Cochise County Attorney Under Fire Over 2022 Ballot Hand Count
Cochise County, Arizona, board of supervisors member Ally Miller and state Rep. Alexander Kolodin (R–3) filed an election-related bar complaint against Cochise County Attorney Brian McIntyre, alleging he publicly shared legal advice relating to a ballot hand-count in 2022.
In the complaint filed Dec. 18, Kolodin alleges that McIntyre publicly shared legal advice he gave to the board, which was later used as the basis for legal challenge against the board. The information that McIntyre shared related to his opinion of the hand-count, saying he believed doing so would be illegal.
McIntyre later drafted a letter to the group that sued the board, detailing the criminal actions he believed the supervisors had taken when they undertook the hand count.
“The Attorney-client Privilege is the bedrock principle of our legal system. Unfortunately, it appears that Cochise County Attorney Brian McIntyre breached this cornerstone rule of legal ethics by revealing privileged advice that he had provided to his clients,” Kolodin wrote in the complaint.
In 2022, the Cochise County board of supervisors began to consider the possible authorization of a post-election hand count audit to “address voter concerns.” During an October 2022 meeting, McIntyre told the board, “I have advised you that there is on legal basis for this”—a statement later used to sue the board, according to the complaint.
The complaint notes that McIntyre “made this assertion notwithstanding that, upon information and belief, he lacked substantial experience in election law.”
Four days after the October meeting, the attorney general released an informal opinion that stated, in the opinion of his office, the boards proposal was “permissible.”
McIntyre wrote to the plaintiffs suing the board of supervisors, saying he was writing “out of a concern as the public prosecutor of Cochise County of the potential criminal acts that would be inherent in proceeding with the ‘expanded hand count.’” McIntyre continued by listing the laws he believed the board had broken.
According to ER 1.6(c), attorneys are permitted to break privilege to prevent wrongdoing under certain circumstances, but the rule does not apply in this situation, as the board’s hand count proposal was already in litigation, according to the complaint.
“This revelation was not a necessary preventative for many reasons, not the last of which was that the permissibility of the board’s proposed action was already in litigation,’’ Kolodin wrote. “In addition, Mr. McIntyre’s letter consisted almost entirely of legal analysis and, upon information and belief, contained no assertions of non-public fact.’’
Kolodin ended his complaint urging the Arizona state bar to conduct “a thorough investigation into Brian McIntyre.”
McIntyre chose to refrain from further comment but noted that “This isn’t exactly the Christmas present I was hoping for.’’
