182 Ariz. 121,

125, 893 P.2d 1284, 1288 (1995) (holding that ER 8.4(c) requires “knowing”

misconduct). Whether the grand jury ended the inquiry due to a lack of

evidence would not have precluded the special prosecutor from

resubmitting charges to a future grand jury. State v. Young, 149 Ariz. 580,

585, 720 P.2d 965, 970 (1986) (“[A]bsent prohibition by statute or rule, the

prosecutor can resubmit a case before the grand jury after the same charge

has been dismissed or a ‘no bill’ returned.”). And the circumstances

surrounding the vote suggest the grand jury might have complied with

Aubuchon’s request that it release the case for assignment to a special

prosecutor.

¶52 We reject Aubuchon’s arguments that the panel incorrectly

found that she committed professional misconduct as set forth in the

remaining charges not explicitly addressed in this opinion.

IV. Sanction Imposed

¶53 Aubuchon alternately argues that disbarment is not

warranted because Judge O’Neil excluded pertinent mitigation evidence

and the panel failed to give appropriate weight to presented mitigation.

We review the imposed sanction de novo as a matter of law. In re

Alexander, 232 Ariz. at 13 ¶ 48, 300 P.3d at 548.

¶54 The panel appropriately followed the standards set forth in

the American Bar Association’s Standards for Imposing Lawyer Sanctions for

determining an appropriate disciplinary sanction. Ariz. R. Sup. Ct. 58(k);

see In re Alexander, 232 Ariz. at 13 ¶¶ 49–50, 300 P.3d at 548 (describing the

process for deciding sanctions). In doing so, the panel identified

disbarment as the presumptive sanction. After finding six aggravating

factors and one mitigating factor, the panel decided that the presumptive

sanction of disbarment applies.

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IN RE LISA M. AUBUCHON

Opinion of the Court

¶55 Aubuchon does not challenge the panel’s determination that

disbarment is the presumptive sanction or its finding of six aggravating

factors. Instead, she argues that the panel did not give appropriate weight

to mitigation evidence because Judge O’Neil prevented her from

presenting all listed character witnesses, the panel ignored the mitigation

evidence presented, she had never had a prior disciplinary complaint

proceed past the screening stage, and these proceedings were not initiated

by a bar complaint.

¶56 For the reasons previously explained regarding Judge

O’Neil’s ruling on the number of character witnesses permitted, we reject

Aubuchon’s argument on that point. See supra ¶ 20.

¶57 We also reject Aubuchon’s remaining arguments. The panel

found that Aubuchon’s lack of a prior disciplinary record was a mitigating

circumstance, so her argument that the panel failed to credit this fact is

baseless. And although witnesses testified to Aubuchon’s good character,

the panel was justified in not finding this a mitigating circumstance in

light of evidence regarding the events underlying these proceedings,

which reflected poorly on her character. Finally, the manner in which the

disciplinary proceedings were initiated has no bearing on whether the

presumptive sanction of disbarment is appropriate.

¶58 Aubuchon’s most serious misconduct was filing a criminal

complaint against Judge Donahoe in violation of ER 3.8(a) and engaging

in conduct prejudicial to the administration of justice in violation of ER

8.4(d). Although the panel properly found that Aubuchon also violated

several other ERs, we consider those particular violations the most

egregious in light of the public trust placed in prosecutors to wield their

considerable power fairly and for the public good. After considering

Aubuchon’s mental state when engaging in the misconduct, the potential

and actual injuries suffered, and the aggravating and mitigating

circumstances, we are compelled to impose the presumptive sanction.

¶59 We order Aubuchon disbarred.

* Chief Justice Rebecca White Berch recused herself from this case.

Pursuant to Article 6, Section 3 of the Arizona Constitution, the Honorable

Lawrence F. Winthrop, Judge of the Court of Appeals, Division One, was

designated to sit in this matter.

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