This Role Playing Hypothetical has been used in the classroom for twenty years and for in-house training for attorneys general and their staffs for even longer. While reading the hypothetical takes only a few minutes, putting it in play best lasts an hour. The class begins with one student assigned at random as the attorney general who then must make character assignments among fellow students. The case quickly takes on a life of its own as other characters are added.
Will the view of the non lawyer Chief of Staff prevail? Will the Criminal Deputy who wants no public statement until an investigation is conducted be respected? Will the assistant attorney general assigned to the Department of Correction and actually knows the department – and is paid by it – have a voice? Will the litigators responsible for defending the state civilly succeed in keeping the Chief of Staff or the attorney general from making a statement?
And what will the Commissioner of Corrections, appointed by the Governor and yet the “client” of the attorney general, do when faced with public attacks? What will legislators who oversee the budget of the attorney general do as a result of this case? Will District Attorneys or the U. S. Attorney become involved? And what will various interest groups ranging from those who are prison reform advocates to the union who represents the accused prison officials, have to say?
And how does the Chief Deputy “control” such a fast moving situation in the media - both local and national - when the plaintiff lawyer and the parents of the alleged victims have made public statements and have agreed to appear on national "talk shows"?
Assigning roles in this fact pattern makes the readings of the first two weeks “come alive," together with an appreciation of a Chart that at first reading seem self evident. This exercise also sets up the Ethics chapter that addresses how the Rules of Professional Responsibilty actually work for attorneys general.
WHO IS THE CLIENT? - HYPOTHETICAL
You are the newly elected Attorney General of Everett, and you arrive to find an emergency meeting convened in your office. In your office is the Chief Deputy Attorney General (Kelly Welly), the Deputy Attorney General in charge of the Criminal Division (Jack Elrod), the Assistant Attorney General assigned to the Department of Corrections (Cherie Davis), the Assistant Attorney General assigned to handle tort claims against the State (Ed Dodd), and the Chief of Staff for the Attorney General’s Office (Tom Davis) (who was also your press secretary in your recently hard won election).
Davis informs you that he had just been informed by the Associated Press that there is going to be a press conference in 30 minutes in which “explosive” allegations are going to be made about the regional youth detention centers operated by the Department of Corrections, and that the press is going to be looking for a reaction from you.
For the last ten years, the State of Everett has proudly operated four regional youth detention centers that assist troubled adolescents before they commit serious crimes. These “boot camps” each house, educate, and rehabilitate 40 to 50 boys between the ages of 13 and 17. The success of these centers has been so high that the senior U.S. Senator of Everett, Bill Ellis, has regularly praised them on the floor of the U.S. Senate and last spring held a widely publicized hearing of the Judiciary Committee at a center that was even attended by his colleagues from across the aisle.
None of this, however, makes any difference to Mark Trail (Harvard ’69 and Harvard Law School ’75). Having lived as a recluse in the mountains for thirty years, Trail reactivated his law license, and claims that he has “shocking” information. Trail and his team of paralegals (with the secret help of an unnamed whistleblower from the Department of Corrections and a law school clinic located at his alma mater) have just finished interviewing dozens of young boys who have recently left one or more of the four regional youth detention centers. Each of his clients tells the chilling story of having been repeatedly assaulted and abused by Center staff. Several boys allege that older inmates and other staff often watched and actually filmed these abusive encounters.
Trail, who will be joined by several legislators from both parties, is about to hold a press conference to announce his allegations. In addition, he also stated that he would
(1) File a public records request under the Everett Freedom of Information Act in which he asks for the personnel records of all Center staff; (2) File a similar request for any and all photographs or films in the possession of the Department of Corrections that in any way depict his clients; (3) Demand that the Attorney General, as part of his oft stated initiative on to protect Everett's children, initiate a complete investigation of his charges and bring appropriate criminal or civil action; and (4) Announce his intention to sue the State of Everett for monetary damages, including legal fees, on behalf of his clients and all similarly victimized boys.
You go around the room and ask those present what you should do.
Cherie Davis, the Assistant Attorney General assigned to the Department of Corrections, says that the Department is outraged by these allegations, insists that they are completely false, and wants you to open an investigation into the leaking of confidential information by some obviously disgruntled Department employee. She reminds you that there are strict confidentiality statutes designed to prevent the release of any information about youthful offenders and the release of any information about personnel matters.
Ed Dodd, the Assistant Attorney General assigned to handle tort claims, says that these allegations, if true, could result in substantial exposure not only for the State, but also for the individuals who allegedly participated in such actions. Unless the (budget–strapped) Attorney General’s Office is prepared to foot the expensive bills for hiring outside counsel to defend the State and the individual employees, it is best to say as little as possible to avoid being disqualified in any subsequent civil litigation.
Jack Elrod, the Deputy Attorney General in charge of the Criminal Division, says that there is a criminal statute that specifically makes it a crime not only for individuals in charge of youthful offenders to abuse kids in their custody, but also to fail to report others who conduct such abuse. He believes that an investigation into these allegations should be opened immediately, and pursued wherever it goes, and that little should be said to avoid compromising the investigation.
Tom Davis, the non lawyer Chief of Staff for the Attorney General’s Office, reminds that you did run on a “Kid’s First” platform. He thinks that even if it would cause problems in later prosecuting the people who abused the kids, or defending the employees accused of abusing the kids or failing to report abuse conducted by others, you ought to make it clear that your first interest is the welfare of the kids.
Kelly Welly, the Chief Deputy Attorney General, says that everyone in the room has a legitimate point, and that you were elected Attorney General to make the right decision. What do you do?
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