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MINOR UPDATE – in this video, I made a comment about how a party can’t use privilege as a “shield and not a sword” (which I knew I was misquoting). That was referring to my view that the AZ bar can’t accuse me of lying about a judge, while simultaneously claiming anything/everything the judge knows is privileged.

I found the correct quote (I was close). This case is talking about attorney-client privilege, but the rule is the same for ANY form of privilege. If you bring a claim based on information that would otherwise be privileged, you waive that privilege:

The rule that a litigant waives the attorney-client privilege by putting the lawyer’s performance at issue during the course of litigation dates back to at least Hunt v. Blackburn, 128 U.S. 464, 9 S. Ct. 125, 32 L. Ed. 488 (1888), where the Court stated: “When Mrs. Blackburn entered upon a line of defence which involved what transpired between herself and Mr. Weatherford [her lawyer], and respecting which she testified, she waived her right to object to his giving his own account of the matter.” Id. at 470-71, 9 S. Ct. 125. The Court thought this proposition so self-evident it felt no need to support it with either citation to authority or further analysis. In the intervening years, courts and commentators have come to identify this simple rule as the fairness principle. See, e.g., United States v. Amlani, 169 F.3d 1189, 1196 (9th Cir. 1999). The principle is often expressed in terms of preventing a party from using the privilege as both a shield and a sword. …In practical terms, this means that parties in litigation may not abuse the privilege by asserting claims the opposing party cannot adequately dispute unless it has access to the privileged materials. The party asserting the claim is said to have implicitly waived the privilege.

Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) (emphasis added).

TONS of updates….

And some notes:

• Blair v. U.S., 250 U.S. 273 (1919)
• Sameshima v. Yamashiro, 3 Haw.App. 130, 642 P,2d 544 (Haw.App. 1982)
• In re Olin, 2024 WL 6881775 (Cal. Bar Ct. 2024)

I’ll share more docs later if anyone wants them. For now, know this — the bar judge has ruled (as of last week) that I am NOT entitled to see the CJC’s records on Mata (yet).

I respect the judge’s decision, but I disagree with it. Strongly.

However, there is more than one way to skin a cat. While I have an option for immediately appealing the bar judge’s ruling, I am taking a more measured approach.

I also served Mata with a subpoena asking for the same information (any correspondence she exchanged with the CJC in response to my complaint). Mata is in a different position than the CJC, so she can try to raise the same objection the CJC used to block my request (which relied on CJC rules), but that effort may not work. It’s up to the bar judge.

IF Mata objects, and IF the bar judge says she doesn’t have to give me the records I’m asking for, there are two things I can do. Step #1 would involve filing something called a “special action”. Special actions are a type of immediate appeal while a case is pending. They are discretionary, meaning the court (in this case, the AZ Supreme Court) would not have to accept the case. But at the same time, I’ve seen special actions brought successfully under similar circumstances, so at least I know this is an option.

But there is also one more option (which is kind of a nuclear option, but not really) — I might need to sue the CJC in federal court. Crazy as that sounds, this recently happened in a case called Civil Rights Corps v LaSalle, 741 F.Supp.3d 112 (S.D.N.Y. 2024).

Lasalle involved an almost identical situation involving complaints against lawyers which were deemed confidential. A public interest law group asked to see records showing how complaints were resolved, but that request was denied. The public interest group then sued the judge responsible for overseeing the attorney grievance committee (I guess the NY equivalent of the AZ bar), arguing they had a First Amendment right to see these records.

A federal judge ruled the NY bar folks could NOT withhold records of attorney discipline cases. In a long and extremely detailed ruling, the judge said the First Amendment requires transparency so members of the public can understand if their government is working as it should. The amount of truth-bombs was incredible:

The First and Fourteenth Amendments to the Constitution prohibit the states from abridging freedom of speech, expression, and the press. See U.S. Const. amd. 1; Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). “These expressly guaranteed freedoms share a common core purpose of assuring freedom of communication on matters relating to the functioning of government.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (plurality opinion). The freedom to discuss matters of government “would lose much meaning” if states could arbitrarily withhold information from the public.

To that end, the First Amendment embraces a qualified right of public access to some governmental proceedings and records to “ensure that this constitutionally protected ‘discussion of governmental affairs’ is an informed one.” Globe Newspaper Co., 457 U.S. at 604-605, 102 S.Ct. 2613 (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966)). Although the Supreme Court has spoken on the First Amendment right of access only in the context of criminal cases, “there is no principle that limits the First Amendment right of access to any one particular type of government process.” N.Y. Civ. Lib. Union v. N.Y.C. Transit Auth., 684 F.3d 286, 298 (2d Cir. 2012) (“NYCTA”)

* * *

The question is whether public access provides a substantial benefit to the proceeding’s ability to carry out its purpose.

The Court finds that it does. The public cannot have faith in a process that it cannot see. See Richmond Newspapers, 448 U.S. at 572, 100 S.Ct. 2814 (“[I]t is difficult for [the public] to accept what they are prohibited from observing.”); In re Demetriades, 58 F.4th at 47 (declining to close appellate arguments in disciplinary appeal because “public censure or reprimand [are] an appropriate and valuable corrective measure in attorney-misconduct cases, in order to protect the public, other attorneys and litigants, the Court, and the administration of justice” (quotation marks and citation omitted)); NYCTA, 684 F.3d at 296 (“Courts and commentators have long recognized the centrality of openness to adjudicatory proceedings: ‘Without publicity, all other checks are insufficient.’ ” (quoting In re Oliver, 333 U.S. 257, 271, 68 S.Ct. 499, 92 L.Ed. 682 (1948))); United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) (“Amodeo II”) (“[P]ublic monitoring is an essential feature of democratic control.”).\

So, what’s next? Simple — Mata’s lawyer (Pamela) is going to let me know this week whether Mata intends to object to the subpoena, and if so, what grounds she’s using to object. As soon as I have that, I will bring a new Motion to Compel in front of the bar judge. If the judge agrees with my side and orders Mata to hand over the records, that’s the end of that (although Mata could technically appeal).

On the other hand, if the judge refuses to allow me to obtain relevant evidence necessary to my defense, then I will immediately file a special action with the AZ Supreme Court, and I will also likely sue the CJC using the same logic that was successful in Lasalle.

One way or another, the truth WILL come out.