Maricopa County Attorney Andrew Thomas (left) and County Manager David R. Smith

We got some unusual insight this week into just how nasty the fighting has become within the upper echelons of Maricopa County government. The county’s top administrator now is hinting that some of the county’s top attorneys have violated a basic ethical standard of the legal profession — always protect the client’s confidentiality. In turn, those attorneys are now risking official sanction to a shine a light on the questioning of their ethics, which they also see as a fundamental attack on their right to free speech.

Two central players in this week’s escalation of the courthouse power struggle are County Attorney Andrew Thomas and County Manager David Smith. As an appointed official who answers to the Board of Supervisors, Smith isn’t as well-known as Thomas. But Smith wields far-reaching influence with his day-to-day control of the county’s $2 billion budget.

As outlined in state law, Thomas’ office normally serves as the “law firm” for the county. The county attorney provides legal advise to the Board of Supervisors and the county manager, and represents the county in court whenever it is sued. But business has been anything but normal ever since Thomas obtained a criminal indictment of one of those supervisors, Don Stapley.

A short time later, the Board of Supervisors said it couldn’t trust Thomas to protect its interests first. So the board essentially fired Thomas as the county’s legal adviser and created it’s own “law firm” called the Office of General Litigation Services. Thomas has tried to stop the board from stripping this authority (his office still prosecutes criminals), but so far the courts have sided with the supervisors.

Despite the current separation, Thomas and his staff had an attorney-client relationship with David Smith and other county administrators. The guidelines that govern this relationship is the first rule of ethics for all lawyers adopted by the state Supreme Court. One key point of that rule: a lawyer almost never can unilaterally decide to talk about private conversations with a client, even after the lawyer and client no longer work together.

On Monday, Smith invoked that ethics rule when he sent a letter to Thomas, six of his top assistants and the county attorney’s public information officer. As Tribune writer Gary Grado reported, Smith asked if Thomas and the others ever shared any confidential information about county business by email with several local media outlets including the Tribune. Smith also wanted to know if the lawyers had ever written about county officials under their own names or anonymously for a political blog called Sonoran Alliance and for two other conservative groups.

Smith, a lawyer himself, isn’t explaining what prompted him to send the letter. But his written questions strongly imply he already has some evidence that he believes point to an ethical breach by Thomas and his top assistants. The evidence apparently wasn’t enough to file a formal complaint with the Arizona State Bar. So Smith must have decided to deliberately provoke Thomas and see what happened.

The response was loud and furious. Barnett Lotstein, a special assistant to Thomas who often speaks publicly for the office, also received Smith’s letter. Lotstein said the county manager is trying to intimidate him from speaking out in defense of the county attorney.

“David Smith isn’t a king,” Lotstein told me. “Perhaps he has forgotten that. Maybe it’s time someone remind him.”

Thomas’ PIO Michael Scerbo forwarded Smith’s letter to Valley journalists, a deliberate move because Scerbo was the only non-attorney to receive the demand for information. Scerbo said he finds the letter alarming because his whole job is to communicate with the media. In theory, Smith could disrupt the county attorney’s ability to speak freely with the public if Thomas has to worry that even if his spokesperson’s conversations are going to be monitored by a powerful critic.

However, Scerbo’s employment by the county attorney means he’s also not supposed to disclose confidential facts of county business. Cari Gerchick, a spokeswoman for the Board of Supervisors’ own “law firm,” drew an analogy to a doctor’s office, where everyone including the nurses and filing clerks legally can’t disclose information about patients, even though those employees aren’t physicians.

Gerchick said Scerbo’s release of Smith’s letter actually was a violation of the ethics rules, because Smith made it clear he was asking for information under the protection of attorney-client confidentiality.

But perhaps the county attorney learned something about the power of transparency when two executives from Phoenix New Times were arrested after they revealed a secret subpoena from a county special prosecutor seeking information about everyone who had visited that publication’s web site. Public backlash to the outrageous overreach of that subpoena prompted Thomas to drop the arrest charges and to cancel the special prosecutor’s investigation.

Any legitimate doubts about Thomas’ legal ethics would have serious implications, as he is likely to campaign for state attorney general next year. But if Smith and the Board of Supervisors want to go after Thomas or his assistants, they better have something more substantial than the public disclosure of a demand letter.