Ethics Questions Could Follow Volkmer And Gaona After Hamadeh New Trial Ruling

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Pinal County Attorney Kent Volkmer addresses the Board of Supervisors at a recent meeting.

Abe Hamadeh and Kris Mayes have the most at stake when a Mohave County judge decides next week whether to order a new trial in Hamadeh’s election challenge involving the Arizona Attorney General’s race.

But two attorneys have a lot at stake as well, if Judge Lee Jantzen finds fault with their conduct related to the Hamadeh v. Mayes trial held last December.

As reported by Arizona Daily Independent in January, Pinal County Attorney Kent Volkmer was aware before and during the Dec. 23 trial that his county did not initially count hundreds of ballots.

In fact, just prior to Pinal County’s Nov. 21 canvass vote, Volkmer dismissed a comment by one of the county supervisors about issues with the vote count. The county attorney told the board he was “incredibly confident” in the numbers that had been put forth and that he knew of nothing to suggest “irregularities” with the count.

Volkmer took no action prior to the canvass vote to ensure his confidence –and his legal advice– was based on facts. The canvass deadline was not until Nov. 28, so the county attorney could have advised the supervisors to postpone the vote so he could look into whatever concerns may have been lurking in the background.

It would not be until Dec. 7, more than two weeks before Hamadeh’s election challenge trial, that Pinal County officials finally fessed up to then-Arizona Secretary of State Katie Hobbs’s office of serious tabulation issues. That information had been known by Volkmer at least a week sooner.

But Volkmer then stood silent over the next few weeks, including on Dec. 23 as Hamadeh’s trial in his challenge against Mayes took place in Kingman. Court records show Volkmer was well aware of the trial, as Pinal County Recorder Dana Lewis as well as the five-member Board of Supervisors were named as co-defendants.

Hamadeh’s election challenge was dismissed by Jantzen, in part for being unable to put forth proof of tabulation problems. Jantzen could rule as early as May 16 on whether Hamadeh is entitled to a new trial for what Hamadeh’s attorneys argue was an intentional decision by Volkmer and county officials to conceal “process failures that operated to confuse and convolute the admittedly hasty” vote count.

“Had this information been available to Contestants when it was available to the Secretary of State, Contestants would have had the opportunity to present an even more compelling case to this Court for wider ballot inspection and thus would have had access to additional evidence to prove its case at trial,” the new trial motion argues.

Volkmer’s office has filed a response to Hamadeh’s motion for that new trial, contending Pinal County “takes no position regarding the ultimate merits” of Hamadeh’s motion. Yet the same response also defends a prior legal filing which asserted “Pinal County did it right” in its handling of the mandated recount.

Volkmer is not the only attorney whose conduct has come into question.

Andy Gaona of Coppersmith Brockelman PLC was one of the attorneys for Hobbs. On Dec. 21, two days before the Hamadeh trial, Hobbs’ office received a detailed accounting of Pinal County’s tabulation problems which had come to light during the statewide recount of the attorney general’s race.

Yet like Volkmer, Gaona did not disclose his client’s knowledge of those errors before or during the Dec. 23 trial.

Although the recount statute bars the release of recount vote counts prior to the recount hearing, Hamadeh’s legal team argues nothing prevented Gaona from disclosing the undervote problems, at least to the judge.

“And specifically, the Secretary knew or should have known at trial that the allegations raised in the Plaintiffs’ election contest and at trial – namely that tabulators erroneously misread ballots and failed to count valid votes cast in the attorney general’s race- were a confirmed problem in Pinal County, discovered during the recount,” Hamadeh argues in the motion for new trial.

The motion goes on to argue that Arizona’s Rules of Professional Conduct for attorneys required the disclosure. The recount statute, Hamadeh argues, does not permit the withholding of “critical evidence” nor does it relieve attorneys of their ethical duty “of candor” to the Court, especially during a trial.

Among those ethical rules is 3.3(a)(l) which reads in part that a lawyer “shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

READ MORE:

Hamadeh Filing Hits Hobbs And Maricopa County Hard For Withholding Evidence

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