In the Matter of Lisa M. Aubuchon
233 Ariz. 62
| Ariz. | 2013Background
- Lisa M. Aubuchon, a longtime Maricopa County prosecutor, was charged in a disciplinary complaint alleging multiple violations of the Arizona Rules of Professional Conduct arising from her role in several prosecutions and a civil RICO suit. The hearing panel found nearly all charges proven and ordered disbarment; Aubuchon appealed.
- Key incidents: (1) filing a rushed criminal complaint against Judge Gary Donahoe to force his recusal from grand-jury matters; (2) obtaining an indictment in the Stapley prosecution that included many misdemeanor counts later conceded to be time-barred; (3) filing (and quickly reassigning) a civil RICO suit naming Superior Court judges; (4) attempts to interview or depose judges about their assignments; (5) disputed pre-complaint investigatory steps by independent bar counsel.
- The panel found violations of ER 3.8(a) (prosecutorial duty to have probable cause), ER 8.4(d) (conduct prejudicial to administration of justice), and other ERs; the Court focused on the Donahoe and Stapley matters as most serious.
- Procedurally: independent bar counsel investigated under court appointment; a three-member panel conducted a 26-day hearing; the Supreme Court reviewed de novo legal issues and for clear error the panel’s factual findings.
- The Court affirmed disbarment, finding Aubuchon knowingly filed a complaint without probable cause to secure Judge Donahoe’s recusal and pursued other actions that misused prosecutorial power; it rejected her due-process, recusal, and other challenges.
Issues
| Issue | Plaintiff's Argument (Aubuchon) | Defendant's Argument (State/Bar) | Held |
|---|---|---|---|
| Pre-complaint investigation/process and counsel appointment | Executive Director lacked authority; out-of-state counsel improper; investigator withheld exculpatory evidence; notice inadequate | Investigation and appointment were proper; bar counsel complied with Rule 55 and provided sufficient notice; no deprivation of process | Court rejected procedural-due-process claims; appointment and pre-complaint letter were proper; failure-to-produce claim waived or unsubstantiated |
| Application of new disciplinary rules (Ex Post Facto / equal protection) | New procedural rules were adopted after alleged misconduct and impaired rights | Rules were procedural, not substantive; applying new rules rational and constitutional | Court held no Ex Post Facto or equal protection violation; new rules applied to complaints filed after adoption |
| Recusal of presiding disciplinary judge (Judge O’Neil) | Judge O’Neil should have recused based on prior involvement in related criminal matters and alleged bias | No affidavit filed under A.R.S. §12-409(B); prior judicial involvement did not require recusal; remarks and scheduling not proof of bias | Denial of informal recusal request not an abuse of discretion; alleged bias not shown and post-hoc affidavit waived |
| Filing criminal complaint against Judge Donahoe (ER 3.8(a)) | Complaint supported probable cause; charging decisions are executive prerogative; she believed evidence would be developed | Complaint lacked facts establishing elements; rushed filing to force recusal; experienced prosecutor knew probable cause was lacking | Court upheld panel: complaint lacked probable cause and was filed to secure recusal—violations of ER 3.8(a) and ER 8.4(d) established |
| Stapley indictment: statute of limitations and grand-jury presentation (ER 8.4(d)) | No court had ruled limitations barred charges; she did not know limitations had expired | Office records and timing demonstrated team knew investigation dated to 2007; prosecutor misled investigators about start date and rushed indictment | Court upheld finding that Aubuchon knew or should have known many misdemeanor counts were time-barred and that pursuing them prejudiced administration of justice |
| Filing RICO suit against judges (ER 8.4(d)) | Judges acted outside judicial capacity; suit was colorable | Judges were absolutely immune for judicial acts; filing appeared retaliatory/intimidatory | Court affirmed panel that filing against judges was improper and prejudicial to administration of justice |
| Sanction: disbarment adequacy | Excessive; mitigation excluded or undervalued | Misconduct egregious for a prosecutor; aggravating factors outweighed mitigation; disbarment is presumptive | Court affirmed disbarment after de novo sanction review — conduct warranted presumptive sanction |
Key Cases Cited
- In re Alexander, 232 Ariz. 1, 300 P.3d 536 (Ariz. 2013) (standards for prosecutorial discipline and sanction analysis)
- In re Peasley, 208 Ariz. 27, 90 P.3d 764 (Ariz. 2004) (due-process notice and meaningful opportunity to defend in disciplinary proceedings)
- In re Brady, 186 Ariz. 370, 923 P.2d 836 (Ariz. 1996) (disciplinary proceedings quasi-criminal; due process requirements)
- Liteky v. United States, 510 U.S. 540 (1994) (standards on judicial bias and when recusal is required)
- United States v. Morgan, 313 U.S. 409 (1941) (prohibition on probing judges’ mental processes)
- Simat Corp. v. Ariz. Health Care Cost Containment Sys., 203 Ariz. 454, 56 P.3d 28 (Ariz. 2002) (rational-basis review for non-suspect classifications)
- State v. Beltran, 170 Ariz. 406, 825 P.2d 27 (App. 1991) (procedural changes and ex post facto analysis)
- Belue v. Leventhal, 640 F.3d 567 (4th Cir. 2011) (judicial remarks ordinarily insufficient to show bias)