County Attorney Conover's 'diversion' deal covers conflict of interest, diligence issues

Pima County Attorney Laura Conover ended a State Bar probe with a “diversion” agreement and publicly denies misconduct allegations filed by a former prosecutor, but the deal addresses conflict of interest and diligence issues, and “conduct prejudicial to the administration of justice.”

The agreement, signed Wednesday, does not detail the specifics of Conover’s actions that led Arizona’s regulatory body for attorneys to undertake the misconduct investigation.

The deal requires Conover to take a continuing legal education course on conflicts of interest, and to discuss the issues that “gave rise to the charge” with the State Bar attorney who investigated the complaint.

The county attorney had declined to release a copy of the agreement, but emailed it to the Tucson Sentinel on Sunday after days of being pressed for it, saying she had “sought clear guidance that it could be properly released to the public.”

Document: Conover agrees to State Bar ‘diversion’

Conover revealed the existence of the agreement herself in a press release from her office Wednesday, but described it only in vague terms, saying that “We’re all human beings. Each one of us can learn from past events.”

“I have not been found guilty of any ethical transgressions, and I have not admitted to any,” she wrote.

That former prosecutor, David Berkman, blasted Conover, saying “she cut a deal to avoid facing significant complaints of misconduct.”

The Tucson Sentinel asked Conover’s office for the document both minutes after her public statement, and again Thursday. Friday afternoon, a paralegal responded that “the Pima County Attorney’s Office does not plan to release the exact content of the agreement.”

While the State Bar considers the record not for public release by that body under court regulations, nothing blocked Conover from making it available.

PCAO did not provide any legal basis for refusing the release the record. Under Arizona law, outside of very specific categories, the presumption is that documents held by a government agency are public and should be provided promptly. The Sentinel again pressed for the release of the document on Friday.

Sunday, Conover provided a copy of the signed agreement, saying “because it was conveyed to me as a confidential document, we first sought clear guidance that it could be properly released to the public. My goal is and will be to maintain professional and legal ethics. After clarifying, I am pleased to be able to transparently share the document.”

‘Deadly Sins of Conflict’

The agreement mandates that Conover complete a “10 Deadly Sins of Conflict” continuing legal education program, and meet with the bar counsel “to discuss the Rules of Professional Conduct as they pertain to the issues that gave rise to the charges.”

The two-page agreement does not lay out any details of the charges against Conover, but specifies that the “conduct addressed” is related to sections of Rule 42 (the Rules of Professional Conduct) of the Rules of the Supreme Court: ER 1.3 – Diligence; ER 1.7 – Conflict of Interest: Current Clients; and ER 8.4(d) – Misconduct.

The State Bar review began with a 22-item complaint filed by Berkman, a former PCAO attorney who left the office as Conover took over in early 2021, following her election. The bar is a quasi-government body that regulates the conduct and discipline of lawyers in Arizona, including in some cases recommendations for suspension and disbarment.

Earlier: After misconduct probe, Pima County Attorney Conover agrees to ‘diversion’ program

Berkman has repeatedly declined to provide the Sentinel with a copy of his complaint (and court rules block the bar from releasing it), but has described it as including “allegations of making false statements during her campaign for county attorney, making false statements concerning her employees, failing to represent the (Board of Supervisors) in an ethical manner, and failing to ethically administer justice in the Louis Taylor case.”

Conover told the Sentinel on Sunday that she believes State Bar procedures block her from releasing a copy of the complaint.

Rule 70
of the court rules that govern State Bar probes state that both the
attorney being investigated and the person filing a complaint are free
to make documents public, unless there is a specific order blocking them
from doing so.

Conover said Wednesday that the document she signed is “an agreement without a finding of ethical misconduct.”

“I have agreed with the State Bar that I will seek advice from experts about communication and perception and will take a seminar. The agreement I have made with the State Bar is not discipline against me as a lawyer,” she said in her press release.

The county attorney reiterated on Sunday that “for the benefit of non-lawyers, it may be helpful to know that according to the State Bar rules, a diversion agreement will not be used for serious conduct. Generally, diversion is only available when the alleged conduct is minor.”

She told the Sentinel that the bar complaint was an unsuccessful attempt at a political distraction.

Berkman, a longtime close associate of the retired former county attorney, Barbara LaWall, has been an outspoken opponent of Conover — whose 2020 political campaign was based in large part on promises to change policies instituted by her Democratic predecessor.

Conover “continues to mislead the public when she claims the bar found no misconduct in her behavior. The bar did not go forward with the claims of misconduct because she agreed to diversion,” he said, comparing the deal to a “plea agreement.”

The counsel for the State Bar, Kelly Goldstein, wrote Berkman that she completed an investigation of Conover’s conduct, and “because of the issues asserted in your bar charges and/or other issues discovered in the disciplinary investigation, Ms. Conover has agreed to participate in a State Bar diversion program.”

“If Ms. Conover fails to comply with these terms, a new disciplinary investigation could be initiated. Successful completion of diversion results in the underlying matter being dismissed,” Goldstein wrote to Berkman on Wednesday.

Under Arizona court rules, “diversion is an alternative to formal discipline.”

Under Rule 55 of the Arizona Rules of the Supreme Court, the counsel for the State Bar evaluates complaints, either dismissing the matter or potentially entering a diversion agreement without further review, or undertakes a full screening investigation “if the alleged conduct may warrant the imposition of a sanction.”

After that investigation, which includes the opportunity for the lawyer in question to respond to the allegations, the bar’s attorney shall dismiss the charge “if there is no probable cause to believe that misconduct or incapacity under these rules exists.”

If the State Bar investigation finds probable cause, the bar counsel and respondent attorney “may enter into a diversion agreement,” or the counsel may proceed with a recommendation to the bar for further adversarial disciplinary action if such an agreement is not in place.

From Arizona’s “Attorney Diversion Guidelines”:

The purpose of the Diversion Program is to protect the public by improving the professional competency of attorneys through educational, remedial and
rehabilitative programs so that attorneys modify practices, procedures or other conduct that does not comply with the Arizona Rules of Professional Conduct. Diversion is intended as an alternative to a disciplinary sanction. The primary goals of the Diversion Program include the early identification of attorneys who have violated the Arizona Rules of Professional Conduct and whose cases involve minor misconduct. The conduct is generally related to poor office management procedures or personal issues that bear on the lawyer’s ability to adequately discharge his/her duties to the client, court or profession. Through the Diversion Program the attorney is provided education or assistance to address specific conduct in an effort to prevent similar ethical violations from reoccurring.

Under those court-approved guidelines, the first factor in reviewing if a case is eligible for diversion is whether “the lawyer engaged in professional misconduct and the basis for the misconduct is susceptible to remediation or resolution through alternative programs.”

“Like every single licensed attorney in Arizona, I am committed to continue learning, now and every day, and for as long as I hold this office,” Conover told the Sentinel on Sunday.

Conover’s initial refusal to release the specifics of her diversion agreement came during Sunshine Week — an annual national collaboration between journalism, civic and educational groups that celebrates the rights of citizens to open access to public records and meetings, and reminds elected officials and government workers of their responsibility to conduct themselves in a transparent manner.

Mike Jette, a former prosecutor in Santa Cruz County and then with the U.S. Attorney’s Office in Arizona, is challenging Conover in the Democratic primary election.

“I do think ethics and integrity are quintessential to running the Pima County Attorney’s Office as the top prosecutor,” he told the Sentinel on Friday. “She should own it, accept it, and move on,” calling on Conover to make the diversion agreement public.

Conover said Friday that “I can only spend but a moment on Mr. Berkman, the man who officiated my opponent’s wedding.”

“I must remain focused on public health and safety in spite of his hundreds of public records inquiries, lawsuits, and State Bar allegations,” she said via text message. “He wanted to distract me, and we have deprived him of it. Berkman and his handpicked candidate think public safety is a game. But that’s not a game I’m willing to play.”

Berkman officiated the wedding of Jonathan Mosher, a former chief trial counsel at PCAO who ran against Conover in the 2020 Democratic primary for the open seat of county attorney.