4 The Ethics of Client Representation for State Attorneys General: February 2 4 The Ethics of Client Representation for State Attorneys General: February 2
All lawyers must adhere to their state’s Rules of Professional Conduct, e.g. “the Model Rules.” Failure to comply can result in severe sanctions including a revocation of a lawyer’s license.
Obeying these rules is therefore a requirement for the continued employment of a lawyer by a government legal agency including offices of attorney general. Government lawyers are also bound by state ethics laws and regulations that are generated by their own state law and governmental agencies.
The Model Rules have been created by the American Bar Association and are focused on the private practice of law. They have ben carefully drafted and are replete with numerous advisory rulings and official opinions from various ABA committees. A lawyer who follows the Rules is generally referred to as “ethical.”
Because the Model Rules are designed for the private practice of law they are often not consistent with the requirements of government lawyering. This Chapter examines the difficulty of aligning the Rules with the day-to-day responsibilities of attorneys general and their staff. This is done by use of hypotheticals drawn from real life situations that occur with some frequency that are hidden from the public's view because of attorney client confidentiality.
4.1 Freeport-McMoran Oil & Gas Co. v. Federal Energy Regulatory Commission 4.1 Freeport-McMoran Oil & Gas Co. v. Federal Energy Regulatory Commission
962 F.2d 45
FREEPORT-McMoRAN OIL & GAS COMPANY, American Production Partnership-V, Ltd., and Ninian Oil Finance Corp., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. K N ENERGY, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
Nos. 90-1499, 90-1526.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 7, 1991.
Decided April 24, 1992.
John T. Miller, with whom William F. Demarest, Jr., Adelia S. Borrasca and B.J. Becker were on the joint brief, for petitioners in Nos. 90-1499 and 90-1526.
John M. Cockrell, Atty., F.E.R.C., with whom William S. Scherman, Gen. Counsel, Jerome M. Feit, Solicitor, and Joseph S. Davies, Deputy Solicitor, were on the brief, for respondent.
Paul K. Sandness, Robert T. Hall, III and Stephen L. Huntoon were on the brief, for intervenor, Williston Basin Interstate Pipeline Co. in Nos. 90-1499 and 90-1526.
Adelia S. Borrasca and William F. Demarest, Jr., entered appearances, for petitioners, Freeport-McMoRan Oil and Gas Co., American Production Partnership-V, Ltd., and Ninian Oil Finance Corp. in No. 90-1526.
Before MIKVA, Chief Judge, SILBERMAN and RANDOLPH, Circuit Judges.
Opinion for the court filed by Chief Judge MIKVA.
This case is plainly moot. The challenged orders of the Federal Energy Regulatory Commission were superseded by a subsequent FERC order, and while the challenged orders were in effect petitioners suffered no injury this court can redress. At oral argument, for the first time, FERC’s counsel said the Commission had no objection to petitioners’ request that we vacate the challenged orders. Accordingly, we vacate them. See Mechling Barge Lines v. United States, 368 U.S. 324, 328-30, 82 S.Ct. 337, 340-41, 7 L.Ed.2d 317 (1961); Northwest Pipeline Corp. v. FERC, 863 F.2d 73, 76 (D.C.Cir.1988).
Ordinarily, we would handle such a matter in an unpublished order. We write, however, to express our displeasure with FERC counsel’s failure to take easy and obvious steps to avoid needless litigation. We also pause to address FERC counsel’s remarkable assertion at oral argument that government attorneys ought not be held to higher standards than attorneys for private litigants.
K N Energy, a pipeline company and a petitioner here, gathers gas in Montana from three gas producers, Freeport-McMoRan, American Production Partnership, and Ninian Oil, the other petitioners. K N delivers the gas in Montana to the pipelines of Williston Basin Pipeline Company, which redelivers an equivalent volume of gas in Wyoming to K N for transport to end users. K N and Williston have a contract that governs the exchange of gas between them, a 20-year-old agreement approved by FERC and identified in Williston’s tariffs as rate schedule X-3. K N and the producers maintain that the contract entitles K N to firm — rather than interruptible — service. Williston disagrees, and so, in the challenged orders, does FERC.
FERC issued the first of the challenged orders on August 17, 1990, accepting tariffs filed by Williston and finding that the X-3 contract service was essentially interruptible — that service to K N was superior to all other interruptible service, but subordinate to Williston’s firm service. Two orders denying rehearing, issued September 20, 1990, and October 17, 1990, reaffirmed that decision. K N and the other petitioners petitioned for review in this court on October 22, 1990, five days after FERC issued the last denial of rehearing; petitioners filed their joint brief on schedule on July 19, 1991.
Meanwhile, FERC was considering an open-access tariff that Williston had filed in 1988. On July 23, 1991, a few days after petitioners filed their brief in this case, the Commission issued an order in that proceeding, finding again that K N’s service was not firm. That open-access order superseded the earlier orders, meaning that the challenged orders governed the relationship between Williston and K N only from August 17, 1990, until July 23, 1991. During that period, K N purchased and received firm service from Williston under an agreement reached before FERC issued the first of the challenged orders. K N has refused to pay added charges for the firm service it has received from Williston, and Williston has filed a complaint with FERC seeking to recover those charges. But the priority of K N’s service from Williston is appropriately resolved either upon review of FERC’s open-access order (petitions for review are now pending), or in the complaint proceeding. Petitioners have not shown that they “have suffered some actual injury that can be redressed by a favorable judicial decision” in this court, and their challenge is therefore moot. Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70,104 S.Ct. 373, 375, 78 L.Ed.2d 58 (1983).
Nevertheless, despite issuance of the open-access order, petitioners had reason to press ahead with their challenge to the superseded orders. Leaving the old orders on FERC’s books might affect ongoing litigation between petitioners and Williston. Petitioners understandably wanted to render the challenged orders legally irrelevant — either by having this court reject them on the merits, or by having them vacated. To FERC, meanwhile, the challenged orders were meaningless and could painlessly be vacated, as FERC’s counsel acknowledged at oral argument.
*238At several points before oral argument, FERC’s counsel should have seen that vacating the orders would likely settle this litigation, saving time, energy, and money, allowing the parties to focus their attention on review of the open-access order, and allowing the court to focus on live cases and controversies instead of this moot one. Many lawyers would have seen the possibility of settlement as soon as FERC issued its open-access order, mooting the pending challenge. The ease of settlement became obvious when petitioners, in their reply brief, explained their concern that the unreviewed orders might prejudice their position in other litigation and asked the court to vacate the orders. Despite the benefits of settlement and the pointlessness of proceeding, FERC’s counsel did not try to contact opposing counsel to explore whether vacating the orders would resolve the case; nor did FERC’s counsel recommend that the Commission file a motion to have this court remand the orders so that FERC could vacate them unilaterally. FERC’s counsel did not even disclose in the brief he drafted and filed with this court the Commission’s position on vacating the challenged orders, leaving the impression that the Commission might oppose vacating them.
We understand that what seems obvious in hindsight might not have occurred at the time to a busy agency lawyer. We do not understand, however, FERC counsel’s repeated insistence at oral argument that he had no obligation at all to take any of the steps we have mentioned. “I don’t think we had to do that,” counsel said in response to a suggestion that a phone call to opposing counsel might have put an end to the case; “the burden is on him.” When a member of the panel submitted that counsel for a public agency has special obligations, FERC’s counsel replied that “I think we can agree to disagree on that point.” At the close of oral argument, FERC’s counsel summed up his position: “All I can say is that I think you’re holding us to a different standard here.”
The notion that government lawyers have obligations beyond those of private lawyers did not originate in oral argument in this case. A government lawyer “is the representative not of an ordinary party to a controversy," the Supreme Court said long ago in a statement chiseled on the walls of the Justice Department, “but of a sovereignty whose obligation ... is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). The Supreme Court was speaking of government prosecutors in Berger, but no one, to our knowledge (at least prior to oral argument), has suggested that the principle does not apply with equal force to the government’s civil lawyers. In fact, the American Bar Association’s Model Code of Professional Responsibility expressly holds a “government lawyer in a civil action or administrative proceeding” to higher standards than private lawyers, stating that government lawyers have “the responsibility to seek justice,” and “should refrain from instituting or continuing litigation that is obviously unfair.” Model Code of Professional Responsibility EC 7-14 (1981).
Government lawyers, we have no doubt, should also refrain from continuing litigation that is obviously pointless, that could easily be resolved, and that wastes Court time and taxpayer money. “[T]he United States,” as President Bush stated in an Executive Order, “sets an example for private litigation by adhering to higher standards than those required by the rules of procedure in the conduct of Government litigation in Federal court.” Executive Order on Civil Justice Reform, 27 Weekly Comp. Pres. Doc. 1485 (October 23, 1991). The Executive Order, designed in part “to reduce needless litigation,” requires government attorneys to attempt to settle cases whenever possible. Id. Although we express no views on the applicability of the Executive Order to counsel for administrative agencies, and although we think a government lawyer’s obligation to avoid needless litigation precedes the Executive Order, the Order plainly propounds the very proposition FERC’s counsel challenged at oral argument.
*239We stress, to conclude, that we are concerned not so much with the failings of FERC’s counsel in this case, but with the underlying view of a government lawyer’s responsibilities that counsel revealed at oral argument. We find it astonishing that an attorney for a federal administrative agency could so unblushingly deny that a government lawyer has obligations that might sometimes trump the desire to pound an opponent into submission.
The challenged orders are
vacated.
4.2. Pa. AG Kathleen Kane still in office despite suspension of law license (2015)
Marc Levy, Associated Press, Sept. 21, 2015
HARRISBURG - Pennsylvania's highest court on Monday ordered the temporary suspension of state Attorney General Kathleen Kane's law license, a step that could trigger efforts to remove her from office as she fights criminal charges.
The unanimous order by the state Supreme Court's five justices also could prompt a legal challenge from the first-term Democrat. In the meantime, it leaves the state's top law enforcement official in charge of a 750-employee office and a $93 million budget but without the ability to act as a lawyer.
The state constitution requires the attorney general to be a licensed lawyer, but the court said in the order that its action should not be construed as removing her from office, raising questions about her ability to do the full range of duties associated with the office.
In a statement, Kane said she was disappointed in the court's action, but grateful that it recognized her rights as an elected official.
Then, Kane called attention to a pornographic email scandal uncovered by her office that involved numerous current and former officials there and claimed the job last year of a state Supreme Court justice.
Kane said she would continue the work of her office, including rooting out "the culture of misogyny and racially/religiously offensive behavior that has permeated law enforcement and members of the judiciary in this Commonwealth for years."
The office's spokesman said Kane will continue performing all duties not prohibited by the court's order, including setting priorities and making administrative decisions.
The first deputy attorney general, Bruce Beemer, a career prosecutor, will likely assume duties she can no longer perform, the spokesman said.
The order comes barely a month after Montgomery County authorities arrested Kane on charges she leaked secret investigative information to a newspaper reporter and then lied about it under oath. She was charged with perjury, obstruction and other counts.
Kane has maintained she did nothing wrong. Gov. Tom Wolf, a fellow Democrat, called on Kane to resign after she was charged Aug. 6.
Kane, whose term is up in 2017, will not resign, her spokesman said Monday.
Kane, the first woman to hold the position of Pennsylvania's top prosecutor, has dismissed the probe against her as an unfair backlash over her challenge to what she calls the old-boys' network in state government.
In a statement, her private lawyers said they were disappointed in the court's decision and predicted that she would be exonerated once her side of the story is told.
They also said she has never been permitted to present evidence or confront a witness against her, and "most importantly, no fact finder has ever found that she did anything wrong," said her lawyers, James Mundy and James Powell.
Her lawyers have argued that suspending her license while she is contesting the allegations would circumvent explicit constitutional provisions for removing her from office and violate her right to due process of law.
In the Senate, the potential for the court's action has prompted Senate lawyers to research a never-used constitutional provision that allows a two-thirds vote of senators to remove certain elected officials.
In its Aug. 25 petition to the high court justices, the agency that investigates misconduct by Pennsylvania lawyers argued that Kane and one of her former defense attorneys admitted that she had authorized the release of information related to a 2009 grand jury investigation.
That allegation is also central to the criminal case against her.
However, Kane's current lawyers say she did not disclose grand jury material or information kept secret under state criminal records laws. Instead, they have argued, she only authorized the release of information "relating to a pattern of unjustifiable selective prosecution or nonprosecution" under her predecessors.
Previous statements by her attorneys that she authorized the transcript's release were incorrect, her lawyers now contend.
4.3. Disciplinary Complaint against SC AG Alan Wilson, Office of Disciplinary Counsel, SC, Jan. 12, 2021,
4.4. The Four Seasons – Ethics Hypotheticals
ETHICAL DILEMMAS FOR ATTORNEYS GENERAL:
Many decisions made within the offices of state attorney general do not fit easily with the Model Rules. Representing the public interest in an office of attorney general can be exceedingly complex task with no easy solutions.
This section explores the ethical challenge of an attorney general and his/her staff. It does so by presenting four hypotheticals drafted by the author and Prof. Peter Brann all of which draw from actual fact patterns that occur with some regularity within offices of attorney general.
The use of hypotheticals is necessary because each fact patterns was resolved within the attorney general office itself and is appropriately veiled in the confidentiality required by the attorney-client privilege. Each fact pattern can generate many ethical paths each of which is as ethical as the other. It could also generate unethical response, and the difference between the two is always narrow and nuanced.
THE FOUR SEASONS: SPRING:
You are a brand new Assistant Attorney General in the State of Kennebec.
Inspired to apply from a class you took at Pitt Law School, you have just been sworn in by the Attorney General himself, Samantha Clifford, whose vision for the future had inspired you to return to Kennebec after time away at both your college and Pitt Law School. Your life partner has meanwhile taken a job at McKernan & King, the largest firm in Kennebec.
After the ceremony, you are then taken to lunch at the State House Cafeteria (known locally as the “Bay of Pigs”) by Pat Fuller, your new Supervisor, who is the Civil Deputy Attorney General in charge of agency representation and civil litigation.
“We haven’t hired anyone out of law school in a long time,” Fuller begins, “but we’ve all been here forever and thought that it would be good to get some new, Pitt Law blood. You won’t have any lack of work! See those cardboard boxes that are lining the halls? All cases … all the time. There is no end to the people who want to sue Kennebec!”
“You know, I’ve seen ‘em come and go over the years,” Fuller continued. “We’ve had some good AG’s—like the one we have now—and we have had some bad ones. But here representing state agencies, we just pick up the tools and get the job done. Our clients are career claims managers in the various state agencies and they are terrific, too. We like to settle whenever we can, of course, but you will get trial experience here that exceeds anything that life partner of yours will get in that fancy downtown firm!”
Forty-five minutes later you are sitting at your computer gazing at a docket list of cases. It appears that you are due in court the next day on a motion to dismiss that was filed by your well loved predecessor who has just retired.
You pick up the first file and see that you will be arguing to dismiss a case involving a former prisoner whose hand had been severed while working in the prison carpentry shop. According to an internal investigation (which has not yet been turned over to the plaintiff’s counsel), the prison guards all admit that there was no safety on the band saw, no instructions as to how to use the band saw, and no guard in the room to stop a fight that had broken out between two other prisoners, one of whom allegedly bumped into the plaintiff pushing him into the unprotected blade.
You read further and discover that the plaintiff had been a model prisoner incarcerated for filling out fraudulent loan statements on behalf of a local payday lender who somehow was never charged. The plaintiff has now served his nine months in prison and is home and unemployed while learning to use his prosthesis. He has sued under Kennebec’s Tort Claims Act where there is a$100,000 damage cap. You look at the statutes and see that the Attorney General has responsibility of all litigation against the State, but that the Governor has responsibility to “faithfully execute the laws.” You vaguely remember that this means it isn’t clear who calls the shots when the State gets sued.
A bit taken aback, you trot down the hall to see your friendly Civil Deputy and ask for a bit of guidance. Fuller leans back and says, “Hey! The guy was in prison! We make a motion to dismiss on all prison cases because some of the judges—who are elected in our fair State — actually grant them! Can you believe it? We get rid of 30% of our cases that way! If you lose, and you might, then we go to the Department of Corrections and see if they will put some money up to make this go away. The plaintiff must be starving to death by now and will probably take anything. Look, this is your first day, so let me make a couple things clear. The AG’s office doesn’t make those decisions. Our client makes those decisions. It would be unethical to not follow the directions of our clients.
We adhere to all the ethics rules here in the AG office.”
“But… but,” you stammer, “the plaintiff has no prior record and he has three kids in school. He is an Iraqi veteran! He lost his hand! At least tell me that if we lose the motion that we are going to throw in the $100,000?”
“Not a chance,” Fuller responds. Don’t you see the snow outside? This is February.”
“February? What has that got to do with it?” you ask.
“The Department of Corrections always settles in the first six months of the fiscal year—when it has money—and never in the second six months when it is broke,” Fuller explains. “This is February. End of discussion! Look, didn’t you say at your interview that you wanted to litigate? You will get some of that trial experience that you wanted!”
“But…but,” you persist, with unspoken memories of the common law and articles you read in some class at Pitt, “Don’t we have a higher duty to represent the public interest?” What do you do?
The Four Seasons: Summer
The last seven years in the Kennebec Attorney General’s Office have been good ones for you. After four years representing agencies, where you received a great deal of solid experience, you spent a couple years in the Consumer Protection Division before being promoted into a lead trial lawyer slot into the Civil Litigation Division.
On a personal level, life in Kennebec has been good. You and your life partner (who may detest the job downtown, but likes the big bucks salary) have a couple of cute red-headed kids, Jake and Kate, who are now two and four.
Because you work for the State and not a firm, you are working sane hours and trying to be a good parent. Coming home to Kennebec was a great move especially because the child care (your parents!) is free. Jake and Kate have also become close to their cousins because your sister, who is a high school teacher, used to live just a mile away, and still frequently brings her children to your parents’ house.
Just as they told you when you started in the AG’s office, Attorneys General come and go (you are on your third) but the work continues to be both varied and interesting. The Civil Litigation Division is a choice assignment and in many ways is the top job for the “non-political” lawyers in the office who want to try cases. It is very small (only four very talented lawyers) and it handles Kennebec’s most interesting and complex cases. You can’t imagine working anywhere else.
You are nonetheless working on a case that is troubling you personally.
A class action has been filed by the parents of developmentally disabled children who believe that they are not receiving the services mandated by state and federal law. The plaintiffs sued both the city where you live (the plaintiffs wanted to get the media in the Kennebec capitol for maximum pressure on the legislature) and the State of Kennebec. The City cross claimed against Kennebec and there has been a great deal of publicity. Because you won some other major cases for the Department of Education, and because the Department really likes you, you are the logical choice to handle this lawsuit.
Because one of your nieces, Bonnie, is developmentally disabled, she and your sister were part of the plaintiff class until last year when they moved just across the state line to the neighboring State of Penobscot after your sister got laid off at Quinn Tannery in part to get better benefits for Bonnie. You can’t help but think about the case everyday when you pick your kids up at your parents’ house where Bonnie often still comes to play. After all, you are only human.
The plaintiffs are asking for the world (including attorneys’ fees and a court-appointed “monitor” for 10 years). The State has a pretty good sovereign immunity defense, which, if successful, would prevent the plaintiffs from getting any relief whatsoever. On the merits, however, Kennebec’s legal position—“This is all up to the City! We have no liability!”—rings hollow to you both legally and morally. Moreover, given the State’s financial woes, absent a court-ordered consent decree, you have doubts whether the Legislature will follow through to provide adequate services for these kids.
You aren’t getting any direction or guidance from either your superiors in the Attorney General’s Office or from the decision makers in the Administration. Governor Jan Howaniec is a lame duck and is angling for a slot in Washington, D.C., and thus would be happy to see this case settled on any terms. Your “client,” The Commissioner of Education, Barbara Buschmann, is invisible except to say that the Department cannot afford either to settle the case or to finance the litigation because of the costly federal mandates, but otherwise always follows your advice without question. Your boss, Attorney General Julie Matus, is never around as she “tests the waters” for her own race for Governor against Speaker of the House Tammie Kilmeister. Whenever you ask Chief Deputy George Ogilvie for guidance, he is too busy to talk. Thus, it is really up to decide what to do about this case. What do you do?
The Four Seasons: Fall
Eighteen years ago, on your first day of work, you were told that “We’ve had some good AG’s and we’ve had some bad ones,” and now you have a bad one, Jim Blaine. A really bad one.
After his election, you knew you better burrow down into the ranks, so you grabbed your old slot in the Consumer Protection Division that was vacated when most of that division took early retirement. Everyone knew that Blaine is an idiot, so you obviously considered leaving while you still could get out. But the kids are only in middle school and so you decided that you would try to stick it out.
Besides, what work would you do if you left? Who would want someone who has only worked in an AG’s office? Also, you are only a few years away from your vested state retirement.
Things are tight financially. Your so-called “life partner” ran off with that summer associate. Although you occasionally get notes from your Harvard classmates, who must be making millions now, you aren’t planning to go to your 20th reunion. Frankly, you can’t afford it, and you don’t want to endure their thinly disguised condescension that you are just a “government lawyer” driving a 10-year-old Subaru.
Although you had heard rumors about Blaine meeting privately with lawyers on the other side in cases and then ordering to AAG’s to settle or reverse their positions, it hadn’t happened to you. On the consumer fraud front, he let things roll along and joined in most of the multistate cases that other more activist AG’s negotiated. His press releases went out like clockwork, and he always took credit for any success of the office, but then, don’t they all?
One afternoon, you received an email from the AG’s Chief of Staff, Heather Fessenden. A non-lawyer and the Attorney General’s 26-year-old campaign manager, who allegedly was behind some recent lay-offs of some really good, long-time AAG’s, she said that she needed to see you immediately.
Your office was a good mile away from the State Capitol, so you grabbed your coat and off you went. Passing your old offices in the Civil Litigation Division, which were right next to the bosses, you were ushered into the Chief of Staff’s office. Also in attendance was Carl Milliken, a well known Statehouse lobbyist, political “fixer,” and lawyer at McKernan & King, the largest firm in Kennebec. For reasons that you can’t quite articulate, your stomach begins to ache.
While Milliken looked on benignly, Fessenden barked, “Let’s get right to the point. Carl tells me that you are pursuing trumped-up claims against Reed Auto Mall for some stupid paperwork errors on auto loan applications, and that he can’t get any information from you, or get you to drop the investigation. As you know, an AG investigation would be bad for business if it leaks to the press.”
This surprised you initially because you hadn’t spoken to Milliken about this investigation. Then you had remembered that you had been dealing with some “litigators” from his firm, McKernan & King, who had been stonewalling you on responding to your Civil Investigative Demand (“CID”) for documents about these loans. When one of them demanded to know the details of your on- going investigation, you explained that the CID process was confidential, and thus you couldn’t tell her what you had for evidence. You certainly did not want to give her the names of the customers who had complained because Reed Auto Mall had threatened to repossess their cars when they complained initially about the loans. The McKernan & King lawyer then warned darkly that “they might try to find someone more reasonable to deal with.”
Fessenden continued, “Do I need to remind you that Reed Auto Mall is Kennebec’s largest auto dealer, and that Tom Reed is a big supporter of the Attorney General? Or that the Attorney General is committed to working with the business community in an open and cooperative fashion to resolve problems, instead of just filing headline-grabbing lawsuits?”
Fessenden did not need to remind you. Tom Reed and Carl Milliken had given the maximum to Blaine’s election campaign, and Reed Auto Mall had paid for ads attacking Blaine’s opponent, now former Attorney General Betty Curtis, who had pursued several car dealers for rolling back odometers, for being “anti- business.”
“Although you can refuse to answer questions from Reed’s lawyers,” Fessenden explained, “you can’t refuse to answer questions from the Attorney General. So, what is your evidence that Reed Auto Mall has done anything wrong? And why can’t we just put this paperwork snafu to bed because Carl says that it is just the mistakes of a few bad apples, and Reed Auto Mall will do its best to make sure it doesn’t happen again?” What do you do?
The Four Seasons: Winter
What a ride it has been! You weren’t planning on spending your entire career in the Attorney General’s Office. You barely survived during the term of that idiot Jim Blaine’s term and were saved when his Chief of Staff Heather Fessenden was fired after his indictment on election law violations. So here you are 33 years later. Your kids, Jake and Kate, got scholarships to great colleges, and, after you failed to dissuade her from going to law school, Kate is now a third year student at Pitt Law School. You are feeling pretty good about your career, having handled important cases reported in U.S. Law Week and the New York Times. And of course, using your five weeks of vacation each year to travel with your new partner (a non-lawyer!) helps. And when you went to your 30th reunion at Pitt Law School, most of your classmates did not look happy, and none of them ever spoke about their work.
As a senior member of the office, it is occasionally your job to weigh in on matters that pit one division of the office against another. You have no criminal experience yourself, but you know enough to be concerned about this one.
The Quinn Shoe Tannery has long been a mainstay of the economy of Bayside, Kennebec. It employs 4,500 unionized workers, and somehow it has remained competitive against foreign competitors. Roxanne Quinn, great- granddaughter of the founder and Kennebec's most respected philanthropist, remains the vibrant CEO. She has resisted many lucrative offers to sell because “I know that they will steal the Quinn trademark and move it all to Asia!”
Thus, it was not initially bothersome when wastewater from the tannery dribbled into the Bayside Bay. Although the smell was horrendous, the head scientist in the lab at the Kennebec Department of Environmental Protection, Mike Dunlap (who had worked at the tannery one summer in high school), concluded that the actual environmental damage was not “all that serious.”
Quinn's long time counsel, your former life partner (of course!), negotiated a civil administrative consent agreement on behalf of the Kennebec DEP with a low level Assistant Attorney General, Charlotte Summers, which allowed Quinn to pay no fine based on its promise “to invest at least $10 million in new environmental equipment.”
The truth is that the Quinn family is not universally loved in the neighboring State of Penobscot that faces Bayside (and the tannery) directly across the narrows where McMansions now dominate the shore. Penobscot’s summer residents rose up in fury upon learning that the Quinn Tannery “was let off the hook.”
After filing a FOIA request with the Kennebec DEP and reading the actual scientific analysis of the wastewater, they denounced the report as a “whitewash.” They then hired their own scientist, who declared the discharge “very serious” and they issued a very public outcry for the case to be reopened.
You privately advised your boss the Attorney General, Sarah Gartley, that reopening was not an option. Under Kennebec administrative law, a deal is a deal, and the Department of Attorney General’s press secretary, Melanie Edgar, issued a short statement saying as much. The Penobscot citizens group attacked this decision, claiming that Gartley “didn’t have the guts” to take on such a prominent Kennebec citizen as Roxanne Quinn.
More ominously, the Penobscot citizens group is demanding to see the personnel file of Summers now that she had joined McKernan & King, the law firm that had represented Quinn Tannery. Once again, you advised your boss that the now ex-AAG's file was protected by statute, although the statute was not crystal clear in that regard. Once again, Press Secretary Edgar issued a bland statement that only further enraged the angry, and very wealthy summer residents in Penobscot.
Driven into a frenzy, the Penobscot citizens group attacked Gartley for “a huge cover up” and demanded that the criminal division launch an immediate investigation into the Quinn Tannery, the Assistant Attorney General who cut the “sweetheart deal” before parlaying that into a lucrative law firm job offer, and the head scientist at DEP “who is obviously on the take.”
The head of the criminal division, Paula McDonald, whom you do not know well, has emailed you (ignoring the mantra that these things should always be discussed without the use of email) and said, “Hey, I am happy to look at this one. I never trusted Summers, who always seemed like a snake to me. Just because she settled on the civil side doesn't mean we can't indict Quinn Tannery, right? And besides, if we open a criminal investigation, it will get those rich Penobscot summer folks off the AG’s back and might give the environmental division lawyers a chance to renegotiate the civil consent decree. Lemme know what you think, but I may have to go to the boss myself on this one.” What do you do?
4.5 Supplemental Readings 4.5 Supplemental Readings
4.5.1 Combined Readings: Ma. AG Maura Healey and Bridgewater State University (2016 - 2017) 4.5.1 Combined Readings: Ma. AG Maura Healey and Bridgewater State University (2016 - 2017)
Two articles
MassLive, Feb. 2, 2016
Judge rips into Attorney General Maura Healey's office, asking, 'Who speaks for the children,' over alleged Bridgewater State University rape case
- Original: https://www.masslive.com/news/2016/02/judge_rips_into_attorney_gener.html
- Archival: https://perma.cc/3V7L-MU5G
MassLive, Feb. 2, 2016
Attorney General Maura Healey: Office will work with families of Bridgewater State University child rape case
- Original: https://www.masslive.com/news/boston/2016/02/attorney_general_maura_healey_1.html
- Archival: https://perma.cc/V278-RQP9
The Enterprise News
April 6, 2017
Healey defends handling of daycare rape records request
Original: https://www.enterprisenews.com/news/20170406/healey-defends-handling-of-daycare-rape-records-request
Archival: https://perma.cc/U9J5-GH23
Judge rips into Attorney General Maura Healey's office, asking, 'Who speaks for the children,' over alleged Bridgewater State University rape case
Attorney General Maura Healey (Republican Photo by Mark M. Murray) (Mark Murray//The Republican)
By Gintautas Dumcius gdumcius@masslive.com on February 01, 2016 at 3:03 PM, updated February 01, 2016 at 4:21 PM
BOSTON – Ripping into "petty bureaucrats scurrying to protect themselves," Superior Court
Associate Justice Dennis Curran denied an attempt by the office of Attorney General Maura Healey to dismiss a lawsuit filed by parents seeking information in alleged violent rape case at Bridgewater State University's child day-care program.
In his fiery ruling, Curran said the parents of the children were seeking public records about an alleged cover-up of "heinous" crimes of rape and sexual molestation by a state-paid teacher who was in charge of the Children's Center, the day-care program at Bridgewater State University.
CRIME AND COURTS
The state has "stonewalled" the parents' efforts and now the families have been "traumatized twice," the judge said.
Curran lashed into Healey's office, asking, "Who speaks for the children in this case."
"Not the Attorney General's office, charged with protecting the public safety, not a few university administrators who seem to have forgotten the original purpose of an educational institution: to seek the truth," Curran added.
The ruling was noted by the Brockton Enterprise. The response from Healey's office is
available here.
"[Only] certain university officials know the depth of criminality that happened and the cover-up that allowed this alleged depravity to occur and fester," Curran wrote in his ruling. "That knowledge is uniquely within the state's power to provide. But they do not wish to disclose it."
The parents, identified as John and Jane Doe Nos. 1-3, allege that supervisory personnel were aware of the sex crimes and yet did nothing to report them, the judge said.
Westfield Walmart loss prevention officer to pay restitution for stealing from Walmart
Jurors see DNA evidence, hospital reports in day 5 of Patrick Durocher rape trial
Police conclude ground search for missing Hadley resident Nathan Kermensky, enter his name into national database
Trial delayed for Springfield woman accused of running down female she believed caused breakup with boyfriend
Julio Leiva and Amadi Sosa sentenced for murder of Springfield resident William Serrano
Curran accused the state of using a "tired, decades-old, scarecrow tactic of claiming that if
this court allows the relief requested here, it would 'open the floodgates' to further such litigation."
But Curran said the case is "unique."
"However, if the relief granted in this case means that other little children, raped by their state-employed caregivers, to whom parents have entrusted their loves of their life, will find out the hideous details of an alleged cover-up of their children's rape, then let justice prevail," he wrote.
He continued later in the ruling:
|
What has become of us, as a people. Where have we gone so terribly wrong. How have we allowed such cruelty, indifference and pettiness to rule us.
This case is about little children – at least one of whom was allegedly raped with violence by a state-employed caregiver. |
He finishes the ruling, which was issued late last week, by paraphrasing a quote from the late Supreme Court Justice Louis Brandeis: "Sunshine is a powerful disinfectant."
The man accused of the rapes is 22-year-old Kyle Laughlin of Wrentham, who was arrested last year year, according to the Enterprise.
This post was updated at 4:20 p.m. with the response from Healey office's.
Registration on or use of this site constitutes acceptance of our User Agreement and Privacy Policy
© 2016 MassLive LLC. All rights reserved (About Us).
The material on this site may not be reproduced, distributed, transmitted, cached or otherwise used, except with the prior written permission of MassLive LLC.
Attorney General Maura Healey: Oice will work with families of Bridgewater State University child rape case (Video)
By Gintautas Dumcius | gdumcius@masslive.com Follow on Twitter
on February 02, 2016 at 4:31 PM, updated February 02, 2016 at 4:32 PM
BOSTON – Massachusetts Attorney General Maura Healey said her office will work with
families following a Superior Court judge’s order in a case delving into an alleged child rape at Bridgewater State University’s child day-care program.
Judge Dennis Curran excoriated state officials, including Healey’s office, for a motion to dismiss a lawsuit sought by parents looking for information in order to determine the nature and extent of a potential cover-up. Curran rejected the state’s motion in a passionate order that asked, “What has become of us, as a people”?
The parents, identified as John and Jane Doe Nos. 1-3, are seeking information to help lay the groundwork for a future civil lawsuit on a potential cover-up and alleged failure to report sex crimes at Bridgewater State University. A state-paid teacher allegedly raped and molested children while at the Children’s Center, the university’s day-care program.
Healey, whose office is called upon to defend state entities like the university in court, called the case “tragic” and the allegations “horrible.” Her office established a child welfare protection division after she assumed the office of attorney general in 2015.
Her office has worked closely with lawyers for the Bridgewater State University case’s families before the information-seeking lawsuit was filed “so that we could make as many documents available as possible,” Healey said.
CRIME AND COURTS
Supreme Judicial Court to hear case of Michelle Carter, teenager accused of encouraging boyfriend to kill himself
Springfield Police: Heroin dealer who targeted methadone clinics and homeless shelters arrested
'He's got a 13-page arrest record,' judge says before boosting bail for Springfield shoplifting suspect
Springfield woman denies assaulting stepson with skateboard, milk crate, lit cigarette
Kids are alright after Massachusetts congresswoman gets 'swatted' by hoaxster
“Obviously we’ve read and we’re reviewing the judge’s order. We’re going to produce
documents and work to get the appropriate information to families,” Healey said. “But this
has been an ongoing effort, ongoing work, and our office has been engaged in working with counsel for the families right from the outset and we’ll continue to do that.”
Curran, the judge, wrote, “Who speaks for the children in this case. Not the Attorney General’s office, charged with protecting the public safety, not a few university administrators who seem to have forgotten the original purpose of an educational institution: to seek the Truth.”
Asked whether the judge was too harsh in his ruling, Healey said, “I’m not going to characterize the judge’s ruling. What I will say is that our office was, is and continues to be committed to making sure that families have the information that they need and we work to do that quickly and expeditiously, and we will do just that.”
Read Superior Court judge's epic blasting of state officials in case related to alleged Bridgewater State University rape
Registration on or use of this site constitutes acceptance of our User Agreement and Privacy Policy
© 2016 MassLive LLC. All rights reserved (About Us).
The material on this site may not be reproduced, distributed, transmitted, cached or otherwise used, except with the prior written permission of MassLive LLC.
Community Rules apply to all content you upload or otherwise submit to this site. Contact interactivity management. Ad Choices
Healey defends handling of daycare rape records request
By Marc Larocque
Enterprise Staff Writer
Posted Apr 6, 2017 at 5:05 PM
Updated Apr 6, 2017 at 5:12 PM
BRIDGEWATER – Referring to it as a technical dispute about the process of providing public records, Massachusetts Attorney General Maura Healey continues to defend the actions of her office more than a year ago, when one of her subordinates tried to block the release of emails connected to the Bridgewater State University daycare rape case.
Attorneys for parents of four children who attended the daycare center are now awaiting a judge’s order that will compel Healey and Bridgewater State to release a year’s worth of emails of people connected to the daycare center on the school’s campus, where Kyle Loughlin was arrested in 2015 and charged with raping two boys. Prosecutors later said there were three pre-school aged victims.
The attorneys for the parents hope the documents, which will be reviewed and redacted as needed before being released, will shed light on how the sexual abuse at the school-run center could have happened, and if there was any cover-up involved.
Loughlin, a former BSU student and daycare center worker, recently pleaded guilty to two counts of rape and abuse of a child, three counts of indecent assault and battery on a child under 14, and one count of larceny from a building. He was sentenced to 7 1/2 years in prison.
The attorneys, as well as The Enterprise, had requested records from the center more than a year ago. Bridgewater State responded at the time by telling the newspaper it would cost $60,000 to provide them, and Healey’s office responded by asking a judge to dismiss a case brought by the parents’ attorneys seeking the same records.
During an editorial board meeting on Wednesday, Healey said she had long sought transparency in the case, but questioned the process by which the attorneys were seeking the emails. Healey’s office argued that the parents should follow through with a public records request, instead of going to court for discovery of evidence in an
“unusual” lawsuit that was unattached to any punitive litigation. That, she said, is why she tried to have the case dismissed. Speaking to The Enterprise, Healey also cited privacy laws as a concern.
“There was a good reason why we took the actions that we did,” Healey said. “A lot of times, it’s not about the specifics of a matter. It’s about a certain principal that we actually need to maintain and uphold. But I’m somebody who’s always going to push for transparency. The production of information – I actually have to follow the law. Sometimes that doesn’t please everybody.”
Lawyers for the parents said that a public records request they filed did not result in any progress and the process was not practical.
Superior Court Judge Dennis Curran refused Healey’s request to dismiss the case seeking the records in February 2016, and heaped scorn on the “petty bureaucrats” of her office for putting their interests and those of BSU officials above those of the little children.
“Who speaks for the children in this case?” Curran wrote in his decision. “Not the attorney general’s office, charged with protecting the public safety, not a few university administrators who seem to have forgotten the original purpose of an educational institution: to seek the Truth. Instead, we only see bureaucrats scurrying to protect themselves.”
Healey’s office did not appeal Curran’s decision.
At the editorial board meeting, Healey did not comment on the judge’s criticism, and said, “the good news is those documents and information are going to be turned over and provided.”