In Re: Savoy

Filing 1

ORDER That Grant Joseph Savoy SHALL SHOW CAUSE why his pro hac vice status in this Court should not be terminated or why he should not otherwise be disciplined. See LRCiv. 83.2(a), (e). Accordingly, IT IS ORDERED that the Clerk of Court set up a sep arate proceeding with a miscellaneous case number for the transfer and adjudication of this Order to Show Cause. FURTHER ORDERED that the miscellaneous case number be reassigned, by lot, to another Judge in the District of Arizona. The Clerk is direc ted that Judge G. Murray Snow shall not be selected to rule on the Order to Show Cause. FURTHER ORDERED that this Miscellaneous Case has been reassigned by random lot to the Honorable David G. Campbell. All future proceedings and papers submitted shall bear the following complete case number: MC-13-00014-PHX-DGC. Signed by Judge G Murray Snow on 3/6/13. (MAP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

National Association for the Advancement
of Multijurisdictional Practice; Allison
Girvin; Mark Anderson; and Mark Kolman,

No. CV-12-01724-PHX-GMS
ORDER

Plaintiffs,

11
12

v.

13

Hon. Rebecca White Berch, Chief Justice;
Hon. W. Scott Bales, Vice Chief Justice;
Hon. John Pelander and Hon. Robert M.
Brutinel, Justices,

14
15

Defendants.

16
17
18

The Rules of Practice of the United States District Court for the District of

19

Arizona incorporate Arizona’s “Rules of Professional Conduct,” set forth in the Rules of

20

the Supreme Court of the State of Arizona, Ariz. R. Sup. Ct. 42, as the applicable ethical

21

rules of this Court. LRCiv. 83.2(e). Local Rule 83 of the Rules of Practice further

22

provides that this Court may disbar, discipline, or revoke the order of appointment for

23

any attorney admitted or otherwise authorized to practice in the District of Arizona.

24

LRCiv. 83.2(a).

25

During the course of presiding over NAAMP v. Rebecca White Berch et al., the

26

Court has become aware of circumstances suggesting that Grant Joseph Savoy, counsel

27

for Plaintiffs, has engaged in conduct that violates the Rules of Professional Conduct.

28

Thus, pursuant to the authority provided in Local Rule 83.2, this Order sets forth the

1

reasons for believing that Mr. Savoy has violated these Rules. This Order then directs the

2

Clerk of Court to set up a separate proceeding, with a miscellaneous case number, to be

3

randomly assigned to a Judge of this Court other than Judge G. Murray Snow. The

4

purpose of establishing this miscellaneous and separate case is to transfer this Order to

5

Show Cause to that case and allow the assigned judge to determine whether Mr. Savoy

6

has violated the Rules of Professional Conduct and whether any such violations should

7

result in the revocation of his pro hac vice status or his discipline from this Court. The

8

Court notes that opposing counsel has agreed to appear as a witness and submit evidence

9

at the hearing for this Order to Show Cause.

10

On December 21, 2012, Plaintiffs filed a Second Amended Complaint which

11

alleged that Defendants’ counsel, Eryn McCarthy, had called Mr. Savoy and stated that

12

one of this Court’s chambers law clerks had communicated ex parte with Ms. McCarthy

13

and told her that the undersigned was upset about the filing of the initial Complaint.1

14

(Doc. 36 at 38.) Defendants subsequently moved to strike the Paragraph 73 containing

15

the above allegations. (Doc. 43.) In so doing, Ms. McCarthy attached a sworn affidavit,

16

attached herein as Exhibit A, in which she stated under penalty of perjury that she did not

17

make the statements alleged in Paragraph 73 “or any such statements of any threatening

18

nature to Mr. Savoy or anyone else.” (Doc. 43-1 at 2.) She also attached a number of

19

emails exchanged between herself and Mr. Savoy which she asserts tend to show that she

20

never made any threats against Mr. Savoy. (Doc. 43-1, Ex. A.) Ms. McCarthy further sets

21

forth in her affidavit that Mr. Savoy advised Ms. McCarthy that he had not drafted the

22

Second Amended Complaint, but that it had been drafted by Mr. Giannini, now Mr.

23
1

24
25
26
27
28

The full text of the allegation is as follows:

73. Shortly, after the initial Complaint was served, counsel for the
defendants called counsel for plaintiffs. She advised that the Hon. G. MURRAY
SNOW was “pissed off” about this case being filed, that his Honor’s Clerk had
called her ex parte and told her this fact. She further stated in a threatening tone of
voice that her client’s [sic] had the connections, power, and intent to retaliate and
ruin counsel’s career if he continued with this proceeding.
(Doc. 36 at 38.)
-2-

1

Savoy’s co-counsel in the underlying case. (Doc. 43-1 at ¶ 6.C.) He stated that he agreed

2

with Ms. McCarthy in her belief that the claims in the underlying case were meritless.

3

(Id. at ¶ 6.D.) He further advised Ms. McCarthy that he was worried that this case was

4

going to be bad for his career and that he was “over his head.” (Id.) He asked Ms.

5

McCarthy for advice, at which point she told him to call the California bar and seek

6

ethics guidance. (Id.)

7

In response to Defendants’ Motion to Strike, Mr. Savoy filed an affidavit of his

8

own, attached herein as Exhibit B, swearing under penalty of perjury that he read

9

Paragraph 73 and that he “[stood] behind the facts alleged as true.” (Doc. 57-1 at 1.)

10

Thus, the Court was faced with directly opposing affidavits regarding the allegations of

11

Paragraph 73.

12

The Court therefore set a hearing to assess whether a show cause hearing was

13

appropriate. (Doc. 63.) The next day, Plaintiffs filed a Notice voluntarily striking

14

Paragraph 73 of the Second Amended Complaint. (Doc. 64.) The Court thus granted

15

Defendants’ Motion to Strike, but maintained the hearing regarding the conflicting

16

affidavits.

17

The hearing was held on March 1, 2012. (Doc. 73.) A transcript of the hearing is

18

attached herein as Exhibit C. Throughout the hearing, Mr. Savoy maintained that he

19

believed that Paragraph 73 was a true description of his interpretation of a phone call

20

with Ms. McCarthy. (See Hr’g Tr. 6:16–20; 9:10–11; 15:7-8; 25:8–9; 28:12–15, Mar. 1,

21

2012.) Though Mr. Savoy stated that he did not author Paragraph 73, he admitted that he

22

signed the Second Amended Complaint and that he further signed a statement under oath

23

saying that Paragraph 73 was correct and true. (Id. at 16:6–17.) However, he also agreed

24

that Ms. McCarthy’s version of events was correct. (Id. at 15:10–18.) In addition, Ms.

25

McCarthy played a recording of a voicemail which Mr. Savoy left on her phone on

26

February 5, 2013, and in that voicemail Mr. Savoy simultaneously maintained the truth of

27

his own allegations while stating that he “believe[d] that everything [Ms. McCarthy] said

28

in [her] motion to strike Paragraph 73 was correct.” (Id. at 13:23–24.) Ms. McCarthy’s
-3-

1

position at the hearing was that the allegations in Paragraph 73 were untrue. (Id. at 9:24–

2

25.)

3

Mr. Giannini also represented to the Court that he “participate[d] in drafting all of

4

the words” of Paragraph 73. (Id. at 18:22–19:1.) However, he stated that the basis for the

5

allegations of Paragraph 73 was a conversation that he had with Mr. Savoy immediately

6

after Mr. Savoy ended the phone call with Ms. McCarthy. (Id. at 20:20–21:5, 21:13–16.)

7

The Court questioned both Mr. Savoy and Mr. Giannini about who authored Paragraph

8

73, but warned them that their answers may implicate the Fifth Amendment and informed

9

them that they were not required to answer. (Id. at 15:21–16:4, 18:5–7, 19:12–17.)

10

Mr. Savoy characterized the allegations in Paragraph 73 as a misinterpretation. (Id.

11

at 25:4–7.) He stated several times that he considered the allegations to be too

12

“emotional” and a distraction from the case, which is the reason he gave for filing a

13

Notice to voluntarily strike Paragraph 73. (Id. at 7:9–13; see also id. at 13:24–14:2;

14

24:21–25:7; 31:8–11.) Further, as discussed above, he repeatedly stated that in his

15

opinion, his version of the events was compatible with Ms. McCarthy’s version of the

16

events, and that he believed both to be true and correct. (Id. at 11:17–20; 13:22–24;

17

15:10–18.) As he explained at the hearing, the call from Ms. McCarthy was the first time

18

he had been in contact with opposing counsel in any case. (Id. at 24:12–15.) According to

19

Mr. Savoy, during the call Ms. McCarthy informed him that he had made serious

20

allegations against powerful people and that this kind of case could “have a serious

21

impact on a career of an attorney, especially a young attorney.” (Id. at 25:5–10.) Mr.

22

Savoy stated that he took this as a “direct threat that [her] clients were going to come

23

after [him].” (Id. at 25:14–15.) He stated that if he had gotten the call today, he would not

24

have reacted in the same way. (Id. at 25:11–12.) Thus, Mr. Savoy appears to believe that

25

his misinterpretation of Ms. McCarthy’s words justifies the differences between his

26

version of the events and Ms. McCarthy’s version of the events.

27

There is, of course, almost always some elasticity in the interpretation of words.

28

However, there are limits on the extent to which one can claim that something does not
-4-

1

mean what it plainly says. As can be seen by comparing the affidavits filed by Ms.

2

McCarthy and Mr. Savoy, the two versions of events are incompatible. Though it is

3

somewhat plausible that, as a young attorney, Mr. Savoy may have misconstrued Ms.

4

McCarthy’s statements as a threat, Paragraph 73 goes beyond alleging that Ms. McCarthy

5

made a threat. Paragraph 73 specifically alleges that Ms. McCarthy stated that she had ex

6

parte contacts with clerks of this Court who told her that the undersigned was “pissed

7

off” that Mr. Savoy had filed this case. (Doc. 36 at 28.) It further alleges that Ms.

8

McCarthy expressly threatened that her clients had “the connections, power, and intent to

9

retaliate and ruin counsel’s career.” (Id.) At the hearing, however, Mr. Savoy stated that

10

he “never said that she had an ex parte hearing” and that he should not have signed the

11

complaint or affidavit. (Hr’g Tr. at 24:2–4; see also id. at 21:16–18.)

12

Based on these facts, it appears that Mr. Savoy’s behavior implicates several of

13

Arizona’s Rules of Professional Conduct. Under Ethics Rule (“ER”) 3.1, it does not

14

appear that Mr. Savoy had a “good faith basis in law and fact” for filing the Second

15

Amended Complaint containing Paragraph 73. See Ariz. R. Sup. Ct. 42, ER 3.1

16

(“Meritorious Claims and Contentions”). Mr. Savoy may also have violated ER 3.3 in

17

alleging that Ms. McCarthy stated that she had ex parte contacts and in signing an

18

affidavit reaffirming this allegation. ER 3.3 prohibits a lawyer from knowingly making a

19

false statement of fact or law, or, importantly, failing to correct a false statement of

20

material fact or law previously made by the lawyer. ER 3.3 (“Candor Toward the

21

Tribunal”). As discussed above, Mr. Savoy admitted at the hearing that he never said that

22

Ms. McCarthy told him anything about ex parte contacts. It also appears that Mr. Savoy’s

23

behavior implicates ER 8.2. ER 8.2 states that “[a] lawyer shall not make a statement that

24

the lawyer knows to be false or with reckless disregard as to its truth and falsity

25

concerning the qualifications or integrity of a judge.” ER 8.2 (“Judicial and Legal

26

Officials”). Here, Mr. Savoy alleged that Ms. McCarthy made statements that, if true,

27

would impugn the integrity of this Court by suggesting that a clerk of the undersigned

28

initiated prohibited ex parte contacts with Ms. McCarthy to communicate this Court’s
-5-

1

disapproval of his client’s initial filing. Finally, ER 8.4 specifies that it is professional

2

misconduct

3

misrepresentation;” and to “engage in conduct that is prejudicial to the administration of

4

justice.” Based on the conduct described above, it appears that Mr. Savoy has violated

5

ER 8.4.

to

“engage

in

conduct

involving

dishonesty,

fraud,

deceit

or

6

The Court is mindful of the fact that Mr. Savoy is a young lawyer at the very

7

beginning of his career. Nevertheless, his behavior in this case suggests that he has

8

disregarded the standards set forth in the Rules of Professional Conduct, after he had at

9

least once been advised by sympathetic opposing counsel to consult the state Bar of

10

California for ethics advice. Thus, additional proceedings are necessary to determine

11

whether violations of the Rules have in fact occurred.

12

IT IS THEREFORE ORDERED that Grant Joseph Savoy SHALL SHOW

13

CAUSE why his pro hac vice status in this Court should not be terminated or why he

14

should not otherwise be disciplined. See LRCiv. 83.2(a), (e). Accordingly, IT IS

15

ORDERED that the Clerk of Court set up a separate proceeding with a miscellaneous

16

case number for the transfer and adjudication of this Order to Show Cause.

17

IT IS FURTHER ORDERED that the miscellaneous case number be reassigned,

18

by lot, to another Judge in the District of Arizona. The Clerk is directed that Judge G.

19

Murray Snow shall not be selected to rule on the Order to Show Cause.

20

IT IS FURTHER ORDERED that this Miscellaneous Case has been reassigned

21

by random lot to the Honorable David G. Campbell. All future proceedings and papers

22

submitted shall bear the following complete case number: MC-13-00014-PHX-DGC.

23

Dated this 6th day of March, 2013.

24
25
26
27
28
-6-