Apache County recorded notices of violation are they legal

Here is a question. If the Apache County Attorneys either past or present knew that Apache County Officials were violating property owners due process did those Attorney follow these rules? And under U.S.C. Title 18 sections 241 and 242 the actions of the Apache County Officials could be criminal.

 
 
 

1.2:600   Prohibited Assistance

AZ-ER 1.2(d) provides that a lawyer shall not assist a client, or advise a client, to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer may, however, discuss the legal consequences of a course of action, and may counsel a client to determine the validity, scope or meaning of a law. As the Comment to this aspect of the Rule explains: 

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. 

When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See ER 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. In extreme cases, a lawyer may be required to disclose information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. See ER 4.1. 

Comment, AZ-ER 1.2, ‡‡ 10, 11. 

1.2:610      Counseling Illegal Conduct

In Arizona Ethics Opinion No. 2001-04, the Committee considered the obligations of a lawyer in a civil case who receives from a client documents containing privileged or otherwise confidential information which the client had obtained from an employee of the adverse party. On that issue, the Committee concluded that the lawyer must refrain from examining the materials or making use of them, notify (with the client’s consent) opposing counsel of the receipt of them, and either abide by opposing counsel’s instructions as to the disposition of them or seek a ruling from the court. If the client refuses to consent to notifying opposing counsel, the lawyer may not do so, but must still refrain from examining or using the materials. If the lawyer does so, withdrawal is not required. The Committee went on to observe that, if there is evidence that the client has some complicity in obtaining the materials, and intends to continue to do so, the lawyer must counsel the client about the legal consequences of that course of conduct and instruct the client to discontinue. If the client refuses to do so, then the lawyer may, but is not required to, advise the adverse party or the authorities. The lawyer must also refuse to accept any additional documents of that nature obtained by the client. 

In Arizona Ethics Opinion No. 87-05, the Committee on the Rules of Professional Conduct (“the CommitteeÓ) analyzed whether an attorney could ethically advise a client arrested for driving under the influence of alcohol to refuse a blood, breath or urine test. The Committee determined that a lawyer who advises a client to refuse one or all of those tests will not violate the Arizona Rules of Professional Conduct, because the client has a statutory right to do so. The Committee cautioned, however, that the most prudent course of action was for the lawyer to advise the client of the legal consequences of a refusal to submit to the tests, and to allow the client to make the decision whether or not to do so. 

In Arizona Ethics Opinion No. 95-02, the Committee considered whether a criminal defense attorney was required to provide information concerning the client’s intentions to appear at trial. The Committee concluded that, if the attorney has actual knowledge that the client will not appear, and the client’s failure to appear will be willful, then the attorney must so advise the court. 

1.2:620      Assisting Client Fraud

In Arizona Ethics Opinion No. 88-08, the Committee considered an inquiry from a lawyer whose client in a marital dissolution matter had inadvertently but surreptitiously tape recorded a privileged conversation between her spouse and the spouse’s lawyer, in which the spouse revealed the existence of additional funds which would be subject to division in the divorce proceedings, and the lawyer counseled how that could be avoided. The Committee concluded that the attorney could seek to preserve the money, but could not use the tape recording as evidence that the money existed. If the lawyer disclosed the existence of the tape recording or used its contents, then the lawyer would be ratifying or possibly assisting the client’s illegal conduct, and might also be exposing the client to criminal liability. The Committee recognized that the client might expect the lawyer to use the recording in the litigation, but reiterated that the lawyer could not properly do so, and advised the lawyer to explain to the client the ethical limitations on the lawyer’s ability to use the tape. 

In Arizona Ethics Opinion No. 92-02, the Committee considered whether a lawyer had an ethical obligation to reveal the client’s correct name to the court. The lawyer had been retained by “John DoeÓ for representation in a criminal matter. While out on bail, “John DoeÓ had been arrested on other charges, and had given his name as “John SmithÓ to the arresting officers. The inquiring lawyer was subsequently retained by the defendant for representation on these new charges and, during the course of that engagement, learned that the defendant’s true legal name was “John Smith.Ó The Committee concluded that the attorney must advise the client that the attorney could not use the client’s false name with the court, because to do so would be assisting the client in committing a fraud upon the court. If the client refused to correct the false name given in one of the proceedings, then the lawyer was obligated to seek to withdraw, but could not disclose the client’s use of a false name. If the request to withdraw was denied, then the attorney was obligated to proceed with the representation, but without using the false name for the client. See also In re American Continental Corporation/Lincoln Savings and Loan Securities Litigation, 794 F.Supp. 1424, 1452 (D.Ariz. 1992) (attorneys must advise clients in a clear and direct manner when the client violated the law, and if the client continues the objectionable activity, the attorney must withdraw). 

The Court of Appeals has recognized that an attorney who assists a client in perpetrating a fraudulent conveyance may be liable for damages suffered by the client’s defrauded creditors. In McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985), affirmed in part and vacated in part on other grounds 151 Ariz. 403, 728 P.2d 273 (1986), the Court held that a judgment creditor can seek monetary damages from a lawyer who assisted clients in perpetrating a fraud on that creditor. In order to prevail, the judgment creditor needed to prove (1) that the attorney committed actual fraud, and not merely constructive fraud, (2) the remedies under the Uniform Fraudulent Conveyance Act were not adequate, and (3) damages would be limited to the lesser of the amount of the creditor’s judgment, or the value of the property at the time of the fraudulent transfer. Id., 151 Ariz. at 404, 728 P.2d at 273. 

 
 

1.2:830      Representing an Entity [see also 1.13:200]

AZ-ER 1.13(a) provides that “[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.Ó AZ-ER 1.13(b) further states that, if a lawyer knows that an officer, employee, or other person affiliated with the organization has either acted, or intends to act, in a manner related to the representation that violates a law or other legal obligation of the organization, and such action is likely to cause substantial injury to the organization, the lawyer must act in the best interest of the organization. Actions the lawyer may take include urging reconsideration of the matter, advising that a separate legal opinion be obtained, and/or referring the matter to the organization’s highest authority. If the highest authority in the organization insists upon conduct that will violate the law and is likely to result in injury to the organization, AZ-ER 1.13(c) permits the lawyer to withdraw from the representation. 

Similarly, when it becomes apparent that the organization’s interests have become adverse to those of a director, officer, shareholder or other constituent of the organization, the lawyer representing the organization shall explain the identity of the lawyer’s client. AZ-ER 1.13(d). A lawyer may, however, represent one or more officers, directors, employees, shareholders or other constituents of the organization, so long as the representation does not violate the conflict of interest rules of AZ-ER 1.7. AZ-ER 1.13(e). _____________________________________________________________________________________________________

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Ok I found this and it makes me want to get a case together People of Apache County v. County of Apache I think we could do something for the good of all the people in this county if we did.

August 14, 2009 – Update:  Federal Judge sets pretrial conference for March 26, 2010, and trial for April 19, 2010.  Federal Judge stated he has never seen a case like this before and it is “the height of arbitrary and capricious decision making”.  (The longer this case takes the higher the damages- the Padgetts in Monte Sereno received $3.2 million in punitive damages and didn’t even know about concealment in their area of BAFCAB.)  The longer this case takes the more it will impact the upcoming 2010 elections for Neil Coonerty and Tony Campos Supervisor seats as major funding has been secured to publicize the alleged illegal activities of these Supervisors and the cross department collusion.
Another big lawsuit will be filed.  It is a new impact class action suit on behalf of the People of Santa Cruz County v. County of Santa Cruz et al. The impact class action suit will be addressing the same fraud, extortion and corruption scheme issues and will be landing right in the middle of the 2010 election campaign period to injunct the Supervisors to recognize and follow higher laws. All Supervisors will be named – Ellen Pirie, Neil Coonerty, Tony Campos’, Mark Stone, John Leopold and former Jan Beautz, along with Tom Burns and staff.  In addition, another lawsuit is in the works to invoke Government Code 1099 and unseat the Board of Supervisors from any other commission and committee.

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Did Apache County follow these statutes when enforcing the violations? I do not think so as I was never granted any hearing nor was any other property owner found guilty.

 12-901. Definitions
In this article, unless the context otherwise requires:
1. “Administrative agency” or “agency” means every agency, board, commission, department or officer authorized by law to exercise rule-making powers or to adjudicate contested cases, whether created by constitutional provision or legislative enactment. Except as provided in section 33-1905, administrative agency or agency does not include an agency in the judicial or legislative departments of the state government, any political subdivision or municipal corporation or any agency of a political subdivision or municipal corporation.
2. “Administrative decision” or “decision” means any decision, order or determination of an administrative agency that is rendered in a case, that affects the legal rights, duties or privileges of persons and that terminates the proceeding before the administrative agency. In all cases in which a statute or a rule of the administrative agency requires or permits an application for a rehearing or other method of administrative review, and an application for a rehearing or review is made, no administrative decision of such agency is final as to the party applying for the rehearing or review until the rehearing or review is denied or the decision on rehearing or review is rendered. Administrative decision or decision does not include either:
(a) Rules, standards or statements of policy of general application issued by an administrative agency to implement, interpret or make specific the legislation enforced or administered by it unless the rule, standard or statement of policy is involved in a proceeding before the agency and its applicability or validity is in issue in the proceeding.
(b) Rules concerning the internal management of the agency and not affecting private rights or interests.
 

 

12-902. Scope of article
A. This article applies to and governs:
1. Every action to review judicially a final decision of an administrative agency except public welfare decisions pursuant to title 46, or if the act creating or conferring power on an agency or a separate act provides for judicial review of the agency decisions and prescribes a definite procedure for the review.
2. An action to review the decision at an administrative hearing held pursuant to section 33-1905.
B. Unless review is sought of an administrative decision within the time and in the manner provided in this article, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of the decision. If under the terms of the law governing procedure before an agency an administrative decision becomes final because of failure to file any document in the nature of an objection, protest, petition for hearing or application for administrative review within the time allowed by the law, the decision is not subject to judicial review under the provisions of this article except for the purpose of questioning the jurisdiction of the administrative agency over the person or subject matter.
12-904. Commencement of action; transmission of record
A. An action to review a final administrative decision shall be commenced by filing a complaint within thirty-five days from the date when a copy of the decision sought to be reviewed is served upon the party affected. The method of service of the decision shall be as provided by law governing procedure before the administrative agency, or by a rule of the agency made pursuant to law, but if no method is provided a decision shall be deemed to have been served when personally delivered or mailed by certified mail to the party affected at the party’s last known residence or place of business. Service is complete on personal service or five days after the date that the final administrative decision is mailed to the party’s last known address.

B. Within ten days after filing a complaint pursuant to this article, the party seeking judicial review shall file a notice of the action with the office of administrative hearings or the agency that conducted the hearing, and the office of administrative hearings or the agency that conducted the hearing shall transmit the record to the superior court. The record shall consist of the following:

1. The original agency action from which review is sought.

2. Any motions, memoranda or other documents submitted by the parties to the appeal.

3. Any exhibits admitted as evidence at the administrative hearing.

4. The decision by the administrative law judge and any revisions or modifications to the decision.

5. A copy of the transcript of the administrative hearing, if the party seeking judicial review desires a transcript to be included in the record and provides for preparation of the transcript at the party’s own expense. Any other party may have a transcript included in the record by filing a notice with the office of administrative hearings or the agency that conducted the hearing within ten days after receiving notice of the complaint and providing for preparation of the transcript at the party’s own expense.

New find and I think it is a example of the types of things going on here in Apache County:

 http://www.straighttalknews.org/uploads/TonyCampos-BOS.pdf

I found this link. It is about how code violations effect property and insurance. And it is good reading.

http://cmetro.ctic.com/TitleIssues/v5n6.pdf

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All Arizona counties are required to hold a hearing when violating a persons property. It gives the property owners a chance to admit or denie any violation charges. Except that Apache County has twisted the ARS 11-810 and the BOAA into one mess. Which by doing so has denied property owners the intent of ARS 11-810.

Link to Pinal county rules of procedure and some interesting reading:

http://pinalcountyaz.gov/Departments/HearingOffice/Documents/Downloads/Rules.pdf

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Update: this taken from the Apache County Attorneys home page

Mission Statement

The mission of the Apache County Attorney’s Office is to protect
all the citizens of Apache County by providing the impartial
administration of Arizona’s laws and provide legal services to each Apache County entity.

But he does not do this. He is and has been helping the Apache County Community Development and building departments cover up the illegal enforcement of the Apache County Zoning Ordinances.

And whats is even worse is that the Apache County Attorney made campaign promises to protect the property owners rights. As he says here. This taken from his own campain web site.

Apache County’s Financial Troubles Are A Serious Issue This Election

Apache County is currently facing a whopping $1 million deficit and a “freeze” has been placed on any new hiring. Why should this matter in your vote for County Attorney?

Sound Legal Advice Will Save the County Money

The County Attorney represents the county in civil legal matters. Civil matters involve a variety of non-criminal legal cases, such as interpreting ordinances, enforcing contracts, negotiating easements and the like.  I have been talking to people whose families have lived here for several generations and people who just moved here several months ago. I’ve listened to many people with low or fixed incomes struggle to understand why the county wants to enact a strict zoning code that may force financial hardship on residents. Others are concerned about eminent domain issues.  As an elected official, the County Attorney has a responsibility to make sure that any new ordinances or other civil matters are constitutional, are in clear and precise language, and serve the financial and social needs of the County’s citizens.

The bottom line is that if the County Attorney incorrectly advises the county, the wrong advice will ultimately cost the taxpayers a great deal of money.  Bad advice can possibly result in lost revenues and jobs.

And then he said this on his site

Private Land Use and Zoning Issues

Slightly more than 13% of the land in Apache County is privately owned.  The rest is reservation land and public land.  In talking with people throughout our county, I am finding that a significant group of voters are worried about the restrictive zoning ordinance being considered by the Board of Supervisors.  With such a small percentage of private land in our County, land use and zoning is a major consideration facing our property owners.

The Apache County Attorney represents and advises the County’s various governmental branches such as the Board of Supervisors, school and fire districts, departments and agencies.  The County’s justice courts also rely on advice from the County Attorney’s office.  For this reason, it is important that the citizens elect a County Attorney who can provide sound legal counsel for all branches of county government. 
 
Bad advice generally creates lawsuits, appeals and administrative actions that cost the taxpayers thousands — if not hundreds of thousands — of dollars to defend.  For this reason, selecting an intelligent and experienced candidate for County Attorney is an important decision to be made by the voters.  I urge you to review my resume and discover why I am the most qualified candidate.
 So is he really doing as he promised? Or did he just tell us all what we wanted to hear? Is he by not correcting past problems he is very well aware of himself violating our rights? What do you think?
 
Has he done anything to restore the rights already violated? Or has he worked to protect those whom have made those rights violations? At what cost to your rights is he acting to protect those whom have been failing to do their jobs and not working to protect you and me at all.
 
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Are the recorded notices the Apache County Building official has been recording and using as a tool to force unsuspecting property owners into compliance with illegal ordinances and building codes Legal? In my opinion “NO” as the county has failed to follow the Arizona Revised Statutes when adopting the Apache County Zoning Ordinances and Building Codes. But also by defect of the actions taken when sending the notice of violation letter to ALLEGED violators. Those letters fail to include required information as per Article13  as it was recently adopted on Dec.2, 2008 and Published over a year later. So if the county Building official prior to the newest version of Article 13 was never by ordinance granted the power to enforce the codes by what legal authority has he been acting? As nowhere in the Apache County Zoning Ordinance as adopted was the building official granted the power to enforce any zoning ordinances. and as the building official he has no authority to enforce anything except maybe the building codes if they were ever legal. And according to the ARS 11-866 that for the county to be able to enforce the building codes they must set forth in full all the penalties for a violation of the ordinance and/or codes this never happened until this year when the county made a feeble attempt at fixing the mistake. But I think that a challenge could still be made as they have never recorded any of the ordinances. So if anyone has been attacked with a recorded notice of violation we could stand together and make a challenge to it. Plus I am looking into if the first adopted zoning in Apache County was adopted according to the ARS as required and if not it could mean that none of the ordinances are enforceable. Why you may ask well once again in my opinion if the county never legally adopted the first ordinance it would invalidate any following amendments to it as you cannot amend an illegal document. So what do you think? Let me know and lets fight these type of property rights violations and prevent  the county from  creating an illegal cloud on others  property titles like they have ours. And keep in mind that not one property owner has been allowed the right to due process by the Apache County Officials.

I have found this case which is in the Federal courts now. And I will be watching what happens.

  http://www.straighttalknews.org/uploads/MotionandAmendedComplaintElanRev.Oracle.pdf

 

http://www.straighttalknews.org/uploads/Paul_Carrick_Cross_Complaint_Motion_for_Summary_Judgement_v_County_of_Santa_Cruz_for_false_red_tags.pdf

 http://www.straighttalknews.org/uploads/crossdefendantsanswerammended.pdf

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

　

　

　

　

　

　

　

　

　

　

　

　

 

 

 

 

 

 

 

 

 

 

 

 

 

1.2:600   Prohibited Assistance

AZ-ER 1.2(d) provides that a lawyer shall not assist a client, or advise a client, to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer may, however, discuss the legal consequences of a course of action, and may counsel a client to determine the validity, scope or meaning of a law. As the Comment to this aspect of the Rule explains: 

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. 

When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See ER 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. In extreme cases, a lawyer may be required to disclose information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. See ER 4.1. 

Comment, AZ-ER 1.2, ‡‡ 10, 11. 

1.2:610      Counseling Illegal Conduct

In Arizona Ethics Opinion No. 2001-04, the Committee considered the obligations of a lawyer in a civil case who receives from a client documents containing privileged or otherwise confidential information which the client had obtained from an employee of the adverse party. On that issue, the Committee concluded that the lawyer must refrain from examining the materials or making use of them, notify (with the client’s consent) opposing counsel of the receipt of them, and either abide by opposing counsel’s instructions as to the disposition of them or seek a ruling from the court. If the client refuses to consent to notifying opposing counsel, the lawyer may not do so, but must still refrain from examining or using the materials. If the lawyer does so, withdrawal is not required. The Committee went on to observe that, if there is evidence that the client has some complicity in obtaining the materials, and intends to continue to do so, the lawyer must counsel the client about the legal consequences of that course of conduct and instruct the client to discontinue. If the client refuses to do so, then the lawyer may, but is not required to, advise the adverse party or the authorities. The lawyer must also refuse to accept any additional documents of that nature obtained by the client. 

In Arizona Ethics Opinion No. 87-05, the Committee on the Rules of Professional Conduct (“the CommitteeÓ) analyzed whether an attorney could ethically advise a client arrested for driving under the influence of alcohol to refuse a blood, breath or urine test. The Committee determined that a lawyer who advises a client to refuse one or all of those tests will not violate the Arizona Rules of Professional Conduct, because the client has a statutory right to do so. The Committee cautioned, however, that the most prudent course of action was for the lawyer to advise the client of the legal consequences of a refusal to submit to the tests, and to allow the client to make the decision whether or not to do so. 

In Arizona Ethics Opinion No. 95-02, the Committee considered whether a criminal defense attorney was required to provide information concerning the client’s intentions to appear at trial. The Committee concluded that, if the attorney has actual knowledge that the client will not appear, and the client’s failure to appear will be willful, then the attorney must so advise the court. 

1.2:620      Assisting Client Fraud

In Arizona Ethics Opinion No. 88-08, the Committee considered an inquiry from a lawyer whose client in a marital dissolution matter had inadvertently but surreptitiously tape recorded a privileged conversation between her spouse and the spouse’s lawyer, in which the spouse revealed the existence of additional funds which would be subject to division in the divorce proceedings, and the lawyer counseled how that could be avoided. The Committee concluded that the attorney could seek to preserve the money, but could not use the tape recording as evidence that the money existed. If the lawyer disclosed the existence of the tape recording or used its contents, then the lawyer would be ratifying or possibly assisting the client’s illegal conduct, and might also be exposing the client to criminal liability. The Committee recognized that the client might expect the lawyer to use the recording in the litigation, but reiterated that the lawyer could not properly do so, and advised the lawyer to explain to the client the ethical limitations on the lawyer’s ability to use the tape. 

In Arizona Ethics Opinion No. 92-02, the Committee considered whether a lawyer had an ethical obligation to reveal the client’s correct name to the court. The lawyer had been retained by “John DoeÓ for representation in a criminal matter. While out on bail, “John DoeÓ had been arrested on other charges, and had given his name as “John SmithÓ to the arresting officers. The inquiring lawyer was subsequently retained by the defendant for representation on these new charges and, during the course of that engagement, learned that the defendant’s true legal name was “John Smith.Ó The Committee concluded that the attorney must advise the client that the attorney could not use the client’s false name with the court, because to do so would be assisting the client in committing a fraud upon the court. If the client refused to correct the false name given in one of the proceedings, then the lawyer was obligated to seek to withdraw, but could not disclose the client’s use of a false name. If the request to withdraw was denied, then the attorney was obligated to proceed with the representation, but without using the false name for the client. See also In re American Continental Corporation/Lincoln Savings and Loan Securities Litigation, 794 F.Supp. 1424, 1452 (D.Ariz. 1992) (attorneys must advise clients in a clear and direct manner when the client violated the law, and if the client continues the objectionable activity, the attorney must withdraw). 

The Court of Appeals has recognized that an attorney who assists a client in perpetrating a fraudulent conveyance may be liable for damages suffered by the client’s defrauded creditors. In McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985), affirmed in part and vacated in part on other grounds 151 Ariz. 403, 728 P.2d 273 (1986), the Court held that a judgment creditor can seek monetary damages from a lawyer who assisted clients in perpetrating a fraud on that creditor. In order to prevail, the judgment creditor needed to prove (1) that the attorney committed actual fraud, and not merely constructive fraud, (2) the remedies under the Uniform Fraudulent Conveyance Act were not adequate, and (3) damages would be limited to the lesser of the amount of the creditor’s judgment, or the value of the property at the time of the fraudulent transfer. Id., 151 Ariz. at 404, 728 P.2d at 273.

Published in: on October 4, 2009 at 10:20 AM  Leave a Comment  
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