or the OPA would not have authorized the
release of the Avila Memo to the media, and
that he was not authorized under the circumstances to make media disclosure decisions on
that particular matter.
Thereafter, Mr. Burke’s immediate supervisor (Deputy Attorney General James Cole)
spoke briefly with him about the release of the
Avila Memo to the New York Times. Mr. Burke
was asked how the Avila Memo was released.
Mr. Burke told him that five or six people had
access to the document, but did not tell Mr.
Cole that his office released the Avila Memo to
the New York Times. Mr. Burke agrees that Mr.
Cole could reasonably have inferred from their
conversation that Mr. Burke did not know how
the New York Times obtained the Avila Memo.
Mr. Burke agrees that he was not forthcoming
with Mr. Cole in this conversation.
Shortly thereafter, Mr. Burke was involved
in the release of another memo to the media
(the Dodson Memo). The Dodson Memo was
authored by John Dodson, an ATF Special
Agent, proposing an operation in which he
would act in an undercover capacity as a straw
purchaser of firearms. On or about June 29,
2011, a reporter with whom Mr. Burke had
significant contact for several years contacted
Mr. Burke. The reporter told Mr. Burke that he
was working on a story involving Dodson, provided him with details, and asked Mr. Burke to
provide him with the Dodson Memo. Based on
this conversation, Mr. Burke contends that he
believed that the reporter either already had a
copy of the Dodson Memo or had reviewed it.
Mr. Burke provided the Dodson Memo to the
reporter, but did so indirectly through his personal email accounts.
At the time that Mr. Burke disclosed the
memo, he was aware that F&F was a matter of
national political importance, that DOJ and/or
the OPA would not have authorized the release
of the Dodson Memo to the media, and that he
was not authorized under the circumstances to
make media disclosure decisions on that particular matter.
By providing the Avila and Dodson memos
to the media without authorization from
his client, Mr. Burke violated Rule 42,
ARIZ.R.S.CT., specifically ER 1. 6.
By misleading Mr. Cole concerning the
release of the Avila Memo, Mr. Burke violated
Rule 42, ARIZ.R.S.CT., specifically ER 8. 4(c).
Aggravating factors: multiple offenses and
substantial experience in the practice of law.
Mitigating factors: lack of a prior disciplinary record, full and free disclosure to the disciplinary board, and character or reputation.
In addition, the parties and presiding disciplinary judge considered the unique facts and
circumstances involved in this case, including
that Mr. Burke resigned his position as U.S.
Attorney and self-reported his misconduct to
the State Bar.
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