The prevailing wisdom tells us that corruption exists in almost all our public institutions and we should learn to live with it. Notwithstanding this, a countervailing, deep-seated desire to eliminate public corruption was probably the largest single factor in the November 2016 election of our 45th President. Normally, other than “draining the swamp” thru political action, the only other remedy for redress is our legal system. But what happens when our legal system becomes corrupted? Where does one go to seek help under those circumstances? It is distressing to have to even ask such a question, but sadly, it may be time to do so.
Years ago, two of our large law firms respectively took control of their two big public utility clients, the Salt River Project and Arizona Public Service. They did this by placing their firm members and relatives on the governing boards and in the executive offices so that there would be no control over the size of their legal bills.
At the same time, other large law firms have selected state, county or municipal government agencies and have contributed large sums of money to the candidates running for those offices in charge of such agencies. When their candidates are successful, the elected official in charge of the government agency who has received these campaign contributions then refers all the agency’s outside legal business to the contributing law firm. Under such arrangements the elected officials are normally reluctant to object to the size of the inflated legal bills being submitted by the law firm that has contributed so generously to the official’s election campaign.
Some have estimated that excessive legal bills submitted by these large law firms over the years under this conflict of interest scheme may have amounted to billions of dollars and may have added as much as 10-15% to our utility bills and to our, state, county and municipal taxes.
These activities on the part of our large law firms are clearly unethical and deserving of severe sanctions by the State Bar whose Lawyer Regulation Office has known about this conduct for many years. Oddly enough, no action has ever been taken. There are some who believe that this may be because the State Bar staff is under the control of the State Bar Board of Governors who, in turn, are under the control of our large law firms who constitute a huge voting bloc in electing members to the Board of Governors. There is concern that because of this, there may have been an understanding reached between the large law firms and the State Bar staff under which the State Bar staff has agreed to ignore the ethical violations by the large law firms in return for the large law firms protecting the inflated salaries and benefits paid to 105 State Bar staff members, approximately 50% of whom receive between $100,000-$200,000 per year.
Another area which may warrant the public’s attention is our current system of selecting judges. When our State Constitution was amended in 1974 to substitute a Merit Selection and Judicial Retention System in place of electing and reelecting judges, it was thought that this would be an ideal way to put an end to the corrupt practices of judges seeking campaign contributions from certain lawyers or law firms and then repaying them with favorable rulings when they later appeared in court.
Presently, there are many lawyers who feel that such corruption under the old system of electing judges has merely been replaced by a different type of corruption under our present Merit Selection System. This corruption involves the practice of influential lawyers or law firms recommending certain judicial applicants to the Commissions on Trial and Appellate Court appointments, or lobbying the Governor’s Office to appoint certain recommended applicants to be judges and, later benefiting the influential lawyer or law firm through favorable rulings.
These corrupt practices are made possible by current rules under which any communications between third persons and the Commissions are confidential and cannot be revealed. Moreover, our current rules provide that any such communications must be destroyed after six months and thus, lost forever. Ironically, these rules of confidentiality were enacted for the salutary purpose of encouraging third parties to provide any negative information on judicial applicants to the Commissions without fear of recrimination, thus permitting the receipt of derogatory information which they might otherwise never know about.
The result is that the same favoritism that was shown to lawyers and law firms that contributed money to judges in their election campaigns under the old system, has been replaced by judicial largess shown to lawyers or law firms that have given favorable recommendations for judicial applicants to the Commissions on Trial and Appellate Court Appointments, and to the Judicial Performance Review Commission which evaluates and recommends judges for retention under the new system.
These corrupt practices can be easily eliminated by amending the Commissions’ rules of confidentiality to protect only negative or unfavorable information provided by third parties. If this were done, favorable recommendations or comments would be permanently preserved and available to litigants who appear before judges who have received favorable recommendations from the lawyer or law firm on the other side of their case, but who have not recused themselves.
If the will can be found to confront and solve these difficult and somewhat thorny issues, we can hopefully restore the public’s confidence in our legal system as a primary means for fighting corruption. If so, such an effort would clearly be worthwhile.
(Jack Levine was an F. B. I. Agent under J. Edgar Hoover investigating crimes involving public corruption before starting a Phoenix based law practice in 1964. He served as a Member of the Arizona State Bar Board of Governors from 2011-2013.)