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Ethical complaints against attorneys representing Kari Lake dismissed [1]
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Date: 2024-08-27
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.
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