by Douglas Ankney
In August 2021, the Arizona State Bar disciplined a former state Assistant Attorney General, Michael John Hrnicek, for his misconduct while opposing a prisoner’s lawsuit against several employees of the state Department of Corrections (DOC).
The prisoner, Tyson McDaniel, is a practicing Muslim who filed suit in 2012 against the DOC employees for denying him a diet that met his religious requirements. In his Motion for Summary Judgment, Hrnicek included a Request for Sanctions, seeking $1,000 from McDaniel on the allegation that the suit was frivolous.
Not only was that request denied but the District Court also called it “wholly inappropriate” for Hrnicek to take it upon himself to critique the Court’s work.
“A motion for sanctions must be made separately from any other motion,” the Court said, citing Federal Rules of Civil Procedure, 11(c)(2). “But more importantly, there is no basis for Defendant’s request. Indeed, McDaniel successfully pursued the grievance process, and upon filing of his lawsuit, the Court found that he sufficiently stated a constitutional claim.”
When McDaniel’s counsel, Stacey Scheff, subpoenaed DOC Director Charles Ryan, Hrnicek moved to quash the subpoena, arguing that Ryan was a non-party who had no memory of the event and that his schedule was problematic, to boot.
The District Court denied that motion as untimely, noting that trial was set for September 22, 2015, and at a pretrial conference on August 31, Hrnicek reported no scheduling conflicts. Further, Hrnicek’s argument that Ryan had no relevant testimony had previously been rejected.
Then, in the parties’ Joint Proposed Pretrial Order, Hrnicek demanded that “Defendants reserve the right to inquire into the sincerity of Tyson McDaniel’s religious beliefs.”
“Their defense,” Hrnicek argued, “hinges on their belief that Tyson McDaniel was insincere when he first applied for a Kosher religious diet. Certainly, there are many Muslims who claim to be practicing their sincere religious faith by attacking Jews and Israel, waging Jihad (holy war) through military action in Afghanistan, Iraq, Syria, through Islamic state-sponsored terrorism, suppression of women’s rights to be educated, drive, vote, hold office, and travel, demanding Halal diets in prison, and filing lawsuits in western societies. Defendants reserve the right to inquire how his beliefs align with and diverge from these various manifestations of the Muslim religion.”
Well then. In response to that, Scheff filed a motion in limine to shield the jury from Hrnicek’s references to terrorism, 9/11, and the like. Hrnicek did not oppose this, and the District Court granted Scheff’s motion, removing all such references from the record. However, Hrnicek later used the phrase “Muslim murderer” to describe McDaniel in his Confidential Settlement Conference Memorandum to the magistrate judge.
That was apparently the last straw for Scheff. She filed a complaint against Hrnicek with the State Bar of Arizona. In a negotiated settlement of the complaint, Hrnicek admitted he violated Rule 42 of the Arizona Rules of the Supreme Court, “specifically ER 3.1, ER 4.4 (a), [and] ER 8.4 (d)...” The parties agreed that Hrnicek violated his duty to his client, the profession, the legal system, and the public.
The parties then consulted the American Bar Association’s Standards for Imposing Lawyer Sanctions in determining an appropriate sanction, pursuant to Ariz. Sup. Ct. Rule 57 (a)(2)(E). The parties agreed that standard 5.2—“Failure to Maintain the Public Trust”—appropriately addressed the facts and circumstances.
While Standard 5.22 provided that “suspension is generally appropriate when a lawyer in a governmental position knowingly fails to follow proper procedure or rules that causes injury or potential injury to a party or the integrity of the legal process,” the parties agreed that a less severe penalty was warranted by several mitigating factors, including Hrnicek’s acceptance of responsibility, a serious health crisis he was undergoing, his adopting or fostering over twenty children with special needs, as well as his work with a prison/jail ministry. Of course, his prison ministry work might very well explain his hostility to Muslims.
The parties agreed that a Reprimand with Probation satisfied the demands of In re Peasley, 208 Ariz. 27 (2004), which concluded that “(t)he object of lawyer discipline is not to punish the lawyer, but to protect the public, the profession, and the administration of justice.”
Hrnicek was placed on probation for one year and ordered to complete six hours of Continuing Legal Education with emphasis on professionalism. The settlement of the complaint was approved in August 2021 by Presiding Disciplinary Judge Margaret H. Downie. See: In the Matter of a Member of the State Bar of Arizona, No. PDJ-9068, (Ariz, 2021).
The Bar’s move against Hrnicek followed by just two months a June 2021 decision by the state Supreme Court upholding the removal of the entire staff of the Assistant Attorney General in Tucson in the murder trial of Darren Goldin, owing to misconduct by the man who held the office during Goldin’s original 2010 trial, Richard Wintory.
Additional source: The Open File
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