The constitutional and statutory duties of state attorneys general are often in tension with the Model Rules of Professional Responsibility. This article analyzes the Model Rules in the context of the duty of an attorney general to represent the public interest.

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38 Colum. J.L. & Soc. Probs. 365 

Columbia Journal of Law and Social Problems

Summer, 2005

STATE ATTORNEYS GENERAL AND THE CLIENT-ATTORNEY RELATIONSHIP: ESTABLISHING THE POWER TO SUE STATE OFFICERS

Justin G. Davidsa1f1

 

Copyright © 2005 by the Columbia Journal of Law and Social Problems, Inc.; Justin G. Davids

The state attorney general stands in a rare position in the legal community. Often she is required by statute to represent the state, including its officers and agencies, before the courts. In the majority of states, however, the attorney general is a constitutional office directly elected by the people, thus mandating that she also represent the public interest. The result is that state attorneys general actually have two clients: state officers and the people. But what happens if the interests of these clients conflict in the same case? In those situations, to whom does the attorney general owe her ultimate allegiance? Several courts have suggested that a traditional client-attorney relationship applies between the state officer-clients and the attorney general. Often the result of this type of holding is that the attorney general is unable to prosecute a case that she thinks is in the public interest. This Note argues that courts should not take this approach but should instead prioritize the public-client. State codes of professional responsibility are drafted with private lawyers in mind, resulting in a framework that does not adequately recognize the attorney general’s dual client responsibilities. Therefore, courts should not apply state codes of responsibility to attorneys general, but rather look to the state constitution and statutes, as well as the attorney general’s common-law powers.

 

*366 I. INTRODUCTION

Colorado was in the midst of a political war. In 2003, the newly Republican-controlled legislature, hoping to use their majority to affect the state’s congressional delegation, passed redistricting legislation just one year after another redistricting plan had been put in place.1 After Governor Bill Owens, a Republican, signed the bill into law, Ken Salazar, a Democrat and attorney general for the State of Colorado, petitioned the state supreme court to enjoin the secretary of state, Republican Donetta Davidson, from enforcing the new law.2 Salazar’s position: As the people’s lawyer he had the authority to bring a suit to determine the constitutionality of the redistricting plan.3 Davidson, however, disagreed.

 

In fact, Davidson could not believe what had happened. The attorney general had sued her in her official capacity over a law that she was entrusted to enforce. Neither she nor the governor had asked Salazar to challenge the act; the attorney general initiated the suit on his own.4 Additionally, a group of citizens also sued the secretary of state challenging the redistricting plan on constitutional grounds similar to those raised by Salazar.5 Davidson then initiated her own suit against Attorney General

*367 Salazar in the Colorado Supreme Court to stop his redistricting challenge.6 Specifically, Davidson argued that the attorney general, as the secretary of state’s statutorily appointed counsel, was obligated to defend her against any suit and was bound by the ethics rules of the client-attorney relationship.7 Salazar, by challenging the redistricting plan, was suing his own client.

 

The situation in People ex rel. Salazar v. Davidson8 is a continuing problem in state attorney general jurisprudence -- to whom does the attorney general owe allegiance? Is the attorney general a lawyer for the state government and its officers, or is she the lawyer for the citizens as a whole? If these two duties are in conflict, which client prevails? A number of recent cases, including Salazar, illustrate that state officers and courts continue to wrestle with these questions. Indeed, these issues are likely to become even more important in the near future as a result of the federal government transferring many responsibilities and authority to the states.

 

Courts constantly struggle with the question of who the actual client is in a given situation for several reasons, but the underlying difficulty lies in the fact that a person must determine the wishes of the people. The people, as a collective, often do not officially express their voices except through elections or referenda, so their will must be interpreted. However, there are many people in state government who can legitimately assert that they speak for the people’s interests, including the legislature, the governor, and the attorney general.

 

This Note addresses the following question: Does the attorney general violate ethics rules by bringing an action against state officers -- officers who are often considered the attorney general’s clients? In other words, does a traditional client-attorney relationship exist between the attorney general and the elected state officers? The state attorney general clearly is not a lawyer in the traditional sense of the word: she is an officer in the government and is expected to act with the best interests of the people in mind.9 It is this dynamic -- the struggle between the established *368 professional ethics of a lawyer and the moral ethics expected of a statewide officer -- which this Note examines.10 Of course, a conflict of interest may arise in situations where the attorney general is expected to represent a state officer in opposition to her own interpretation of the public interest. More problematic are situations where the attorney general initially agrees to represent an officer or department, only to change her mind in the middle of the case when more facts come to light, or where a new person becomes attorney general, usually as the result of an election. In these instances, is it really fair to apply traditional client-attorney relationship rules to the possible detriment of the public interest?

 

Part II discusses the structure of state government and the divided executive branch, while Part III explains how the state attorney general represents both state officers and the public interest. Part IV examines how different state courts have tried to resolve the conflicts that can arise between the attorney general’s representation of the government and of the public interest. Part V introduces the ABA Model Rules of Professional Conduct, the model for most states’ ethical codes, and explains how these rules conflict with many of the attorney general’s duties. In the last *369 part, this Note proposes that state attorneys general do not violate ethics rules by bringing actions against the state or state officers. Additionally, courts should not strictly apply ethics standards established by state bar associations because those rules were written for private lawyers, not government lawyers.

 

II.  THE STRUCTURE OF STATE GOVERNMENT

 

A.  THE DIVIDED EXECUTIVE BRANCH

Every American is familiar with the concept of separation of powers. Not only is it central to our system of government, but Americans, perhaps uniquely, regard it as an essential ingredient in a democratic society. After all, the Framers feared not only monarchies, but also unchecked populist legislatures.11 Although the federal government was divided into three branches with the president as the exclusive chief of the executive branch, many state constitution framers took the opportunity to further divide the state executive branch. This structure is known as the “divided executive branch.”12

 

Almost every state, to one degree or another, has an executive branch comprising several elected executive officers.13 Aside from the governor, these officers generally include a secretary of state, a treasurer, and an auditor, as well as other officials that vary from state to state.14 In forty-three states the attorney general is popularly elected.15 Each elected office is provided for in the state *370 constitution,16 and each officer has certain duties as required by either the constitution or statutes.17

 

The framers of state constitutions, still wary of potential abuses of executive power, divided the executive branch so that no one person had too much control or authority.18 As the Minnesota Supreme Court explained, “Rather than conferring all executive authority upon a governor, the drafters of our constitution divided the executive powers of state government among six elected officers. This was a conscious effort on the part of the drafters ....”19 Still, while this type of system might constrain the traditional tyrant, it creates a whole new host of problems in a two-party system. Specifically, because there are several officers in the executive department that are elected directly by the people, there is a significant chance these officers will not all belong to the same political party.20 A party split within the executive branch means different officers with different political views have legitimate claims to represent the people’s voice. In addition, there may be intra-party conflict: the governor and attorney general, even when they belong to the same party, might be rivals or simply disagree on a legal policy issue. The point is that the citizens voted for each officer, giving each a mandate to carry *371 out their collective will. Thus, the divided executive branch is ripe for conflict.

 

B.  THE ATTORNEY GENERAL’S ROLE IN THE DIVIDED EXECUTIVE BRANCH

The office of attorney general, located within the executive branch, is usually constitutionally prescribed,21 and in forty-three states is elected directly by the people.22 In almost every state, the attorney general is the chief law officer.23 Generally this means that the attorney general controls and manages all litigation on behalf of the state, defends the state in court, and offers legal advice to the other state officers, executive departments, and often the legislature.24 These powers not only relate to actions defending the state but also extend to the ability to initiate litigation on behalf of the public interest.25 Some states require the attorney general to work in conjunction with the governor,26 but even these states agree that the attorney general is near- *372 supreme in her sphere of the executive branch and can bring suits that are in the state’s interest.27

 

Every state has statutes that address the powers and duties of its attorney general,28 but in some states the attorney general also retains common-law powers.29 Most of the powers noted above are derived from the attorney general’s traditional common-law powers, including the right to initiate and intervene in suits on behalf of the public interest. These states have determined that the attorney general’s common-law powers exist in addition to constitutionally and statutorily granted powers so long as they do not conflict.30 Today, most states follow this model and uphold the attorney general’s common-law powers.31

 

However, a significant minority of states32 has abandoned the common-law powers and asserts that the attorney general does not have any powers beyond those granted to her by the legislature and state constitution.33 The arguments in favor of this abandonment are logical if one accepts the expressio unius est exclusio alterius canon of statutory interpretation. According to this argument, the legislature could have easily stated statutorily that the attorney general retains her common-law powers. Instead, *373 the legislature chose to enumerate certain powers, leading to the conclusion that it must have decided to exclude every power not mentioned.34 Over the last decade, with the rise of multistate litigation and more activist attorneys general, several states have moved to limit the attorney general by abrogating her common-law powers. Currently, though, that movement appears to have stalled, and some states are even starting to revert back toward the old common law.35

 

III.  THE CLIENTS OF THE ATTORNEY GENERAL

 

A.  THE PEOPLE AND THE PUBLIC INTEREST

As described above, the attorney general is the state’s chief law officer and, as such, represents the people and the public interest. Sometimes this authority is conferred by statute, but it is also a long held common-law power. However, this does not mean the attorney general must only defend the public interest; she can also actively pursue any litigation the public interest requires. Therefore, both the people and the public interest can be considered the attorney general’s “clients.”

 

The attorney general may exercise all power and authority as the public interest may occasionally require.36 In some jurisdictions this right has been held to be a common-law power while in others it is interpreted as a statutory duty.37 Thus, a state attorney *374 general may represent a state officer or department provided the state has a real interest involved.38 Also, under the common law, the attorney general has a right to intervene in all suits and proceedings that concern the general public.39 With regard to these powers, the attorney general has the ability to decide what the public interest is. In her representation of the people, the attorney general has the power to initiate or intervene in almost any action as long as a real public interest is involved. Arguably, because the attorney general is elected directly by the people, this is the attorney general’s core function.

 

B.  OFFICERS AND EXECUTIVE DEPARTMENTS

The attorney general, though, does not just represent the people and the public interest. One of the other duties of the state’s chief law officer is to represent and defend the state on behalf of its officers and executive departments.40 In other words, the attorney general is the legal advisor to various departments, officers, and agencies within the state government.41 This responsibility makes the attorney general the officers’ lawyer, and she is often required to appear in court on behalf of an individual officer-client. This type of relationship can be characterized as similar to the one a private lawyer has with her client.

 

Therefore, a traditional client-attorney relationship exists between the attorney general and officers and executive departments. The rules mandating and governing this relationship are most often established in judicial/professional ethics rules,42 but *375 there are cases in which the client-attorney relationship has been judicially enforced.43 This provides several interesting challenges because unlike traditional private attorneys, an attorney general has two sets of clients. If a traditional client-attorney privilege does exist, what happens when the clients’ interests are in conflict? Can both the people and the officers be clients at the same time? The next Part examines the case law and how courts have tried to apply a client-attorney relationship within the context of the attorney general.

 

IV.  CASE HISTORY: THE COURTS MODIFY THE TRADITIONAL CLIENT-ATTORNEY RELATIONSHIP FOR ATTORNEYS GENERAL

The case history discussing the client-attorney relationship between state officers and the attorney general is, admittedly, fairly limited. Several cases establish some basic foundations of this relationship, but mostly in contexts other than a suit by the attorney general against a state officer. This Part outlines these foundations and attempts to relate their holdings to the ability of the attorney general to initiate actions against state officers.

 

A.  COMMON-LAW POWERS AND SUITS UNAUTHORIZED BY THE GOVERNOR

 

1.  The Shevin Case: The Right to Initiate Actions

The principal case establishing the attorney general’s right to represent the public interest is State ex rel. Shevin v. Exxon Corp.44 In 1973, Florida’s attorney general, Robert Shevin, filed an antitrust action against several major oil companies.45 The defendants, lead by Exxon, argued Shevin did not have the right *376 to initiate the lawsuit without explicit authorization from another officer or department within the executive branch.46 The Fifth Circuit, reversing the district court’s earlier finding, held that the attorney general had a right to initiate the suit under state law.47

 

The basis of the Fifth Circuit’s decision was the common-law power of the attorney general. This holding was based in the historical precedent of the office originating under the crown. Relating this custom to the modern-day attorney general, the court wrote, “Florida has, since its pre-statehood period, enacted the common law in force where not in conflict with statute.”48 The court found that Florida’s statutes were not comprehensive and acknowledged the Florida Supreme Court’s recognition of the “continuing existence of the Attorney General’s common law powers,” concluding that the attorney general must still retain her common-law powers.49

 

As the court reasoned, the attorney general is “the attorney and legal guardian of the people,”50 meaning she may initiate suits on behalf of the people.51 The court emphasized, “The Attorney General has the power and it is his duty among the many devolving upon him by the common law to prosecute all actions necessary for the protection and defense of the property and revenue of the state.”52 The Fifth Circuit then took the opportunity to extend this reasoning by explaining that the attorney general’s power to institute litigation on her own “is as broad as the ‘protection and defense of the property and revenue of the state,’ and, indeed, the public interest requires.”53

 

Finally, the court addressed the question of whether, even if the attorney general has these common-law powers, she can initiate a suit without the authorization or direction of a state department or officer, such as the governor. Defendants cited two cases54 in which the state supreme court held that certain agencies *377 were not required to allow the attorney general to represent them in legal matters and could instead hire their own special counsel.55 The defendants argued that these precedents illustrated that the attorney general could not initiate suits on her own because an interpretation to the contrary would make the holdings of those cases meaningless. The Fifth Circuit distinguished the cases by explaining that they did not involve the attorney general’s litigation powers. Furthermore, the court refused to address what would happen if a government body did object to the attorney general’s unsolicited representation: “[I]t is difficult to imagine such objections,” the court noted, because “[t]he individual government instrumentalities involved have something to gain from this suit.”56 Thus, the court left open the door for arguments about what happens when an individual government instrumentality objects to representation.

 

2.  The Feeney Case: A More Zealous Representation

Feeney v. Commonwealth established that the Massachusetts Attorney General also retained common-law powers.57 When Helen Feeney was refused certification for two civil service positions, despite receiving high scores on her tests, she filed a complaint asserting sex discrimination.58 The Commonwealth of Massachusetts, the Division of Civil Service, the Civil Service Commission, and the Director of Civil Service were all named defendants and were represented by the attorney general. After the district court found Massachusetts’s veterans’ preference statute59 unconstitutional, the Commission and the Director asked the attorney general not to appeal the decision on their behalf.60 Despite these objections, the attorney general appealed the decision. The Supreme Judicial Court sided with the attorney *378 general, upholding his power to appeal a case without the consent of the state officials and departments.61

 

The court’s holding in Feeney is consistent with both Shevin and the preamble of the ABA’s Model Rules of Professional Conduct.62 Like Shevin, the court found that the attorney general has a common-law duty to represent the public interest as well as the state and state officers.63 Because of the public interest aspect, “the Attorney General must consider the ramifications of that action on the interests of the [state] and the public generally.”64 The attorney general is chief law officer, and to allow other executive officers, “who represent a specialized branch of the public interest,” to manage the litigation “would effectively prevent the Attorney General from establishing and sustaining a uniform and consistent legal policy of the Commonwealth.”65 To rule otherwise would place other executive officers over the attorney general in specific litigation, rendering her status as chief law officer meaningless.

 

Finally, the court held that the traditional client-attorney relationship did not apply. The court explained, “Where, in his judgment, an appeal would further the interests of the Commonwealth and the public he represents, the Attorney General may prosecute an appeal ”66 The Supreme Judicial Court, in essence, wrestled with the question of whether the attorney general represents the public interest or the state officers. In the end, the court came out on the side of the public interest. Arguably, Feeney can be viewed as supporting the proposition that the public interest comes first, even when the attorney general is representing state officers. In fact, the public interest is the reason for representing these officers in the first place, and this is why only the attorney general, not executive officers, can control the litigation. The public interest is the actual client.

 

*379 3. The Attorney General Does Not Have to Appeal Adverse Rulings

Two years before Feeney, the Supreme Judicial Court of Massachusetts questioned some of the attorney general’s powers. In Secretary of Administration & Finance v. Attorney General, the Massachusetts Attorney General represented the Secretary in a civil case involving the sale of certain property to the Board of Trustees of State Colleges, but then subsequently decided not to appeal the court’s adverse ruling.67 The governor asked the attorney general to appeal the case, and the Secretary insisted that the attorney general follow the governor’s request. When the attorney general still refused to prosecute the appeal, the secretary brought suit against the attorney general.68 The secretary was represented by the governor’s counsel, and even though a strict reading of the state statute69 seemed to indicate only the attorney general could represent the secretary, the court held that in situations where the attorney general’s powers were called into question, an executive officer or department could be represented by someone else.70 This, however, was a very narrow exception and the court emphasized that, over the objections of the secretary, “something other than a traditional attorney-client relationship” exists between the attorney general and executive officers and departments.71 In a situation where the governor or other state officer is simply in disagreement with the attorney general regarding an issue, such as whether to appeal a case, the Supreme Judicial Court made clear that it was inappropriate for the officers to be represented by outside legal counsel.72

 

The dissent in Secretary of Administration & Finance disagreed with this reasoning. Justice Kaplan argued that if an officer did disagree with the attorney general’s decision to appeal or not to appeal, she should be able to take her case to the governor. “At that point the chief executive,” the judge wrote, “if he supports *380 the official, ought to be able after due discussion to give directions to the chief law officer.”73 Justice Kaplan’s dissent, however, relies heavily on the assumption that cases of disagreement will be rare, a position that is somewhat naïve considering the structure of the divided executive branch and the mixture of officers from different parties. He acknowledges that his approach, if it were the law, would virtually eliminate the attorney general as the chief law officer. Explaining his prioritization of officers, Justice Kaplan wrote, “I would accord so much primacy to the Governor. The opinion of the court intends to give a measure of primacy to the Attorney General, but leaves unclear just what it is.”74 Kaplan’s solution to a disagreement between the governor and the attorney general, where the attorney general does not want to go against her conscience, is: “When directed in the exceptional situation to argue a cause truly repugnant to him, [the attorney general] steps aside and gives way to special counsel.”75

 

B.  THE REJECTION OF SHEVIN: CALIFORNIA APPLIES PRIVATE-LIKE CLIENT-ATTORNEY RELATIONSHIP STANDARDS

Perhaps the most important case to limit the discretion of the attorney general is People ex rel. Deukmejian v. Brown.76 The case arose when the legislature passed the State Employer-Employee Relations Act (“SEERA”),77 and while the Governor was considering the bill, the Attorney General wrote the Governor urging him to sign it.78 After the Governor signed the bill into law, several organizations sued claiming the SEERA was unconstitutional.79 The Attorney General then met with the State Personnel Board, the executive agency served with the summons, and “outlined the legal posture of the board and described four legal options available to it.”80 One week later, the Attorney General changed his position and initiated a suit against the Governor *381 and other state agencies, asking for relief similar to that requested by the other organizations, but not representing them.81

 

The Supreme Court of California began its opinion with a discussion of ethics rules and the client-attorney relationship.82 Oddly enough, aside from a lone Arkansas case, all the other cases cited by the court in this section were about private lawyers and the client-attorney relationship and did not address the unique situation of attorneys general. The state supreme court seemed to assume that a traditional client-attorney relationship existed between the state agencies and the attorney general. In fact, after describing the initial meeting between the agencies and the Attorney General, the court remarked, “This was a classic attorney-client scenario.”83 And although the court wrote that it “acknowledge[s] ‘the Attorney General’s dual role as representative of a state agency and guardian of the public interest,”’ it insisted on applying a traditional private client-attorney relationship to the attorney general.84

 

The court noted, “We find nothing in that circumstance, however, to justify relaxation of the prevailing rules governing an attorney’s right to assume a position adverse to his clients or former clients, particularly in litigation that arose during the period of the attorney-client relationship.”85 There are two possible readings of this statement. First, the Deukmejian holding might be limited to situations where there is a previous client-attorney relationship. This presupposes not only a pre-existing client-attorney relationship between the attorney general and state officer, but also the prerequisites to creating such a relationship. This is the best possible reading of Deukmejian because it narrowly construes the holding to distinguish it from many future cases. Such prerequisites for a client-attorney relationship might include being asked by the officer or agency for representation or advice. The Deukmejian court might have liked to broaden these prerequisites to include holding a meeting with agencies and officials, *382 but perhaps the court would have been satisfied simply with knowing that legal advice was given.

 

The second, more troubling interpretation of this statement is that the California Supreme Court realized its holding was limited in this case, but it was stating in dicta that the court could also foresee situations where the attorney general could never assume a position adverse to state officers. Under the second interpretation, the officer or agency is always the attorney general’s client. There is some indication the court might have intended this meaning because it included the phrase “or former clients.” According to this reasoning, the attorney general would be prohibited from taking an adverse position, not only in the present litigation, but also in all future litigation. This has the effect of freezing the attorney general’s decisions in time.

 

Like the Massachusetts Supreme Judicial Court in Secretary of Administration & Finance, the California Supreme Court argued that these limitations did not mean the attorney general was powerless or had to represent a client against her wishes. The court stated that the attorney general cannot be compelled to represent state officers if she believes them to be acting contrary to the law, and the attorney general may even withdraw from the statutorily imposed duty to act as their counsel.86 Still, the attorney general cannot be proactive and take a position adverse to those same clients.87 In effect, the Deukmejian court rejected the Shevin approach and stated that the attorney general does not have common-law powers.

 

The state supreme court relied heavily on the state constitution, which states that “[t]he Governor shall see that the law is faithfully executed.”88 The court then compared that section with another section, which states that “[s]ubject to the powers and duties of the Governor, the Attorney General shall be chief law officer of the State.”89 The Deukmejian court claimed that these provisions clearly meant the governor was in charge of determining the validity of the attorney general’s decisions, and the attorney general was her subordinate in such matters. This reading, however, is almost the exact opposite of a plain reading of the *383 constitution. A plain reading implies that the governor simply ensures the laws are enforced, and the attorney general’s own powers are subject to the governor’s in that respect. The responsibility to ensure the laws are enforced does not imply the ability to question the constitutionality of those laws. Therefore, though the attorney general defers to the governor as to the execution of the laws, the attorney general retains the authority to determine “wherein lies the public interest” on issues such as the constitutionality of the laws. This reading of the California constitution protects the attorney general’s common-law powers rather than stripping them the way the Deukmejian court did.

C.  RECENT CASE HISTORY

 

1.  South Carolina Upholds Attorney General’s Power to Sue Governor

Deukmejian, and all its limitations on state attorneys general and presumptions in favor of the governor’s executive powers, has not been widely accepted. And although the California Supreme Court has not overruled the decision, it has not revisited the issue. More recently, the South Carolina Supreme Court examined many of the same issues in State ex rel. Condon v. Hodges.90 In 2001, the South Carolina General Assembly passed an appropriations act that provided for baseline reductions to the recurring budgets of state colleges and universities.91 Part of the appropriations bill required the transfer of $38.5 million from the Extended Care Maintenance Fund (“ECMF”) to the state’s colleges and universities.92 The governor vetoed the appropriations act regarding the specific base-line reductions, which resulted in new expenditures.93 In order to fix the imbalance, the governor indicated in his veto message that he had convinced several colleges and universities to return some of the funds appropriated from *384 the ECMF.94 The attorney general then sued the governor for violating the separation of powers.95

 

In Condon, one of the rare cases in which an attorney general took action against the governor, the governor asserted that the attorney general did not have the authority to bring suit against him because of the client-attorney relationship. But the South Carolina Supreme Court held that “the Attorney General can bring an action against the Governor when it is necessary for the enforcement of the laws of the State, the preservation of order, and the protection of public rights.”96 The constitutional provisions involved in Condon were very similar to those in Deukmejian.97 Viewed in light of the alternative reading of Deukmejian,98 this case can be seen as stating that although the attorney general must still defer to the governor when the governor is making sure the laws are faithfully enforced, she can step in when the governor is not ensuring the faithful enforcement of the law and sue the governor to uphold her duty. This would be consistent with the theory that the attorney general has the power to protect the rights of the public.

 

The South Carolina Supreme Court sided with the public interest over the constitutionally imposed client-attorney relationship.99 The court interpreted article IV, section 15 of the state constitution as “being concerned with the Attorney General, through his assistance and representation of the Governor, bringing actions on the Governor’s behalf, against the other branches of government.”100 Instead of imposing a client-attorney relationship, the court noted that “[t]here is no provision in the South Carolina Code or Constitution that explicitly prevents the Attorney General from bringing a civil action against the Governor.”101 Thus, the attorney general has the authority to bring suit against *385 the governor when it is to protect the public interest, such as “for the enforcement of the laws of the State, the preservation of order, and the protection of public rights.”102

 

2.  Georgia’s Exercise in Confusion

Two years ago, Georgia faced a situation similar to the one Massachusetts faced in Feeney. In Perdue v. Baker, Georgia’s governor, Sonny Perdue, sued to stop Attorney General Thurbert Baker from appealing a case to the United States Supreme Court.103 After the 2000 census, the Georgia legislature reapportioned the state senate districts. In order to enforce the law, though, the state had to file a civil action in federal district court to obtain preclearance of the redistricting plan under the Voting Rights Act.104 The federal district court held that Georgia failed to meet its burden of proving that the “redistricting plan did not have a retrogressive effect on the voting strength of African-American voters.”105 In response, the state legislature passed a new redistricting plan that achieved preclearance, but this new plan stated it would take effect only if the original redistricting plan could not be lawfully implemented under the Voting Rights Act.106 Attorney General Baker appealed the ruling on the initial plan to the Supreme Court in order to obtain a final determination, and the Court agreed to review the case.107

 

Just over a week later, newly installed Governor Perdue requested that the attorney general dismiss his appeal.108 Perdue insisted that the state constitution “vest[ed] his office with the chief executive powers to dismiss an appeal pending in the U.S. Supreme Court when the State of Georgia is the sole-named appellant.”109 Baker disagreed, claiming that the state constitution vested his office with “exclusive authority in all legal matters related to the executive branch in state government.”110 Because of *386 the attorney general’s refusal to dismiss, the governor filed an action in the Georgia Supreme Court to force the attorney general to dismiss the appeal.

In its rather confusing opinion, the Georgia Supreme Court reaffirmed that the attorney general was the chief legal officer of the state.111 But the court went on to state that “both the Governor and Attorney General have statutory authority to direct litigation on behalf of the State of Georgia.”112 Although the attorney general has the “independent authority to represent the State in any civil action without the Governor’s request,”113 the governor is the chief executive officer and is responsible for seeing that the laws are faithfully executed.114 The result is that neither officer has the exclusive authority to control legal policy and actions involving the state.115 The court wrote, “Instead, these provisions suggest that the Governor and Attorney General have concurrent powers over litigation in which the State is a party.”116

 

Although the state supreme court found that both the governor and the attorney general could direct litigation involving the state as a party, it held that the governor could not stop the attorney general from appealing the state’s redistricting case to the United States Supreme Court. In part this decision was based on the congruent duties of both officers, but the court also dismissed the governor’s argument that the Georgia Rules of Professional *387 Conduct prevented the attorney general from taking a position opposite of the governor’s.117 If the rules were construed to limit the attorney general in this way, the court reasoned, it “would eviscerate the Attorney General’s separate constitutional role.”118 Because Attorney General Baker was acting within his constitutional and statutory duties, the court found the governor could not force the attorney general to dismiss the appeal.119

 

3.  Colorado Establishes That Attorney General Can Sue the State

People ex rel. Salazar v. Davidson120 brought together many of the issues raised in the above cases. Both the secretary of state and the governor asserted that the attorney general violated the rules of professional conduct concerning conflicts of interest, the division of decisionmaking authority between the attorney and client, and client loyalty.121 The attorney general argued that he did not violate the client-attorney relationship and took a position similar to the Condon court’s -- as attorney general he was representing the people of Colorado “in a highly important case.”122 Attorney General Salazar emphasized that the attorney general’s “core responsibility is to represent the interests of the people of Colorado.”123 In this way, Salazar argued for prioritizing the public interest over the attorney general’s other client -- in this case the secretary of state. The public interest is at the “core,” which means that it is the attorney general’s first duty. It also implies the attorney general’s other duties flow from this “core responsibility.”124 The traditional client-attorney relationship cannot interfere with the public interest, or else the “core responsibility” *388 would shift from protecting the public interest to protecting the state officers and agencies. In his brief, Salazar reminded the court that in government, the attorney general client-attorney relationship “does not match the contours of the private attorney-client relationship.”125

 

On December 1, 2003, the Colorado Supreme Court handed down its decision in Salazar.126 The court held that the attorney general had the right to bring an action before the state supreme court “in matters of great public importance.”127 The attorney general, when bringing these types of cases, was the appropriate person because “it is the function of the Attorney General ... to protect the rights of the public.”128 Additionally, the court recognized that the state constitution allowed the court to determine original jurisdiction, and the separation of powers prevented the legislature from restricting this power.129 Furthermore, the decision reinforced that Colorado’s attorney general retained her common-law powers unless specifically repealed by statute.130 Finally, the court ruled that the attorney general did not violate the Colorado Rules of Professional Conduct131 by suing the state and naming the secretary of state as the defendant.132 The court noted that the Rules “explicitly recognize that government lawyers may ‘have authority to represent the “public interest” in circumstances where a private lawyer would not be authorized to do so.”’133 Because the attorney general’s client is the “government as a whole,” she must consider the “concerns of the state” even though individual officers or agencies might not agree.134 In other words, the attorney general must consider the concerns of the people. In this case, the attorney general was concerned with the *389 constitutionality of the state’s congressional redistricting plan, and because he had to advise the secretary of state on the implementation of election laws, the Colorado Supreme Court reasoned that it only made sense for the attorney general to challenge the law.135 With the standing issue resolved, the court held the legislature’s congressional redistricting plan violated the state constitution.136

 

D.  A CURRENT CASE: MEDICARE AND MISSISSIPPI

In September and October of 2004, another fight between a governor and a state attorney general flamed up -- this time in Mississippi. Governor Haley Barbour, in an effort to cut the state budget, decided that the state would no longer provide Medicaid to 48,000 people who also received federal Medicare coverage.137 In response, several groups, including the

Mississippi Center for Justice, AARP Foundation Litigation, the National Senior Citizens Law Center, and the National Health Law Program filed suit to enjoin the state Medicaid cuts.138 Attorney General Jim Hood intervened on behalf of the plaintiffs, causing Governor Barbour to become incensed. “I’ve never heard of a case of a lawyer representing one party,” the governor said, “then two days before the case goes to court, he switches and represents the other party.”139 Attorney General Hood countered that although his assistants had given advice to the Division of Medicare, the top Medicaid officials ignored his office’s advice.140 He then said that the govenor’s office and the Medicaid program could hire outside counsel.141 On October 1, U.S. District Judge Henry Wingate *390 ruled in favor of the attorney general and ordered the Medicaid coverage restored until January 31, 2005.142

 

E.  SUMMARY

Applying a traditional client-attorney relationship is difficult because government lawyers, unlike private lawyers, potentially have multiple duties to multiple clients at the same time, in the same case. This situation mandates flexibility in any ethical standard that is applied to attorneys general. It is not entirely feasible for the attorney general and state officers always to be engaged in a client-attorney relationship because it would limit the attorney general’s ability to represent the people effectively. Some courts have resolved this dilemma by holding that the attorney general represents officers when statutorily mandated and when the officers actually request advice or representation. The Deukmejian court took this approach. However, the California Supreme Court left the door open to the idea there might be some client-attorney relationship obligations even though there has been no request or advice given. Secretary of State Davidson presented this argument in Salazar. Davidson’s argument, however, cannot be sustained because it, too, will impair an attorney general’s ability to represent the people. Both of these arguments prioritize the representation needs of the executive officers and agencies over the representation needs of the people. There must be a balance between the attorney general’s duties to his two clients.

 

V.  THE ATTORNEY GENERAL, THE CLIENT-ATTORNEY RELATIONSHIP, AND THE ABA’S MODEL RULES OF PROFESSIONAL CONDUCT

Whether it has been established through professional conduct rules or case law, almost every state imposes some version of the client-attorney relationship between the attorney general and *391 other executive officers and departments.143 Therefore, it is important to evaluate this relationship in the context of the ABA Model Rules of Professional Conduct, which outline the traditional client-attorney relationship. Admittedly, the Model Rules are not, in fact, the rules anywhere. Instead, each state adopts its own ethics rules, but every state, with the exception of California, has modeled its own rules on one of the two ABA models.144 Thus, this Note will use the ABA Model Rules. These ethics rules establish how a traditional private attorney should interact with her client. State attorneys general, however, are not private attorneys and have different obligations. Comparing traditional rules of professional conduct with the realities of the attorney general’s office illustrates the problem with the application of this client-attorney relationship standard.

 

A.  RULE 1.2

Rule 1.2(a) of the Model Rules of Professional Conduct states, “[A] lawyer shall abide by a client’s decisions concerning the objectives of representation A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.”145 This rule sets out the idea that the client is in control of the objectives of the litigation, and it is the lawyer’s duty to work towards achieving the client’s lawful objectives. This includes abiding by “a client’s decision whether to settle a matter.”146 Generally, however, the means by which these objectives are achieved are left up to the lawyer in consultation with her client.147 In explaining the purpose of this rule, the Ohio Supreme *392 Court wrote, “Unlike a salesperson, the good lawyer’s counsel is not directed to the sale of a product but to the best interests of the client. A lawyer’s counseling is more than informing ‘his client about the legal consequences of pursuing a particular objective that the client has already identified and chosen.”’148 The purpose of this rule is to ensure a lawyer is a counselor and not just a service provider.

 

At first it might seem easy to apply this rule to attorneys general. It seems only reasonable to require the attorney general to act as counsel rather than running roughshod over her officer-clients. But before this rule can be applied, the threshold question of who is the “client” must be answered. As discussed in Part III, the state attorney general has two clients, and sometimes the clients’ interests conflict with each other’s. Most jurisdictions have applied the traditional client-attorney relationship to the attorney general and state executive officers and ignored the client status of the people and public interest.149 Assuming, arguendo, the true client is the state executive officer, the next question is when the officer is a client.

 

People ex rel. Deukmejian v. Brown150 implies the executive officer must ask for the attorney general’s services before the attorney general is obligated to act as counsel and maintain a traditional client-attorney relationship.151 In that case, the governor had asked for the attorney general’s advice and so the court found no problem assuming the governor was the attorney general’s client.152 State ex rel. Caryl v. MacQueen,153 a West Virginia case that has been superseded in part but not directly overruled,154 explained that the attorney general was obligated to give legal advice, prosecute and defend suits, and appear in court on behalf of the state. Both cases recognize that the attorney general owes a duty to these officers and departments, and further recognize that this client-attorney relationship is activated when the officer or department asks for legal advice.

 

*393 The approach taken in Deukmejian and Caryl is not effective in the majority of states that still recognize the attorney general’s common-law powers. Florida ex rel. Shevin v. Exxon Corp. asserts that, as part of her common-law powers, the attorney general has the right to initiate lawsuits on her own and does not have to have the permission of the officer or agency to do so.155 Surely any court that claims the client-attorney relationship attaches to the attorney general and state officers would assert the relationship still exists in Shevin-like situations. This conclusion could not be based on the “ask theory,” however, because in Shevin-like situations the attorney general initiates the action on her own.

 

Simply applying Rule 1.2(a) to the attorney general does not clarify the client-attorney relationship in this context because the terms cannot be easily defined.156 In a situation where there is more than one possible client, and there is a required duty to both, the rule is extremely difficult to interpret. What does “client” mean? Also, there are often provisions under state law that hold that the attorney general is in control of the litigation, even if the state officer is a client, and need not follow the client’s directions as much as Rule 1.2(a) would direct in the private sphere.157 It is difficult to apply this rule in the attorney general context.

 

B.  RULE 1.6

Another traditional rule of the client-attorney relationship that is applied to attorneys general states, “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent ”158 This was a central point in

both Deukmejian and in Secretary of Administration *394 & Finance. In Deukmejian, the court felt it was improper for the attorney general, after discussing the case with the governor and offering him legal advice, to then take the opposing side.159 The reason is presumably that the attorney general had access to confidential client-attorney documents and information that would be unfair to then use against the governor. In another example, the West Virginia attorney general was found to have violated the client-attorney relationship with the state tax commissioner when he released confidential tax information.160

 

This rule is not hard-and-fast, though, in the attorney general sphere. Several cases have explained that not all of the attorney general’s documents are protected by the client-attorney relationship. For example, in State v. Hogan, the Indiana Court of Appeals wrote, “A client state agency may not defeat the production of evidence by merely forwarding a pre-existing document to the Attorney General in anticipation of litigation.”161 Furthermore, in a New York case, the documents at issue were not exempt from disclosure under the Freedom of Information Act because they only contained the state agency’s final policy to be applied to all litigation in general -- the documents were not work product for a particular case.162 These cases illustrate that the attorney general is subject to the public disclosure of documents that a private attorney might otherwise not be. Because the attorney general has the power to litigate on behalf of the state, and even to prosecute state officers and departments, courts have struggled with this issue, trying to balance the protection of the attorney general’s officer-client with effective representation the public-client.163

 

Rule 1.6 seems to prevent the attorney general from “playing” a state officer simply to gain information and access to documents that could not be obtained through traditional legal means. But some courts have realized it is not easy to apply this rule *395 strictly.164 Given that the attorney general is charged by state law to represent officials and departments, an official or department might take advantage of this mandate to protect incriminating evidence. Those courts that have not strictly applied Rule 1.6 understand that there should be some flexibility in order to protect the attorney general’s role as chief law officer from abuse by the mandated clients.165

C.  RULE 1.7

According to Rule 1.7(a), “[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest.”166 This Rule plainly states that representing two clients simultaneously is unethical when the attorney has a conflict of interest. The comments to Rule 1.7(a) note, “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.”167 Even laypeople recognize this Rule’s prohibition against conflicted representation as one of the foundations of the client-attorney relationship. Representing two clients in the same matter at the same time is riddled with potential difficulties. Yet, surprisingly, almost every state allows its attorney general to do just that -- represent two officers at the same time on the same case.

 

State attorneys general can represent two agencies or officers at the same time without violating this ethical rule.168 In People ex rel. Sklodowski v. State, the beneficiaries of a state retirement system sued the system, claiming the legislature and state officials were attempting to transfer retirement funds to the state’s *396 general revenue fund.169 The Illinois Supreme Court held the Attorney General could represent both the plaintiffs and the state retirement system as long as he did not have a personal interest.170 The court reasoned, “[T]he Attorney General serves the broader interests of the State rather than the particular interest of any agency.”171

 

Courts have recognized the duality of the attorney general in light of this rule. But the question remains: Who is the client? The Illinois Supreme Court implied the real client is the public interest, and this puts the attorney general in the strange position of representing both parties in the same case. The Model Rules explain that “[r]esolution of a conflict of interest problem under this Rule requires a lawyer to ... clearly identify the client or clients.”172 This approach is almost laughable in the current context of the attorney general because, in many cases, it is nearly impossible to identify the people or the officer as the primary client. Courts have shown inconsistency between their recognition of the “public interest exception” to the conflict of interest rule, on the one hand, and their concern with Rule 1.6 and the revealing of information on the other. The only difference is that one representation is concurrent whereas the other representation is subsequent. Oddly enough, the concurrent representation is considered legitimate while the other is not.173 It seems that in a subsequent representation situation, the court and parties are on notice and there can be some monitoring, while at the same *397 time the attorney general is cut off from further privileged information. In a concurrent representation situation, there is notice, but it will be more difficult to monitor what the attorney general knows and what she is passing on to -- or keeping from -- her clients. The attorney general has constant access to privileged information in these situations.

 

D.  RULE 1.8

Finally, Rule 1.8(b) states, “A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent ”174 This rule is similar to Rules 1.6 and 1.7 and goes to the heart of the attorney

general’s representation. A classic example of the enforcement of this rule in the attorney general context is Deukmejian.175 The court feared that if the attorney general could proceed with the action, she might use her previous knowledge against the governor.176 This action, in turn, could cause the officer or department client not to be completely frank with the attorney general.177

 

The comment to the rule explains, “Use of information relating to the representation to the disadvantage of the client violates the lawyer’s duty of loyalty.”178 But does an attorney general forever owe a duty of loyalty to the governor after giving legal advice? According to Deukmejian, the answer appears to be yes, at least with respect to the same case.179 Not only does this protect the officer’s interests, but it also encourages the officer to be completely honest with the attorney general. But perhaps the attorney general’s duty of loyalty is to her other client, the people of the state. Would it not be a violation of loyalty to the people if the attorney general could not use the information, leaving her only option to withdraw completely from the case? Duty of loyalty is an especially confounding question in these situations because *398 to protect the officer-client, sometimes the public-client must come second.

 

E.  RULE 1.11

One specific rule addresses government lawyers, however. Rule 1.11(d) states, “Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee (1) is subject to Rules 1.7 and 1.9 ”180 The first comment to Rule 

 

1.11 stresses that “a public officer or employee is personally subject to the Rules of Professional Conduct, including the prohibition against concurrent conflicts of interest stated in Rule 1.7.”181 The commission’s intent seems to indicate that government lawyers must still abide by the requirements of Rule 1.7,182 specifically concurrent representation, and the comment limits Rule 1.11’s authority by explaining that this rule is subject to statutes and regulations which circumscribe it.183 The second comment further limits the application of Rule 1.11 by noting that “paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.”184 Thus, Rule 1.11 is a weak attempt to apply the Model Rules to government lawyers, but the several loopholes and exceptions illustrate the difficulty with this application in practice.

 

*399 F. PREAMBLE AND SCOPE

In addition to the loopholes contained in Rule 1.11 and its comments, the scope section of the preamble to the Model Rules further limits the traditional client-attorney relationship in the government lawyer context. According to the preamble, a government lawyer is not subject to many of the rules relating to the private client-attorney relationship because of “various legal provisions, including constitutional, statutory and common law.”185 Among the exceptions noted is the authority of a government lawyer to “decide upon settlement or whether to appeal from an adverse judgment” on behalf of the government.186 Also, the preamble notes that government lawyers, acting under the supervision of the state attorney general, “may be authorized to represent several government agencies in intragovernmental legal controversies ”187 These exceptions are not

exclusive because they are preceded by the phrase “[f]or example,” suggesting that the ABA acknowledges there are other areas where private lawyer rules of professional conduct do not apply to government lawyers.188 The only guidance the ABA gives, then, is the initial statement about “constitutional, statutory and common law.”

 

Interestingly, prior to the 2002 version of the Model Rules, the preamble also explained that government lawyers “may have authority to represent the ‘public interest’ in circumstances where a private lawyer would not be authorized to do so.”189 This language was stricken from the most recent edition of the Model Rules. This omission is somewhat confusing because its deletion could mean either that (1) the ABA no longer recognizes as a specific exception to the Model Rules that government lawyers have *400 the authority to represent the “public interest,” or (2) private lawyers now have the authority to represent the “public interest” in the same way government lawyers do.190 Although there might be some legitimate reasons for wanting private lawyers to consider the public interest,191 the ABA probably did not intend to give private lawyers this type of free reign. Not only does this conflict with the role of government lawyers who are already designated to defend the public interest, it also dilutes the Model Rules’ emphasis on “zealous advocacy.” This is probably not the ABA’s intended meaning. The other option is that the ABA is weakening the public interest exception for government lawyers. Although an authorization to represent the public interest might still be gleaned from the preamble because the exceptions for government lawyers are not exclusive, it is still telling that the ABA chose to remove this particular sentence.

 

G. CONCLUSION REGARDING THE RULES

The Model Rules, through Rule 1.11, apply themselves to government lawyers, including attorneys general.192 But there are so many exceptions to the Model Rules -- specifically those contained in Rule 1.11, the Preamble, and the Scope -- that in practice the ability to enforce the traditional client-attorney relationship is weak. Considering the poor fit between the Model Rules and the role of an attorney general, it does not make sense to apply the traditional client-attorney relationship to the attorney general and her clients. States often mandate through ethical codes or other means that a client-attorney relationship exists between the attorney general and the state officers and executive *401 departments.193 Still, courts have tip-toed around the issue and carved out some exceptions, which, up to a point, recognize the uniqueness of the attorney general’s situation.194 On closer scrutiny, however, these court rulings and ethical codes prove to be an inconsistent and incomplete patchwork. Most importantly, even the preamble to the Model Rules suggests the ABA recognizes the inapplicability of many of the rules to government lawyers. The numerous and unspecified exceptions to the client-attorney relationship for government lawyers illustrate the ineffectiveness of the Model Rules to the government context.195

 

In addition, the Model Rules were primarily drafted with the private bar in mind, not the government lawyer.196 The result is that the rules do not provide clear answers to the ethical problems state attorneys general face.197 This is not entirely surprising given that most of the drafters of the Model Rules were private lawyers. The first Model Rules were drafted in 1983 by the ABA’s Kutak Commission, named for its chairman Robert Kutak.198 Kutak, as co-founder of Nebraska’s largest national law firm,199 was a member of the private bar and in control of the committee charged with promulgating the ABA’s new ethical standard. He was aided by Geoffrey Hazard, a well-known proponent of the private bar’s ethical standard and reporter for the *402 Kutak Commission.200 Today, the ABA’s Ethics 2000 Commission reviews and reports on the Model Rules.201 Although the Ethics 2000 Commission consists of judges and law professors in addition to private lawyers, it appears that only one member has any experience actually working as a government lawyer.202 What works well for the private bar, however, does not necessarily

*403 work well for government lawyers, including an attorney general. Because of the heavy influence of the private bar, the Model Rules are simply inapplicable to many situations and problems attorneys general face.

 

VI.  THE NEW REGIME: ABANDONING THE APPLICATION OF PRIVATE BAR ETHICAL STANDARDS TO THE STATE ATTORNEY GENERAL

A. THE ATTORNEY GENERAL DOES NOT VIOLATE THE CLIENT-ATTORNEY RELATIONSHIP BY BRINGING ACTIONS AGAINST THE STATE OR STATE OFFICERS

1.  In Salazar, Secretary of State Davidson’s Underlying Argument Would Allow Executive Officers to Unreasonably Intrude into the Legal Sphere

The secretary of state of Colorado argued that attorney general Salazar could not petition for an injunction against her because neither she nor any other executive officer asked him to intervene.203 Additionally, Davidson claimed the Colorado attorney general did not retain common-law powers and was not the “people’s elected chief law officer.”204 Therefore, the secretary of state’s position advocated that the attorney general can only act when the governor or other executive officer asks her to, and in cases where the attorney general does not want to act, she can *404 step aside.205 This argument, if put into effect, would substitute any executive officer for the attorney general in matters of litigation. When considering whether to bring an action, whoever makes the final decision presumably will take into account the public interest. The secretary of state’s position was that she, not the attorney general, should be the one to determine the public interest. Concededly, the secretary of state is an elected officer, but so is the attorney general. The question, then, is why a secretary of state, whose duties and responsibilities fall mostly outside of the legal sphere, is more qualified than an attorney general to make this public interest decision. If anything, an attorney general is uniquely qualified given the fact that the voters elected her to the post of state’s lawyer, thus allowing her to represent the state in the legal sphere. However, Davidson did not answer this question and simply argued that Salazar did not have the ability to decide the public interest at all, in the end making him wholly subordinate to all other executive officers.206

 

2.  Allowing Attorneys General to Bring These Actions Against State Officers on Behalf of the Public Interest Leads to Optimal Construction of the Divided Executive Structure of State Government

An attorney general’s power to bring actions against state officers without their consent regarding the enforcement of laws actually leads to an optimal construction of the divided executive branch. As noted above, by creating the divided executive branch, framers of state constitutions obviously felt there were additional benefits to splitting up the branch into separately elected state officers and granting them specific spheres of power.207 In the case of the attorney general, the framers must have considered the attorney general to be the executive officer of the legal sphere. As the executive branch officer situated in the legal sphere, the attorney general, through her powers to initiate *405 and defend suits on behalf of the state, separates the powers of the other executive officers and ensures that no officer can spread her influence into other spheres.

 

Most courts would agree that the attorney general, acting as the “chief law officer” of the state, has “control over the conduct of litigation” involving the state.208 The Feeney court reasoned that part of this control “includes the power to make a policy determination.”209 In the struggle to determine who gets to make the ultimate policy decision, it should be acknowledged that the attorney general is in the best position to bring these types of actions. First, the attorney general can be analogized to the law firm of the state.210 Thus, the attorney general’s office, by its nature staffed with lawyers dealing with various legal issues on a daily basis, is in the best position to deal with substantive legal issues. Aside from this fact, the attorney general is often required to defend the state in appellate courts.211 The Supreme Judicial Court speculated that “[t]he Legislature thereby ‘empowered, and perhaps required, the Attorney General to set a unified and consistent legal policy for the Commonwealth.”’212 This is an interesting concept, which makes sense in the context of the public interest as the primary client. In other words, given the structure of the divided executive branch, where different officers can be from different parties, if the attorney general were simply the lawyer in a traditional client-attorney relationship, the result could be a patchwork quilt of policies argued before and enforced by the courts. But control over appeals is not necessarily only an affirmative power -- the attorney general has the ability to also refuse to appeal a case against the wishes of the governor, such *406 as in Secretary of Administration & Finance.213 This interpretation -- even to the extent that the governor is not allowed to hire outside counsel to pursue the appeal -- is necessary to maintain the attorney general’s chief legal officer status. Thus, both the Feeney and the Secretary of Administration & Finance courts see the attorney general as in the best position for helping to further a more consistent policy for the public interest in the legal sphere.

 

Another argument in favor of allowing the attorney general to bring these types of actions is efficiency. The attorney general does not have to be in favor of or against a law, but by bringing these actions she is only seeking a determination by a court about the constitutionality of the law.214 By bringing these actions before a court early, rather than waiting until a law goes into effect and perhaps harms the people of the state, the attorney general might save the state time and money. The attorney general could save time because the court determines the statute’s constitutionality before the law goes into effect. Money is also saved by preventing damage caused by enacting and enforcing a law that is eventually ruled unconstitutional. Although this approach requires the attorney general to carefully consider what challenges are truly in the public interest, aside from the attorney general’s good-faith effort,215 budget and time concerns will practically force her to pick specific battles rather than challenge every law the legislature passes that session.216

 

Finally, some critics will argue that unless constraints are imposed, zealous attorneys general will proceed with litigation of this nature only for political reasons. Notwithstanding the economic *407 considerations mentioned above, this is not necessarily a bad thing. The most likely reason an attorney general challenges a law for political reasons is because the law is politically motivated. If any act is to be closely scrutinized, politically motivated acts are certainly some of the most worthy. The Salazar case is a perfect example of a politically motivated act. Only two years after Colorado’s congressional districts were redistricted, the newly Republican-controlled legislature drew up new districts, with the effect of benefiting that party. Presumably, the point of redistricting is to ensure that state citizens are equally represented according to the state’s population.217 Although political gerrymandering is acceptable in principle, it is still impermissible to cause discriminatory vote dilution.218 Because of the political reasons behind the legislature’s passage of the new redistricting plan, it is not unreasonable for the attorney general to be politically motivated in challenging the case. This challenge assures that political measures that have a public interest element are subjected to the full checks and balances test before they become effective. The courts will decide the constitutionality and legality of these political measures before they can adversely affect the people directly, thus helping to improve the overall stability of the law.

 

Another response to the argument that attorneys general might be acting out of their own self-interest is that the political process will act to constrain over-zealous attorneys general. In the vast majority of states, the people directly elect the attorney general. Thus, if an attorney general is over-zealous and is creating unacceptable conflicts between government entities, she can be voted out of office. In other words, an attorney general who does a bad job can always be fired.

 

*408 B. THE PRIVATE CLIENT-ATTORNEY RELATIONSHIP STANDARD SHOULD NOT APPLY TO STATE ATTORNEYS GENERAL AND STATE OFFICERS AND AGENCIES

 

1.  Current Conception of Client-Attorney Relationship Emphasizes the Officer-Client over the Public-Client

Of course, in many instances the position of the officer-client and the position of the public-client are the same, so there is no real conflict. The attorney general can serve both equally without any trouble. But inevitably there will be situations where the two clients’ interests will come into conflict with each other. The natural response to these situations is to prioritize the clients. Courts, it seems, have attempted to construct different prioritizations for different situations, but it appears that the result is a clear emphasis on the officer-client at the expense of the public-client. This prioritization is enforced against the attorney general through the haphazard application of the traditional client-attorney relationship. At the very least, in situations where there is a conflict between the two clients, the attorney general should be able to choose.219 Instead, the attorney general often can only choose between representing the officer or stepping aside altogether, leaving the officer to secure her own counsel.

 

Another argument why the public-client should be prioritized over the officer-client is that state government exists to benefit the people, not any particular office or office holder. Officers are simply a means by which the people’s will is to be carried out. Therefore, representing state officers can be seen as protecting the public interest. Officers are elected to perform certain tasks and assume certain responsibilities. But sometimes officers, intentionally or unintentionally, stray from these duties. When statutes instruct the attorney general to represent officers or agencies, they are actually instructing her to represent the public *409 interest as represented by these officers and not the officers themselves.

 

Some critics, attempting to defend the application of the traditional client-attorney relationship, note that allowing the attorney general to switch sides in the middle of a case (either because she changed her opinion or because there is a newly elected attorney general) chills relations between the executive officers. For example, the client-attorney relationship protects clients by ensuring that their lawyer will not use confidential information against them in the future.220 Arguably this encourages clients to be truthful and forthright with their counsel. It would be naïve to suggest that this is not also a concern in the state attorney general case. However, this is not a major problem, considering that many of the conflicts between the governor and attorney general mentioned here involve questions of policy. This is not exactly analogous to the private attorney and client in either a civil or criminal suit. The interests being protected are different; the state officer is actually arguing over a policy position, and wants protection against the possibility that the attorney general will change her own position. Thus, while there is a slight concern, the risks are actually minimal.

 

2.  Reprioritization of Clients

In order to account more for the public interest, there should be a reprioritization of the attorney general’s clients. In situations where there is a conflict between the officer-client and the public-client, the public interest should trump the representation of state officers. Accomplishing this feat means abandoning the application of the traditional client-attorney relationship to attorneys general and state officers. The current client-attorney relationship standard was heavily influenced by private lawyers and was written to benefit the private bar.221 Indeed, these rules might work well for the private bar, but they are not easily adjusted for the relationships encountered by government lawyers, including the attorney general. The Model Rules do not fully take into consideration the duty of government lawyers to represent *410 the public interest.222 Legislatures and courts should recognize the primacy of the public interest and not attempt to apply the private attorney-client relationship standard to attorneys general.

 

Courts could allow state attorneys general to switch sides on an issue. Rule 1.7 is simply inapplicable where the identity of the attorney general has changed due to election or removal. It does not make sense to hold the new attorney general, who has no previous involvement in a case, to inflexible client-attorney rules. Even in situations where the current attorney general (as opposed to a previous attorney general) has provided some advice to an officer, there could be several reasons for an attorney general to want to change sides, such as discovering new information, or being legitimately convinced that her prior position was wrong. In cases where the attorney general has previously given advice to an officer, the court could require a “good faith” showing on the attorney general’s part in order to avoid situations where an attorney general might only make the switch for political gain. This good faith showing could be applied either to the advice she previously gave to the officer or to the current case brought before the court. It is not necessary for the attorney general to actually prove good faith because simply providing a good faith reason -- whether pretextual or not -- provides an adequate check on client switching based on political motivations alone. In other words, it really does not matter if an attorney general had political motives if her actions can be also justified as protecting the public interest.

 

This type of flexibility is not unheard of for the attorney general. A recent example is the case of former Alabama Chief Justice Roy Moore. In 2003, then-Chief Justice Moore was sued by a group of citizens over a monument of the Ten Commandments he had installed in the Supreme Court building.223 Initially, Alabama Attorney General Bill Pryor supported Moore, attending Ten Commandment rallies and even supplying lawyers from the attorney general’s office to help in Moore’s defense.224  But when *411 Moore still refused to remove the monument after a district court, and later an appellate court, ruled that it violated the Establishment Clause, attorney general Pryor switched sides and filed ethics charges against Moore.225 In his arguments, the attorney general said, “[T]he chief justice had put himself above the law    What does it mean to have the rule of laws and not

of men? That is the fundamental question.”226 After a short deliberation, the Alabama Court of the Judiciary voted unanimously to remove the chief justice from the state supreme court.227

 

Although this is a special case involving a judicial officer rather than an executive officer, it illustrates how an attorney general can change her stance in order to best serve the public interest. At first, Attorney General Pryor believed it was in the public interest to defend the chief justice. He acted in his capacity to defend and represent a state officer. If the traditional client-attorney relationship were applied, the attorney general would not have been able to switch sides against his former client. He would have been forced to step aside, the effective result being a continued standoff between the chief justice and the federal judiciary. Instead, when the attorney general felt it was in the public interest to remove Moore from the bench, he could proceed with filing ethics charges.

 

The Alabama case is one example of how the reprioritization of clients is possible and effective. The public interest was best served by allowing the attorney general to switch clients. An even better approach, though, is to view Pryor as never switching clients. Instead, the attorney general viewed the chief justice as a government officer with a duty to serve the public interest. According to this view, Pryor only represented one client the whole time -- the people of Alabama. When Pryor no longer considered the chief justice as acting in the public’s interest, he filed ethics charges. This is a good approach towards the role of the attorney *412 general in the divided executive branch. The attorney general has one client -- the people -- and officers are subordinate to that client because the office itself is a tool for the people to govern. Considering this, it is odd to give deference to officers only because they are identifiable people whereas the public interest is an abstract concept. In order for the public interest to be realized, officers cannot be seen as individuals but need to be seen as abstract concepts themselves. When no real person is involved, it is doubtful that many courts would still insist on applying the traditional client-attorney relationship.228 Courts insist on applying the traditional client-attorney relationship because they see two individual people, the attorney general and the officer, interacting with each other, but this is the wrong way to analyze the situation.

 

Finally, the Model Rules can be helpful as a set of “guidelines” for government lawyers. However, they are not “rules” that attorneys general should be required to follow. Instead, the Model Rules are advisory opinions only. Attorneys general, and government lawyers in general, should be subject to the constitution and laws -- including ethics laws -- that are passed democratically within their state. These laws carry with them the force of a democratic mandate. At least under this approach, the client-attorney relationship standard is determined by the people of the state -- or by a legislature composed of elected representatives -- and not by the private bar.

 

VII.  CONCLUSION

State attorneys general are rare in the legal community because they owe allegiances to two clients -- the “people” and the executive officers and agencies. Unfortunately, sometimes these clients come into conflict with each other. In order to decide which client receives priority during these conflicts, many courts *413 have applied various rules of the client-attorney relationship to the attorney general and the officers. These rules almost always favor the officers at the expense of the public-client. However, this outcome is at odds with the idea that the attorney general is elected by the people to serve the people of the state. Since the attorney general has the power to defend the public interest, she should prioritize the public interest over the personal interests of the officer. As part of her duties, the attorney general should be able to sue state officers in order to represent the public interest, without violating the client-attorney relationship with those officers. This is best accomplished by not applying the current Model Rules standard of the client-attorney relationship because those rules do not fully take into account the attorney general’s duties. Instead, by holding attorneys general subject to the constitution and laws of their state, the public interest can be further advanced.

 

Footnotes

 

a1                Articles Editor, COLUM. L. REV., 2004-2005. The author thanks Jim Tierney and Professor Richard Briffault for their suggestions and comments, as well as the staff of the Columbia Journal of Law & Social Problems for their invaluable help.

f1                Winner, Columbia Journal of Law & Social Problems Notes Competition.

1                  Julia C. Martinez, Remap Boosts GOP’s Grip, New Lines Fortify Hold on House, Anger Dems, DENVER POST, June 16, 2003, at A1. Originally in 2001 the Colorado legislature failed to agree on a redistricting plan, so the following year a Colorado state judge was required to set the new congressional boundaries. Id. Attorney General Salazar challenged the constitutionality of the subsequent legislatively designed congressional redistricting plan by arguing that Colorado law only allowed one redistricting after each national census. See Petition Pursuant to Colo. Const. Art. VI, § 3 at 17, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (No. 03SA133). 

2                  Julia C. Martinez, GOP Remap Challenged, Attorney General Asks Top Court to Block 11th-Hour Law, DENVER POST, May 15, 2003, at B1. In November 2004, Ken Salazar was elected to the United States Senate. See Mark P. Couch & Karen E. Crummy, Senate Seat Goes Blue as Salazar Ices Coors, DENVER POST, Nov. 3, 2004, at A1.

3                  See Answer Brief of Attorney General Ken Salazar (Concerning the Powers of the Attorney General) at 19-21, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (No. 03SA147) (arguing that attorney general has power “to bring any action which he deems to be necessary for protection of public interest,” including “power to initiate a suit questioning the constitutionality of a statute”) (quoting State v. Finch, 280 P. 910, 912 (Kan. 1929)); 7 AM. JUR. 2D Attorney General § 7 (2003); see also Julia C. Martinez, Remap Headed to Judges, State High Court Will Hear Petition from AG to Scuttle Redistrict Plan, DENVER POST, May 16, 2003, at A1.

4                  Petition for Writ of Injunction and Writ of Mandamus Pursuant to Colo. Const. Art. VI, § 3 at 8, Salazar (Colo. 2003) (No. 03SA147).

5                  Id. at 6.

6                  Id. at 3.

7                  Id. at 15-16.

8                  79 P.3d 1221 (2003). 

9                  Of course, the same is true for district attorneys, assistant attorneys general, or any other government lawyer. To simplify matters, assistant attorneys general can be considered as acting under the command of the official attorney general. Additionally, many of the arguments in this Note could apply to district attorneys and other government lawyers, but often they are not constitutional officers in the same sense as the attorney general, and they do not act in the same capacity or with the same purpose.

10               This Note does not, however, address the client-attorney privilege at the federal government level. In the federal government, unlike most state governments, the U.S. Attorney General is appointed by the executive, and the U.S. Attorneys work directly under the Attorney General. For articles that address this issue, especially in the Independent Counsel context, see, e.g., Katy J. Harriger, Damned If She Does and Damned If She Doesn’t: The Attorney General and the Independent Counsel Statute, 86 GEO. L.J. 2097 (1998); William K. Kelley, The Constitutional Dilemma of Litigation Under the Independent Counsel System, 83 MINN. L. REV. 1197 (1999); Geoffrey P. Miller, Government Lawyers’ Ethics in a System of Checks and Balances, 54 U. CHI. L. REV. 1293 (1987); Michael Stokes Paulsen, Who “Owns” the Government’s Attorney-Client Privilege?, 83 MINN. L. REV. 473 (1998). Also, this Note contains a broader focus on state attorneys general nationwide, as opposed to the attorney general of just one state. See, e.g., Michael S. Gilmore, Who Is the Public Attorney’s Client?; How Do the Public Attorney’s Rules for Conflict of Interest Differ from the Private Attorney’s, ADVOC., Feb. 2002, at 10 (briefly examining ethical role of Idaho attorney general); Bill Aleshire, Note, The Texas Attorney General: Attorney or General?, 20 REV. LITIG. 187 (2000) (discussing duties of Texas attorney general to its client, the state of Texas); Michael B. Holmes, Comment, The Constitutional Powers of the Governor and Attorney General: Which Officer Properly Controls Litigation Strategy When the Constitutionality of a State Law Is Challenged?, 53 LA. L. REV. 209 (1992) (examining Louisiana attorney general’s role in controlling state litigation).

11               GORDON S. WOOD, THE AMERICAN REVOLUTION: A HISTORY 142-43 (2002) (explaining that by the mid-1780s, “[i]t began to seem that the once benign legislative power was no more trustworthy than the detested royal power had been”).

12               Patrick C. McGinley, Separation of Powers, State Constitutions & the Attorney General: Who Represents the State?, 99 W. VA. L. REV. 721, 722 (1997).

13               See id. (“In forty-three states ... the executive department operates under supervision of an elected Governor and elected executive department officers.”). The states that do not have separately elected executive officers aside from the governor include Alaska, Hawaii, Maine, New Hampshire, New Jersey, Tennessee, and Wyoming. See STATE ATTORNEYS GENERAL: POWERS AND RESPONSIBILITIES 15 (Lynne M. Ross ed., 1990) [hereinafter STATE ATTORNEYS GENERAL].

14               McGinley, supra note 12, at 722. Of course, this is not true in all instances. For example, in New York, the comptroller and the attorney general are individually elected. N.Y. CONST. art. V, § 1. The lieutenant governor runs on a ticket with the governor, and they are both elected jointly. Id. art. IV, § 1.

15               Jason Lynch, Note, Federalism, Separation of Powers, and the Role of State Attorneys General in Multistate Litigation, 101 COLUM. L. REV. 1998, 2002 (2001); see also Scott M. Matheson, Jr., Constitutional Status and Role of the State Attorney General, 6 U. FLA. J. L. & PUB. POL’Y 1, 6 (1993). In five states (Alaska, Hawaii, New Hampshire, New Jersey, Wyoming), the governor appoints the attorney general, whereas in Maine the legislature picks the attorney general by secret ballot. Lynch, supra, at 2002. The Tennessee Supreme Court appoints its state attorney general. Id. This Note is primarily concerned with those forty-three states where the people directly elect the attorney general, although many of the arguments here could easily be applied to the other seven attorneys general, albeit in a modified form.

16               See State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777, 782 (Minn. 1986) (stating that state constitution framers made these offices constitutional because they did not intend “to afford the legislature the power to abolish these offices by statute”).

17               See, e.g., McGinley, supra note 12, at 725 (giving examples of both West Virginian constitutional and statutory duties); see also MO. CONST. art. IV, § 12; MO. REV. STAT. §§ 27.010-27.100 (2001).

18               See Answer Brief of Attorney General Ken Salazar (Concerning the Powers of the Attorney General) at 11-12, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (No. 03SA147); see also State ex rel. McGraw v. Burton, 569 S.E.2d 99, 110 (W. Va. 2002) (“This [executive] separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, namely, to preclude a commingling of these essentially different powers of government in the same hands.” (quoting State ex rel. State Bldg. Comm’n v. Bailey, 150 S.E.2d 449 (W. Va. 1966))).

19               Kiedrowski, 391 N.W.2d at 782.

 20               As of March 1, 2005, nineteen of the forty-three states that directly elect their attorneys general have a governor and an attorney general from different parties. See Project Vote Smart, at http://www.vote-smart.org (last visited Mar. 1, 2005).

21               STATE ATTORNEYS GENERAL, supra note 13, at 15 (“The method of selection of Attorney General is specified by 43 states in their constitutions.”); 7 AM. JUR. 2D Attorney General § 1 (2003); see also Deborah K. Kearney, The Florida Cabinet in the Age of Aquarius, 52 FLA. L. REV. 425, 427 (2000) (describing the Florida Attorney General as an independently elected member of Florida’s executive cabinet); Aleshire, supra note 10, at 214 (describing the Texas Attorney general as an officer of the executive branch).

22               See supra note 15 and accompanying text.

 23               See, e.g., HAW. REV. STAT. § 28-1 (2002) (“The attorney general shall appear for the State personally or by deputy, in all the courts of record, in all cases criminal or civil in which the State may be a party, or be interested, and may in like manner appear in the district courts in such cases.”); Hodge v. Commonwealth, 116 S.W.3d 463, 474 (Ky. 2003) (“[T]he Attorney General is the chief law officer and chief prosecutor of the Commonwealth ”). But see Perdue v. Baker, 586 S.E.2d 606, 609, 614 (Ga. 2003) (explaining that while the attorney general is the chief legal officer of the state, neither she nor the governor has the exclusive power to decide the state’s interest in litigation).

24               See State v. Heath, 806 S.W.2d 535, 537 (Tenn. Ct. App. 1990) (describing attorney general’s powers including protecting the public interest, enforcing state laws in court, and participating “in litigation of a private character where it bears on the interest of the general public”).

25               See Mem’l Hosp. Ass’n, Inc. v. Knutson, 722 P.2d 1093, 1097 (Kan. 1986) (noting that where there is a public interest, the attorney general has a right to intervene).

26               See State v. Finch 280 P. 910, 911 (Kan. 1929) (“And so, while primarily the Governor is charged with the execution of the law, next to him the Attorney General is the chief law officer of the state.”).

27               See, e.g., CONN. GEN. STAT. § 3-125 (2003) (“The Attorney General shall have general supervision over all legal matters in which the state is an interested party, except those legal matters over which prosecuting officers have direction.”).

28               See, e.g., CAL. CONST. art. 5, § 13; N.Y. CONST. art. 5, § 1; ILL. COMP. STAT. 205/4 (2004); IOWA CODE § 13.2 (2004); MO. REV. STAT. §§ 27.030-27.060 (2001).

29               See Matheson, supra note 15, at 4 (stating that some state attorneys general retain common-law powers held over from England); see also State ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 269 (5th Cir. 1976) (holding that Florida attorney general retains common-law powers).

30               See Shevin, 526 F.2d at 273-74 (“The fact that various statutes delegate specific portions of Florida’s litigation power to state’s attorneys in no way indicates an abrogation of the Attorney General’s common law powers as to other types of litigation; those powers still obtain in the absence of express legislative provision to the contrary.”).

31               7 AM. JUR. 2D Attorney General § 7 (2004); see also State ex rel. Shevin v. Kerwin, 279 So. 2d 836, 837-38 (Fla. 1973); Parker v. State, 31 N.E. 1114, 1115 (Ind. 1892); Van Riper v. Jenkin, 45 A.2d 844, 846 (N.J. 1946).

32               The states that seem to have abandoned attorney general common-law powers include Arizona, Connecticut, Indiana, Iowa, New Mexico, New York, Oregon, Texas, Washington, and Wisconsin. 7 AM. JUR. 2D Attorney General § 7 (2003). Within the last several years, the West Virginia Supreme Court ruled the attorney general did not have common-law powers, but a more recent opinion suggests the court may be changing its mind once again. See infra note 35 and accompanying text.

33               See, e.g., Blumenthal v. Barnes, 804 A.2d 152, 165 (Conn. 2002) (holding the attorney general does not have common law powers with respect to representing the public interest).

34               The expressio unius arguments are less persuasive when it is the state constitution that specifically outlines the attorney general’s duties. This is because states retain plenary power, and thus state constitutions are often interpreted as limitations upon the government rather than grants of power. Under this viewpoint, anything not specifically mentioned in the state constitution must be retained. See Robert F. Williams, The Brennan Lecture: Interpreting State Constitutions as Unique Legal Documents, 27 OKLA. CITY U. L. REV. 189, 207 (2002) (explaining that state constitutions are generally regarded as limitations, unlike the federal constitution, thus resulting in a different interpretational approach). Still, many state constitutions do not describe the attorney general’s specific duties in detail; they usually just set the method of election and term of office. See STATE ATTORNEYS GENERAL, supra note 13, at 40.

35               See State ex rel. McGraw v. Burton, 569 S.E.2d 99, 106-08 (W. Va. 2002) (explaining that attorney general has “inherent constitutional functions” which are not specifically enumerated but which the legislature cannot abrogate through legislation); see also supra note 32 and accompanying text.

36               See State ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 271 (5th Cir. 1976); infra Part IV.A.1.

37               See, e.g., MISS. CODE ANN. § 7-5-1 (2004); People ex rel. Castle v. Daniels, 132 N.E.2d 507, 509 (Ill. 1956).

 38               See MINN. STAT. § 8.06 (2004); State ex rel. McKittrick v. Mo. Pub. Serv. Comm’n, 175 S.W.2d 857, 862 (Mo. 1943).

39               7 AM. JUR. 2D Attorney General § 7 (2003).

40               Id. § 1; see also MINN. STAT. § 8.06; MISS. CODE ANN. § 7-5-1; TEX GOV’T CODE ANN. § 402.021 (Vernon 1998).

41               See People ex rel. Deukmejian v. Brown, 624 P.2d 1206, 1207 (Cal. 1981) (explaining attorney general gave legal advice to governor); see also, e.g., ALASKA STAT. § 44-23-020 (Michie 2003) (“The attorney general is the legal advisor of the governor and other state officers.”).

42               See Answer Brief of Attorney General Ken Salazar (Concerning the Powers of the Attorney General) at 30, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (No. 03SA147); see also State ex rel. Condon v. Hodges, 562 S.E.2d 623, 627-28 (S.C. 2003). The reason ethic rules are also considered judicial rules is because often state supreme courts officially adopt these rules as part of their procedure. See Thomas J. Tallerico & Jeffery G. Raphelson, Professional Liability of Attorneys, 36 WAYNE L. REV. 815, 816-17 (1990) (explaining that state bar of Michigan approved modified version of ABA’s Model Rules, and then submitted those rules to state supreme court, which invited feedback and made its own changes before promulgating the official Michigan Rules of Professional Conduct); Andrew D. Pugh, Comment, The Antidiscrimination Amendment to Rule 8.4 of the Minnesota Rules of Professional Conduct: An Unnecessary and Unprecedented Expansion in Professional Regulation, 19 WM. MITCHELL L. REV. 211, 211-12 (1993) (stating that in 1991, the Minnesota Supreme Court granted the state bar association’s petition to amend Rule 8.4 of the Minnesota Rules of Professional Conduct).

43               See, e.g., Deukmejian, 624 P.2d at 1207-08.

44               526 F.2d 266 (5th Cir. 1976).

45               Id. at 267.

46               Id.

47               Id. at 268.

48               Id. at 269.

49               Id. at 269-70.

50               Id. at 270 (citing State ex rel. Attorney Gen. v. Gleason, 12 Fla. 190 (Fla. 1868)).

51               Id. at 270-71.

52               Id. at 271 (citing State ex rel. Landis v. Kress, 155 So. 823, 827 (Fla. 1934)).

53               Id. (emphasis added).

54               The cases in question were Holland v. Watson, 14 So. 2d 200 (Fla. 1943), and Watson v. Caldwell, 27 So. 2d 524 (Fla. 1946).

55               Shevin v. Exxon Corp., 526 F.2d 266, 272.

56               Id. at 273.

57               366 N.E.2d 1262 (Mass. 1977).

58               Id. at 1263. Specifically, Feeney was upset with a “veterans’ preference formula” which gave priority to veterans in the hiring procedure for public employment positions. Because she was a woman and thus not eligible for the draft. Feeney argued she was placed at an unfair disadvantage because of her sex.

59               MASS. GEN. LAWS ch. 31, § 23 (1978).

60               Feeney, 366 N.E.2d at 1264.

61               Id. at 1267.

62               See infra Part V.F.

63               Feeney, 366 N.E.2d at 1266.

64               Id. (citing Sec’y of Admin. & Fin. v. Attorney Gen., 326 N.E.2d 334, 338 (Mass. 1975)).

65               Id.

66               Id. at 1267.

67               326 N.E.2d 334, 335 (Mass. 1975).

68               Id. at 336.

69               MASS. GEN. LAWS ch. 12, § 3 (1974). 

70               Sec’y of Admin. & Fin., 326 N.E.2d at 336. 

71               Id.

72               Id. (“We emphasize, however, that this narrow exception applies only where the powers of the Attorney General’s office themselves are in question, and not in the ordinary case of disagreement between an agency and the Attorney General.”).

73               Id. at 340 (Kaplan, J., dissenting). 

74               Id. at 341 (Kaplan, J., dissenting).

75               Id. (Kaplan, J., dissenting). 

76               624 P.2d 1206 (Cal. 1981).

77               Id. at 1207 (citing CAL. GOV’T CODE §§ 3512-3524 (West 1977)).

78               Id.

79               Id.

80               Id.

81               Id.

82               Id. at 1207-09.

83               Id. at 1207.

84               Id. at 1209.

85               Id. In explaining why a private client-attorney relationship should be applied to the attorney general, the strange logic of the California Supreme Court appears to be that it is applied because it exists. In other words, it is not so much an explanation as an insistence by the court.

86               Id.

87               Id.

88               See id. (citing CAL. CONST. art. V, § 1).

89               See id. (citing CAL. CONST. art. V, § 13).

90               562 S.E.2d 623 (S.C. 2002).

92               Id. at 625-26.

93               Id.

94               Id.

95               Id.

96               Id. at 628. 

97               See id. at 626 (“The Governor shall take care that the laws be faithfully executed. To this end, the Attorney General shall assist and represent the Governor.... ”) (citing S.C. CONST. art IV, § 15).

98               See supra Part IV.B.

99               Condon, 562 S.E.2d at 626 (“[T]he Attorney General shall assist and represent the Governor.... ”) (citing S.C. CONST. art. IV, § 15). 

100             Id. at 627 (emphasis deleted).

101             Id.

102             Id. at 628.

103             586 S.E.2d 606, 607 (Ga. 2003).

104             Id. (explaining holding of federal district court in underlying case).

105             Id.

106             Id. at 607-08.

107             Id. at 608.

108             Id.

109             Id. (reciting governor’s position).

110             Id. (restating attorney general’s arguments).

111             According to the court,

The constitution states that the Attorney General ‘shall act as the legal advisor of the executive department, shall represent the state in the Supreme Court in all capital felonies and in all civil and criminal cases in any court when required by the Governor, and shall perform such other duties as shall be required by law.’

Id. at 609 (quoting GA. CONST. art. V, § 3, para. IV).

112             Id. (citing GA. CODE ANN. §§ 45-15-3(4), 45-15-35 (2003)).

113             Id. (“It is the duty of the Attorney General ... [t]o represent the state in all civil actions tried in any court.”) (citing GA. CODE ANN. § 45-15-3(6)).

114             Id. (citing GA. CONST. art. V., § II, para. II).

115             Id. (“Construed together, these constitutional provisions and statutes do not vest either officer with the exclusive power to control legal proceedings involving the State of Georgia.”).

116             Id. The court then stated,

Both executive officers are empowered to make certain that state laws are faith-fully enforced; both may decide to initiate legal proceedings to protect the State’s interests; both may ensure that the State’s interests are defended in legal actions; and both may institute investigations of wrongdoing by state agencies and officials.

Id.

117             The court stated,

We also reject the dissent’s narrow characterization of the Attorney General’s role as merely that of legal counsel to the Governor. To imply that the Georgia Rules of Professional Conduct control the Attorney General’s relationship to the Governor ignores the important and independent role assigned to the Attorney General under our constitution.

Id. at 610

118             Id.

 119             Id. at 616.

120             79 P.3d 1221 (Colo. 2003).

121             See Answer Brief of Attorney General Ken Salazar (Concerning the Powers of the Attorney General) at 30, Salazar (No. 03SA147).

122             Id.

123             Id. at 32.

124             Id. at 33.

125             Id. at 31.

126             79 P.3d at 1221.

127             Id. at 1229. Although there was no case directly on point, the court analogized the current case to People v. Tool, 86 P. 224 (Colo. 1905), which recognized the power of the attorney general to protect the integrity of the election process. Salazar, 79 P.3d at 1229.

128             Salazar, 79 P.3d at 1229 (quoting Tool, 86 P. at 236).

129             Id. at 1230 (“Hence, it is irrelevant that no statute authorizes the Attorney General to file his petition.”).

130             Id.

131             COLO. RULES OF PROF’L CONDUCT, COLO. R. CIV. P. app. to chs. 18-20 (2004).

132             Salazar, 79 P.3d at 1230 (“We find no ethical violation. The Secretary of State is named as a party in her official capacity because she administers the election laws.”).

133             Id. at 1231 (citing COLO. RULES OF PROF’L CONDUCT Scope).

134             Id.

135             Id.

136             Id. at 1243 (“Consequently, the General Assembly’s 2003 redistricting plan is not permitted by Article V, Section 44, of the Colorado Constitution because it is the second redistricting plan after the 2000 census. Hence, Senate Bill 03-352 is unconstitutional and void.”).

137             See Emily Wagster Pettus, Medicaid Bickering Echoes Past, COM. APPEAL (Memphis, Tenn.), Oct. 3, 2004, at DS1 [hereinafter Pettus, Bickering].

138             Emily Wagster Pettus, Hood Joins Fight to Delay Medicaid Cuts; Barbour Staff: AG Is Flip-Flopping Plan, SUN HERALD (Biloxi, Miss.), Sept. 30, 2004, at 1 [hereinafter Pettus, Hood Joins Fight].

139             Geoff Pender, Barbour Promotes Plans for Mississippi Fiscal Fitness; Governor Brings Message to Coast, SUN HERALD (Biloxi, Miss.), Oct. 2, 2004, at 4.

140             See Pettus, Bickering, supra note 137.

141             Pettus, Hood Joins Fight, supra note 138.

142             See Geoff Pender, Mississippi Medicaid Recipients Get Another Extension on Health Coverage, SUN HERALD (Biloxi, Miss.), Oct. 15, 2004; Pettus, Bickering, supra note 137. This was a ruling in favor of the attorney general because the judge did not dismiss the action due to lack of standing, which implies that the court did not recognize a breach of the client-attorney relationship.

143             See supra Part III.

144             See Lawrence K. Hellman, When “Ethics Rules” Don’t Mean What They Say: The Implications of Strained ABA Ethics Opinions, 10 GEO. J. LEGAL ETHICS 317, 323 n.18 (1997) (“Although every state except California thus has in place a set of rules based on one of the two ABA “model” regimes [the Model Rules and its predecessor, the Model Code], most states have adopted the ABA models with alterations ”); Jennifer Daehler, Note, Professional Versus Moral Responsibility in the Developing World, 9 GEO. J. LEGAL ETHICS 229, 231 (1995) (“In fact, the ethical rules governing the practice of law are regulated by each state. However, the Model Rules, or their very near equivalents have been enacted by most state bar associations.”). In this Note, I have chosen to use the Model Rules primarily because they represent the ABA’s current view of lawyers’ ethical obligations.

145             MODEL RULES OF PROF’L CONDUCT R. 1.2(a) (2002).

146             Id.

147             Id. R. 1.2 cmt. 1 (2002); see, e.g., Red Dog v. State, 625 A.2d 245, 247 (Del. 1993).

148             Akron Bar Ass’n v. Miller, 684 N.E.2d 288, 291 (Ohio 1997) (quoting ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 128-29 (1993)).

149             The ramifications of this will be discussed infra Part VI.A.

150             624 P.2d 1206 (Cal. 1981).

151             Id. at 1207-09.

152             Id. at 1207-08.

153             385 S.E.2d 646 (W. Va. 1989); see also supra note 35 and accompanying text.

154             See supra note 35 and accompanying text.

155             526 F.2d 266, 270 (5th Cir. 1976).

156             The debate over the meaninglessness of definitions and their inapplicability to the law is a favorite among legal philosophy professors. For one of the most famous discussions of this debate, see H.L.A. HART, THE CONCEPT OF LAW 121-32 (1961). For a more current discussion, see Jeremy Waldron, Does Law Promise Justice?, 17 GA. ST. U. L. REV. 759, 766-67 (2001).

157             See Sec’y of Admin. & Fin. v. Attorney Gen., 326 N.E.2d 334, 336-37 (Mass. 1975) (“The Secretary contends that..... it is up to him, as client, and not for the Attorney General, as attorney, to decide whether to prosecute an appeal. We cannot accept this contention.”) (citations omitted).

158             MODEL RULES OF PROF’L CONDUCT R. 1.6(a) (2002).

159             People ex rel. Deukmejian v. Brown, 624 P.2d 1206, 1207-08 (Cal. 1981).

160             State ex rel. Caryl v. MacQueen, 385 S.E.2d 646, 648 (W. Va. 1989). The confidential tax information in question was a tax compromise between the commissioner and a company that owed back taxes. See id. at 646-47.

161             588 N.E.2d 560, 563 (Ind. Ct. App. 1992).

162             Charles v. Abrams, 199 A.D.2d 652, 653 (N.Y. App. Div. 1993).

163             See cases cited supra Part IV. See generally Gilmore, supra note 10; Aleshire, supra note 10; Holmes, supra note 10.

164             See People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1231 (Colo. 2003) (explaining that attorney general’s client is “generally the government as a whole,” even though the attorney general may represent an individual officer in specific circumstances); Perdue v. Baker, 586 S.E.2d 606, 609-10 (Ga. 2003) (explaining that attorney general and governor have concurrent powers to defend state’s interests in legal actions); State ex rel. Condon v. Hodges, 562 S.E.2d 623, 627 (S.C. 2002) (holding attorney general is not prohibited from bringing suits against the governor); Feeney v. Commonwealth, 366 N.E.2d 1262, 1267 (Mass. 1977) (stating attorney general can prosecute court appeals over the objections of state officers); Sec’y of Admin. & Fin. v. Attorney Gen., 326 N.E.2d 334, 336 (Mass. 1975) (holding attorney general can refuse to appeal case over objections of state officers).

165             For a list of some cases where the court found that the attorney general did not violate professional ethical rules, see the cases listed supra note 164.

166             MODEL RULES OF PROF’L CONDUCT R. 1.7(a) (2002).

167             Id. R. 1.7 cmt. 1.

168             7 AM. JUR. 2D Attorney General § 21 (2003).

169             642 N.E.2d 1180, 1181 (Ill. 1994).

170             Id. at 1183.

171             Id. at 1184.

172             MODEL RULES OF PROF’L CONDUCT R. 1.7 cmt. 2 (2002).

173             Cases where the attorney general has to represent two agencies at the same time appear to be fairly rare. In reality, where two agencies disagree or have colliding statutory mandates, the attorney general might ask the governor to pressure the agencies to arrive at an amicable solution. In the case of overlapping statutory mandates, the attorney general could also share his concern with the legislature and ask them to resolve it. Another option is for the attorney general to issue a formal opinion, which is not binding but is very persuasive to the court in future litigation.

Should these methods fail to resolve the problem, the agencies might actually go to court against each other. Often the attorney general is allowed to represent both agencies. Once the attorney general decides his “side” on the matter, however, he assigns the matter to different departments where the assistant attorneys general are required not to interact with each other over the specific case. The attorney general also gives up supervisory control over those staff members who are on the “side” opposed to the position he has selected. See E-mail from James Tierney, Former Attorney General of Maine, to Justin Davids (Jan. 26, 2004) (on file with author).

174             MODEL RULES OF PROF’L CONDUCT R. 1.8(b).

175             People ex rel. Deukmejian v. Brown, 624 P.2d 1206 (Cal. 1981).

176             Id. at 1208; see also supra Part IV.B.

177             This is often a complaint critics level against allowing attorneys general to switch sides. For a response to this criticism, see infra Part VI.B.1.

178             MODEL RULES OF PROF’L CONDUCT R. 1.8 cmt. 5.

179             See Deukmejian, 624 P.2d at 1208.

180             MODEL RULES OF PROF’L CONDUCT R. 1.11(d). Rule 1.11 also deals with issues regarding conflicts of interests when a lawyer used to work for the government but is now in private practice. See id. R. 1.11(a)-(c). Rule 1.11(d)(2) covers conflicts of interest regarding a government lawyer who used to be in private practice, or who is seeking employment with a party with which the lawyer participates “personally and substantially.” See id. R. 1.11(d)(2). Because this Note involves the conflicts of interest of attorneys general with other governmental entities, only Rule 1.11(d)(1) is relevant for the purposes of discussion.

181             Id. R. 1.11 cmt. 1.

182             See Margaret Colgate Love, The Revised ABA Model Rules of Professional Conduct: Summary of the Work of Ethics 2000, 15 GEO. J. LEGAL ETHICS 441, 456-57 (2002) (“The Commission made Rule 1.11(d) the sole source for the obligations of current government lawyers, incorporating by reference the provisions of Rule 1.7 respecting concurrent conflicts..... ”).

183             MODEL RULES OF PROF’L CONDUCT R. 1.11 cmt. 1. 

184             Id. R. 1.11 cmt. 2.

185             MODEL RULES OF PROF’L CONDUCT Scope 18. 

186             Id. (“[A] lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state’s attorney in state government ”).

187             Id. (“[L]awyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority.”).

188             Id. 

189             MODEL RULES OF PROF’L CONDUCT pmbl. 16 (1983), reprinted in 2003 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY 186 (Thomas D. Morgan & Ronald D. Rotunda eds., 2003).

190             Of course, the Model Rules do not authorize any action in the way a statute or the state constitution might. Instead they are ethical guidelines adopted by state bar associations and promulgated by state supreme courts. See supra note 42. The deletion of this language is significant, however, because it might indicate a change in the ABA’s view of its ethical standard.

191             One theory that might suggest this sentence was struck to give private lawyers at least a claim to acting in the public interest is that professional ethics are eroding and part of the reason is the “displacement of the vocation of public-regarding lawyering onto a specialized ‘public-interest’ bar, academics and government lawyers.” See Robert W. Gordon, A New Role for Lawyers?: The Corporate Counselor After Enron, 35 CONN. L. REV. 1185, 1209 (2003).

192             See supra Part V.E.

193             See, e.g., MO. REV. STAT. § 60.560 (2004) (stating that upon request attorney general shall advise Department of Natural Resources of any legal matter and represent in court); N.Y. AGRIC. & MKTS. LAW § 27 (McKinney 2004) (“The [eminent domain] proceeding shall be brought in the name of the [agriculture] commissioner as agent of the state and the attorney general shall represent the petitioner in the proceedings.”); People ex rel. Deukmejian v. Brown, 624 P.2d 1206, 1208 (Cal. 1981).

194             See, e.g., supra Parts IV.A, C.

195             See supra Part V.E.

196             See Tamara L. Tompkins, Note, A Theory of Ethical Conduct for the Legal Advisor to the State Department: Applied for a Fresh Look at Abraham Sofaer and the ABM Treaty Reinterpretation Debacle, 7 GEO. J. LEGAL ETHICS 523, 530 n.39 (1993) (“The Model Rules, like the Model Code, were written primarily to address the problems confronting private attorneys.”).

197             See Miller, supra note 10, at 1293 n.1 (“These ethic codes, however, do not provide clear answers to the problem [of government lawyers’ ethics] because they were written with private, not government, attornies [sic] in mind.”).

198             See Brian C. Buescher, Note, Out with the Code and in with the Rules: The Disastrous Nebraska “Bright Line” Rule for Conflict of Interest: A Direct Consequence of the Shortcomings in the Model Code, 12 GEO. J. LEGAL ETHICS 717, 736 n.174 (1999).

199             Id. (“Robert Kutak, the chair of the Kutak Commission which wrote the Model Rules, was a native Nebraskan and co-founder of Nebraska’s largest and only national law firm, Kutak Rock.”).

200             See Susan P. Koniak, When the Hurlyburly’s Done: The Bar’s Struggle with the SEC, 103 COLUM. L. REV. 1236, 1264 (2003) (stating that Geoffrey Hazard was the reporter for the Kutak Commission). Professor Hazard often testifies as an expert on ethics rules, and has even testified on the application of state rules of professional conduct to state attorneys general. See, e.g., State v. Peters, CR. No. 98-2467 (Haw. Cir. Ct. Feb. 26, 1999) (decision regarding motion to dismiss and alternative motion to disqualify the attorney general of Hawaii and her deputies) (on file with author). Professor Hazard’s argument in State v. Peters was that the Hawaii Attorney General violated the Hawaii Rules of Professional Conduct by bringing a case both civilly and criminally at the same time, thus violating the prohibition against conflicts of interest. See Declaration of Geoffrey C. Hazard, Jr. at 3, State v. Peters, CR. No. 98-2467 (Haw. Cir. Ct. Dec. 8, 1998). In short, Professor Hazard claimed the attorney general violated ethical rules because she did not have the authority to supercede the public prosecutor in criminal matters, and warned that there was the possibility that an attorney general with this power could use a criminal prosecution to facilitate a favorable civil recovery. Id. at 3-4. The state circuit court disagreed with Professor Hazard, however, and ruled that the attorney general could bring criminal cases when “an investigation would be in the public interest.” State v. Peters, CR. No. 98-2467, at 2-3 (Haw. Cir. Ct. Feb. 26, 1999) (decision regarding motion to dismiss and alternative motion to disqualify the attorney general of Hawaii and her deputies). More importantly, the court recognized that the state professional conduct rules “may not abrogate the government attorney’s authority in certain situations,” id. at 4, and that the mere appearance of conflict did not preclude the attorney general from bringing both cases. Id. (“If an appearance of conflict were a test, there could seldom be any parallel civil and criminal proceedings brought by the Attorney General and the statutes giving the Attorney General that dual authority would be frustrated.”). The court seemed persuaded that the attorney general should follow the statutes rather than the rules of professional conduct. Thus, even Professor Hazard, who has extensive experience in helping create the Model Rules, has trouble convincing courts that the Model Rules are completely applicable to the situations faced by state attorneys general.

201             Am. Bar Ass’n, Ethics 2000 Commission, at http:// www.abanet.org/cpr/ethics2k.html (last visited March 6, 2005). On a related note, on its official web page the Commission states, “The Commission expresses its gratitude to the law firm of Drinker, Biddle & Reath, whose generous contribution helped make possible the continued, invaluable support of the Commission’s Chief Reporter.” Not only is this statement evidence of the private bar’s involvement with the Model Rules, but it also indicates that at least one private law firm provided financial support to the ethics committee -- a rather questionable move considering the committee’s mission is to review the ethics rules that lawyers in this private law firm are expected to follow.

202             See Am. Bar Ass’n, Ethics 2000 Commission on the Rules of Professional Conduct, Appendix A -- Biographies (on file with author) [hereinafter Ethics 2000 Commission Appendix]; see also Love, supra note 182, at 441 n.1 (noting that “Commission comprised practitioners, judges, academics, corporate and public section lawyers, and a lay public member”). Also, according to the ABA website, Geoffrey Hazard was still involved with the Model Rules, only this time as a member of the Ethics 2000 Commission. See Ethics 2000 Commission Appendix, supra.

203             Petition for Writ of Injunction and Writ of Mandamus Pursuant to Colo. Const. Art. VI, § 3 at 11-12, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (No. 03SA147).

204             Id. at 9-14 (citing People ex rel. Tooley v. Dist. Court, 549 P.2d 774, 777 (Colo. 1976)). It should be noted, though, that many of the cases the Secretary of State cites in support of her claims regard the attorney general’s criminal powers as opposed to his civil powers. Much of the support regarding civil powers is either dicta or inference. For example, the Colorado attorney general in Tooley argued his position, in a criminal prosecutorial manner, was analogous to the Attorney General of the United States, a purely appointed position within the president’s cabinet and not a U.S. constitutional officer. Thus, the Colorado Supreme Court was rebuffing this odd analogy to the U.S. “chief law officer.” This is not to say, though, that the Colorado Supreme Court did not view the attorney general’s statutory authority and the case law as extending the office’s powers to include protection of the public interest.

205             Id. (“Not only must an executive branch officer or the general assembly request that the attorney general initiate litigation but he or she is limited to representing the designated officials and agencies of the state ..., not ‘the people.”’).

206             Id. at 12. 

207             See Answer Brief of Attorney General Ken Salazar (Concerning the Powers of the Attorney General) at 11, Salazar (No. 03SA147); supra notes 18-19 and accompanying text.

208             See, e.g., Feeney v. Commonwealth, 366 N.E.2d 1262, 1265 (Mass. 1977) (citation omitted).

209             Id.

210             In fact, the Vermont Attorney General’s office makes this exact analogy. See The Office of the Attorney General, at http:// www.atg.state.vt.us/display.php (last visited Oct. 31, 2004) (“First established by the Vermont Legislature in 1790, the Office of Attorney General has evolved from its one-person operation shortly after the turn of the 20th century to its current status as the State’s largest law firm.”). The Missouri Attorney General’s office does as well. See About the Missouri Attorney General’s Office, at http://www.moago.org/divisions/divisions.htm (last visited Apr. 1, 2005) (“The office is considered the state’s premier law firm.”).

211             See, e.g., Feeney, 366 N.E.2d at 1265. 

212             Id. (quoting Sec’y of Admin. & Fin. v. Attorney Gen., 326 N.E.2d 334, 338-39 (Mass. 1975)).

213             See supra Part IV.A.3.

214             See Answer Brief of Attorney General Ken Salazar (Concerning the Powers of the Attorney General) at 15, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (No. 03SA147) (“The Attorney General does not presume to be the final arbiter of the statute’s constitutionality .... Rather, he brings his good-faith concerns to this Court to seek its final determination ... because he recognizes that this Court rightfully undertakes that responsibility.”).

215             See supra notes 73-75 and accompanying text. Judge Kaplan’s dissent in Secretary of Administration & Finance assumes a lot of self-control by the governor and other state executives, which this Note criticizes as being somewhat unrealistic. Although this Note suggests there will be self-control by the attorney general, unlike Judge Kaplan, this Note has mentioned practical concerns that would make constraints on litigation less about self-control and more about economic realities.

216             In fact, these powers and actions are restrained in part because the legislature has control over the attorney general’s budget. See Lynch, supra note 15, at 2003.

217             See Reynolds v. Sims, 377 U.S. 533, 568 (1964) (“We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”).

218             See Davis v. Bandemer, 478 U.S. 109, 132 (1986) ( “[U]nconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.”). However, in the Colorado case, Attorney General Salazar did not assert an equal protection violation. Instead, he argued his case only on state constitutional grounds, claiming that the Colorado constitution only allowed redistricting immediately after each United States census. See Salazar, 79 P.3d at 1243 (“Under our holding today, the General Assembly may only create a redistricting plan after the federal census (and the resulting congressional apportionment to the states) and before the ensuing general election.”).

219             Obviously if the attorney general decides not to represent the officer-client, the officers still have a right to legal counsel and representation. In these situations, the officers should be allowed to hire outside counsel or use their in-office counsel. This approach seems consistent with Secretary of Administration & Finance, where the governor’s counsel represented the secretary to question the attorney general’s powers. See supra Part IV.A.3.

220             See text accompanying supra notes 162-163.

221             See supra notes 196-202 and accompanying text.

222             See supra notes 189-191 and accompanying text.

223             See Jeffrey Gettleman, Court Orders Alabama’s Chief Justice Removed from Bench, N.Y. TIMES, Nov. 13, 2003, at A1. 

Judge Jack Weinstein's 1966 article brilliantly captures the dilemmas faced by non federal government attorneys who strive to be ethical in their daily practice.  Judge Weinstein not only analyzes the challenges but also proposes highly principled and down to earth solutions.   It is the classic article in the field.

 

SOME ETHICAL AND POLITICAL PROBLEMS

OF A GOVERNMENT ATTORNEY

*Jack B. Weinstein

 

I.        COMPARISON OF  NASSAU  COUNTY  AND  MAINE  CoUNTY  ATTORNEY The position as County Attorney of Nassau County is somewhat different from that of a county attorney in Maine. As I understand the matter from your statutes and the 1952 Dow report on Maine county govemment,1 your county attorney is a part-time officer with compensation averaging about $5,000 a year.2 His work is primarily that of a criminal prosecutor, although he has civil jurisdiction. The Attorney General of Maine possesses supervisory powers over him.3

The county attorney in New York is a civil attorney,4  much like a city corporation counsel.5 New York's county attorneys are not subject

t This paper was presented in a speech by Professor Jack B. Weinstein at the University of Maine Law Forum on April 8, 1966, in Portland, Maine.

* Jack B. Weinstein, Professor of Law, Columbia University; B.A., 1943, Brook­lyn College; LL.B., 1948, Columbia University.

1 Dow, CoUNTY GOVERNMENT IN :MAINE 19-20 (1952).

2 Ibid. The report recommended full-time district attorneys, one for each  jail district, selected by a screening committee and appointed  by  the  Attorney  General. If reappointed, they would serve for  life.  Salaries  in  some  areas  have  recently been increased slightly. :ME. REv. STAT. ANN. tit. 30, § 2 (Supp. 1965).

3 See [1963-1964] ME. ArrY  GEN. ,REP.  9.  For  the  powers,  duties  and  salary of the Attorney General, see l\1E. REv. STAT. ANN. tit. 5, §§ 191, 192, 195, 196

199 (1964).

4 See, e.g., CoUNTY GOVERNMENT LAW OF NASSAU COUNlY, § 1102:

General powers and duties. The county attorney shall represent the county and all departments, officers, institutions  and  agencies  thereof, in all litigation, draw all contracts, draw ordinances or resolutions at the request of the county executive or any member of the board of super­ visors, and act as legal adviser of the county and all departments, institu­ tions, offices, agencies, or officers thereof, and have such other powers and duties, not inconsistent with the terms of this act, as are  now, or  may hereafter be, conferred or imposed by law or ordinance. The county attorney upon the request of the governing body of any city, town, village, school district or special district, may act as the legal adviser or representative thereof on such terms as may be agreed upon between the county executive and the said governing body. (Amended by L. 1937 Ch. 618 § 25, in effect January 1, 1938.)

5. He must be admitted to the bar-unlike  the Attorney  General  of  the  State  of New York and some county attorneys. See, e.g., N. Y. CoNST. art. V, § 1 (same qualifications as governor); Note, The Role of the Prosecutor in Utah, 5 UTAH

L. REv. 70, 76 (1957) (seven county attorneys not admitted to bar because no attorney in county).

 

to control by the State Attorney General.6 Criminal prosecutions are conducted by an independent, elected district attorney in each county.7 The salary of the Nassau  County  Attorney is $25,000  a  year;  he has 30 full-time lawyers on his staff of 80, and his annual budget is about a million dollars.8  It is probably a  tribute to the efficiency and frugality of Maine residents that the Attorney General of the State of Maine has, for all the State's legal business, half the number of lawyers on the Nassau County staff and a small fraction of the number of  stenograph­  ers and clerks.9

Lest you think that Nassau County is without any prudence in spend­ ing its money, let me explain that Nassau County has a population of 1,400,000 - that is, it has more than one-third more residents than Maine. It contains two cities, three towns, including one with a popula­tion of 800,000, some 60 villages, and hundreds of special districts. The County employs some 10,000 people and its annual budget is over two hundred million dollars. Moreover, unlike the New England counties, which have been traditionally weak, the County of Nassau exercises very substantial governmental administrative and local legislative powers. Nassau County has an elected county executive, who has powers equivalent to those of a strong mayor of a large city.

Lying adjacent to New York City, the County faces in its legal busi­ ness many of the same complexities as New York City. Some subtleties are added by the many autonomous governmental units within the county.

New York's system of local government, like yours, is far from per­fect. The Fourth Report of  the Maine Legislative  Research  Committee to the ninety-sixth Legislature on County Government  noted:  "The people may blame a delinquent official, or even occasionally themselves, but they are only slowly coming  to see that  the real difficulty  may  lie  in the system itself." 10 It pointed to the need for widespread public un­derstanding "to overcome the opposition of vested political interests in the existing system." 11 Exactly the same language could be used in New York and many other states.

 

6 N.Y. ExECUTIVE LAW§§ 60-73.

7 N.Y. CONST. art. IX, § 5; N.Y. COUNTY LAW §§ 400, 700.

8 NASSAU COUNTY, N.Y., ANNUAL BUDGET 1966, at 55 (recommended by county executive: $1,355,023 of which $880,348 was for personal services).

9 [1963-1964] ME. Arr'y GEN. REP. 4, 9.

10.  ME. LEG. R.EsEARCH COMM., 96TH LEG., FOURTH REPORT ON COUNTY Gov'T 3 (1953).

11 Ibid. See also, e.g., COMMITTEE FOR EcONOMIC DEVELOPMENT, MooERNlZINO LOCAL GOVERNMENT 16-19 (1966). 

 

II.      SINGLE LEGAL PROFESSION

There is a core of knowledge and skills common to lawyers, whether they are practitioners, government officials, law teachers, or judges. One of the great joys of our profession is that our training permits us to advise diverse clients in disparate fields and to move from government to private work with comparative ease.  We can learn what we need of economics to try an antitrust suit, of psychiatry to try a  homicide case, and of bureaucracy to help our clients get reelected.

In many respects, the work of the government attorney is similar to that of a law teacher. He finds himself revising and writing documents; explaining his policies to his subordinates, and to others in county gov­ ernment and to the public; and trying to teach judges and juries-often with as little success as he has in class.

I shall only note here that my experience in government has convinced me of the importance of theoretical training in the law school The lawyers who are essential when a new and difficult legal problem is presented are those who have been trained to think critically - not necessarily those with the greatest practical experience. Most intelligent lawyers can learn rather quickly thedetailed practice in special fields.  I do not undervalue, of course,  the sense of proportion and knowledge of alternatives that come with maturity and experience. The Nassau County Attorney's office was, fortunately, nicely balanced with sound, experienced men aware of the limitations of government authority, and bright young law graduates who thought anything was possible.

Naturally, as a teacher, I am somewhat biased in my view. But our experiences in the Nassau County Attorney's office in providing sum­mer programs for second- and third-year student law-interns convinced me that good practice and good law school training are closely correlated.12 Training in thinking as lawyers makes a  difference long after the student has graduated, when he is sure to have forgotten almost all the detailed rules he learned at law school-and those that he has not forgotten have probably been modified by statute or case law.

A general practitioner's skills are, in the main, those skills a govern­ment attorney must rely upon. Both must be habituated to view their client's disasters, with equanimity.

Ill. SPECIAL PROBLEMS OF THE GOVERNMENT ATTORNEY

What I would like to speak about primarily tonight are some of the

 

12 The summer interns did professional work including research and  brief  writ­ ing under the supervision of the county attorney or deputy. Twice each week they attended two hour seminars on legal problems such as brief writing and con­ demnation practice and local governmental problems such as budgeting and organization of the police department;  guided  tours  included  such  places  as  the the county clerk's offices, the health laboratories and the jail.

 

special problems of judgment presented by a local government practice. The bothersome problems of a government attorney are not so much the legal-technical ones of what can be done, or how to do it, but what should be done. As Edmund Burke put it in his plea to Parliament on

behalf of  the American colonies in 1775, "The question with  me is  ... not what a lawyer tells me I may do, but what humanity, reason, and justice tells me I ought to do." 13

Three aspects of the government attorney's work have particularly intrigued me. They are first,  the deep  political  dimension  that  almost all important governmental legal  questions  have; second,  the necessity of integrating the government's law office with other government de­ partments; and, third, the difficult problems of judgment and ethics created by the government lawyer's multiplicity of clients.

A.         Political Dimensions of a Law Officer's Decisions

A report, The Survey of the Legal Profession by the American Bar Association, declared in black letter: "To Inspire Confidence, It is re­ quired that Public Legal Positions Shall be Conducted and Opinions Rendered According to Law and Not to Please Politicians." 14

If this statement means that political  bosses should  not  be permitted to rig legal opinions and activities of a government law office for private benefit, the statement must be endorsed. If it means, however, that the legal position of a government office should be taken without consider­ ing its political or policy implications, it is wrong.

The chief government law officer must and should attempt to please some politicians: he is, by virtue of his position, a political or policy­ making figure, a member of a government administration which achieved office by a political-governmental program. He has a responsibility to consider what effect his actions will have in developing and executing what he conceives to be sound public policy, in inducing confidence of the public in government, and in strengthening elected officials so that they can continue to control the government's machinery in  achieving  the ends he supports.

Governments and their attorneys have a duty  to help individuals and  to try to build a better society.15  The persnickety  law official  who  keeps

l3  NILES, CHRONICLES OF TIIE AMERICAN  REVOLUTION  115 (Vaughan ed. 1965).

14 Seasongood, Public Service by Lawyers in Local Government, 2 SYRACUSE L. REv. 210, 222 (1951). CJ. Cowen, The Need for County Legal Departments, 31 AMERICAN COUNTY GOVERNMENT 43, 44 (1966) (suggesting that if the office becomes  "ombroiled  in  politics"  properly  qualified  lawyers  may  avoid   the   position).

15 See, e.g., Mr.  Justice Stanley  Reed:  "Democracy  has  a  right  to  expect that the  members  of  the  Bar  .  .  .  shall  show  their  appreciation  of  the  benefits   con­ ferred   upon   them   by   a   conscious   effort   to   make   that   Democracy   effective." The  Bar's  Part  in  the  Maintenance  of   American  Democratic  Ideals,  24 A.B.A.J.

 

his shoes clean by stepping around the mudholes of politics and public policy neglects the most important and exciting aspect of his office. He conceives of his office as a slot machine handing out opinions and acting with mechanical exactitude; he fails to grasp its more useful, complex and flexible function in meeting social problems.

Let me somewhat narrow  the limits  of  the  problem  as  I  see  it.  It is wrong to exercise favoritism toward an individual dealing with the government. If a man, for  example,  is seeking a  license  or  an award for tort or condemnation damages, or defending  against  a  prosecution by the government, his treatment should be completely independent of whom he knows, who are his relatives, or what are his political connec­ tions. Boss Flynn, in his biography, illustrated what he conceived to be one of the advantages of political connections when he noted: "At times business concerns are cited for minor violations. Where discretion is indicated, having a friend at court  harms  no one." 16  I  would  submit that such an attitude does grievous harm to the whole governmental fab­ ric because the average citizen then knows he is not getting equal treat­ ment with the politically well connected.

The rule in my office with respect to what might be called the service aspect of the government attorney's work was flat and absolute. No dis­ crimination was tolerated. It is utterly and outrageously wrong to differ­ entiate among citizens because of their political connections. Every mem­ ber of the legal staff should be aware of undeviating policy that no one's political background should have any significance in the way claims are processed. Members of the public are entitled to, and must receive, the assurance that their claims and business with the County-or any other governmental unit-will be decided solely on the merits. Any person walking into the office should be confident that there are no back doors for the politicians.

One way of making this rule clear to the staff is to enforce a policy within the office of assigning work, pay increases and promotions strictly on the basis of work product and achievement in the office. This policy reduces somewhat the pressure on individual lawyers to help themselves by helping influential people. It does not completely eliminate pressures since there is always the possibility of advancement outside the office whether in other branches of public service or through lucrative private practice. The example of the head of the office, and the express threat

 

622, 623 (1938), cited in Mathews, The Communication of Professional Values, 26 Omo ST. LJ. 89, 96 (1965); see also Countryman, The Scope of the Lawyer's Professional Responsibility, 26 Omo ST. LJ. 66, 71-82, 84-87 (1965). Cf., Paige, The Professor and Politics, 52 AM. Ass'N OF UNIV. PROFS. BULL. 52 (1966) (estimates five thousand academic consultants to government in the Cambridge, Massachusetts area).

16FLYNN, ''You'RE THE Boss" 25 (1947).

 

that anyone caught succumbing to such temptation will be fired, help guard against this pervasive danger.

There is one unavoidable exception to the rule against discrimination. In dealing with individuals, the government lawyer will, naturally, get a sense for who can and cannot be trusted. A private lawyer with a good reputation has an easier time because his word can be relied upon in instances where another lawyer might be pressed to produce hard evi­ dence. But this factor, it seems to me, is perfectly legitimate-a lawyer's reputation is, after all, his chief stock in trade. Here social and political connections may have a slight bearing. Having observed a man repeated­ ly, you may have more faith in him than in a stranger. This psychologi­ cal verity needs to be controlled to avoid abusive use of government of­ fice to favor cronies. My own experience has not indicated any party monopoly of rectitude. In the case of some-including members of both parties-to know them is to distrust them. Most lawyers are, of course, completely trustworthy, and a presumption to that effect is properly ap­ plied in any government office.

One more matter should be excluded from the field of  proper  politi­ cal activities. If there is wrongdoing in government, it must be exposed. The law officer has a special obligation not to permit a cover-up of illegal activity on the ground that exposure may hurt his party. His duty to the people, the law, and his own conscience requires disclosure and prosecu­ tion. In point of fact, it has always seemed to me that any failure to prosecute members of a party in power is a political as well as an ethical mistake. In this respect, the public lawyer is assisted by the view of the more sophisticated modern political leaders that "good government is good politics." It is far better for any party to clean its own house than to leave the issue of corruption to an opposing party. According to Profes­ sor Walker's monograph on the Maine political system, "the Maine political environment is considered to be fairly 'clean' by most of its citi­ zens"17 so that, apparently, Maine does not have a substantial problem in this respect.

The political aspects of the Nassau County Attorney's office were particularly sensitive because the Republican party had been in absolute control for half a century before the present Democratic county executive was elected. Moreover, the local legislative body remained in Republican hands as did other local governments within the county. Since Eugene H. Nickerson, the new County Executive, was an extraordinary man in his own right-he had been a member of the Columbia  Law Review,  a clerk to Chief  Justice Stone,  and  a senior  partner  of  a first-rate law firm-and

 

 

17 WALKER,   A    MAINE   PROFILE,   SOME    CONDITIONS    OF   HBll.  Political SYSTEM 50 (Bureau for Research in Municipal Government, Government  Research  Series No. 25. 1964).

 

he had strong ideas about improvement of administration and new policy, political conflicts were inevitable.

But even where there is a surface consensus, the problem still exists.18 For example, Ransone, in his book, The Office of the Governor in the United States, points out that in the South, under the single party system, the governor must spend more time on policy and political-legislative matters than he does in the North.19 Maine has what Walker  refers to  as a "neo-whig theory of llimitedl executive power"20 in a one-party system; but, like governors in the South, he concludes, a Maine governor's "difficulties" with the legislature "are as much  political  as  institutional in origin." 21

Much will depend upon the lawyer's own personality and background and upon whether the administration of which he is a  party is interested in maintaining the status quo or in change. Let me give you some ex­ amples. When I took office it was obvious that real property assessments for tax purposes were not equal and at full value as required by statute; land and buildings had been assessed on the basis of 1938 prices and  they no longer reflected current values. Since values had not changed uni­ formly in the county, there were necessarily wide variations and sub­ stantial unfairness. The best legal way to solve the problem would have been to re-assess immediately all land and buildings. Such a step would probably have placed a heavier burden on home owners. In any event, such a re-assessment would have stirred up the community; each tax­ payer would have thought that the increase in his assessment was more than proportional. The Republicans, who had been in power until 1962, and the Democrats, who succeeded them, were afraid to act lest they

 

18 In some respects the problem is greater in a one-party setting since the issues are often not publicly ventilated through debate between party representatives. Speaking of Maine, David B. Walker notes: "Political parties are the proper informal mechanisms for linking the centers of formal governmental power (the judiciary excepted) and for linking the people with the government; it  is the right and duty of the majority party through its leadership in both the legislative and executive branches to produce the consensus required for policy enactment." Id. at 52. For reasons beyond the scope of this paper, a strong legislative and strong independent governor who has full control of the executive branch seems desirable in most state and local governments. See, e.g., NATIONAL MUNICIPAL LEAGUE, MODEL STATE CoNSTITUTION 9-12, 65-77 (6th ed. 1963); NATIONAL MUNICIPAL LEAGUE,  SALIENT  lssUES  OF  CONSTITUTIONAL  R.EvlsION  80-114  (1961). 19 RANSONE, THE OFFICE OF GOVERNOR IN THE UNITED STATES 140, 142, 149 (1956).

20 WALKER, op. cit. supra note 17, at 33.

21 Id. at 51. The council sYStem used in Maine is much like that of New York and other states in the late eighteenth and early nineteenth centuries. Walker refers to the council as an "ancient check on the executive authority." Id. at 31. Maine is the only state in which the executive council is elected by the legislature. Ibid.

 

alienate a large bloc of voters. (It is my hope that our new  Nassnu  County charter will contain a provision for periodic full re-assessment.)

One class of property was seriously under-assessed, as compared with other property-vacant land. Land has become so scarce in our county that it has increased in value at a rate many times greater than buildings. As a result, owners of vacant land paid taxes on assessments of from 1 to 10 percent of current value while homeowners paid at roughly 30 per­ cent of today's worth. The leading Democratic member of the board of assessors and I recommended bringing the vacant land up to the 30 per­ cent ratio-a change which would increase the taxes of some persons holding vacant land by as much as 30 times. Badly needed tax revenues would thus accrue without adding to the homeowner's burdens.

There was practically no precedent on the matter, but after a  thor­  ough briefing of the economics and law involved, I was convinced that vacant land re-assessment would reduce inequalities and was, therefore, legal-that is to say, it would be sustained in our  highest  cour t.22  Since the County Executive strongly favored the plan, and I believed that  it  was sound in policy and defensible in law, I felt no compunction about using the full prestige of my legal position in internal conferences with the various county departments whose cooperation was essential. As legal adviser to all of them, my office acted to make certain that the plan was swiftly carried out. This technique seems to me a proper use of legal­ political power.

The office of the State Attorney General was held by a Republican, who, during the height of the political battle over this re-assessment, is­ sued a brief opinion letter, at the request of local Republican leaders, de­ claring that the plan was invalid. Unfortunately, the Assistant Attorney General who drafted the opinion had neither adequately briefed the facts nor the law, and his letter was properly ignored as a purely political docu­ ment. This is not to say that a legitimate argument supporting the con­ clusion reached in the state opinion letter could not have been devel­ oped-but the letter was not so supported. It seems to  me essential  that any document of this kind be prepared in a workmanlike manner and be based on a good-faith analysis of the authorities and principles. It is important that the public not get the impression that the lawyer will take legal positions merely because it is politically expedient to do so.

As in private practice, the attorney must tell his client when he is wrong. The attorney is never the mere hireling of government or of any­ one else. He is an independent professional and must stand on what he thinks is right.

 

22 See C.H.O.B. Associates, Inc. v. County of Nassau, 45 Misc. 2d 184, 257 N.Y.S.2d 31 (1964), a/J'd, 22 App. Div. 2d 1015, 256 N.Y.S.2d 550 (2d Dept.

1965), afj'd, 16 N.Y.2d 779, 209 N.E.2d 820,262 N.Y.S.2d 501 (1965).

One good current illustration of this need for the lawyer to  stand fast is in the area of reapportionment. The present position is quite clear: one-man-one-vote applies not only to state legislatures but to local legis­ lative bodies. Yet in my state there have been a number of  counties which have become involved in extensive litigation designed to forestall reapportionment and to put off the ultimate day of reckoning. The government attorney must tell government officials that such  a position is wrong. When the matter was put firmly and without equivocation to members of our Nassau County local legislative body, they did agree that change was necessary even though they preferred the status quo. We will. in Nassau County, shortly have an acceptable reapportionment plan. In some other counties of the state, where the disproportion in voting strength is over one hundred to one, suits are being defended solely for purposes of delay. This same firm position needs to be taken by govern­ ment attorneys in other instances, as in the local school desegregation cases or as Attorney General Flowers did in Alabama recently  when local authorities refused to enforce the penal law in a civil-rights killing. One area often overlooked in the past is adequate legal representation for the poor. My office developed a plan for an extensive civil and crimi­ nal legal assistance program.23 It is one of my deep regrets that although the criminal law phase of the plan was adopted, our bar has thus far op­ posed the civil phase.24 But the matter is by no means closed, substantial federal aid is available, and I hope the County will continue to press for

reform in this area.

Energy and resources are, of course, limited. And no one can fight every battle at once. It has been aptly observed that while, on the one hand, "no good society can be unprincipled,'' on the other hand, "no viable society can be principle-ridden." For "[o]ur democratic ... government exists in this Lincolnian tension between principles and ex­ pediency."25 For example, partly because of other commitments and partly because it seemed inexpedient to take on too many political and social struggles at one time, my office never seriously came to grips with the bail problem2.6  We did,  however, help  reform  the  jail  by instituting

 

23 Weinstein, Legal  Assistance  to  the I11dige11t  in Nassau Coumy, 154 N.Y.LJ.

4 (Dec. 8, 1965).

24 The plan  was  approved  by  the  courts  in  June,  1966  and  a  grant  of  almost a quarter of a million dollars has been obtained from the Office of Economic Opportunity. It is now being supported by leading members of the bar and by the county.

25  BICKEL, THE LEAST DANGEROUS BRANCH-THE SUPREME COURT AT TllE

BAR OF PoLmcs 64, 68, quoted in Gunther, The Subtle Vices of the "Passfre Virtues"-A Comment on Principle and Expediency in Judicial Reriew, 64 CoLUM. L. REv. 1, 5 (1964).

26 Cf. ME. LEG. RESEARCH  COMM.,  100TH LEG., REPORT ON  MAINE COUN,Y

JAILS 9 (1961).

 

civil service for jailors and by providing for an appointive bead of the correction department to replace an elective sheriff.

Hundreds of young men are in our county jail simply because they can not raise funds for bail. The slowness of our criminal trial processes ( a matter which we tried unsuccessfully to remedy in part by working for a further consolidation of the courts), results in many instances in poor persons remaining in jail awaiting trial for terms in excess of those they would have served had they pleaded or been proven guilty when they were first arrested.

I also regret not having moved more forcefully toward non-partisan hiring in the County Attorney's office. 27 Heretofore all attorneys in the Nassau County Attorney's office have been appointed from the same political party as the County Executive, although most of the clerks, typists, and the like are appointed from civil service lists. Particularly where political lines are tightly drawn and there is a difference in politi­ cal philosophy, it is perfectly appropriate that lawyers be appointed who are sympathetic to the administration's point of view and bound by politi­ cal ties to assure that its policies are not sabotaged. But some lawyers in such divisions as condemnation, torts, and workmen's compensation deal with matters which have minimal political  aspects. Except for the heads of these divisions, it should be possible to work out some form of tenure much as is the case in the New York City Corporation Counsel's Office and the United States Department of Justice, so that there is continuity from administration to administration.

I do not believe in discouraging people in government from being in­ volved in party politics. A number of the brightest young men I  could find did enter local government through my office. A few became inter­ ested in our office through our summer training program. Some of those youngsters had no previous political background. In almost all cases they became so involved in problems of government that they did, of  their own volition, become active in politics.

No one in the office was permitted to practice, even outside of office hours. This requirement seems to me to be essential if we are to avoid conflicts of interest and obtain the best possible legal service for the gov­ ernment.28 Part-time low-paid district attorneys and county attorneys are

 

 

27 See, e.g., Seasongood, Should the Merit System Be Used in Making Appoint­ ments of Lawyers for Public Service?, 15 U. ClNC. L. REV. 209 (1941); Legal Services and Procedure, REPORT TO TIIE CoNGRESS BY TIIE CoMMISSION ON OR­ GANIZATION OF TIIE ExECUTIVE BRANCH OF TIIE GOVERNMENT 15-25 (1955).

28 See the recommendation of the Commission, id. at 26: "Attorneys occupying full-time  positions  in  the  executive  branch  should  be  prohibited  from  engaging in outside legal practice except upon express permission to handle family  legal matters which do not interfere with the performance of official duties. They

GOVERNMENT ATTORNEY

 

an expensive luxury. The service such attorneys can render is often not good enough. Part-time district attorneys, for example, do not help supervise the police properly, and, as a result, cases are ultimately lost because the police have not taken the precautions demanded by our present highly technical rules of arrest, search and seizure, confessions, and the like. For this reason, among others, there is a national movement to use only full-time prosecutors.29 Full-time service, of course, requires decent salaries. By the time I left we had brought the minimum salary for a man with a few years' experience to 10,000 dollars and the top assist­ ants received from 17,000 to 20,000 dollars a year. The policy against private practice was established by my distinguished predecessor, Bertram Hamett.

Because few decisions of the county attorney will ever be challenged in court, his administrative rulings and opinion letters have the same practical force as an opinion of our highest court30 As a United States Attorney General put it more than a hundred years ago, "in the perform­ ance of this part of his duty .  .  .  he is not a  counsel  giving advice  to the government as his client, but a public officer, acting judicially, under all the solemn responsibilities of conscience and legal obligation."31

Publication of opinions, so long as they do not involve privileged mat­ ter, helps insure objectivity. More care may be taken by the writer if he knows his peers will examine what he wrote. Moreover, the opinion may be as useful as a court decision for the lawyer looking for authority. Publication is the practice of the Attorney General in both Maine and New York. As County Attorney I ordered some three thousand of our opinions indexed. This index and copies of our opinions will shortly be available to the bench and bar. I hope this collection will also prove use­ ful to students of local government.

Since his opinions are usually rendered ex parte, in response to a re­ quest from a government official, it is essential that the assistants in the office-who do the bulk of the work-be encouraged  to dissent  and look for alternative answers. Each government lawyer must bear in mind that he is a professional with the same ethical responsibilities as the head of

should be prohibited from  engaging  in  business  activities  which  interfere  with  the performance of their official duties."

29 See,   e.g.,   Dow,  op.  cit.  supra   note  1,  at   19-20;    Note,  supra    note   S, at 76. ,REPORT, op. cit. supra note 27, at 15-25; N.Y. Ass. INT.  3729,  Pr.  3804 (1966) (prohibiting district attorneys from holding other political office  or  en­ gaging in private practice of law).

so See, e.g., Note, supra note 5, at 72; Fairlie, Simpson, Law Offices in lflinois, S JoHN _MARSHALL LQ. 65, 71 (1942) ("estimate[s] that ninety percent of the administrative law of a state like Ohio finds its source in the written opinions of the Attorney General. ..").

316 OPS. ATTY. GEN. Office and Duties of Attorney General 326, 334 (1854).

(Caleb Cushing to the President).

 

the office. Since the office can speak to the outside world with only one voice, and the county attorney decides the office position, internal differ­ ences of opinion may create difficulties. If any lawyer working on a prob­ lem was not able to convince me, or me him, he was relieved of work on

the matter. A lawyer should not have to handle a case he cannot believe in.32

Let me give you one example. The legislature had amended our voting laws to require a voter to reregister even if he only moved within his elec­ tion district. But it had failed to conform a number of other  statutes which, as I read them, indicated he could vote under such circumstances without reregistering. In my opinion the strong state constitutional policy in favor of preserving the right to vote plus appropriate statutory analysis led to the conclusion that such a voter could vote without reregistering. The Assistant County Attorney delegated the job of answering a request from the Board of Elections, thought otherwise and drafted a most per­ suasive opinion letter embodying his theory. Although another assistant was assigned to redraft the opinion letter my way, the status of the dis­ senter increased in my eyes. As I told him, a trial court might support his position, but I would probably win in the Court of Appeals. Interestingly enough, our views were never put to the test because the Board of Elec­ tions and all the political parties accepted the opinion as law.

Sometimes, office dissent becomes hard to quell. In one instance we

had found information adverse to our position in legislative documents that neither our opponents nor the judge would have been likely to dis­ cover. In revising our brief I penciled in a paragraph dealing with this matter. But the lawyer arguing the case, a devoted advocate, thought it would confuse the judge if we provided him with this adverse informa­ tion. He took out the offending references before filing our brief. There was some unhappiness about my insistence that we file  an  additional brief containing the adverse information, but, of course, the chief legal officer must insist that it is his policy and ethical standards which con­ troI.33

B.    Law officer as a coordinator of other departments

I have already referred, in connection with the land re-assessment case, to the use of the county attorney's office as a vehicle for controlling, co­ ordinating, and executing in all departments the policies of the execu-

32 Mathews, The Communication of Professional Values, 26 Omo ST.  L.J.  89, 96 (1965): "[R]espect for personality, one's own as well as that of others. This, after all, is the one fundamental value upon which all other values rest."

33 See Weinstein, Judicial Notice and the  Duty to Disclose Adverse  Information,

34 _IOWA L. REV. 807, 810, 819 (1966); cf.  N.Y. Times, June 28, 1966, p. 1, col.

1 ("Perhaps, Justice Weintraub wrote,  'the  investigatorial  arm  of  government should be deemed the impartial servants of the  defense  as  well  as  the  prosecu­ tion, with  the work  product available to both              ' ").

GOVERNMENT ATTORNEY

 

tive. Since the government attorney is in intimate touch with each one of the departments at the operating level, he can often assist in carrying out this policy. I assume, of course, some central control of policy  rather than a diffusion of responsibility for execution among the chief executive, the legislature and independent department heads.34 In my opinion, it is important that the county attorney and state's attorney-as  is  the  case with  the  Attorney  General  of   the  United  States-be  appointed, rather

than elected.35 This view was, as you may recall, the conclusion of the

Hoover Commission, in connection with its apprasial of the department of justice and government attorneys in the United States govemment.:io In New York, the fact that the Attorney General is elected has led to the creation of the substantial office of the Counsel to the Governor and of independent counsel in each of the  many  state departments, bu­ reaus, commissions and authorities. As a result, the administration of the legal policy of New York is not as well integrated as it might be. A sug­ gestion of greater integration of New York State's legal services was made in 1959 by Dr. William  Ronan,  Executive  Assistant to  Gover­ nor Rockefeller, but this and other suggestions for reorganization of the

New York state government have not yet been carried out.37 Theoretically, the best possible situation  would  be to have all govern­

ment attorneys within the office of the government's chief legal officer. Each one of the departments would then turn to this office for legal ad­ vice and the office might well be organized with specialized divisions. The attorney attached to a department of justice  or  its  equivalent  has  a sense of independence and professionalism that be may not have if he is  a single advisor or in a very small legal division of an independent de­ partment.38 Moreover, his service can be more efficiently utilized if he is

 

34 As a matter of governmental policy, another view is sometimes advanced. See, e.g., WALKER, op. cit. supra note 17, at 52: "Administrative fragmentation helps to make the executive agencies more responsive to legislative  wishes and to popular needs; it also inhibits the emergence of an independent center of bureaucratic power based on a rationalized administrative hierarchy."

35 Cf. the  proposal  for  appointment  of  county  attorneys  and the state attorney

general in ME. LEG. REsEARCH COMM., 96TH LEG., FOURTH REPORT ON CoUNn'

Gov'T 8 (1953).

36 REPORT, op. cit. supra note 27, at 3-10.

37 See RONAN, ,REPORT TO  TIIE  GOVERNOR,  PROSPOSED  REORGANIZATION  OP nm

E.xECUTIVE  BRANCH OF _NEW     YORK STATE GOVERNMENT 55-56  (1959); Fairlie,

Law Departments and Law Officers in American Govemmellts, 36 MICH.LR.Ev. 906, 926 (1938): "Election ... makes  [the attorney general]  largely independent of the Governor; and this serves to make the office less effective as an agency for integrating the state administration."

38 Montague, The Office of the  Attorney  General  in  Kentucky,  49  KY.  LI. 194, 201 (1960):  ''Where  the  lawyer  is  not  subordinate  to  an  administrator,  he is more apt to give a  candid  legal  opinion  than  where  his  position  is  such  that he must simply produce an argument for the adminstrator's point of view."

 

part of a larger office since he can be shifted as emergencies and the work load require. This kind of organization is quite possible in a relatively small office such as that in Nassau County. It becomes difficult, if not impossible, in the United States government, where there are tens of thousands of government lawyers and the independent commissions and departments have extensive sµecialized legal staffs. In a state government as large as New York's, some compromise solution is necessary.

At the local level it is sometimes impossible to carry out fully  a scheme of centralized legal services because of the pressures of state and federal aid. For example, I approved our welfare department's hiring its own attorney, since his expense could then be covered by state and feder­ al aid. Had he been put in my department, even though he would have been doing much the same work, such aid might not have been permit­ ted. Requirements for subvention which interfere with sound administra­ tion should be changed.

An example of the advantages of the United States Department of Justice concept and centralization of legal services is that the Attorney General of the United States was recently able to set up a commission to coordinate crime control. He could utilize a large legal staff,  the FBI,  and correction and penal experts, since they are all within his depart­ ment. In New York State's government there are at least ten separate and autonomous agencies dealing with various aspects of crime; local police and district attorneys are independent of state control and badly fraction­ ated; and New York City has five separate and independent district at­ torneys. Partly as a result of the lack of clear-cut responsibility,  New York State lacks a coordinated crime control program.30

At the local level, some informal coordination of legal services of the various municipalities is possible. For example, in Nassau County, where we have hundreds of local independent governmental units, the munici­ pal division of the County Attorney's office will now render legal services to any of them on a contract basis.40

C. Conflicts of interest among clients.

I have already suggested in my remarks some of the ethical difficul­ ties of the county attorney caused by the heightened responsibility he has as a lawyer for reform of the administration of justice and law. Let me now emphasize one further aspect of this problem caused by the mul­ tiplicity of services he renders, the many departments he represents, and

 

39  Compare 1952 NATIONAL  CONFERENCE  OF COMMISSIONERS  ON UNIFORM STATE LAWS, MODEL DEPARTMENT OF JUSTICE ACT 366-398 (1952).

40 Weinstein, A Legal Service Program for Municipalities. 31 AMERICAN COUNTY

GOVERNMENT 30 (1966).

 

 

the fact that he represents the people as well as government. The private lawyer can, within broad limits, attempt to get the best possible result­ from his single client's point of view-letting the adversary system pro­ vide justice. What, however, of the public attorney?

He is tom in a number of ways. Let me give you some examples. Shortly after I took office, one of our negotiators presented me ,vith a proposed settlement in a condemnation case, which was approximately one-third of the value of the land we had taken as indicated by our ap­ praiser's reports. The condemnees were not represented by an attorney. What should I have done? I talked to them on the telephone and dis­ covered that they were an elderly couple who had bought their property many years before and who had no idea of how much it had increased in value. In an extended conversation, I finally convinced them that they were entitled to much more than they wanted. But should I have insisted on paying more than I had to?

In another case, the award of the court seemed  to  me to be too large by several millions of dollars. The condemnation resolutions adopted by the Board of Supervisors, our local legislative body, were exceedingly and unusually favorable to the condemnee, but there was no evidence of fraud. A reversal on the ground of excessiveness of the award was un­ likely. What was a proper course of action? I instituted an extensive col­ lateral attack on the award on the ground that  the favorable  provision was illegal, over the opposition of our Board of Supervisors. We used every procedural device in the book and some created especially for the case. It was clear that we would throw all the County's enormous re­ sources into this litigation. After numerous  motions  and  appeals, when it became obvious that the dispute might go on for many years,  the matter was settled with a saving to the county of some million dollars. Once I told my classes procedure should never be used for delay. Now I wonder, are there exceptions?

Somewhere  in between  those two cases lie the bulk  of  matters where

we insisted that the claimant take somewhat less than our appraisals showed the land to be worth. Condemnees settled and waived interest in order to avoid a long delay before trial and receipt of their money. Is this technique justified even though it saves the taxpayers money? A more appropriate procedure, in my opinion, would be for the County to obtain more thorough and reliable appraisals; they should be revealed to the condemnee, and he should then be tendered the full appraised value plus interest as a matter of due. If the condemnee wants more, be should receive almost the entire appraised value as an advance payment. We should, I  believe,  also pay-as we now do not-for loss of  good  will.41

 

41 See, e.g., 'Just Compensation' and the Small Businessman, 2  Columbia  Jour­ nal of  Law and Social Problems,  March  21, 1966,  p.  1  and  authorities  cited. It is

 

While I was County Attorney I commissioned a study of our con­ demnation procedures by Professor Curtis Berger of Columbia Law School and Professor Patrick Rohan of St. John's Law School. They studied over a thousand of our condemnation awards of the last  few years, and I hope their recommendations will be followed to provide a fairer condemnation system. Already we have made a number of im­ provements, as in the payment of relocation allowances and interest on settled cases. A new system will cost  the county  more  money,  but  it will be more just.

The same problem of fairness applies in the area of torts. Here the matter is more complicated because it is harder to obtain an objective valuation of permanent injuries, or of causal connection, or of negli­ gence. One way of avoiding the problem is to have the county buy in­ surance so that the insurance company's lawyers will carry on the un­ pleasant business of minimizing recoveries. As self-insurers, however, Nassau County saved several hundreds of thousands  of  dollars  each year. Our operation was much the same as that of any insurance com­ pany. Our lawyers took pride in getting the lowest possible settlements and in securing defendants' verdicts in close cases. In a number of in­ stances we won dismissals against widows and orphans who  should, under any sensible system, have obtained  some award.  But in each  one of these cases, we did offer a substantial amount in settlement, and I suppose that the onus must rest upon the attorney for the plaintiff who decided to go for broke. I  would  be much happier  with a system  such  as that suggested by Professor Keeton of Harvard with respect to guar­ anteed payment for injuries. So Jong as we are playing this game by present  rules I  suppose  we owe it to  the taxpayer  to  play  to win.  And I must confess that the negligence litigation game has a pleasure and piquancy all its own. The cost to society and to individuals of  our  fun and games in tort law may, however, be too high.

In some instances our office defended cases I would have  ref used were I in private practice.  But  our client  was bound  to us  by statute  and his position was not so clearly  wrong  that  we could  turn  him  out of our office. For example, our District Attorney seized  the  whole edition of a magazine as obscene although it seemed to me to have less

 

paradoxical that the courts of England and Canada, which have no fourteenth amendment to protect against deprivation of property without  just  compensation, reach a contrary conclusion under statutes which do not specifically require com­ pensation for good will and value of a going concern. IO HALSBURY, LAWS OF ENGLAND §§ 281-287 (3d  ed.);  loss  of  business,  goodwill,  costs  of  removal, value of fixtures, and losses incurred  until  suitable  premises  obtained  must  be  taken into account in assessing compensation. Id. at § 284; Annot.,  1  D.L.R.  1027- 30, 1033-37 (1952) (compensation for similaritems). See also OR0EL, VALUATION UNDER THE LAws OF EMINENT DOMAIN § 75 (2d ed. 1953).

GOVERNM'.ENT ATTORNEY

 

appeal to prurient interest than the average brassiere or perfume adver­ tisement. But when the county was sued before a federal  three-judge court for $100,000 and an injunction, my office defended. We had  a  good procedural defense-the matter should have been left to the state criminal courts. While  we lost in  the  three-judge  court,  we  were able to settle the case when a long stay by Mr. Justice Harlan became a possibility. As a result, the magazines were released with favorable publicity, the district attorney received publicity he considered  favor­ able because it indicated be was against obscenity, an unreversed opinion makes such seizures in the future much less likely, the county was saved  a judgment for damages, and I lost some friends in the civil liberties movement who could not understand that a government official is en­ titled to counsel even if his lawyer is not enthusiastic about the merits of the government position.

There are instances where the position of one of the departments is completely contrary to the position that the attorney feels is legally defensible. In such cases the county attorney should, I believe,  repre­ sent the side he considers to be correct. Special independent counsel should be provided to represent the other side.  Such  an  appointment was made by Chief Justice Stone when he was Attorney General of the United States; he himself argued against the special counsel.42

In some instances the government attorney should confess error in a case in which his government is a defendant. This is the  position  we took in the state reapportionment cases, for exarnple.43 The County Executive was sued as one of the defendants in the New York reappor­ tionment case because our county was malapportioned and he partici­ pates in fixing lines for the state  assembly.  The  Attorney  General  of the state defended the suit so that it was  not  necessary  to  appoint special counsel.

It was in part because I felt  more comfortable  with  an attorney  on the other side that, although I was by statute the sole legal representative of the Board of Supervisors, I  did  not  object  to  the  board's  utilizing its own counsel much more extensively than our county charter in­ tended. The fact that the Republican Board of Supervisors bad an hon­ orable counsel, Harold Collins, one I could deal with on an adversarial basis, eliminated many of the possible conflicts of interest and ethical problems that otherwise would have proven most troublesome. Indeed, more often than not we assisted each other in moderating our clients' positions so that they could, together, move forward in the exciting and essential job of providing good local government.

 

42 MASON, HAlu.AN FISKE STONE, Piu.AR OF nm L\w 167-68 (19S6).

43 WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964).

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.

 

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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.

 

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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

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“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

  

 

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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

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 Harvard Law School, you have just been sworn in by the Attorney General himself, Nathan Clifford, whose vision for the future had inspired you to return to Kennebec after time away at both your elite out-of-state college and Harvard 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 Mel 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, Ivy League 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 Harvard, “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 Tom 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, Bill 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, he said that he 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 Bill 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 Harvard 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 Harvard 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.”