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Week 2- Litigation Control and the Role of the Attorney General
Although the office of state attorney general has existed in every state since the signing of the U.S. Constitution, there is still vigorous debate as to the degree state attorneys general control state litigation. This Chapter explores the common law and statutory rights of attorneys general within the divided executive.
  • 1 Break Up the Presidency?: Governors, State Attorneys General, and Lessons from the Divided Executive

    The issue of attorney general litigation control remains in dispute. Attorneys general are often “directed” by other branches of state government to take positions in litigation or, in some cases, to withdraw from litigation.

    The majority rule is that the attorney general retains control over litigation and that “client” agencies do not have the final word. This means that although a part of the state executive branch, state attorneys general are not required to follow instructions from the governor or other executive agencies.

    A 2006 law review article by William Marshall is one of the few that explores the historical and policy reasons for the majority rule that states attorneys general control litigation.

    William P. Marshall
    Break Up the Presidency?: Governors, State Attorneys General, and Lessons from the Divided Executive

    Proponents of the federal unitary executive have contended that its adoption by the Framers “swept . . . plural executive forms into the ash bin of history.”[1] The federal model, however, has not been embraced by the states. The states, rather, employ a divided executive that apportions executive power among different executive officers not subject to gubernatorial control.[2] In forty-eight states, for example, the Attorney General does not serve at the will of the Governor;[3] and in many states, other executive branch officers such as the Secretary of State, Treasurer, and Auditor are also independent. The divided executive holds the theoretical advantages of dispersing power and serving as a check against any particular officer’s overreaching, virtues that might be seen as particularly appealing given concerns about executive branch excesses at the federal level. But the structure also potentially undermines the virtues of energy and efficiency, political accountability, and separation of powers that the Framers of the Federal Constitution associated with the unitary executive model. The question then arises as to whether the divided executive provides a viable and workable model for executive power implementation.[4]
    Focusing on the Office of the Attorney General, this Essay examines the divided executive. Part I examines the state experience. It provides a brief discussion of the history and evolution of the Office of the Attorney General, explores how the divided executive works in practice, and canvasses the cases that address how conflicts between governors and state attorneys general are resolved. Part I concludes that the divided executive model can foster an intra- branch system of checks and balances without undercutting the ability of the executive branch to function effectively. Part II then probes the question of whether the federal government should borrow from the state experience and make the Federal Attorney General an independent officer.[5] We live in an era of increasing (and, some would say, increasingly unchecked) presidential power. Part II accordingly considers whether the federal government should construct an intra-branch system of checks and balances, consistent with the state experience, in order to guard against executive branch excess.




    A. Common Law Origins of the Office of the Attorney General


    The roots of the Office of the Attorney General date back to the thirteenth century, when English kings appointed attorneys to represent regal interests in each major court or geographical area.[6] Initially, the attorneys had limited powers, based either on the courts in which they appeared or the business that they were assigned to conduct.[7] During the Middle Ages, however, this practice was superseded by the appointment of a single attorney with broad authority, including the power to appoint subordinates to carry out his responsibilities.[8] The Attorney General emerged as chief legal adviser to the Crown and was often appointed for life tenure—a practice that continued until the reign of Henry VIII when it was changed to service at the pleasure of the Crown.[9]
    Throughout the sixteenth and seventeenth centuries, the duties of the Attorney General continued to evolve and expand; with eminent tenants such as Edward Coke and Francis Bacon, the Office also continued to gain in prestige.[10] The Attorney General was often summoned by writ of attendance to the House of Lords where he was consulted on bills and points of law.[11] In 1673, he began to sit in the House of Commons, advising that body and assisting in the drafting of legislation.[12] He also gave legal advice to the various departments of state and appeared for them in court.[13]
    Importantly, during this period, the Attorney General established that his duty of representation extended to the public interest and not just to the ministries of government.[14] In fact, by 1757, the Attorney General was able to refuse “to prosecute or to stop a prosecution on the orders of a department of the government, if he disapproved of this course of action.”[15] Accordingly, the Attorney General became less the government’s lawyer and more an independent public official “responsible for justice.”[16]


    B. The State Attorneys General


    The Office of the Attorney General was brought over to the colonies, where it was modeled after its English counterpart;[17] and at the time of the founding, it existed in all thirteen of the original states.[18] The terms of tenure varied considerably. North Carolina, for example, provided for a lifetime appointment by the legislature.[19] In New York, the Attorney General was appointed by the Governor with the advice and consent of an Executive Council but he could be impeached and removed from office for “mal and corrupt conduct” only by a two-thirds vote of those present in the Assembly.[20] Delaware allowed the Governor to appoint the Attorney General, upon confirmation by the Privy Council, for a term of five years.[21] Rhode Island, alone among the original states, provided that the Attorney General would be popularly elected.[22]
    The Framers of the Federal Constitution apparently placed the Attorney General under the control of the President,[23] thereby adopting the model of the unitary executive, at least insofar as they did not directly create separate federal officers independent of the President.[24] But the federal model proved to have very little influence over the development of state government. In fact, in the years following the ratification of the Federal Constitution, the states tended to reject the federal model because they were concerned with the concentration of too much power in one executive officer. Ohio, for example, in reaction to a territorial Governor who was perceived to be too autocratic, drafted its first state constitution in 1802 specifically to minimize the authority of the Governor by dispersing executive power over a range of independent executive branch officers.[25]
    As the nation matured, many states created independent attorneys general and afforded the Office even greater autonomy by making it a popularly elected position. Again, the states’ purpose was to weaken the power of a central chief executive and further an intra-branch system of checks and balances. Thus, the Minnesota Supreme Court observed, in reference to the state’s 1851 constitution, that:

    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 onthe part of the drafters, who were well aware of the colonial aversion to royal governors who possessed unified executive powers.[26]


    C. Governors and State Attorneys General


    Not surprisingly, a divided executive creates substantial opportunities and incentives for conflict.[34] First, there are matters of simple politics. In states where the Governor and the Attorney General are independently elected, the two officers may come from different political parties with diametrically opposed partisan agendas. If so, they can be expected to be in constant political opposition to each other. Moreover, even when from the same party, the two officers can, and often are, divided by personal rivalries or ideological differences. And even when the two officers agree on a particular issue, they may compete with each other to be the most aggressive in addressing the issue to curry favor with a particular constituency.[35] Add to this the political reality that the Office of the Attorney General has long been seen by many of its occupants as a stepping stone to the Governor’s office[36] and the blueprint for confrontation and conflict is manifest. Finally, disputes may occur because of the differing visions the officers may have concerning each other’s roles. Governors tend to view attorneys general as subservient officers. But most attorneys general, while acknowledging some obligation to represent the Governor and the other parts of state government, tend to perceive their overriding obligation to be to the broader concerns of representing the state, the law, and the public interest.[37]
    What is remarkable, then, in reviewing the state experience, is that debilitating conflict has not materialized. This is not to say that serious disputes have never occurred or that governors have never complained about having to deal with independent attorneys general (or vice versa). Certainly they have. And it is also true that the divided executive has occasionally been the target of reforms that would make the Attorney General subject to gubernatorial appointment and removal.[38] But history suggests that both governors and attorneys general have generally learned to cooperate effectively within a divided executive framework.
    The reasons why cooperation, rather than conflict, has been the rule are not complex. On one side, the Governor, even if he believes he is unduly constrained by an attorney general’s position, has the general incentive to comply because he may not want to be seen as defying the Attorney General on matters for which the public expects that the Attorney General, as chief legal officer, will have greater expertise. A Governor who rejects the Attorney General’s position therefore risks expending political capital by appearing reckless, if not lawless. Moreover, he risks even greater vulnerability on that point if his legal position eventually fails in court.
    On the other side, the Attorney General may also be restrained from overreaching because she is aware that her role is, in large part, defined by public expectations and that her primary obligation is to defend, not contradict, the policies of state officers or agencies, except when those policies violate the law.[39] Indeed, this understanding is so prevalent that virtually all of the state attorneys general have institutionalized it in in-house memoranda.[40]
    Many of the more powerful incentives for cooperation, moreover, are mutual. To begin with, as repeat and interdependent players, both sides have the incentive to maintain a functioning relationship to ensure they can fulfill the duties of their respective offices. They may also feel significant political pressure to work together because it will be harmful to both if they are seen as unwilling or unable to work across political divides. The electorate, after all, does not tend to reward those who bring government to a standstill. Further, both sides may be motivated to come together because reaching internal consensus may fortify their actions against third parties. When both the Governor and the Attorney General agree that a course of action is permissible, the authority behind that position is greater than when either party reaches that conclusion alone. Finally, and perhaps unduly idealistically, the Governor and Attorney General may be united by a common sense of duty. As one court has noted, a divided executive requires the executive officers to “combine and cooperate (even if they have differing policy views and perspectives) to provide an efficient and effective executive branch of government.”[41] It may be that state governments traditionally have taken that duty seriously.


    D. The Cases Addressing the Relative Powers of Governors and Attorneys General


    Not all disputes between governors and attorneys general regarding their respective powers are resolved internally and some, not surprisingly, proceed to litigation. The relatively few cases addressing intra-executive branch disputes, however, are significant for our purposes in that they provide useful insight into the types of legal conflicts that can be triggered by a divided executive, how courts might approach these conflicts, and, by implication, whether a divided executive is a viable and sustainable structure.[42] These cases can be broken into three categories: (1) cases in which the Attorney General chooses to exercise independent legal judgment and either refuses to represent the Governor (or other executive officers or agencies) or takes an opposed position in litigation; (2) independent actions brought by the Attorney General directly against the Governor or other members of the executive; and (3) cases raising the issue of whether the Attorney General has the right to initiate enforcement actions against private parties without the Governor’s approval or in direct contravention of the Governor’s wishes. This Section first canvasses the cases within each category and then evaluates whether the approaches utilized by the courts are effective in furthering the purposes the divided executive is designed to achieve.


    1. The Power of the Attorney General To Exercise Independent Legal Judgment in Litigation


    The first and most common category of cases addresses the right of the Attorney General to refuse to take the Governor’s (or other executive officer’s or agency’s) position in court. Must the Attorney General represent the position of the Governor on a disputed legal issue, or is she free to substitute her own independent legal judgment as to the best interests of the state? The majority rule favors attorney general independence.[43] Her primary duty, as the state’s chief law officer, is to represent the public interest and not simply “the machinery of government.”[44]
    In Secretary of Administration & Finance v. Attorney General,[45] for example, the Massachusetts Supreme Court held that the Attorney General can refuse to appeal an adverse decision despite the contrary wishes of his executive agency client: “[W]hen an agency head recommends a course of action, the Attorney General must consider the ramifications of that action on the interests of the Commonwealth and the public generally, as well as on the official himself and his agency.”[46] An Alabama case, Ex parte Weaver,[47] states this principle even more broadly:

    The most far-reaching of the attorney general’s common-law powers is the authority to control litigation involving state and public interests. It is generally accepted that the attorney general is authorized to bring actions on the state’s behalf. As the state’s chief legal officer, the attorney-general has power, both under common law and by statute, to make any disposition of the state’s litigation that he deems for its best interest.[48]


    2. The Power of the Attorney General To Sue the Governor or Other Executive Officers


    The second category of cases comprises those in which the Attorney General sues the Governor or other executive officers. For example, an issue occasionally arises regarding the power of the Attorney General to challenge the constitutionality of a state enactment by suing the state executive charged with its enforcement,[56] including the Governor when appropriate.[57] In such cases, the majority rule vests power in the Attorney General to bring the action.[58] Thus, in People ex rel. Salazar v. Davidson,[59] a Democratic Attorney General contended that a redistricting plan signed by the Republican Governor violated the state constitution and sued the Secretary of State to invalidate the plan. The Colorado Supreme Court affirmed the Attorney General’s prerogative, holding that “the Attorney General must consider the broader institutional concerns of the state even though [those] concerns [are] not shared by” other executive officers.[60]
    Case law also supports the power of the Attorney General to sue the Governor over matters involving the Governor’s own actions. In State ex rel. Condon v. Hodges,[61] the South Carolina Supreme Court allowed the Attorney General to sue the Governor for attempting to circumvent the provisions of an appropriations bill. Rejecting the argument that a lawyer cannot sue his own client, the court held that the Attorney General has a dual role as the Governor’s attorney and as the executive official charged with vindicating wrongs against the citizens of the state, with the power to seek legal redress for separation-of-powers violations by other state executive officers.[62]
    Although there are few cases in which the Attorney General directly sues the Governor, Hodges is not the only example. The Mississippi Supreme Court has allowed the Attorney General to intervene on behalf of plaintiff legislators seeking to declare that a Governor’s partial vetoes of certain bills were unconstitutional.[63] The Kentucky Supreme Court, although holding that the Attorney General had not justified his claim for injunctive relief on the merits, allowed him to bring an action to enjoin the Governor from being sworn in and acting as a member of the state university board of trustees pursuant to the Governor’s own self-appointment.[64] And the Florida Supreme Court allowed the Attorney General to bring a quo warranto action against the Lieutenant Governor seeking his removal because he lacked necessary qualifications.[65]
    Nevertheless, the right of the Attorney General to sue executive branch officers or agencies has not been universally approved. In Arizona State Land Department v. McFate,[66] for example, the Arizona Supreme Court held that the Attorney General could not bring suit against a state agency to enjoin its sale of public lands. The court explained that “the Governor alone, and not the Attorney General, is responsible for the supervision of the executive department and is obligated and empowered to protect the interests of the people and the State.”[67] Similarly, in Hill v. Texas Water Quality Board,[68] the Texas Court of Civil Appeals held that the Attorney General lacked the authority to bring suit to set aside an agency rule, finding no independent authority for the Attorney General to represent the public interest against the specific interests of his agency client.


    3. The Power of the Attorney General To Initiate Enforcement Actions Against Private Parties


    The final category of cases concerns the power of the Attorney General to proactively initiate civil or criminal actions against private parties. This power, needless to say, may have a profound effect on a state’s policy agenda. For example, a governor who promises to create a pro-business climate could be hampered in achieving this result if the state’s attorney general is aggressive in maintaining consumer protection or antitrust actions against the state’s industries. Similarly, a governor who runs for office as an anti-pornography crusader will be seriously limited in his ability to deliver on this issue if the state’s attorney general refuses to bring pornography prosecutions.
    Whether the State Attorney General has the power to initiate criminal or civil actions independent of the Governor is largely a function of statutory authority and, particularly in civil matters, whether the Attorney General is deemed to enjoy common law powers. Thus, in Ohio v. United Transportation, Inc.,[69] the court held that, because he had common law authority, the Attorney General of Ohio could bring an antitrust action under state and federal law against local taxicab companies without the approval of either the Governor or the General Assembly.[70] The court stated that “the broad inherent common law powers of the attorney general in . . . contesting infringements of the rights of the general public” had been long recognized.[71] This common law power, moreover, is quite broad. As the court held in Florida ex rel. Shevin v. Exxon Corp.,[72] the Attorney General is entrusted, under the common law, with “wide discretion” and a “significant degree of autonomy” in determining what is in the public interest.[73] Indeed, the Attorney General’s common law authority is so unfettered that it may allow her to bring suits in the public interest even when other executive officers or agencies oppose such actions.[74]
    In other states, however, the courts have held that the Attorney General’s powers are far more circumscribed. In State ex rel. Haskell v. Huston,[75] for example, the Oklahoma Supreme Court held that the Attorney General must have the Governor’s permission to maintain a civil nuisance action against an oil company because it is within the Governor’s responsibility to see that the laws are “faithfully administered.”[76] Moreover, in a few states, not only is the Attorney General prohibited from initiating actions without the Governor’s approval, but the Governor can also compel the Attorney General to prosecute an action even when the Attorney General does not want to proceed.


    4. The Cases in Theoretical Perspective


    Some of the results in the cases reviewed in the previous Subsections can be explained simply as the product of statutory interpretation by the courts. The McFate decision, for example, was based on the relatively broad powers accorded to the Governor under the Arizona Constitution compared to the narrow grant of authority vested in the Attorney General.[77] In other cases, such as Shevin, when the constitutional and statutory principles were less explicit, the courts had to rely on more general principles.[78] But whether derived from constitutional provision, statutory text, or judicial gloss, two general approaches have emerged in deciding how the powers of the Governor and the Attorney General are to be allocated in a divided executive. The first, based on ethics, suggests that the conflicts should be resolved in accord with the principles of the attorney-client relationship. The second, based on the structure of the divided executive, looks to the policies and understandings underlying that model as the basis for resolution. Each will be discussed in turn.


    a. The Argument from Ethics


    The leading case in support of the position that an attorney general is bound by the principles of the attorney-client relationship to represent the interests of his state officer or agency client is People ex rel. Deukmejian v. Brown.[79] As the California Supreme Court stated in that case, there is nothing unique to the duties of the Attorney General that “justif[ies] relaxation of the prevailing rules governing an attorney’s right to assume a position adverse to his clients or former clients.”[80] The approach taken in Deukmejian has an initial, intuitive attraction. After all, if the Attorney General is the lawyer and the Governor the client, the normal expectation would be that the former should advance the latter’s legal positions.[81] In fact, however, the attorney- client relationship approach is easily dismissed.[82]
    To begin with, this approach ignores the fact that the Attorney General’s role is significantly more complex than that of a private attorney. Since seventeenth-century England, the Attorney General has generally been deemed to represent the “state” or public interest and not only the machineries of government.[83] Moreover, in the modern era of expansive government, the Attorney General is also often charged with representing a wide range of state officers and agencies, many of whom have positions diametrically opposed to each other. Accordingly, and in recognition of this reality, most courts have held that an attorney general does not violate ethical rules when she engages in the dual representation of competing state entities.[84] It is therefore not a giant step to conclude that dual representation of a state entity and the state or public interest is also not an ethical violation and, indeed, a majority of jurisdictions have so held.[85]
    Furthermore, the nature of an independent attorney general belies the conclusion that an attorney general should be ethically bound to represent her officer client. Ethical rules do not provide an attorney with much room to reject the position of her client[86] and, if they in fact limited her authority, there would be little reason for an attorney general to have independent status. Certainly, an attorney general, ethically bound to represent a governor, would not serve as a check on a governor who was intent on exceeding his constitutional or statutory authority. At best, she would be able only to refuse to facilitate the governor’s actions.[87]
    Finally, ethical concerns also weigh against binding an attorney general by the attorney-client relationship. As the Colorado Supreme Court noted in People ex rel. Salazar v. Davidson,[88] imposing a rigid obligation on the Attorney General to advance the executive’s positions can undermine the Attorney General’s ethical obligations to uphold the law and constitution when the Governor seeks to defend a measure that the Attorney General believes is unlawful.[89]


    b. The Argument from Structure


    The structural approach to disputes between the Governor and the Attorney General focuses on the respective roles of the two officers in the divided executive and questions which role deserves particular deference in a specific context. In certain circumstances, specifically with respect to policy judgments, a structural analysis supports the authority of the Governor (or other executive officer or agency) over that of the Attorney General. Consider Motor Club of Iowa v. Department of Transportation of Iowa,[90] in which a motor club challenged the validity of a state agency rule establishing a sixty-five foot length limitation for trucks.[91] After losing in the trial court, the agency decided against an appeal because a majority of agency commissioners no longer supported the length limit. The Attorney General, however, attempted to pursue the appeal without agency approval. The court held that the Attorney General did not have the authority to proceed without agency authorization.
    From a structural perspective the decision makes sense. After all, if the agency no longer supports its own rule, why should the Attorney General, the chief legal officer, be able to substitute her policy judgment for that of the entity empowered to make the policy decisions?[92] Similarly, if the Governor is the officer charged with setting state policy, it makes sense that the Attorney General should defer to the Governor’s (non-legal) policy judgments.
    The structural argument, however, favors the Attorney General in matters involving legal, as opposed to policy, judgments.[93] Presumably, a primary reason for having an independent attorney general is to allow for independent legal judgment. Empowering the Governor to be the final authority on legal decisions would make this independence a nullity (as well as, nonsensically enough, vesting in a non-legal officer the power to have the final say on legal meaning).[94]
    To be sure, the line between legal judgment and policy decision is sometimes blurred. (Some might even suggest that all law is policy-based.[95]) But even if all legal decisions have some policy overtones, as Motor Club of Iowa suggests, not all policy decisions involve law. The truly difficult cases, in this respect, are those in the third category discussed in this Section, dealing with the Attorney General’s power to institute lawsuits against private parties on behalf of the state. No doubt the decision to bring cases such as the antitrust action in United Transportation96 or the civil nuisance action in Haskell[97] involves the exercise of legal judgment. But it also involves non-legal considerations that can be integral to a state’s overall policy agenda. Accordingly, whether final authority for such decisions should be deemed to be in the province of the Governor, the Attorney General, or both, may depend on the particular context, or, as is often the case with statutory enforcement matters, legislative intent.
    The structural argument more consistently favors the Attorney General in the first category of cases previously discussed, those concerning the power of the Office to refuse to take the position of executive branch officers or agencies in ongoing litigation. First, assuming the Attorney General’s actions are based upon legal, rather than policy, judgments, her authority to refuse to take the executive branch client’s position reflects her structural role as the state’s chief legal officer. Second, recognizing her prerogatives in this respect also furthers the policy of having an executive officer whose fealty extends primarily to the rule of law rather than to the litigation needs of any particular administration.[98] Third, allowing the Attorney General to oppose the Governor or other executive branch officer in court reflects another benefit of the divided executive—it promotes a fuller and more thorough examination of intra- executive disputes, both in court and in pre-litigation consultation, than would occur if the Governor were empowered to impose his position unilaterally.[99] Indeed, the values of intra-branch litigation have been implicitly recognized even within the federal executive in cases like United States v. Nixon[100] and Tennessee Valley Authority v. United States EPA,[101] where courts have refused to dismiss intra-branch litigation as non-justiciable on grounds that the requisite adversarial component was missing when the U.S. government was effectively suing itself.[102] Rather, the courts heard both sides of the issues involved, presumably reaching a more considered judgment than might have occurred if the matters had been decided entirely within the executive branch.[103] The results in state cases involving intra-branch disputes, one would suspect, would be similarly informed.
    Finally, the structural argument plays its clearest role in supporting the Attorney General’s power in the second category of cases, those in which she sues another part of the executive branch for exceeding its authority. Indeed, if the purpose of the divided executive is to create an intra-branch system of checks and balances,104 there is no better mechanism to achieve this result than dividing executive power between a chief executive and a chief legal officer. After all, who other than the state’s chief legal officer is better poised to make the judgment of whether a state officer has exceeded his legal and constitutional authority? (Moreover, because the Attorney General is further removed than the Governor from the political pressures and demands that face state government,105 she may be able, other things being equal, to approach the issues regarding the bounds of authority more dispassionately.106) The most compelling structural argument supporting the Attorney General’s authority to police the boundaries of executive power, however, rests in the inherent weaknesses of the alternative solution—specifically with the lack of inherent checks that would occur in a system in which the Governor had the final say. For example, in State ex rel. Condon v. Hodges,107 the South Carolina Supreme Court permitted the Attorney General to sue the Governor for circumventing the provisions of an appropriations bill. Had the court allowed the Governor to quash the action, the advantages of the divided executive would have been eviscerated because the Governor would effectively have become the judge of his own authority. There would be neither check nor balance in such a structure.108


    E. Lessons from the Divided Executive


    The preceding Sections suggest that the state experience with the divided executive and the independent Attorney General hold a number of lessons. First, as its architects intended, the divided executive model disperses power109 and checks executive branch excess.110 Second, under the divided executive, the Office of the Attorney General is, or can be, appropriately independent of gubernatorial control. Neither ethical constraints nor structural concerns, properly understood, demand that the Attorney General exclusively represent the Governor’s interests. Third, by insulating the Attorney General’s legal authority from gubernatorial control, the divided executive protects against executive branch overreaching by dedicating an executive officer to uphold the rule of law. Additionally, as the example of intra-branch litigation suggests, attorney general independence promotes fuller decision-making before governmental action by assuring consideration of a wider range of concerns than if the Governor acted alone.111 Fourth, the divided executive can be constructed to accommodate a variety of interests. A state, for example, may protect the right of an attorney general to exercise independent legal judgment against the Governor’s position in a particular matter while still requiring the Attorney General to advance the interests of the Governor when her disagreement is based on pure policy112 or upon any other factor deemed to fit best within the final authority of the Governor. In this way, the Governor’s prerogatives can be accommodated as well.
    This then leads to a final lesson. The proponents of the federal unitary executive have argued that other structures are destined to fail because they would lead to weakened executives fraught with internal conflict and lack of accountability. The state experience has shown, however, that this has not occurred. After all, the divided executive has been the rule, rather than the exception, in virtually every state for most of the nation’s history, yet there is little to suggest that it has created endemic dysfunction. The primary lesson of the state experience with the divided executive, in short, is that it works. The next Part, accordingly, will ask whether the model may also be appropriate for the federal government.




    A. The Increasingly Powerful (and Unchecked) Presidency


    More than fifty years ago, Justice (and former Attorney General) Robert Jackson observed that the “real powers” of the presidency had expanded far beyond the authority afforded the Office of the Attorney General under the Constitution.113 Since Jackson’s era, as many of the participants in this Symposium attest, presidential power has only continued to increase, particularly in the areas of foreign policy and national security.114 The reasons for this expansion extend beyond the ambitions and personalities of those who have held the Office.115 Rather, the exigencies of decision-making in these areas inevitably vest power in the entity that can react most swiftly; in virtually every case, this entity is the executive. Congress, for example, cannot decide quickly enough after hostilities break out whether those hostilities are a sufficient basis on which to declare war; the courts cannot adjudicate the question of whether the President should have first consulted with Congress before taking military action.116
    The contemporary inter-branch imbalance, moreover, is further compounded by the fact that the President has at his command resources unimaginable at the time of the Founding. In addition to the enormous military power that the President is able to unleash without any significant ex ante check, the President has at his disposal agencies such as the CIA and the FBI, which provide the President with ample opportunity to use their enormous capabilities for mischief, including the invasion of individual rights through investigation, surveillance, and detention. At the same time, because their activities are inherently secretive, these agencies are not meaningfully subject to effective oversight by the other branches or by the media.
    The result of this is that Congress and the courts seem increasingly unable to check and balance presidential power in particularly critical areas.117 Consequently, we have seen the President’s escalating ability to unilaterally lead the nation into armed conflict, avoid public oversight in the war on terror and other matters, detain and suspend the civil liberties of individuals (including American citizens), and advance an expansive understanding of inherent constitutional powers that flies in the face of congressional and international restrictions.118 Accordingly, if Justice Scalia was correct in writing that the “purpose of the separation and equilibrium of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom,”119 there are serious questions as to whether the existing structure can still effectively promote this goal. Too much presidential power now lies unchecked.
    On paper at least, there is a watchdog guarding against executive branch excess. The Federal Attorney General reviews the legality of executive branch action, either in preparation for litigation or in her capacity as legal adviser to the President.120 And consistent with the Office’s common law heritage,121 some of the tenants have claimed that their primary duty is to the law rather than to the administration that they were appointed to serve.122 But under the unitary executive framework, it is the President’s, and not the Attorney General’s, position on the duties and obligations of the Office that controls. And by his power of appointment or otherwise,123 the President can assure that the Attorney General’s primary fealty is to his administration and not to some abstract view of the law. Without any structural assurance of independence, in short, the Office of the Attorney General is only as independent as the President wants it to be.


    B. An Independent Federal Attorney General?


    The question, then, is should the Office of the Attorney General become independent? The suggestion is not novel. Congressional hearings124 on the subject were held in the wake of the Watergate scandal, and President Carter was sufficiently intrigued that he asked the Justice Department to opine formally on whether a proposal to make the Office an independent agency would be constitutional. (The Department concluded that it would not.125) The fact that forty-eight states employ such a structure also suggests that the idea is not all that radical, particularly when one remembers that it is not at all clear that the Office was intended to be controlled by the President in the first place. Early versions of the Judiciary Act of 1789, which established the Office, contemplated that the Supreme Court would appoint the Attorney General. Even the enacted provision did not clearly provide for presidential appointment.126 Moreover, the Judiciary Act did not expressly provide that the Attorney General would serve at the President’s will, as it had provided for other executive branch positions.127 The creation of an independent Office of the Attorney General, in short, may not have been all that far outside the Framers’ design.
    That said, there are some reasons why the state experience with divided government in the form of an independent attorney general may not easily translate to the federal government. First, most state governments do not conform to a three-branch separation of powers model as rigidly as the federal government, and the inclusion of a separate independent executive officer may upset the balance and design of the federal structure in a more fundamental way than would occur in the states. Second, the need for an independent attorney general to check against executive branch overreaching may be greater at the state level because state legislatures are often part-time and therefore unable to effectively police the actions of the full-time officers of the executive branch.128 (To be sure, there is a strong counterpoint to this argument in that there may be a greater need for an additional check at the federal level because, while the federal government may be available to check against any excesses by the state executives, there is no comparable external authority that can check the federal government.) Third, the powers of the Federal Attorney General are far greater, particularly in her centralized authority over criminal matters, than in any of the State Attorney General offices because, in most states, prosecutorial authority is localized and not under attorney general control. Creating an independent attorney general at the federal level would, accordingly, carve out a far broader swath of executive power than at the state level.
    The most important distinction suggesting that the structures of the state and federal governments are not analogous, however, is that the federal government’s role in national security and foreign policy is unlike any responsibility within the province of the states. The President’s need to act with dispatch and expedience in these areas may create a greater need for decision-making to be concentrated in one individual than exists in the states. Moreover, separating the Attorney General’s powers from the President may infringe upon the President’s ability to execute foreign policy and promote national security because questions of legal authority are so critical in this area. The argument thus comes full circle. The President’s national security and foreign affairs duties arguably call for concentrating power in the President, but the dangers of excess in those areas also raise the greatest need for an intra- branch system of checks and balances. Accordingly, in appraising this tension, it may be worthwhile to revisit the classic arguments of energy and efficiency, political accountability, and separation of powers that have been advanced in support of the unitary executive.


    1. Energy and Efficiency


    The first classic objection to dividing the executive, stemming from Alexander Hamilton in Federalist No. 70, is that unitariness is needed to foster energy and efficiency.129 Undoubtedly some energy and efficiency concerns would arise if the Attorney General were independent130 because the President would need to consult another executive officer and work out any disagreements prior to taking action. In part, however, this concern may be overstated. Every President already confers with legal advisers when his legal authority to take a specific action is ambiguous. The only difference is that there would now be an independent voice at the table.
    Still, as the state experience shows, inefficiencies exist. A governor who does not need to worry about negative legal advice from an independent officer is less likely to be chilled in taking particular actions falling within the gray areas of her authority. Inefficiencies are also created, as Perdue v. Baker131 demonstrated, in litigation when the State is a party. It is anything but efficient when both the Governor and the Attorney General separately represent the State and take opposite positions. And even when the Attorney General is deemed the State’s official representative in litigation, the power of the Governor to intervene separately still fosters inefficiency in the allocation of resources—not to mention presenting a decidedly mixed message to the courts.
    But the issue, in any event, is not simple inefficiency or lack of energy. As the Framers’ three-branch design already recognizes, inefficiencies and inhibitions on government actions are not always negatives and can affirmatively foster other important goals, such as dispersing power and maintaining a system of checks and balances. The actual issue, then, in choosing between a unitary and a divided executive is optimal inefficiency: Are the benefits offered by the divided executive worth the inefficiency costs? Certainly a President who must work through an independent attorney general, for example, to initiate an extensive program of warrantless electronic surveillance or detention of American citizens may be stilled in his efforts. But having presidents less energetic in testing the boundaries of their powers would also presumably serve the goal of protecting individual liberty.132


    2. Accountability


    The second classic argument, also from Federalist No. 70, is that a divided executive undermines political accountability.133 As Hamilton argued, a plural executive “tends to conceal faults, and destroy responsibility”134 by either increasing the chances that various officers may blame others for any miscalculations or errors or by colluding in the first instance to deliberately cloud the lines of responsibility and avoid subsequent blame. Additionally, as the experience with the independent counsel may have shown, if the Attorney General is truly independent, there will be few checks on her when she engages in questionable behavior. The possibility for abuse then, as Justice Scalia foresaw in Morrison v. Olsen, is considerable.135
    However, it is once again unclear how well these arguments actually contradict those in favor of establishing an independent Office of the Attorney General. To be sure, lines of accountability between the President and the Attorney General could become blurred in certain circumstances. But although there may be some problems with blurred accountability, they will not be as extensive as in the types of plural executives of concern to Hamilton if the scope of the Attorney General’s authority does not extend to all executive decisions and pertains only to matters of legal judgment.136
    In fact, an independent attorney general would arguably foster greater accountability than the unitary structure. To begin with, there is often no political accountability in the current unitary executive because accountability requires transparency and, particularly in the areas of national security and foreign affairs, so much executive action is done in secret. The ability (and predilections) of the unitary executive to take action removed from all oversight, in short, undercuts the accountability claim. To the extent that requiring the President to consult with an independent officer leads to greater transparency, the interests of accountability are served. Moreover, a divided executive has the potential to foster greater accountability than the unitary model in another respect. As Peter Shane has argued, the persuasiveness of the accountability argument as support for the unitary executive may be overstated because the electoral process requires the voter to combine a series of political choices into a vote for a single personality who is unlikely to reflect her views on all those issues.137 A voter who is pro-life or anti-tax might vote to re-elect a President who reflects these positions even if she disagrees with the latter’s legal stance on the limits of presidential power. Allowing her to vote separately for the officer charged with formulating legal positions may promote greater realization of her policy choices. To be sure, this argument may prove too much, as it would suggest in its extreme that the executive should be divided into an elective office for every galvanizing political issue.138 But again, if the role of the Attorney General were defined in relatively narrow terms, the overall political accountability of the executive branch could be increased. Finally, if the Attorney General is independently elected, as in most states, the problems associated with an independent counsel would not exist in the first place. Unlike an independent counsel, the Attorney General would not be an officer with only one charge and no accountability to any electorate. Rather, she would have authority over a wider range of legal matters and responsibility to the electorate for deficiencies or errors in judgment.
    In any event, the question of whether a divided executive truly undermines political accountability may have been answered by the state experience. There is currently little to suggest that, in the overwhelming number of states where the Attorney General is independent, the division of authority between the Governor and Attorney General has made either politically unaccountable.


    3. Separation of Powers


    The third classic concern, raised by Madison in Federalist No. 51, is that a divided executive undermines separation of powers by weakening the executive in its battles with the other two branches of government. Madison theorized that because those in power would inevitably attempt to expand their authority, fortifying each branch was necessary to prevent the encroachments of another.139 To Madison, the legislature had the greatest ability to invade the prerogatives of the others.140 He thus concluded that, in order to assure that the branches were protected “commensurate to the danger of attack,” the legislature needed to be divided into two. The executive, however, was to be unitary not because it was intended to be powerful for its own sake, but because it was needed to constrain the power of the legislature.141 Certainly, dividing the executive could weaken it in its struggles with Congress. But if the bases of Madison’s initial calculations have changed, and the executive, and not the legislature, is now the most dangerous branch, then restructuring the government to reflect the new reality would be consistent with Madison’s vision and design.142 The separation-of-powers argument, in short, defends the unitary executive only if the original calculations of the defenses needed to counter “the danger of attack” are still accurate. If the balance among the branches has shifted in favor of the executive, however, this same argument militates in favor of the divided executive.


    4. Designing the Office of the Attorney General


    There are undoubtedly other objections to creating an independent Office of the Attorney General beyond the concerns discussed in the last Subsection. For example, practically speaking, a President may choose not to consult with an attorney general if the latter is independent.143 Thus, in creating the Office, it is important to establish the President’s duty to consult before taking certain types of actions. Another concern is that even if the presidency is not inordinately weakened in relation to Congress, an independent attorney general might be weakened, suggesting adoption of measures to protect the Office from over-retaliation.144 Finally, whether the position is elected or appointed, steps should be taken to assure that the Office’s ability to function effectively is not undermined by politicization.145
    No solution is likely to be free of difficulty, and designing the optimum approach will take some development and empirical study that are beyond the bounds of this Essay. The critical question, however, is not whether the creation of an independent Federal Attorney General would be a perfect solution but whether it would preferable to the current model in which the Attorney General is politically dependent on and subservient to the President. The workability of the state experience with independent attorneys general provides a starting point for assessing the viability and desirability of this option as a method for restraining presidential power. The increasing inability of the current federal system to check presidential excesses provides reason to consider this approach seriously.




    The debate over the unitary executive has tended to disregard the state experience, although virtually every state government has a divided executive structure. As the state experience demonstrates, a divided executive presents its share of concerns. Proponents of the unitary executive correctly point out that the structure can impose inefficiency and coordination costs. But the structure offers benefits as well. State attorneys general who are not under the control of governors are freer to offer objective advice and better able to act in accordance with the rule of law rather than in the pursuit of a particular political agenda. An independent attorney general’s ability to do so without imposing substantial burdens on the efficacy of state government makes the model an attractive candidate for adoption at the federal level.The current presidency has the potential of becoming a law unto itself as the expediency and demands of modern government have, in some critical areas, freed the President from the effective oversight of the other two branches. At the same time, the President’s ability to control the Office of the Attorney General makes him effectively the only arbiter of the legality of his actions. An independent attorney general, in the form of the state divided executive, may therefore be an appropriate model from which to reconstruct a workable system of intra-branch checks and balances.


    1 Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 25 (1995).


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


    3 The Attorney General is independently elected in forty-three states and is appointed by the legislature in Maine and the Supreme Court in Tennessee. CHI S. KEON ET AL., THE BOOK OF THE STATES 268 (2005). In New Jersey, New Hampshire, and Hawaii, the Attorney General is appointed by the Governor but is not removable at will. See HAW. CONST. art V, § 6; N.H. CONST. pt. 2, arts. 46, 47, 73; N.J. CONST. art. V, § IV, paras. 3, 5. Only in Alaska and Wyoming does the Attorney General serve entirely at the Governor’s behest. See ALASKA CONST. art. III, § 25; WYO. STAT. ANN. § 9-1-601 (2005).




    5 This Essay assumes, for purposes of discussion, that making the Office of the Attorney General independent, either by election or appointment, would require a constitutional amendment. See Proposals Regarding an Independent Attorney General, 1 Op. Off. Legal Counsel 75, 77-78 (1977).




    7 Id.


    8 Id. at 460-61.


    9 Id.


    10 Rita W. Cooley, Predecessors of the Federal Attorney General: The Attorney General in England and the American Colonies, 2 AM. J. LEGAL HIST. 304, 307 (1958).


    11 6 HOLDSWORTH, supra note 6, at 463.


    12 Id. at 465.


    13 Cooley, supra note 10, at 307.


    14 12 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 305 (1st ed. 1938).


    15 Id.




    17 DANIEL J. MEADOR, THE PRESIDENT, THE ATTORNEY GENERAL, AND THE DEPARTMENT OF JUSTICE 5 (1980). Notably, the Crown granted colonial attorneys general the same powers and duties as the attorneys general had at home. The effectiveness of the colonial attorneys general, however, was far more limited than their English counterparts owing to their significant lack of resources. STATE ATTORNEYS GENERAL, supra note 16, at 6.


    18 See generally Oliver W. Hammonds, The Attorney General in American Colonies, in 2 ANGLO- AMERICAN LEGAL HISTORY SERIES, ser. 1, 3 (Paul M. Hamlin ed., New York Univ. Sch. of Law 1939).


    19 N.C. CONST. of 1776, art. XIII.


    20 N.Y. CONST. of 1777, arts. XXIII, XXXIII.


    21 DEL. CONST. of 1776.


    22 This practice dated back to 1650. See R.I. Sec’y of State, Office of the Attorney General, (last visited Aug. 5, 2006). The Office of the Attorney General was formally established by constitutional provision in 1842. R.I. CONST. of 1842, art. VIII, § 1.


    23 As will be discussed subsequently, it is somewhat ambiguous whether the Office was originally intended to be subject to presidential control. See infra notes 126-127 and accompanying text.


    24 The question of whether Congress could create officers or agencies not subject to presidential control has been, of course, the dominant issue in the unitary executive debate. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power To Execute the Laws, 104 YALE L.J. 541 (1994); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 5 (1994).


    25 STEVEN H. STEINGLASS & GINO J. SCARSELLI, THE OHIO STATE CONSTITUTION: A REFERENCE GUIDE 163 (2004). Interestingly, the Attorney General was not one of the executive officers established in Ohio’s first constitution and was created first by statute in 1848 and then by constitutional provision in 1851. Id. at 163-64.


    26 State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777, 782 (Minn. 1986).


    27 See supra note 3.


    28 Scott M. Matheson, Jr., Constitutional Status and Role of the State Attorney General, 6 U. FLA. J.L. & PUB. POL’Y 1, 28 (1993).


    29 The authority of attorneys general in specific subject areas is catalogued in STATE ATTORNEYS GENERAL, supra note 16.


    30 Id. at 278-79.


    31 See, e.g., In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 521 (E.D. Mich. 2003) (describing variations in the common law powers of attorneys general across states). Not every state, however, invests the Attorney General with such authority. See, e.g., Blumenthal v. Barnes, 804 A.2d 152, 165 (Conn. 2002) (holding that the Connecticut Attorney General does not have common law powers).


    32 See, e.g., ARIZ. REV. STAT. ANN. § 41-192(A) (2006); COLO. REV. STAT. § 38-13-102(2.5) (2005); GA. CODE ANN. § 45-15-10 (2006); MISS. CODE ANN. § 7-5-1 (2006); see also STATE ATTORNEYS GENERAL, supra note 16, at 40.


    33 See, e.g., ILL. CONST., art. 5, § 8 (“The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.”); MONT. CONST. art. 6, § 4 (same); PA. CONST. art. 4, § 2 (same).


    34 Thad L. Beyle, Governors, in POLITICS IN THE AMERICAN STATES 180, 192 (Virginia Gray et al. eds., 4th ed. 1983) (“These two offices [the Governor and the Attorney General] . . . have the potential for built-in conflict at several levels, from politics to policy to administration.”).


    35 See, e.g., Al Baker, Pataki, Environmentalist? Little and Late, Critics Say, N.Y. TIMES, Feb. 18, 2003, at B2.


    36 See William N. Thompson, Should We Elect or Appoint State Government Executives? Some New Data Concerning State Attorneys General, 8 MIDWEST REV. PUB. ADMIN. 17, 29-31 (1974).


    37 See Matheson, supra note 28, at 12 & n.57 (1993) (citing the articles of two state attorneys general, William A. Saxbe, Functions of the Office of Attorney General of Ohio, 6 CLEV.- MARSHALL L. REV. 331, 334 (1957), and Lacy H. Thornburg, Changes in the State’s Law Firm: The Powers, Duties and Operations of the Office of the Attorney General, 12 CAMPBELL L. REV. 343, 359 (1990)).


    38 See, e.g., id. at 28 n.148.


    39 James E. Tierney, The State Attorney General: Who Is the Client? (Sept. 1, 1995),


    40 Id.


    41 State ex rel. McGraw v. Burton, 569 S.E.2d 99, 109 (W. Va. 2002) (emphasis added).


    42 The cases may also have implicit significance in that the very fact that courts have been able to entertain intra-branch disputes reinforces the viability of the divided executive by suggesting that an effective judicial backstop may be available to resolve any potentially debilitating conflicts.


    43 Manchin v. Browning, 296 S.E.2d 909, 923 (W. Va. 1982) (Neely, J., dissenting) (urging that the rule in the majority of jurisdictions be adopted by the court).


    44 Commonwealth ex rel. Hancock v. Paxton, 516 S.W.2d 865, 867 (Ky. 1974); see also id. at 868 (“[I]n case of a conflict of duties the Attorney General’s primary obligation is to the Commonwealth, the body politic, rather than to its officers, departments, commissions, or agencies.”). The Hancock court noted that at common law the Attorney General represented the king, “he being the embodiment of the state. But under the democratic form of government now prevailing the people are the king . . . .” Id. at 867 (internal citation omitted); see also Sandersen v. Blue Cross & Blue Shield of Ala. (Ex parte Weaver), 570 So. 2d 675, 684 (Ala. 1990) (holding that the Attorney General had the authority to dismiss legal proceedings over the objection of an executive agency).


    45 326 N.E.2d 334 (Mass. 1975).


    46 Id. at 338. Two years later, in Feeney v. Commonwealth, 366 N.E.2d 1262, 1266-67 (Mass. 1977), the Massachusetts Supreme Court came to the same result when the parties’ intentions were reversed, holding that the Attorney General could prosecute an appeal even when his executive agency client objected. See also State ex rel. Morrison v. Thomas, 297 P.2d 624, 628 (Ariz. 1956) (holding that even though the Attorney General did not retain common law powers, he had the statutory authority to appeal an adverse decision without the approval of the agency client because the Attorney General “may, like the Governor, go to the courts for protection of the rights of the people”).


    47 570 So. 2d 675.


    48 Id. at 677 (internal citations and quotations omitted). Ex parte Weaver also suggests that the Attorney General should allow the state agency to employ counsel to represent its position if the Attorney General refuses to do so. Id. at 678-79.


    49 296 S.E.2d 909, 921 (W. Va. 1982). The Manchin court did acknowledge, however, that its decision did not follow the majority rule. Id. at 921 n.6.


    50 Id. at 919-21; see also Chun v. Bd. of Trs., 952 P.2d 1215, 1234 (Haw. 1998) (holding that when the Attorney General’s views differ from those of her agency client, the Attorney General cannot control the litigation “as to advance her view of the ‘public welfare’”).


    51 Manchin, 296 S.E.2d at 921.


    52 530 P.2d 360 (Ariz. 1975).


    53 Id. at 362 (citing Ariz. State Land Dep’t v. McFate, 348 P.2d 912 (Ariz. 1960)).


    54 586 S.E.2d 606 (Ga. 2003).


    55 Id. at 610.


    56 See, e.g., Commonwealth ex rel. Hancock v. Paxton, 516 S.W.2d 865, 867-68 (Ky. 1974) (“[T]he duty of the Attorney General to uphold the Constitution . . . surely embraces the power to protect it from attacks in the form of legislation as well as from attacks by way of lawsuits by other persons against state officers or agencies.”).


    57 Cf. State ex rel. Douglas v. Thone, 286 N.W.2d 249 (Neb. 1979) (allowing, without discussion, the Attorney General to bring an action against the Governor to enjoin the implementation of a statute).


    58 Hansen v. Barlow, 456 P.2d 177, 177-78 (Utah 1969). But cf. State v. Burning Tree Club, 481 A.2d 785 (Md. 1984) (holding that the Maryland Attorney General does not have common law, statutory, or state constitutional authority to initiate a declaratory judgment action challenging the constitutionality of a state statute).


    59 79 P.3d 1221 (Colo. 2003).


    60 Id. at 1231.


    61 562 S.E.2d 623 (S.C. 2002).


    62 Id. at 627-28.


    63 Fordice v. Bryan, 651 So. 2d 998 (Miss. 1995). Even more recently, the Mississippi Attorney General sued to block the Governor’s cut-back on Medicaid. See James Dao, In Mississippi, Setting the Pace for a New Generation of Republican Governors, N.Y. TIMES, Feb. 8, 2005, at A18.


    64 Commonwealth ex rel. Cowan v. Wilkinson, 828 S.W.2d 610 (Ky. 1992).


    65 State ex rel. Attorney-General v. Gleason, 12 Fla. 190 (1868); cf. United States v. Troutman, 814 F.2d 1428, 1438 (10th Cir. 1987) (holding that it was proper for the Attorney General to assist federal officials in the prosecution of an executive officer because “a state attorney general has a primary responsibility to protect the interests of the people of the state and must be free to prosecute violations of those interests by a state officer regardless of his representation of the state officer in past or pending litigation”).


    66 348 P.2d 912 (Ariz. 1960).


    67 Id. at 918. See also ARIZ. CONST. art. V, §§ 1, 4 (charging the Governor with the faithful execution of the laws and stating that the duties of the Attorney General shall be as prescribed by law).


    68 568 S.W.2d 738 (Tex. Civ. App. 1978).


    69 506 F. Supp. 1278 (S.D. Ohio 1981).


    70 Id.; see also Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266 (5th Cir. 1976) (affirming the power of the Attorney General to maintain an antitrust suit against various oil companies).


    71 United Transp., 506 F. Supp. at 1281-82; see also In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 520-21 (E.D. Mich. 2003) (“Plaintiff States, by their Attorneys General, had the authority to settle and release indirect purchaser claims in a parens patriae or other representative capacity.”).


    72 526 F.2d at 266.


    73 Id. at 268-69, 271.


    74 See id. at 272; see also State v. Tex. Co., 7 So. 2d 161, 162 (La. 1942) (holding that the Attorney General “is not required to obtain the permission of the Governor or any other executive or administrative officer or board in order to exercise” his right to sue on behalf of the State); State ex rel. Bd. of Transp. v. Fremont, E. & M.V.R. Co., 35 N.W. 118, 120 (Neb. 1887) (holding that the Attorney General could proceed with the prosecution of a case over the objections of the executive agency involved in the suit).


    75 97 P. 982 (Okla. 1908).


    76 Id. at 985-87 (concluding that the Governor has the sole and exclusive right to exercise executive discretion to determine if a suit should be brought on behalf of the State, and that the Attorney General cannot interfere with the Governor’s discretion); see also State ex rel. Cartwright v. Ga.-Pac. Corp., 663 P.2d 718 (Okla. 1982) (noting that the Attorney General must seek the Governor’s permission to initiate a suit).


    77 Ariz. State Land Dep’t v. McFate, 348 P.2d 912, 912 (Ariz. 1960).


    78 526 F.2d at 266.


    79 624 P.2d 1206 (Cal. 1981). Deukmejian, although the leading case in support of this position, is actually somewhat unusual in that the Attorney General had previously counseled the state agency about how to implement the law at issue.


    80 Id. at 1209; see also Tice v. Dep’t of Transp., 312 S.E.2d 241, 246 (N.C. Ct. App. 1984) (same); Manchin v. Browning, 296 S.E.2d 909, 920 (W. Va. 1982) (holding that the Attorney General is bound by rules governing the attorney-client relationship).


    81 See Bill Aleshire, Note, The Texas Attorney General: Attorney or General?, 20 REV. LITIG. 187 (2000).


    82 For a thoughtful discussion of the ethical issues involved, see Justin G. Davids, State Attorneys General and the Client-Attorney Relationship: Establishing the Power To Sue State Officers, 38 COLUM. J.L. & SOC. PROBS. 365 (2005).


    83 See supra notes 14-16 and accompanying text.


    84 E.g., Conn. Comm’n on Special Revenue v. Conn. Freedom of Info. Comm’n, 387 A.2d 533 (Conn. 1978); People ex rel. Sklodowski v. State, 642 N.E.2d 1180 (Ill. 1994); Pub. Util. Comm’n v. Cofer, 754 S.W.2d 121 (Tex. 1988).


    85 E.g., People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003); EPA v. Pollution Control Bd., 372 N.E.2d 50 (Ill. 1977); Commonwealth ex rel. Hancock v. Paxton, 516 S.W.2d 865 (Ky. Ct. App. 1974); Humphrey ex rel. State v. McLaren, 402 N.W.2d 535 (Minn. 1987); State ex rel. Allain v. Miss. Pub. Serv. Comm’n, 418 So. 2d 779 (Miss. 1982). But see Deukmejian, 624 P.2d at 1206; City of York v. Pa. Pub. Util. Comm’n, 295 A.2d 825 (Pa. 1972).


    86 See, e.g., OHIO CODE OF PROF’L RESPONSIBILITY EC 5-1 (2004) (“The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties.”); see also MODEL RULES OF PROF’L CONDUCT R. 1.2 (2004).


    87 Manchin v. Browning, 296 S.E.2d 909, 923 (W. Va. 1982) (Neely, J., dissenting) (arguing that defining the Attorney General’s role with reference to the attorney-client relationship renders the Attorney General “analogous to a legal aid attorney for State employees sued in their official capacity . . . [who is] bound to advocate zealously the personal opinions of the officer whom he represents”).


    88 79 P.3d 1221, 1231 (Colo. 2003).


    89 For a discussion of the Attorney General’s obligations to refuse to defend unconstitutional laws, see Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, LAW & CONTEMP. PROBS., Winter/Spring 2000, at 7; and Seth P. Waxman, Defending Congress, 79 N.C. L. REV. 1073, 1088 (2001).


    90 251 N.W.2d 510 (Iowa 1977).


    91 Id. at 512.


    92 Id. at 516.


    93 Affording the Attorney General the power to exercise independent legal judgment (e.g., to provide the Governor with an interpretation of the meaning of a law) is not necessarily inconsistent with the Governor’s duty to assure that the laws are faithfully executed.


    94 See Manchin v. Browning, 296 S.E.2d 909, 924 (W. Va. 1982) (Neely, J., dissenting) (“To take the control of the State’s case away from the ‘chief “law-trained” officer of the State’ and inject the opinions of [an executive] officer who has no legal training is nonsensical.”).


    95 Cf. LAWRENCE M. FRIEDMAN, AMERICAN LAW IN THE 20TH CENTURY 589 (2002) (observing that all lawyers and judges are at times legal realists).


    96 Ohio v. United Transp., Inc., 506 F. Supp. 1278 (S.D. Ohio 1981); see also supra notes 69-71 and accompanying text.


    97 State ex rel. Haskell v. Huston, 97 P. 982 (Okla. 1908); see also supra notes 75-76 and accompanying text.


    98 See generally LINCOLN CAPLAN, THE TENTH JUSTICE: THE SOLICITOR GENERAL AND THE RULE OF LAW 277 (1987) (describing the Solicitor General’s Office as independently committed to the rule of law).


    99 For this reason, the common rule that the Governor may retain separate counsel when the Attorney General refuses to take his position also makes sense. See, e.g., Ex parte Weaver, 570 So. 2d 675 (Ala. 1990) (allowing the Governor to intervene and take a position in opposition to the Attorney General).


    100 418U.S.683(1974).


    101 278 F.3d 1184 (11th Cir. 2002), opinion withdrawn in part sub nom. Tenn. Valley Auth. v. Whitman, 336 F.3d 1236 (11th Cir. 2003).


    102 Id.at1197.


    103 As Neal Devins reports, the Supreme Court, in furtherance of its interest in fully hearing an issue, has occasionally chided the Solicitor General for not reporting intra-branch disputes. See Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 CAL. L. REV. 255, 315-16 (1994).


    104 Seesupranotes25-27and accompanying text.


    105 She may also, because of the traditions of her office, have greater insulation from political pressure because of her perceived role in upholding the rule of law, although one would think that this perception might vary widely among specific personalities.


    106 This is not to say that politics will never play a role in an attorney general’s decisions. It is undoubtedly no accident that the legal positions of Attorneys General Salazar and Baker in their respective redistricting and reapportionment cases reflected the positions of their political party. See People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003); Perdue v. Baker, 586 S.E.2d 606 (Ga. 2003).


    107 562 S.E.2d 623 (S.C. 2002).


    108 See People ex rel. Deukmejian v. Brown, 624 P.2d 1206, 1212 (Cal. 1981) (Richardson, J., dissenting) (noting that allowing the Governor to prohibit the Attorney General from seeking a judicial pronouncement on the legality of legislation that the Governor would implement would cause the “system of checks and balances envisioned by the Constitution [to] fail”).


    109 See, e.g., State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777, 782 (Minn. 1986) (holding that the legislature may not strip a constitutionally established, independent, executive officer of her independent core functions because to do so would “thwart” the Framers’ intent to divide executive powers).


    110 See Condon, 562 S.E.2d at 623 (holding that the South Carolina Attorney General can sue the Governor for appropriations violations).


    111 See supra notes 101-103 and accompanying text; see also Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 134 (1994) (“Diversifying the voices heard in government not only helps to prevent one point of view from becoming too strong, but also promotes the affirmative goal of democratizing governmental decision- making.”). Involving more than one actor in the decision-making process, as the divided executive requires, also can improve transparency which, in turn, can help improve the democratic process by informing the electorate as to the bases of executive branch actions. See Erik Luna, Transparent Policing, 85 IOWA L. REV. 1107 (2000).


    112 Iowa appears to be one state that has adopted this approach. Compare Motor Club of Iowa v. Dep’t of Transp., 251 N.W.2d 510 (Iowa 1977) (holding that the Attorney General does not have the power to supersede the policy decision of a state agency in pursuing an appeal), with Fisher v. Iowa Bd. of Optometry Exam’rs, 476 N.W.2d 48 (Iowa 1991) (holding that the Attorney General has the authority to guide state litigation consistent with what he believes are the interests of justice).


    113 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653-54 (Jackson, J., concurring).


    114 See Neal Kumar Katyal, Separating from Within: Internal Checks on Today’s Most Dangerous Branch, 115 YALE L.J. _ (2006) TK (proposing the creation of checks and balances within the executive branch); Harold Hongju Koh, Turning the World Right-Side Up, 115 YALE L.J. _ (2006); Jonathan Macey, Executive Branch Usurpation of Power: Corporate Control and Capital Markets, 115 YALE L.J. _ (2006) (discussing how the federal executive has taken on a disproportionate role in what was previously a central domain of state law regulation). But see Steven G. Calabresi & James Lindgren, Commentary, The President: Lightning Rod or King?, 115 YALE L.J. _ (2006); Todd D. Peterson, The Law and Politics of Shared National Security Power, 59 GEO. WASH. L. REV. 747, 761 (1991) (reviewing HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR (1990)) (arguing that Congress has substantial power to control the President’s national security powers). According to Peterson, the problem in this area is not that the President has assumed too much power; it is that Congress has exercised too little. See Peterson, supra, at 767.


    115 This is not to say that personality has not played a part. The efforts of Presidents Reagan and Clinton, for example, to give the President greater control over federal agency action have helped to consolidate presidential authority over the administrative state. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001).


    116 The power that comes with being the first to act, moreover, does not substantially abate even after the initial crisis is over. Crisis decisions are not easily undone. When the executive decides to commit the military to armed conflict, the inevitable result is a “rally round the flag” reaction that reinforces the initial decision. Mark Tushnet, Controlling Executive Power in the War on Terrorism, 118 HARV. L. REV. 2673, 2678 (2005); see also Korematsu v. United States, 323 U.S. 214, 244-45 (1944) (Jackson, J., dissenting) (discussing the practical difficulties involved in having courts second-guess military decisions).


    117 See, e.g., Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1727 (1996).


    118 E.g., Memorandum from Jay S. Bybee, Assistant Attorney Gen., to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002), in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 172, 172-73 (Karen J. Greenberg & Joshua L. Dratel eds., 2005) (arguing that the President’s power to act under his authority as Commander-in-Chief is absolute and cannot be circumscribed by domestic or international prohibitions on torture).


    119 Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J., dissenting); see also Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1155 (1992) (“The genius of the American Constitution lies in its use of structural devices to preserve individual liberty.”).


    120 The key divisions of the Justice Department in this respect are the Office of the Solicitor General, charged with litigating cases before the Supreme Court, and the Office of Legal Counsel, charged with providing legal advice. See Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676, 682 (2005) (characterizing these offices as the “principal constitutional interpreters for the executive branch”).


    121 See supra notes 14-16 and accompanying text.


    122 For example, Attorney General Edward Bates, who served under Lincoln, reportedly stated that it was his duty “to uphold the Law and to resist all encroachments, from whatever quarter, of mere will and power.” LUTHER A. HUSTON ET AL., ROLES OF THE ATTORNEY GENERAL OF THE UNITED STATES 51 (1968). Robert Jackson, on the other hand, apparently viewed his obligations differently. Looking back at his role as Attorney General from the perch of a Supreme Court Justice, he described an opinion he offered as Attorney General as “partisan advocacy.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 648 n.17 (1952) (Jackson, J., concurring).


    123 See, e.g., Dan Eggen, Staff Opinions Banned in Voting Rights Cases, WASH. POST, Dec. 10, 2005, at A3 (discussing how the President’s political appointees can remove or redeploy staff attorneys if they find them too independent).


    124 See Removing Politics from the Administration of Justice: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 93d Cong. (1974).


    125 See Proposals Regarding an Independent Attorney General, 1 Op. Off. Legal Counsel 75, 77- 78 (1977).


    126 See Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 DUKE L.J. 561, 567 & n.24. According to Bloch, “The President nevertheless immediately assumed that responsibility, went to the Senate for advice and consent, presumably reading article II, section 2 to support and perhaps require this approach.” Id. at 567 n.24. Moreover, as Bloch notes, unlike the language found in the organic acts establishing the Departments of Foreign Affairs and War, the text of the Judiciary Act did not label the Office of the Attorney General as executive. Id. at 578.


    127 Id. The Office is also not, in any event, purely executive. As a functional matter, the position is at least quasi-judicial, both in its role in issuing formal opinions and in its capacity as an officer of the court. See Henry J. Abraham & Robert R. Benedetti, The State Attorney General: A Friend of the Court?, 117 U. PA. L. REV. 795, 797-98 (1969). The Office may also be considered quasi-legislative in the states in which it is also charged with the duty of providing advice to the legislature. See STATE ATTORNEYS GENERAL, supra note 16, at 55-56.


    128 See Brief for Georgia Legal Foundation as Amicus Curiae at 4, Perdue v. Baker, 586 S.E.2d 606 (Ga. 2003) (No. S03A1154).


    129 THE FEDERALIST NO. 70, at 423-24 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Hamilton’s argument actually involves four separate points. First, a unitary executive is necessary to allow the executive to act with dispatch; second, a plural executive could lead to internal disagreements that would weaken the executive’s ability to carry out its operations; third, a unitary executive prevents divisive internal executive branches from developing as they would if there were numerous executives competing for power; fourth, a unitary executive, by having a national constituency would be more energetic on behalf of the entire national community and not distracted by local geographic pressures.
    The last two arguments can be immediately dismissed in the context of the divided executive. A Federal Attorney General would not be subject to the pressures of local faction as would a member of Congress because, like the President, she would be a nationally selected officer (whether elected or appointed) and therefore responsive to the needs of the national constituency. Hamilton’s concern with intra-executive factions, in turn, would not be implicated because the models of a plural executive that he addressed (the Roman model, in which two magistrates shared expansive power, and an executive council model, which required the approval of an independent council before the executive could undertake significant action) involved broadly shared powers. Hamilton did not consider a model in which the chief executive held most of the power while a secondary officer had relatively limited authority. When the vast majority of executive power rests with one person, the incentive for intra-executive cabals to develop to support the officer with significantly less authority seems less likely.


    130 There is, of course, an initial question as to whether the Framers’ concern with energy still applies in the modern era. “Modern government at its most lethargic is energetic beyond the Founders’ most reckless speculations.” Flaherty, supra note 117, at 1826.


    131 586 S.E.2d 606 (Ga. 2003).


    132 Moreover, to the extent that certain law enforcement functions of the Attorney General are truly necessary for the President’s ability to conduct foreign policy and foster national security, the provision granting independence to the Attorney General could be qualified, consistent with the division of executive powers in some states, to grant presidential authority to direct the Attorney General to take particular actions. See, e.g., State ex rel. Jackson v. Coffey, 118 N.W.2d 939 (Wis. 1963). Such an approach could both protect some presidential prerogative while providing a political guard against overreaching.


    133 THE FEDERALIST NO. 70, at 427-28 (Alexander Hamilton) (Clinton Rossiter ed., 1961).


    134 Id. at 427; see supra note 129.


    135 487 U.S. 654, 728 (1988) (Scalia, J., dissenting).


    136 Additionally, to the extent that the value of political accountability is less to foster majoritarian results and more to allow the people to protect themselves from government tyranny, a divided executive may complement, rather than undermine, this purpose. See Rebecca L. Brown, Accountability, Liberty, and the Constitution, 98 COLUM. L. REV. 531 (1998).


    137 Peter M. Shane, Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking, 48 ARK. L. REV. 161, 197-99 (1994).


    138 Id. at 199 (arguing that if true representation had been the Framers’ goal, they would have created a multiple presidency).


    139 THE FEDERALIST NO. 51, at 321-22 (James Madison) (Clinton Rossiter ed., 1961) (“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.”).


    140 Id.at322-23.


    141 See Greene, supra note 111, at 141-48.


    142 Flaherty, supra note 117, at 1727.


    143 Indeed, in this respect, it is notable that the trend in state government has been that governors have increasingly employed their own counsel. Matheson, supra note 28, at 19; Tierney, supra note 39.


    144 The Constitution protects, for example, judicial independence by providing Article III judges with life tenure and guaranteed compensation. See U.S. CONST. art. III, § 1.


    145 Such steps might include making the election non-partisan, holding the election in a different year from the presidential election, and making former attorneys general ineligible to run for President or Vice President.

  • 2 Majority Rule

    • 2.1 Feeney v. Commonwealth, et. al. 366 N.E. 2d 1266 (1977)

      373 Mass. 359 (1977)
      366 N.E.2d 1262
      COMMONWEALTH & another.

      Supreme Judicial Court of Massachusetts, Suffolk.

      March 9, 1977.
      September 16, 1977.



      Thomas R. Kiley, Assistant Attorney General (Francis X. Bellotti, Attorney General, with him) for the Commonwealth & another.


      Richard P. Ward for Helen B. Feeney.


      Daniel A. Taylor, Chief Legal Counsel to the Governor, Benjamin Jones, Assistant Legal Counsel to the Governor, & Patrick J. Sharkey, for the Governor & another, amici curiae, submitted a brief.


      LIACOS, J.


      We have been presented with a question certified to us by the Supreme Court of the United States[1] pursuant to S.J.C. Rule 3:21, as amended, 366 Mass. 871 (1974). The question pertains to the authority of the Attorney General to prosecute an appeal to the Supreme Court from a judgment of the United States District Court, District of Massachusetts, contrary to the expressed objections of State officers whom he represented in the District Court proceedings.


      The action which generated the question now before us was commenced by Helen B. Feeney under 42 U.S.C. § 1983 (1970) after she was refused certification for two civil service positions. Although Mrs. Feeney received high scores on civil service examinations given in connection with the selection procedure for both positions, she was not certified for either position as a result of the operation of the Massachusetts veterans' preference statute, G.L.c. 31, § 23.[2] In her complaint, Mrs. Feeney asserted that the application of the veterans' preference formula to the hiring procedure for public employment positions constituted unconstitutional discrimination on the basis of sex. The Commonwealth, the Division of Civil Service (Division), the Civil Service Commission (Commission), and the Director of Civil Service (now Personnel Administrator of the Commonwealth) (Personnel Administrator)[3] were named as defendants and were represented by the Attorney General during the District Court proceedings.[4]


      After entering judgment for the Commonwealth and the Division because they concluded that neither was a person within the meaning of 42 U.S.C. § 1983 (1970) a majority of the three-member District Court ruled that G.L.c. 31, § 23, is unconstitutional.[5] Feeney v. Massachusetts, 415 F. Supp. 485 (D. Mass. 1976). The District Court recognized that rewarding military service veterans with preference in public employment selection procedures is a meritorious State purpose. The court concluded, however, that the manner the Commonwealth has chosen to implement its interest in the employment of veterans deprives female civil service applicants of equal protection of the laws. The court permanently enjoined the Commission and the Personnel Administrator from applying G.L.c. 31, § 23, in making any future civil service appointments in the Commonwealth.


      Two days after the court issued its opinion in the Feeney case, the Commission voted to request the Attorney General not to appeal the decision on behalf of the Commission and its members. The chairman of the Commission sent a letter dated March 31, 1976, to the Attorney General to inform him of the Commission's unwillingness to become a party to an appeal of the Feeney decision. Similarly, the Personnel Administrator voiced his opposition to an appeal of the decision in a letter to the Attorney General on the same day. The letters from the chairman of the Commission and the Personnel Administrator were followed by a communication from the Governor requesting the Attorney General not to appeal the decision on behalf of the named defendants. The Legislature, however, expressed a contrary viewpoint. On April 6, 1976, both the House of Representatives and the Senate passed resolutions urging the Attorney General to appeal the District Court's decision to the Supreme Court of the United States.


      After further consultations with representatives of the Governor and the defendants, and despite their continued opposition to an appeal, the Attorney General filed a notice of appeal from the judgment of the District Court.[6] Thereafter, a jurisdictional statement was filed in the Supreme Court by the Attorney General on behalf of the Commission and the Personnel Administrator. The Commission and the Personnel Administrator advised the Supreme Court by a letter addressed to the clerk that the appeal had been taken without their authorization and that they had requested the Attorney General not to appeal from the judgment of the District Court. They urged the court to dismiss the appeal.


      The Supreme Court of the United States has determined that the authority of the Attorney General to represent the named defendants in an appeal to that court has been called into question by the defendants' persistent opposition to an appeal of the District Court judgment. Accordingly, the Supreme Court has certified the following question of State law for our consideration: "Under the circumstances herein presented, does Massachusetts law authorize the Attorney General of the Commonwealth to prosecute an appeal to this Court from the judgment of the District Court without the consent and over the expressed objections of the state officers against whom the judgment of the District Court was entered?"


      The question presents an issue which is similar in many respects to that considered by this court in Secretary of Administration & Fin. v. Attorney Gen., 367 Mass. 154 (1975). In that case, the Attorney General represented the Secretary of Administration and Finance in the Superior Court trial of a civil action through which the plaintiff[7] undertook to compel the Secretary to take the steps necessary to complete the sale of property owned by the plaintiff to a State agency. A judge of the Superior Court ruled that the Secretary possessed no legal basis to justify his refusal to authorize consummation of the sale. Following entry of judgment adverse to the Secretary, a dispute arose between the Secretary and the Attorney General on the question whether the judgment of the Superior Court would be appealed. Both the Secretary and the Governor requested the Attorney General to prosecute an appeal. The Attorney General concluded that "the ends of government ... [would] not be advanced by appealing the ... [Superior Court's judgment]." Id. at 157 n. 2. The Secretary instituted an action for declaratory relief requesting that the court order the Attorney General to obtain appellate review. We held that "the Attorney General, as `chief law officer of the Commonwealth,' ... [citation omitted] has control over the conduct of litigation involving the Commonwealth, and this includes the power to make a policy determination not to prosecute the Secretary's appeal in this case." Id. at 159.


      The powers and duties of the Attorney General are in part derived from G.L.c. 12, § 3, as amended through St. 1943, c. 83, § 1.[8] The Attorney General is directed by that provision to "appear for the commonwealth and for state departments, officers and commissions in all suits and other civil proceedings in which the commonwealth is a party or interested, or in which the official acts and doings of said departments, officers and commissions are called in question, in all the courts of the commonwealth, except upon criminal recognizances and bail bonds, and in such suits and proceedings before any other tribunal, including the prosecution of claims of the commonwealth against the United States, when requested by the governor or by the general court or either branch thereof. All such suits and proceedings shall be prosecuted or defended by him or under his direction. Writs, summonses or other processes served upon such officers shall be forthwith transmitted by them to him. All legal services required by such departments, officers, commissions and commissioners of pilots for district one in matters relating to their official duties shall, except as otherwise provided, be rendered by the attorney general or under his direction."


      As we observed in the Secretary of Administration & Fin. case, the Legislature through the enactment of G.L.c. 12, § 3, consolidated the responsibility for all legal matters involving the Commonwealth in the office of the Attorney General. The Legislature thereby "empowered, and perhaps required, the Attorney General to set a unified and consistent legal policy for the Commonwealth." 367 Mass. at 163. The issue we are called on to resolve in the present case is whether the power of the Attorney General to establish a coherent legal policy for the Commonwealth includes the authority to chart a course of legal action which is opposed by the administrative officers he represents.


      The veterans' preference statute is an expression of legislative policy which is designed to promote public employment of military veterans. The Commission and the Personnel Administrator are charged with the responsibility of executing the legislative program. G.L.c. 31, §§ 21-25. These officials must operate within the authority granted to them by the Legislature. The discretion which they may employ in fulfilling the administrative duties assigned to them by the Legislature is limited to the sound judgment necessary to accomplish the objectives of the statute.


      In her Federal complaint, Mrs. Feeney named the members of the Civil Service Commission and the Director of Civil Service (now Personnel Administrator) as defendants for the purpose of challenging the constitutionality of the veterans' preference statute without producing a direct confrontation between the Federal courts and the Legislature which is proscribed by the Eleventh Amendment to the United States Constitution and the doctrine of sovereign immunity. See Ex parte Young, 209 U.S. 123 (1908); Edelman v. Jordan, 415 U.S. 651 (1974). The pendency of the action against the defendants neither modified their function as administrators nor empowered them to deviate from the policy formulated by the Legislature for the preferential hiring of veterans.


      The role of the Attorney General when he represents the Commonwealth and State officers in legal matters is markedly different from the function of the administrative officials for whom he appears. Not only does the Attorney General represent the Commonwealth as well as the members of the Commission and the Personnel Administrator in accordance with G.L.c. 12, § 3, "[h]e also has a common law duty to represent the public interest.... [Citations omitted.] Thus, when an agency head recommends a course of action, the Attorney General must consider the ramifications of that action on the interests of the Commonwealth and the public generally, as well as on the official himself and his agency. To fail to do so would be an abdication of official responsibility." Secretary of Administration & Fin. v. Attorney Gen., supra at 163. It would also enervate the Legislature's clearly articulated determination to allocate to the Attorney General complete responsibility for all the Commonwealth's legal business. To permit the Commission and the Personnel Administrator, who represent a specialized branch of the public interest, to dictate a course of conduct to the Attorney General would effectively prevent the Attorney General from establishing and sustaining a uniform and consistent legal policy for the Commonwealth. Id.


      The action of the Attorney General in determining to prosecute this appeal is consistent with his traditional right to be heard in litigation to represent the interests of the Commonwealth when the constitutionality of its laws is put in question. See G.L.c. 231A, § 8; Mass. R. Civ. P. 24 (d), 365 Mass. 769 (1974). This exercise of discretion to appear in the District Court proceedings (apparently without objection by defendants) and to press the matter in the court of last resort is consistent with his traditional common law and statutory role.


      The authority of the Attorney General, as chief law officer, to assume primary control over the conduct of litigation which involves the interests of the Commonwealth has the concomitant effect of creating a relationship with the State officers he represents that is not constrained by the parameters of the traditional attorney-client relationship. The language of G.L.c. 12, § 3, its legislative history and the history of the office indicate that the Attorney General is empowered, when he appears for State officers, to decide matters of legal policy which would normally be reserved to the client in an ordinary attorney-client relationship. Secretary of Administration & Fin. v. Attorney Gen., supra at 159. The determination to appeal to the Supreme Court of the United States from a judgment of the District Court invalidating a State statute entails such a legal policy decision. 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 to the Supreme Court of the United States from a judgment of the District Court over the expressed objections of the State officers he represents.


      We are not persuaded that the pendency of the case in the Federal rather than the State courts has any effect whatever on the Attorney General's power to appeal the judgment of the District Court without the consent of the State officers for whom he appeared in the District Court. The first sentence of G.L.c. 12, § 3, makes no distinction between the authority of the Attorney General to appear for the Commonwealth and State officers in the courts of the Commonwealth and his authority to appear for the Commonwealth and State officers in "any other tribunal." Mrs. Feeney suggests that the Attorney General has a more limited role when he appears for State officers in tribunals other than the courts of the Commonwealth. The statutory language, however, does not bear such a construction. The language of the statute, properly read, does not indicate that the Legislature intended to vary the power and duty of the Attorney General to control the conduct of litigation involving the interests of the Commonwealth depending on the forum in which he appears. The final three sentences of the provision further substantiate this view by setting forth several additional litigation-related responsibilities of the Attorney General without drawing any contrasts between the performance of these duties in connection with litigation in the courts of Massachusetts and the discharge of the same obligations in connection with litigation in "any other tribunal." See also G.L.c. 12, § 10, which is consistent with the legislative intent expressed in § 3. To say, as Mrs. Feeney suggests, that the Attorney General may appear in "other tribunals" only on request is inconsistent with the over-all legislative scheme, the common law history of the office, and the language of the disputed section. To sustain Mrs. Feeney's suggestion that the Attorney General's power is subject to greater restrictions when he appears for the Commonwealth or State officers in non-Massachusetts courts, we would be required to say that the Legislature intended to authorize the Attorney General to establish a consistent legal policy for the Commonwealth only in the conduct of litigation in Massachusetts courts. Our reading of G.L.c. 12, § 3, does not lead us to conclude that the Legislature intended to qualify the Attorney General's authority as chief law officer in such a manner.


      Our decision affirms the Attorney General's authority to prosecute an appeal where he believes that important 368 interests of the Commonwealth will be sacrificed if the State officers' unwillingness to consent to appeal is permitted to prevail. Only in this way will official responsibility for these suits and proceedings, at all stages of their progress, be secured. See McQuesten v. Attorney Gen., 187 Mass. 185, 187 (1905).[9]


      Although the power to formulate legal policy for the Commonwealth may not be used in an arbitrary, capricious or illegal manner, Secretary of Administration & Fin. v. Attorney Gen., supra at 159 n. 4, the record before us in this case contains no evidence that the Attorney General's conduct is of this nature. The Attorney General is acting within his authority under Massachusetts law in prosecuting an appeal to the Supreme Court of the United States despite the opposition voiced by the State officers whom he represents and their refusal to consent to the appeal.


      The Reporter of Decisions is directed to furnish attested copies of this opinion to the clerk of this court who will in turn transmit one copy, under seal of this court, to the clerk of the Supreme Court of the United States as answer to the question certified, and will also transmit a copy to each party.


      So ordered.


      [1] Sub nom. Massachusetts v. Feeney, 429 U.S. 66 (1976).


      [2] Mrs. Feeney also took an examination for a third civil service position before filing her complaint in Federal court. Although her examination grade of eighty-seven would have tied her for seventeenth place, the veterans' preference formula caused her to be ranked seventieth on the list of applicants. However, permanent appointments to the position for which the examinations were given have not been made yet due to a temporary restraining order imposed by the District Court.


      [3] The office of Director of Civil Service was discontinued after commencement of the Feeney action and the responsibilities of the Director were assigned to the Personnel Administrator of the Commonwealth, St. 1974, c. 835, §§ 51, 57-65.


      [4] The Feeney case was consolidated with another action, Anthony v. Commonwealth, involving similar 42 U.S.C. § 1983 (1970) claims made by three women applicants for permanent civil service appointments as attorneys for several State agencies.


      [5] The court held that the claims asserted by the plaintiffs in the Anthony case had been rendered moot by the enactment of St. 1975, c. 134, which amended G.L.c. 31, § 5. The amendment excluded appointments to the legal positions sought by the Anthony plaintiffs from the operation of the civil service law.


      [6] The notice of appeal was accompanied by an application for a stay of judgment pending final disposition of the appeal and a motion for relief from judgment. The motion for relief from judgment and a subsequently filed supplemental motion for relief from judgment were denied, but the court took no action on the application for a stay of the judgment because the enactment of St. 1976, c. 200, resulted in suspending the operation of G.L.c. 31, § 23, pending final disposition of the Feeney case by the Supreme Court.


      [7] The Trustees of the Stigmatine Fathers, Inc.


      [8] For an overview of the history of the office, see Secretary of Administration & Fin. v. Attorney Gen., supra at 159-162.


      [9] As a result of our holding in this case, we need not comment on the effect of the legislative resolutions urging the Attorney General to appeal the District Court's judgment in the Feeney case.

    • 2.2 AGs' Powers a Subject of Contention

      AGs’ powers a subject of contention

      Julia C. Martinez Denver Post Capitol Bureau

      03 December 2003

      Denver Post

      Monday’s Supreme Court decision on redistricting affirms the power of Colorado attorneys general to battle laws they consider against the public interest.

      But critics said Tuesday that the state’s top law enforcement official has been given new powers and will stampede over the legislature and the governor.

      The Colorado Supreme Court ruled unanimously Monday that the attorney general has the power and duty to sue the state to protect and promote the public interest.

      ‘The Supreme Court has mounted the attorney general on a white horse and allowed him to charge into the middle of legislation any time they want to,’ said state Senate President John Andrews, R- Centennial. ‘I’m shocked and distressed that the court is setting up the attorney general as sort of a fourth branch of government here.’

      Attorney General Ken Salazar said the fears are unfounded.

      ‘What the Supreme Court did was simply affirm the powers of the attorney general as an independently elected official,’ he said.

      ‘These are not new powers. These are powers that have been exercised by attorneys general in Colorado for 127 years. These are powers exercised by attorneys general across the nation on an ongoing basis.’

      Salazar, a Democrat, had sued the state to overturn the redistricting law, but Republicans challenged the attorney general’s power to sue his own client. Salazar’s lawsuit marked the first time since 1905 that the state’s top law enforcement official had taken such action.

      Professor Robert Hardaway of the University of Denver School of Law, a former deputy district attorney in Arapahoe County, said the court put too much emphasis on the fact that the attorney general is elected independently of the executive branch.

      ‘I think it’s a leap to say that because the attorney general has a separate electoral base, he can take positions different from the governor, which violates the basic principle of separation of powers,’ he said. ‘There are three branches of government, and when you start splitting every one of them down, you can ultimately get chaos.’

      Colorado is one of 43 states where the attorney general is elected. In five states – Alaska, Hawaii, New Hampshire, New Jersey and Wyoming – the attorney general is appointed by the governor. In Maine, the legislature picks the attorney general by secret ballot. In Tennessee, the Supreme Court makes the selection.

      Attorney Chris Paulson, a former legislative leader and one of the lawyers in the case who opposed the court’s ruling, said the ruling enunciates new powers for statewide office holders.

      But Utah Republican Attorney General Mark Shurtleff, one of 44 state attorneys general who filed a brief supporting Salazar’s authority, said the issue is not political.

      ‘It’s an issue of power and duties,’ said Shurtleff’s chief deputy, Ray Hintze. ‘He is independently elected. He is the chief law enforcer of the constitution and state law. He has to have the discretion to operate without political pressure even if other elected officials including the governor disagree with his decision.’

      Salazar said he has defended the state on a vast array of laws, including one passed by Republicans in the 2003 legislative session that mandated that teachers and students in public schools recite the Pledge of Allegiance daily.

      ‘It’s a call I made based on the law,’ Salazar said. ‘I considered it to be constitutionally defensible. In the case of redistricting, I did not think it was constitutionally defensible.’

      Attorney J.J. Gass of the Brennan Center for Justice at New York University School of Law, said the chance that attorneys general will abuse their power in Colorado or other states is unlikely.

      ``If the attorney general is running rampant and challenging laws right and left, it’s just not tenable. It can’t last very long,” Gass said. ``The court would rule against them, or people would kick them out of office.”

  • 3 Minority Rule

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

      29 Cal.3d 150 (1981)
      624 P.2d 1206
      172 Cal. Rptr. 478
      THE PEOPLE ex rel. GEORGE DEUKMEJIAN, as Attorney General, etc., Petitioner,
      EDMUND G. BROWN, JR., as Governor, etc., et al., Respondents; CALIFORNIA STATE EMPLOYEES' ASSOCIATION et al., Interveners.
      Docket No. S.F. 24252.

      Supreme Court of California.

      March 12, 1981.



      George Deukmejian, Attorney General, Willard A. Shank and N. Eugene Hill, Chief Assistant Attorneys General, L. Stephen Porter and Richard D. Martland, Assistant Attorneys General, Talmadge R. Jones, George J. Roth, Robert Burton, Paul H. Dobson and M. Anthony Soares, Deputy Attorneys General, for Petitioner.


      John C. Wakefield, Larry C. Larsen, Gilles Attia, A.J. Weiglein, Roger A. Jeanson, Haas & Najarian, Thomas A. Farr and Rex H. Reed as Amici Curiae on behalf of Petitioner.


      Tuttle & Taylor, Raymond C. Fisher, Barbara L. Stocker, Jeffrey M. Hamerling, J. Anthony Kline, Byron S. Georgiou, Barbara T. Stuart, Jerome B. Falk, Jr., Steven L. Mayer, Howard, Prim, Rice, Nemerovski, Canady & Pollak, Barry Winograd, Kristin Jensen, Robert Miller, William P. Smith, Terry Filliman, Gerald Becker and Ronald Blubaugh for Respondents.


      Loren E. McMaster, Bernard L. Allamano, Gary P. Reynolds, Richard Lobel, Van Bourg, Allen, Weinberg & Roger, Stewart Weinberg and Robert J. Bezemek for Interveners.


      Reich, Adell, Crost & Perry, Hirsch Adell, Charles P. Scully, Donald C. Carroll, Charles P. Scully II, Donald H. Wollett, Ronald Yank, Franklin Silver, Carroll, Burdick & McDonough, Bodkin, McCarthy, Sargent & Smith, Timothy J. Sargent, Kevin W. Horan, Gillin, Jacobson & Wilson, Ralph L. Jacobson and Cynthia T. Podren as Amici Curiae on behalf of Interveners.




      MOSK, J.


      Before reaching the merits of this litigation in either this case or the companion case of Pacific Legal Foundation v. Brown (1981) post, page 168 [172 Cal. Rptr. 478, 624 P.2d 1206], we address a motion of the Governor to dismiss the petition of the Attorney General herein.


      The chronology of events is significant. The 1977 Legislature adopted a State Employer-Employee Relations Act (SEERA). (Gov. Code, §§ 3512-3524.) While the Governor had the measure under consideration the then-Attorney General wrote to him under date of September 20, 1977, urging him to sign what he described as "a standard, well-accepted, existing method of resolving labor/management disputes ... a good step forward." Ten days later the Governor signed the measure into law, and it became effective on July 1, 1978.


      On January 23, 1979, the Pacific Legal Foundation and the Public Employees Service Association filed in the Court of Appeal an original petition for a writ of mandate to compel the Governor, the Controller, the Public Employment Relations Board, and the State Personnel Board to perform their constitutional and statutory duties without regard to provisions of SEERA, contending the legislation was unconstitutional.


      On January 30, 1979, the present Attorney General, acting through two deputies, met with members of the State Personnel Board, which had been served with summons in the Pacific Legal Foundation suit. At the conference the Attorney General, as counsel to the board, outlined the legal posture of the board and described four legal options available to it. This was a classic attorney-client scenario.


      At all times up to that point, the Attorney General was by law the designated attorney for the Governor and the State Personnel Board, as well as for the other state officers and agencies involved herein. Government Code section 12511 provides that the "Attorney General has charge, as attorney, of all legal matters in which the State is interested...." Section 12512 provides that the "Attorney General shall ... prosecute or defend all causes to which the State, or any State officer is a party in his official capacity; ..." (See also Gov. Code, § 18656.)


      On February 7, 1979, however, the Attorney General initiated the present proceeding by filing an independent petition for writ of mandate in the Court of Appeal against the Governor and other state agencies, asking for relief comparable to that sought by Pacific Legal Foundation.


      There is no question that at such time as he believed a potential conflict existed, the Attorney General could, as he did, properly withdraw as counsel for his state clients and authorize them to employ special counsel. (Gov. Code, § 11040; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 15 [112 Cal. Rptr. 786, 520 P.2d 10].) (1a) The issue then becomes whether the Attorney General may represent clients one day, give them legal advice with regard to pending litigation, withdraw, and then sue the same clients the next day on a purported cause of action arising out of the identical controversy. We can find no constitutional, statutory, or ethical authority for such conduct by the Attorney General.


      The rules of professional conduct to guide attorneys in their relationship with clients and former clients are well established and generally understood by all attorneys in this state. Rule 5-102 of the State Bar Rules of Professional Conduct (3B West's Ann. Bus. & Prof. Code (1974 ed., 1980 cum. supp.) foll. § 6076, at p. 92) requires that before an attorney may represent interests adverse to a client, he must obtain his client's consent in writing. For violation of this principle with regard to a former client, an attorney has been disciplined by the State Bar. (Galbraith v. The State Bar (1933) 218 Cal. 329 [23 P.2d 291].) This court declared in Galbraith that "the subsequent representation of another against a former client is forbidden not merely when the attorney will be called upon to use confidential information obtained in the course of the former employment, but in every case when, by reason of such subsequent employment, he may be called upon to use such confidential information." (Italics in original; id. at pp. 332-333.)


      We took similar disciplinary action in Hawkins v. State Bar (1979) 23 Cal.3d 622, 629 [153 Cal. Rptr. 234, 591 P.2d 524], despite the attorney's claim that his conflicting relationship with another person arose subsequently to the initial legal consultation with his client. The relationships, we found, "arose contemporaneously"; this is comparable in time span to the chronology here between the Attorney General's legal consultation with the Personnel Board and his filing of a lawsuit against the same board.


      Conduct of attorneys has also been discussed in contexts other than State Bar discipline. In Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 573-574 [15 P.2d 505], this court declared that "an attorney is forbidden to do either of two things after severing his relationship with a former client. He may not do anything which will injuriously affect his former client in any manner in which he formerly represented him nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship." (Italics added.) While the record here does not reveal whether the Attorney General acquired any knowledge or information from his clients, the prohibition is in the disjunctive: he may not use information or "do anything which will injuriously affect his former client." Unquestionably the Attorney General is now acting adversely to the position of his statutory clients, one of which consulted him regarding this specific matter.


      In Grove v. Grove Valve & Regulator Co. (1963) 213 Cal. App.2d 646, 653 [29 Cal. Rptr. 150], the court enjoined an attorney from appearing against his former clients because "there can be no reasonable doubt that Flehr's present employment as attorney for appellant in this action is adverse to the interests of his former clients, since appellant is suing them over matters which are related to and which Flehr became conversant with during the period in which he represented respondents as their attorney." Here, too, the Attorney General is suing former clients over matters that arose during the period when by law he was counsel for those same clients.


      To the same effect is Earl Scheib, Inc. v. Superior Court (1967) 253 Cal. App.2d 703, 706 [61 Cal. Rptr. 386], in which the court declared "The rules which underlie our decision have long been written in the books so that he who runs might read. `It is the duty of an attorney: ... (e) To maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client.' (Bus. & Prof. Code, § 6068.) `A member of the State Bar shall not accept employment adverse to a client or former client, without the consent of the client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client.'" (See also Anderson v. Eaton (1930) 211 Cal. 113, 116 [293 P. 788].)


      In State of Ark. v. Dean Foods Products Co., Inc. (8th Cir.1979) 605 F.2d 380, 384, it was held that the "`attorney-client relationship raises an irrefutable presumption that confidences were disclosed.'" Disqualification of the Attorney General was upheld because of his prior representation of a litigant; whether he "did in fact receive confidential information is irrelevant, the policy considerations of the Code precluding that inquiry." (Id., p. 386.) The same doctrine was enunciated in General Motors Corporation v. City of New York (2d Cir.1974) 501 F.2d 639, 648, and Emle Industries, Inc. v. Patentex, Inc. (2d Cir.1973) 478 F.2d 562, 571. Also see Kramer, Appearance of Impropriety (1981) 65 Minn. L.Rev. 243, 255.


      But, contends the Attorney General, he is not bound by the rules that control the conduct of other attorneys in the state because he is a protector of the public interest. (2) We have acknowledged "the Attorney General's dual role as representative of a state agency and guardian of the public interest." (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 15.) The Legislature has impliedly recognized that a conflict might arise because of that duality by giving the Attorney General the right to withdraw from representation of his statutory clients and to permit them to engage private counsel. (Gov. Code, § 11040.) 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. (1b) In short, the Attorney General cannot be compelled to represent state officers or agencies if he believes them to be acting contrary to law, and he may withdraw from his statutorily imposed duty to act as their counsel, but he may not take a position adverse to those same clients.[1]


      The Attorney General insists nevertheless that he has a common law right, undefined and unrestrained, to sue in his role as "the People's legal counsel" the Governor and other public officials and agencies. This claim presupposes that the Attorney General may determine, contrary to the views of the Governor, wherein lies the public interest. (3) While there is no question that we may consider common law practices, we may do so only if they are not superseded by or in conflict with constitutional or statutory provisions. (People v. New Penn Mines, Inc. (1963) 212 Cal. App.2d 667 [28 Cal. Rptr. 337].) In this instance the Constitution — the highest indicator of the public interest — is both apposite and unambiguous.


      Article V, section 1, of the California Constitution provides that "The supreme executive power of this State is vested in the Governor. The Governor shall see that the law is faithfully executed." Article V, section 13, defines the powers of the Attorney General inter alia in this manner: "Subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State." The constitutional pattern is crystal clear: if a conflict between the Governor and the Attorney General develops over the faithful execution of the laws of this state, the Governor retains the "supreme executive power" to determine the public interest; the Attorney General may act only "subject to the powers" of the Governor.


      Consistent with the Constitution, Government Code section 12010 provides: "The Governor shall supervise the official conduct of all executive and ministerial officers." (Spear v. Reeves (1906) 148 Cal. 501, 504 [83 P. 432].) The Attorney General is an executive officer who "shall report to the Governor the condition of the affairs of his office" (Gov. Code, § 12522).


      We recognize there are cases in other jurisdictions that permit their attorneys general to sue any state officer or agency, presumably without restriction. Such opinions arise, however, under the peculiarities of the prevailing law in those several states, and are not persuasive here. (See, e.g., Conn. Com'n. v. Conn. Freedom of Information (1978) 174 Conn. 308 [387 A.2d 533]); Feeney v. Com. (1977) 373 Mass. 359 [366 N.E.2d 1262]; E.P.A. v. Pollution Control Bd. (1977) 14 Ill.2d 394 [14 Ill. Dec. 245, 372 N.E.2d 50]; Commonwealth ex rel. Hancock v. Paxton (Ky.App. 1974) 516 S.W.2d 865.)


      On the other hand, several jurisdictions have prevented the attorney general from acting without constitutional or statutory authority. A federal court found it incongruous for an attorney general, purporting to act for the people, to mount "an attack by the State upon the validity of an enactment of its own legislature." (Baxley v. Rutland (D.Ala. 1976) 409 F. Supp. 1249, 1257; see also Hill v. Texas Water Quality Bd. (Tex.Civ.App. 1978) 568 S.W.2d 738; Motor Club of Iowa v. Dept. of Transp. (Iowa 1977) 251 N.W.2d 510, 515; People ex rel. Witcher v. District Court, etc. (1976) 190 Colo. 483 [549 P.2d 778]; Garcia v. Laughlin (1955) 155 Tex. 261 [285 S.W.2d 191, 194]; State v. Hagan (1919) 44 N.D. 306 [175 N.W. 372, 374]; State v. Huston (1908) 21 Okla. 782 [97 P. 982, 989].)


      Arizona, the constitution of which, like ours, declares that its governor "shall take care that the laws be faithfully executed" (Ariz. Const., art. V, § 4), reached the same conclusion as we do herein. In Arizona State Land Department v. McFate (1960) 87 Ariz. 139 [348 P.2d 912, 918], the supreme court of that state declared in an unanimous opinion, "Significantly, these powers are not vested in the Attorney General. Thus, the Governor alone, and not the Attorney General, is responsible for the supervision of the executive department and is obligated and empowered to protect the interests of the people and the State by taking care that the laws are faithfully executed."


      The Arizona court further observed, with regard to a suit by the attorney general against a state agency: "Two propositions flow generally from this conception, embodied in our statutes, of the basic role of the Attorney General as `legal advisor of the departments of the state' who shall `render such legal services as the departments require' [citation]: the assertion by the Attorney General in a judicial proceeding of a position in conflict with a State department is inconsistent with his duty as its legal advisor; and the initiation of litigation by the Attorney General in furtherance of interests of the public generally, as distinguished from policies or practices of a particular department, is not a concomitant function of this role." (Id. at p. 915.)


      We are not unmindful that the Attorney General may have injected himself into the litigation initiated by Pacific Legal Foundation with the public interest in mind as he perceives it. We discussed a comparable circumstance in Anderson v. Eaton, supra, 211 Cal. at page 116: "Nor does it matter that the intention and motives of the attorney are honest. The rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent."


      (4) Finally, we conclude that the Governor has chosen a proper remedy. It has been held that one way "in which the issue of a violation of the rule [of professional conduct] may be raised is by a motion by the former client in the case before the court to enjoin the adverse representation." (Big Bear Mun. Water Dist. v. Superior Court (1969) 269 Cal. App.2d 919, 927 [75 Cal. Rptr. 580], and cases cited.) (1c) To the extent People v. Johnson (1856) 6 Cal. 499, permitted the Attorney General to sue the Governor, it is disapproved.


      For the reasons stated, we enjoin the Attorney General from proceeding in this matter and order that the alternative writ be discharged and the petition be dismissed.


      Bird, C.J., Tobriner, J., and Newman, J., concurred.




      I respectfully dissent, and regret today's majority opinion. It may well serve to deprive the office of the Attorney General of its traditional authority to initiate judicial proceedings which challenge the constitutional basis for procedures which are undertaken or threatened to be undertaken by public officials, including the Governor, when the Attorney General reasonably and in good faith believes such procedures to be defective. The Attorney General's traditional watch-dog function and his power to challenge questionable official conduct are important and necessary tools to assure the continued integrity of our system of government. Their loss would deprive the people of a first line of protection against improper executive conduct in appropriate cases. I trust that courts, including ours, will in the future narrowly limit the applicability of today's decision.


      In the consolidated proceedings presently before us, petitioners have challenged the constitutional basis for the State Employer-Employee Relations Act (SEERA). (Gov. Code, § 3513.) In the instant cause — one of the consolidated proceedings — the Attorney General appears as petitioner on behalf of the People of the State of California. The majority does not reach in its opinion the substantive merits of the Attorney General's petition, but examines only a motion by respondent Governor to dismiss the petition on the ground the Attorney General is disqualified from filing it. Only that same limited issue is addressed in this dissenting opinion. After the relief sought by petitioners in the consolidated cases was ordered by the Court of Appeal, the Governor petitioned this court for hearing and simultaneously moved "to have the Court ... dismiss the Attorney General's petition and to disqualify the Attorney General from any further participation in those proceedings." This issue was argued before the court in conjunction with argument on the substantive merits.


      SEERA purports to provide for collective bargaining for state civil service employees as to wages, hours and other terms and conditions of state employment. However, it is also provided in California Constitution, article VII (formerly art. XXIV) that the State Personnel Board (SPB) shall administer a civil service system of appointments and promotions, the fixing of probationary periods and classifications, the adoption of rules authorized by statute, and the review of disciplinary actions affecting employees of the state. The substantive question thus at issue but not here examined is whether the constitutional role of the SPB preempts the setting of salaries of civil service employees and, if so, whether SEERA infringes on such constitutionally vested authority. It is the Attorney General's position that the jurisdiction of the SPB to prescribe classifications for civil service positions is so integrally bound up with the setting of salaries that the legislative attempt through SEERA to subject the salary-setting function to the bargaining process conflicts with article VII.


      We have said recently that, "The Attorney General ... is the chief law officer of the State (Cal. Const., art. V, § 13). As such he possesses not only extensive statutory powers but also broad powers derived from the common law relative to the protection of the public interest. [Citations omitted.] `[H]e represents the interest of the people in a matter of public concern.' [Citation omitted.] Thus, `in the absence of any legislative restriction, [he] has the power to file any civil action or proceeding directly involving the rights and interests of the state, or which he deems necessary for the enforcement of the laws of the state, the preservation of order, and the protection of public rights and interest.' [Citation omitted.] Conversely, he has the duty to defend all cases in which the state or one of its officers is a party. (Gov. Code, § 12512.) In the course of discharging this duty he is often called upon to make legal determinations both in his capacity as a representative of the public interest and as statutory counsel for the state or one of its agencies or officers." (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 14-15 [112 Cal. Rptr. 786, 520 P.2d 10].)


      In view of our foregoing description of the Attorney General's unique representative capacities which clearly distinguishes him from attorneys generally, no claim is now made by anyone that the Attorney General cannot seek a judicial declaration of the invalidity of SEERA on constitutional or other grounds. In fact, the Attorney General not only has the right but an obligation to present what he deems to be in the public interest in the face of potential conflicts with state agencies which he nominally represents. "In the exceptional case the Attorney General, recognizing that his paramount duty to represent the public interest cannot be discharged without conflict may consent to the employment of special counsel by a state agency or officer. (See Gov. Code, § 11040.)" (D'Amico, supra, at p. 15, italics added.) Nor can there be any question but that the Governor is the chief executive officer of the state and that in the performance of the Governor's executive function the Attorney General is his subordinate.


      However, a state Attorney General is more than a mere appendage to a Governor's office. As our description in D'Amico makes abundantly clear, the Attorney General is an independent constitutional officer vested with very broad powers derived from both common law and statutory origins. He is far more than a tail on the Governor's kite. It would be a serious breach on the part of an Attorney General if he or she failed to challenge a legislative enactment which he or she believed with good cause to lack constitutional basis, even though the enactment was then actively supported by a Governor. Such a challenge is not an act of insubordination proscribed by the language of article V, section 13 of the Constitution providing that as "chief law officer of the State" the Attorney General is "[s]ubject to the powers and duties of the Governor." All powers and duties, including those of the executive, are limited by the lawful exercise thereof, and the Attorney General cannot be constrained in seeking a judicial pronouncement of the lawfulness of legislation which the Governor would implement. If the Governor could impose such limitations on the Attorney General — as in this case by precluding a constitutional challenge to SEERA — then the Attorney General would not be able to test or challenge any enactment without executive approval, and the system of checks and balances envisioned by the Constitution would fail. Such a conceptual paralysis is unthinkable, of course, and the majority, fortunately, does not urge this position.


      Notwithstanding the foregoing, the majority concludes that in the particular circumstances of this case the Attorney General has conducted his office in a manner which disqualifies him, thus leaving the public interest without any representation in these proceedings. The disqualifying conduct is said to deny respondents a fair opportunity to litigate issues on the merits because of advantages gained by the Attorney General through his relationships to some or all of respondents. The challenged conduct consists of (1) a letter sent by the Attorney General on September 20, 1977, to the Governor urging him to sign the legislation (Sen. Bill No. 839) enacting SEERA into law, (2) a conference between deputy attorneys general and representatives of the SPB on January 30, 1979, at which the deputies urged the invalidity of SEERA and sought SPB support in seeking a judicial declaration thereof, and (3) utilization of those same deputies who had previously represented SPB to prosecute the instant proceedings.


      The letter is of little significance. Although former Attorney General Younger urged the Governor to sign Senate Bill No. 839, it is clear that because the Governor had been active in procuring the legislation he would sign it independently of the Attorney General's recommendation. The content of the letter deals with continuing efforts by public employees to gain some participation in the determination of their working conditions and compensation, noting that "some public employees tend to believe their only effective tool to get proper attention is to strike." While the letter does not address constitutional or other legal issues, it concludes that the "bill will assist greatly in resolving [existing] grievances."


      The letter may well be viewed as an effort finally to confront issues which must be resolved in the event that collective bargaining by state employees is implemented. These proceedings are a step in such resolution. The Attorney General's letter seeks to move these long-standing issues toward a final resolution without addressing the issue of constitutional infirmities, if any, in the legislation.


      The Attorney General-SPB conference of January 30, 1979, was called by the Attorney General's office following commencement by Pacific Legal Foundation (PLF) of the proceedings now consolidated with the instant cause. Present at the meeting were members of SPB and its executive officers. The Attorney General was represented by Deputies Talmadge Jones and Stephen Porter. Mr. Jones noted the PLF action in which SPB was named a respondent, and stated SPB had four options in response thereto: (1) to join PLF in urging the unconstitutionality of SEERA, (2) to remain a respondent but to agree nonetheless that SEERA is unconstitutional, (3) to remain a respondent but to take a "noncommittal" position as to the constitutionality of SEERA, or (4) to defend the constitutionality of SEERA. The deputies recommended the first option. They asserted this was the unanimous view of those in the Attorney General's office who had considered the matter, and that SPB's concurrence would add weight to that view in court proceedings because of SPB's administrative expertise in concerned areas.


      SPB deliberated the matter in executive session. It unanimously concluded to remain a respondent and to continue to assert the constitutionality of SEERA. When so advised, the deputies suggested the Attorney General might initiate an independent action challenging the constitutionality of SEERA. While representatives of the Attorney General's office did not meet with other respondents, within a few days of the meeting with SPB the Attorney General informed by letters to the Governor, the Controller and the SPB that in the Attorney General's view SEERA was unconstitutional and that he would commence an independent action for a judicial declaration. The Attorney General consented in the letters to the use of other counsel by the addressees. (Gov. Code, § 11040.)


      There was no impropriety in the conduct of representatives of the Attorney General in meeting with SPB. The representatives did no more than inform SPB of the Attorney General's opinion concerning the constitutional invalidity of SEERA, seek the support of SPB and advise of the possibility of an independent action by the Attorney General. Indeed, the Attorney General acted well within his duties and responsibilities in asserting an opinion that SEERA was unconstitutional. His nonjudicial opinions are "accorded great respect by the courts." (Wenke v. Hitchcock (1972) 6 Cal.3d 746, 752 [100 Cal. Rptr. 290, 493 P.2d 1154].) The most relevant court decision then appeared to support his conclusion. (See Fair Political Practices Com. v. State Personnel Bd. (1978) 77 Cal. App.3d 52, 56 [143 Cal. Rptr. 393].) The merits of the constitutional issue were neither stated nor discussed. The Attorney General sought no information from, and none was given by, SPB other than its status as a party in the action or actions. The Attorney General forthrightly stated his position and reasons for approaching SPB. He gained no advantage and SPB suffered no disadvantage or prejudice. This has been conceded by all parties to the action.


      The final claim of misconduct is likewise wholly without significance. The fact that deputies who had earlier represented SPB are active in prosecuting the Attorney General's action against SPB and others raises no issue of a breach of confidence. The Attorney General's position on the merits in these proceedings was made clear at the outset and we are referred to neither specific advantage gained nor confidence breached. Again, this has been conceded by the parties.


      In asserting disqualification the Governor relies on rules 4-101 and 5-102(B), Rules of Professional Conduct. Rule 4-101 provides: "A member of the State Bar shall not accept employment adverse to a client or former client, without the informed and written consent of the client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client." Certainly no one can claim in good faith that the Attorney General obtained confidential information by directing his September 20, 1977, letter to the Governor. In requesting and attending the January 30, 1979, conference with SPB, and in utilizing the deputies who had participated in that conference to conduct these proceedings, the Attorney General neither sought to gain nor gained, directly or indirectly, any confidential information.


      The reason for the foregoing meeting becomes clear from a communication to the Court of Appeal by the Attorney General four days before the meeting with SPB. In seeking an extension of time to respond to the PLF petition, the Attorney General stated that the petition raised potential conflicts of interest among the various respondents, and that neither these conflicts nor representations by the Attorney General of the various respondents, had been resolved. The SPB meeting was essential to the Attorney General's determination of which, if any, agencies and offices he could represent. The office of the Attorney General approached SPB first as most likely to agree with PLF because SPB had only one year earlier forcefully argued its exclusive constitutional right to deal with the fixing of salaries for state employees. (See Fair Political Practices Com. v. State Personnel Bd., supra, 77 Cal. App.3d at p. 56.) The Attorney General thus had sound reason to believe SPB would join him in rejecting SEERA.


      I find it significant that SPB itself raises no claim that — because of the conference or the prior representation by certain deputies — a confidence has been breached or that there is any impropriety in the Attorney General's conduct and participation in these proceedings. The Governor's reliance on cases dealing with disqualification of private attorneys pursuant to rule 4-101, is misplaced. When a public attorney is required by law to fulfill his legal duty of representing public officials or agencies in exercising exclusive control of civil litigation, the usual attorney-client relationship does not prevail within the reasonable meaning of rule 4-101. (Ward v. Superior Court (1977) 70 Cal. App.3d 23, 34 [138 Cal. Rptr. 532].) In similar fashion it has been held that county counsel was not disqualified from representing in their official capacities county officials sued by the county assessor — whom the county counsel had previously represented — for defamation and violation of civil rights. (Ward v. Superior Court, supra, at p. 34.)


      As an alternative ground for the holding in Ward that "no attorney-client relationship existed between the county counsel and [the county assessor] within the meaning of rule 4-101," the court further observed: "The purpose of rule 4-101 forbidding an attorney from accepting employment adverse to a former client is to protect the former confidential relationship. Thus the rule does not apply where an attorney accepts employment adverse to a former client if the matter bears no relationship to confidential information acquired by the attorney as a result of the former attorney-client relationship." (Id., at p. 34.) Accordingly, the Governor's complete failure to establish that any confidences obtained by the Attorney General in his former attorney-client relationships bear on the merits in these proceedings is thus fatal to the motion for disqualification pursuant to rule 4-101. In fact, the issues raised on the merits of these proceedings are pure issues of law, the only question being whether a legislative enactment infringes on a constitutional proscription. There is no "confidential information" in the possession of respondents which — whether or not conveyed to the Attorney General — might have any bearing on resolution of these constitutional issues.


      For reasons similar to those which render inapplicable rule 4-101 in the circumstances of these proceedings, rule 5-102(B) is also not controlling. This latter rule provides that a "member of the State Bar shall not represent conflicting interests, except with the written consent of all parties concerned." The Attorney General is not, of course, representing conflicting interests in these proceedings. While it is true that he has represented or now represents clients whose interests are in conflict with those of the Attorney General as representative of the public interest, such conflicts are inherent in the applicable law pursuant to which the Attorney General must conduct himself. In his "dual role as representative of the state agency and guardian of the public interest" (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d 1, at p. 15), he may be called upon to make determinations and decisions which, while consistent with the interests of one "client," are in conflict with those of another. In such a case he must serve "his paramount duty to represent the public interest," withdraw from his other representations and consent to their employment of special counsel. (Ibid.) The Attorney General has conducted himself accordingly. Indeed, it is difficult to chart a course of conduct more consistent with legal requirements than that engaged in by the Attorney General whom the Governor seeks to disqualify.


      The Governor's assertion that rule 5-102(B) is applicable to the Attorney General in these circumstances, if correct, would result in the disqualification of the Attorney General in every instance where he had — prior to taking action against a public official or agency guilty of some mal- or misfeasance — represented or counseled that official or agency on an independent matter. It is manifest that rule 5-102(B) is not intended to so handcuff the official who is constitutionally described as the "chief law enforcement officer of the state" and who frequently is the sole representative of the public interest. The Attorney General's role, being grounded in the common law (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d, at p. 14), is thus similar to that role fully recognized in sister states. Thus, the Supreme Court of Massachusetts has held that the Attorney General, in exercising his "`common law duty to represent the public interest'" in a manner contrary to dictates of a public agency he normally represents, is not to be "constrained by the parameters of the traditional attorney-client relationship." (Feeney v. Com. (1977) 373 Mass. 359 [366 N.E.2d 1262, 1266]; see also Conn. Com'n v. Conn. Freedom of Information (1978) 174 Conn. 308 [387 A.2d 533, 537] ["This special status of the attorney general — where the people of the state are his clients — cannot be disregarded in considering the application of the provisions of the code of professional responsibility to the conduct of his office."]; E.P.A. v. Pollution Control Bd. (1977) 69 Ill.2d 394 [14 Ill. Dec. 245, 372 N.E.2d 50]; Commonwealth ex rel. Hancock v. Paxton (Ky.App. 1974) 516 S.W.2d 865.)


      The record establishes that the Attorney General has conducted himself with the professionalism required of his office, particularly in view of the usual difficulties attending a transition which occurred in that elective office in January 1979. No cause appears for his disqualification, which would thereby deprive the people of any legal representation in these important proceedings.


      The Governor's motion should be denied.


      Petitioner's application for a rehearing was denied April 22, 1981. Richardson, J., was of the opinion that the application should be granted.


      [1] Ward v. Superior Court (1977) 70 Cal. App.3d 23 [138 Cal. Rptr. 532], is not to the contrary. There the lawsuit was brought by the assessor but not as a public official; he sued the county supervisors "`individually and as a taxpayer.'" (Id. at p. 27.) Therefore the court held the county counsel could represent the supervisors in defending the lawsuit.

    • 3.2 Lawyers Disciplinary Bd. v. McGraw, 194 W. Va. 788, 461 S.E. 2d 850 (1995)

      461 S.E.2d 850 (1995)
      194 W.Va. 788
      Darrell V. McGRAW, Jr., a Member of the West Virginia State Bar, Respondent.
      No. 22639.

      Supreme Court of Appeals of West Virginia.

      Submitted March 7, 1995.
      Decided June 19, 1995.

      851*851 Sherri D. Goodman, Chief Disciplinary Counsel, Charleston, for complainant.


      James B. Lees, Hunt, Lees, Farrell & Kessler, Charleston and Robert M. Bastress, Jr., Morgantown, for respondent.


      McHUGH, Chief Justice:


      In this lawyer disciplinary proceeding, the Lawyer Disciplinary Board for the State of 852*852 West Virginia (hereinafter "Board")[1] has found that the respondent, Darrell V. McGraw, Jr., a member of the West Virginia State Bar and the Attorney General of the State of West Virginia, violated Rule 1.6(a) of the Rules of Professional Conduct. The Board recommends that this Court publicly reprimand respondent in open court, pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.[2] For the reasons stated below, we adopt the Board's recommendation and order that respondent be publicly reprimanded. We further order that respondent pay $1,713.56 for the costs incurred for this disciplinary proceeding.[3]


      On January 15, 1994, a Statement of Charges was issued against respondent by the Hearing Panel of the Committee on Legal Ethics of the West Virginia State Bar (hereinafter the "Committee"), charging respondent with two violations of Rule 1.6(a) of the Rules of Professional Conduct as well as one violation each of Rule 1.7(b) and Rule 1.2(a). In a written response to the Committee, respondent, through counsel, denied the charges. Following hearings on the matter, held on April 6, 1994 and April 29, 1994, the Full Hearing Panel of the Lawyer Disciplinary Board, on November 12, 1994, adopted the hearing panel subcommittee's findings of fact, conclusions of law and recommendation concerning discipline.


      The underlying litigation giving rise to this disciplinary proceeding began in 1990 when the Division of Natural Resources, by its attorney, the Office of Attorney General, instituted two declaratory judgment actions in Berkeley County Circuit Court against LCS Services, Inc. (hereinafter "LCS"), Chambers of West Virginia, Inc., and Chambers Development Company, Inc.[4] Following governmental reorganization, the powers, functions and duties previously performed by the Division of Natural Resources were transferred 853*853 to the Division of Environmental Protection of the Department of Commerce, Labor and Environmental Resources (hereinafter "DEP"), effective July 1, 1992.


      The purpose of the consolidated declaratory judgment actions instituted by the DEP was (1) to prohibit LCS from accepting waste at their landfill in the town of Hedgesville in Berkeley County, West Virginia, until the landfill received site approval from the Berkeley County Solid Waste Authority and (2) to restrict the landfill from accepting more than 9,999 tons of solid waste per month, unless the Berkeley County Commission gave approval to exceed the 9,999 tons per month limit.


      On June 19, 1992, the DEP filed a motion for summary judgment in which it requested that the Circuit Court of Berkeley County require LCS to apply for a certificate of site approval from the Berkeley County Solid Waste Authority and limit it to receiving no more than 9,999 tons of solid waste per month. The DEP's motion for summary judgment was granted on July 29, 1993.


      Following the circuit court's decision on the DEP's motion for summary judgment, attorney Kim Brown Poland,[5] who serves as regulatory counsel for Chambers Development Company, Inc. (hereinafter "Chambers"), LCS' parent company, contacted the DEP and requested a meeting between the DEP and representatives of Chambers and LCS to discuss, in light of the July 29, 1993 order, the current status of the law concerning landfills like the LCS facility which accept 9,999 tons or less of solid waste per month.


      A meeting was scheduled for August 12, 1993. David Callaghan, then Director of the DEP, asked the Deputy Director of the DEP, Ann Spaner,[6] to attend the meeting. Two representatives of the Office of Waste Management were also asked to attend. Director Callaghan testified that he did not ask counsel from the Office of Attorney General to attend the meeting because he understood the meeting to be about the possible sale of the landfill[7] and not about the landfill litigation.[8] Director Callaghan further testified that the fact that he was meeting with Ms. Poland and representatives of Chambers and LCS was not intended to be confidential.


      At the August 12, 1993 meeting, held at the DEP's offices in Nitro, West Virginia, Ms. Poland advised Director Callaghan and Deputy Director Spaner that LCS had filed a motion, pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure, to amend, alter, correct, clarify and/or reconsider the circuit court's order granting the DEP's motion for summary judgment.[9] Director Callaghan and Deputy Director Spaner learned of LCS' Rule 59(e) motion for the first time at this meeting even though LCS had already filed it in Berkeley County Circuit Court. Director Callaghan told Ms. Poland that he would discuss LCS' motion[10] with 854*854 litigation counsel from the Attorney General's office. The Lawyer Disciplinary Board found that Director Callaghan was not asked to join in LCS' motion nor did he then agree to do so.


      At the direction of Director Callaghan, Deputy Director Spaner immediately contacted the DEP's litigation counsel, Assistant Attorney General Stephen Van Camp, to tell him about the meeting and that the reason he had not been asked to attend was due to Director Callaghan's now mistaken belief that the meeting was to be about the sale of the landfill and not the landfill litigation. Though Assistant Attorney General Van Camp testified that Deputy Director Spaner directed him to join in LCS' Rule 59(e) motion, Deputy Director Spaner testified that she only wanted to raise the issue with him for discussion. Whichever the case, the Board found that it was, nevertheless, reasonable for Assistant Attorney General Van Camp to conclude that the DEP had changed its position on the issue of whether LCS should be required to obtain local site approval for its landfill.


      On August 12, 1993, the same day as the aforementioned meeting and subsequent conversation between Deputy Director Spaner and Assistant Attorney General Van Camp, respondent determined that the Office of Attorney General could no longer represent the DEP in the landfill litigation, considering the DEP had, in the respondent's view, changed its position on the site approval requirement.


      Also on that day, respondent telephoned Christina Hogbin, a Berkeley County resident who lives two miles from the landfill and who had attended hearings on the landfill and had followed the DEP's lawsuit against LCS.[11] Chief Disciplinary Counsel Sherri Goodman, in a letter to respondent concerning the ethics complaint which had been filed against him, asked him about his conversation with Ms. Hogbin. In a written response, respondent, through counsel, stated:

      General McGraw called Ms. Hogbin (for whom he is a trustee) on August 12, 1993, and informed her that Director Callaghan had decided to resist at least part of [Berkeley County] Judge Wilkes's order granting summary judgment to the [DEP] and that Mr. Callaghan wanted the Office of the Attorney General to support the request of LCS Services (LCS) for reconsideration. Ms. Hogbin asked what she and her group of citizens could do. General McGraw suggested to her that, as DEP had made a political decision, the only effective way to alter it was through the political process, and that meant persuading their legislators to attempt to influence the Governor and DEP.

      Respondent testified that his response to Chief Disciplinary Counsel's question was a demurrer and that, if in fact he did suggest to Ms. Hogbin and her fellow citizen activists that they contact their legislators, he had the right to do so.[12] Furthermore, in his Answer to the Statement of Charges, respondent, through counsel, stated:

      n. Upon being apprised of [the DEP's change in position concerning site approval for the landfill], the Attorney General determined that such an order from DEP was repugnant, immoral, unethical, and totally improper. The Attorney General further determined that he would be unable to adequately represent DEP as required 855*855 by law because such representation would create conflicts and/or adversity. The Attorney General further decided that he must therefore withdraw from such representation and appoint a prosecuting attorney to represent DEP consistent with W.Va. Code § 5-3-2 and the direction of the West Virginia Supreme Court in Manchin v. Browning, [170 W.Va. 779, 296 S.E.2d 909 (1982)]
      o. The Attorney General communicated his position to Chris Hogbin, an intervenor in the case.[13] (The Office of Attorney General had previously received permission from the attorney for the intervenors to communicate directly with the intervenors.) Absolutely no privileged information or client confidential information was given to either the attorney for the intervenors or Ms. Hogbin, as the order given to the Office of the Attorney General by [Deputy Director] Spaner was to publicly file a pleading in the Circuit Court of Berkeley County on behalf of DEP so as to advise the Court of the change in position of DEP.

      (footnote added).


      Ms. Hogbin, on the other hand, testified that respondent told her that there had been a "closed-door meeting" between Director Callaghan, Deputy Director Spaner and Ms. Poland, without a representative of the Office of Attorney General. However, Ms. Hogbin testified that she did not recall respondent telling her about the DEP's change in position. She testified that it was Norman Steenstra, of the West Virginia Environmental Council, who told her about it and who suggested that they call legislators.


      Respondent testified that he telephoned Ms. Hogbin without consulting with Director Callaghan or Deputy Director Spaner to verify that the DEP had changed its position on whether LCS was required to get local site approval for its landfill. He testified that it is his policy to communicate with clients—in this case, the DEP—in writing only and that he already had a public document directing him to "do certain things." Though respondent believed there was a document from the DEP directing Assistant Attorney General Van Camp to take a certain position on behalf of the DEP, no such document has been offered in this disciplinary proceeding.


      Director Callaghan testified that soon after the August 12, 1993 meeting, he received inquiries from various legislators concerning the DEP's change in position on the landfill. He and Deputy Director Spaner were also accused, by an attorney for the intervenors in the landfill litigation, of "corrupt collusion."


      Director Callaghan subsequently met with respondent on August 16, 1993, along with the managing committee of the Office of Attorney General, Fran Hughes, Deborah McHenry and Tom Morgan. Director Callaghan had scheduled the meeting due to his concern that his attorney, the respondent, had committed an ethical breach. At the meeting, respondent told Director Callaghan that the Manchin, supra[14] case needed "revisiting" and that respondent's calling to the public was higher than his duty to the DEP. When respondent asked Director Callaghan to explain the DEP's position on the landfill issue, Director Callaghan responded that the DEP had not yet taken a position.


      On August 20, 1993, Deputy Attorney General William Adams informed Director Callaghan, by letter, that he intended to file, on behalf of the DEP, a response to LCS' Rule 59(e) motion which would oppose LCS' motion and support the circuit court's summary judgment order of July 29, 1993.[15] Director Callaghan testified that he then telephoned Deputy Attorney General Adams and instructed him not to file any response unless the DEP approved it.


      On August 25, 1993, Deputy Attorney General Adams prepared a memorandum to the management committee of the Office of Attorney General. The memorandum indicated that a lawyer could, in good faith and in 856*856 conformance with Rule 11 of the West Virginia Rules of Civil Procedure, advance the DEP's argument that LCS should not be required to obtain site approval from the Berkeley County Solid Waste Authority.[16] Additionally, Assistant Attorney General David Lahr testified that after speaking with Deputy Director Spaner, he became convinced that he could advocate the DEP's position.


      On August 26, 1993, five days before the hearing on LCS' Rule 59(e) motion, Deputy Director Spaner learned that respondent intended to withdraw as counsel for the DEP in its litigation with LCS. Though she offered to explain the DEP's legal position to respondent or the managing committee, her offer was refused. Similarly, when Deputy Director Spaner, a lawyer and active member of the West Virginia State Bar, requested that she be appointed special assistant attorney general to represent the DEP at the August 31, 1993 hearing, her request was denied by respondent.


      The next day, respondent, by Deputy Attorney General Adams, filed consolidated motions to withdraw as the DEP's counsel and for a continuance. The motion to withdraw was based upon an "irreconcilable difference... between the Attorney General's Office and the [DEP] of such magnitude that the Attorney General's Office ... is unable in good conscience to continue as counsel in this instant matter[.]" Attached to the motion was a draft of a memorandum, previously prepared by Deputy Director Spaner, in response to LCS' Rule 59(e) motion. The memorandum set forth the DEP's position that, as a Class B facility not seeking to convert to a Class A facility, LCS has satisfied the statutory siting requirements. The memorandum, which had neither been seen nor approved by Director Callaghan, was attached to the motion to withdraw without the DEP's consent.


      On August 30, 1993, respondent appointed the Prosecuting Attorney of Pendleton County, Jerry Moore, to replace the Office of Attorney General in the DEP's litigation with LCS even though Prosecutor Moore had no experience in solid waste litigation. In a letter to Judge Christopher C. Wilkes of the Circuit Court of Berkeley County, dated August 30, 1993, Director Callaghan protested this appointment and the respondent's motion to withdraw.


      At the August 31, 1993 hearing, the circuit court denied the respondent's motion to withdraw as counsel for the DEP and further, denied LCS' motion to amend, alter, correct, clarify and/or reconsider its July 29, 1993 order.[17]


      An ethics complaint was filed against respondent by Director Callaghan. Upon review of the resulting investigative file, the Investigative Panel of the Committee on Legal Ethics found there to be good cause to file charges against respondent. The matter was then referred to the Hearing Panel of the Committee on Legal Ethics. A Statement of Charges was subsequently filed on January 15, 1994, charging respondent with four ethical violations.

      Charge One

      By contacting Christina Hogbin and revealing information he learned from his client, respondent violated Rule 1.6(a) of the Rules of Professional Conduct Rule 1.6(a), Confidentiality of Information, states that

      [a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized 857*857 in order to carry out the representation, and except as stated in paragraph (b).[18]

      (footnote added).

      Charge Two

      By encouraging Ms. Hogbin to apply political pressure to legislators as a means of opposing the DEP's position, respondent took a position adverse to his client, in violation of Rule 1.7(b) of the Rules of Professional Conduct. Rule 1.7(b), Conflict of Interest, provides, in relevant part: "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or the lawyer's own interests[.]"

      Charge Three

      By refusing to advocate the DEP's position on the issue of whether LCS should be required to obtain site approval, respondent violated Rule 1.2(a) of the Rules of Professional Conduct. Rule 1.2(a), Scope of Representation, states, in pertinent part: "A lawyer shall abide by a client's decisions concerning the objectives of representation ... and shall consult with the client as to the means by which they are to be pursued."

      Charge Four

      By directing that a copy of the DEP's draft memorandum, an in-house document, be attached to respondent's motion to withdraw, respondent violated Rule 1.6(a). See Charge One, supra. On April 16, 1994, at the conclusion of the presentation of the State Bar's evidence, the Hearing Panel dismissed this charge upon finding that the State Bar had failed to meet its burden of proof. The evidence revealed that it was Assistant Attorney General Adams who attached the DEP's draft memorandum, without respondent's consent.


      On November 12, 1994, following presentation of all the evidence, the Full Hearing Panel of the Lawyer Disciplinary Board adopted the subcommittee's findings of fact, conclusions of law and recommendation concerning discipline. The Board found that the State Bar failed to meet its burden of proof on Charge Two, which alleged that respondent violated Rule 1.7(b), Conflict of Interest. The Board further found that respondent did not violate, as alleged in Charge Three, Rule 1.2(a), which requires counsel to abide by a client's decisions.


      Specifically, the Board found, in relation to Charge Two, that the State Bar failed to prove that respondent encouraged Ms. Hogbin to apply pressure to legislators as a means of opposing the DEP's decision to support LCS' Rule 59(e) motion to amend, alter, correct, clarify and/or reconsider the circuit court's order granting the DEP's motion for summary judgment. She testified that it was West Virginia Environmental Council member Norman Steenstra, and not respondent, who suggested that she contact legislators for the purpose of opposing the DEP's position. Thus, the Board found that the State Bar failed to prove that respondent violated Rule 1.7(b), as alleged in Charge Two.[19]


      The Board further found, in relation to Charge Three, that respondent did not violate Rule 1.2(a) when he refused to espouse the DEP's position to support LCS' Rule 59(e) motion. The Board determined that:

      Notwithstanding the representations of Deputy Attorney General Adams and Assistant Attorney General Lahr that the position of DEP could be articulated in good faith without contravening Rule 11 of 858*858 the West Virginia Rules of Civil Procedure, Respondent is the decision maker and charged with responsibility for the [Attorney General's] office and all its decisions. He sets the tone of the practice and it is his judgment that is critical. He determined that continued representation of DEP, in light of his understanding of its position, was untenable. He is permitted by Rule 1.16 [of the Rules of Professional Conduct] to withdraw, so long as such withdrawal will not prejudice the interests of his client. It is not contended the attempted withdrawal caused any prejudice to DEP. Here the record is clear that Respondent petitioned to withdraw as counsel for DEP, sought a continuance to allow new counsel to become familiar with the matter and, as authorized by law[,] appointed new counsel for DEP.

      Finally, as indicated above, the Board concluded that the evidence showed that respondent telephoned Ms. Hogbin and told her of the August 12, 1993 meeting between Director Callaghan, Deputy Director Spaner and LCS and Chambers and that neither the respondent nor any member of his staff was present at the meeting.[20] Respondent further advised her of what he perceived to be a change in the DEP's position regarding whether LCS should be required to obtain local site approval for its landfill. Respondent neither consulted nor obtained the consent of Director Callaghan before contacting Ms. Hogbin.


      The Board found that respondent's disclosure to Ms. Hogbin of the DEP's change in position—whether such a change in position had in fact occurred—was "a disclosure of a client's strategy interests obtained by reason of representation and as such a violation of Rule 1.6(a)." The Board reasoned that "[c]lients frequently will articulate various positions on matters to their lawyer. It is the function of a lawyer to listen to the views of the client and counsel with the client about how best to achieve the end the client wishes to achieve." The Board thus concluded that "[t]o disclose information relating to a possible change of position to anyone, especially one whose known views were antagonistic to the policy decisions of DEP, is a disclosure of client confidence[,]" and violative of Rule 1.6(a) of the Rules of Professional Conduct.



      At the outset, we point out that Rule 3.7 of the Rules of Lawyer Disciplinary Procedure sets forth the standard by which the office of disciplinary counsel must prove ethics charges against a member of the Bar. Rule 3.7 states: "Standard of Proof. In order to recommend the imposition of discipline of any lawyer, the allegations of the formal charge must be proved by clear and convincing evidence."


      This standard of proof is required in many jurisdictions. See Huckaby v. Alabama State Bar, 631 So.2d 855 (Ala.1993); In re Higgins, 180 Ariz. 396, 884 P.2d 1094 (1994); People v. Robnett, 859 P.2d 872 (Colo.1993); Weiss v. Statewide Grievance Comm., 227 Conn. 802, 633 A.2d 282 (1993); In re Heamon, 622 N.E.2d 484 (Ind.1993); In re Quaid, 646 So.2d 343 (La.1994); Attorney Grievance Comm'n of Maryland v. Kemp, 335 Md. 1, 641 A.2d 510 (1994); In re Disciplinary Action Against Selmer, 529 N.W.2d 684 (Minn. 1995); Mississippi Bar v. Attorney R., 649 So.2d 820 (Miss.1995); State ex rel. Nebraska State Bar Ass'n. v. Schmeling, 247 Neb. 735, 529 N.W.2d 799 (1995); In re Magid, 139 N.J. 449, 655 A.2d 916 (1995); In re Goetz, 474 N.W.2d 29 (N.D.1991); State ex rel. Oklahoma Bar Ass'n. v. Copeland, 870 P.2d 776 (Okla.1994); In re Whipple, 320 Or. 476, 886 P.2d 7 (1994); In re Illuzzi, 160 Vt. 474, 632 A.2d 346 (1993). Accord In re Pauley, 173 W.Va. 228, 314 S.E.2d 391 (1983) (allegations in judicial disciplinary proceeding must be proved by clear and convincing evidence).


      This Court has previously required that ethics charges be proved by "full, preponderating and clear evidence." See syl. pt. 1, Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987); syl. pt. 1, Committee on Legal Ethics v. Tatterson, 177 W.Va. 356, 352 S.E.2d 107 (1986); syl. pt. 1, 859*859 Committee on Legal Ethics v. Tatter son, 173 W.Va. 613, 319 S.E.2d 381 (1984); syl. pt. 1, Committee on Legal Ethics v. Pence, ___ W.Va. ___, 216 S.E.2d 236 (1975). Rule 3.7 of the Rules of Lawyer Disciplinary Procedure, effective July 1, 1994, requires the Office of Disciplinary Counsel to prove the allegations of the formal charge by clear and convincing evidence. Prior cases which required that ethics charges be proved by full, preponderating and clear evidence are hereby clarified.


      In syllabus point 3 of Committee on Legal Ethics v. McCorkle, 142 W.Va. 286, 452 S.E.2d 377 (1994), we articulated the following standard of judicial review of lawyer disciplinary proceedings:

      A de novo standard applies to a review of the adjudicatory record made before the [Lawyer Disciplinary Board] as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful consideration to the [Board's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [Board's] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.


      Applying the aforementioned principles to the facts before us, we conclude that respondent violated Rule 1.6(a) of the Rules of Professional Conduct when he voluntarily disclosed client information. We further conclude that respondent did not violate Rules 1.7(b), as alleged in Charge Two; 1.2(a), as alleged in Charge Three; and 1.6(a), as alleged in Charge Four.


      It is a fundamental principle in the client-lawyer relationship that the lawyer maintain the confidentiality of information relating to the representation, Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721 (7th Cir.1982); Comment, Rule 1.6 of the Rules of Professional Conduct, so as to encourage the client "to communicate fully and frankly with the lawyer[.]" Marano v. Holland, 179 W.Va. 156, 170, 366 S.E.2d 117, 131 (1988); Rules of Professional Conduct 1.6 cmt. See also United States v. Grand Jury Investigation, 401 F.Supp. 361, 369 (W.D.Pa.1975).


      There are two related bodies of law which embrace the principle of confidentiality: the ethical duty of confidentiality and the evidentiary attorney-client privilege. Rules of Professional Conduct 1.6 cmt. However, as discussed below, "[t]he [evidentiary] attorney-client privilege exists apart from, and is not coextensive with, the ethical confidentiality precepts." United States v. Ballard, 779 F.2d 287, 293 (5th Cir.1986) (footnote omitted).


      "The [evidentiary] attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client." Rules of Professional Conduct 1.6 cmt. See State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979); 1 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers, § 5-4(E)(2)(e) (3d ed. 1994) ("An attorney-client privilege does not arise unless both parties contemplate that an attorney-client relationship does or will exist, advice is sought by the client from an attorney in his capacity as a legal adviser, and the communication between the attorney and client is intended to be confidential." (citation omitted)). This common law privilege, now incorporated into the West Virginia Rules of Evidence,[21] applies to compelled disclosures of confidences communicated by a client to his or her lawyer. 1 Cleckley, supra at § 5-1(C)(2); X Corp. v. Doe, 805 F.Supp. 1298, 1305 n. 12 (E.D.Va.1992), aff'd Under Seal v. Under Seal, 17 F.3d 1435 (4th Cir.1994); Geoffrey C. Hazard, Jr. and 860*860 W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct, § 1.6:103 (2d ed. 1994 Supp.). This privilege belongs to the client and not the lawyer. Thus, it is the client who "has the privilege to refuse to disclose and to prevent others from disclosing the information conveyed." State ex rel. Doe v. Troisi, 194 W.Va. 28, 459 S.E.2d 139, 146 (1995) (citation omitted). Therefore, as a general principle, if privileged communication is disclosed to third parties, then the attorney-client privilege is waived. Syl. pt. 12, Marano, supra. See United States v. Jones, 696 F.2d 1069 (4th Cir.1982) (disclosure inconsistent with confidential nature of attorney-client relationship waives attorney client privilege.)


      In contrast, the lawyer's broader ethical duty of confidentiality, embodied in Rule 1.6, "applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source." Comment, Rule 1.6 of the Rules of Professional Conduct. Significantly, the duty of confidentiality binds the lawyer at all times, not only in cases where he or she faces inquiry from others. Hazard, supra § 1.6:108.


      In determining whether the attorney-client privilege prohibited an attorney from further representation of a former joint client, the court in Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168 (5th Cir.1979), held that because confidences cannot arise between joint clients, a former joint client may not assert the evidentiary attorney-client privilege as to matters concerning the former joint representation. However, joint clients are afforded the broader ethical duty of confidentiality:

      "Information ... acquired [from a client] is sheltered from use by the attorney against his client by virtue of the existence of the attorney-client relationship. This is true without regard to whether someone else may be privy to it. NCK Organization v. Bregman, 542 F.2d 128, 133 (2d Cir. 1976). The obligation of an attorney not to misuse information acquired in the course of representation serves to vindicate the trust and reliance that client's place in their attorneys. A client would feel wronged if an opponent prevailed against him with the aid of an attorney who formerly represented the client in the same matter ... this would undermine public confidence in the legal system as a means for adjudicating disputes.'

      X Corp., 805 F.Supp at 1307 (quoting Brennan's, Inc., 590 F.2d at 172).


      It has been further held that "the client's privilege in confidential information disclosed to his attorney `is not nullified by the fact that the circumstances to be disclosed are part of a public record, or that there are other available sources for such information, or by the fact that the lawyer received the same information from other sources.'" Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 572-73 (2d Cir.1973) ((quoting Henry H. Drinker, Legal Ethics 135 (1953)) (plaintiff's counsel disqualified on ground that he previously represented part owner of corporate defendant where issue involved whether defendant's part owner controlled defendant and used that control for an illegal purpose.) After all, the essence of the attorney-client relationship is that of trust, reliance and loyalty. Failure to safeguard it would undermine public confidence in the legal system.[22] Though the aforementioned cases concern former joint clients, we, nevertheless, find their reasoning to be compelling.[23]


      Respondent emphasizes that representatives from LCS and Chambers and their counsel were present at the meeting where Director Callaghan allegedly determined that the DEP would change its position on the 861*861 site approval issue and join in LCS' Rule 59(e) motion. Thus, according to respondent, he did not disclose anything to Ms. Hogbin which was not already disclosed, by his own client, to LCS and Chambers.


      Respondent further maintains that his office was instructed to file a Rule 59(e) motion, a public pleading. Thus, he contends that his disclosure of the DEP's change in position on the site approval issue was "impliedly authorized in order to carry out the representation[.]" Rule 1.6(a) of the Rules of Professional Conduct.


      Finally, respondent argues that, under the Freedom of Information Act, W.Va.Code, 29B-1-1, et seq., (hereinafter "FOIA") the DEP, as a state agency discussing the interpretation of a statute, would have been required to disclose to any inquiring citizen all notes, memoranda and other documents generated by or related to the August 16, 1993 meeting.


      In essence, then, respondent argues that he did not breach his ethical duty of confidentiality because the information he disclosed to Ms. Hogbin had been previously revealed or "made public." We disagree. Clearly, respondent has confused the evidentiary attorney-client privilege with the ethical duty of attorney-client confidentiality.


      Under the facts of this case, it is arguable that the information disclosed to Ms. Hogbin was not protected by the evidentiary attorney-client privilege. See State v. Burton, supra; United States v. (Under Seal), 748 F.2d 871 (4th Cir.1984). See also Marano v. Holland, supra; United States v. Jones, supra. In that this issue is not presently before this Court, we decline to address it.


      However, by disclosing to Ms. Hogbin client information communicated at the meeting, respondent has breached his ethical duty of confidentiality. In so doing, he has violated Rule 1.6(a) of the Rules of Professional Conduct, which prohibits "voluntary disclosures except when made with the consent of the client or in the furtherance of the legal representation, in which case client consent may be fairly inferred." Hazard, supra § 1.6:108 (footnote omitted). The ethical duty of confidentiality protects more than just "confidences" and "secrets" of a client in that Rule 1.6, entitled Confidentiality of Information, prohibits disclosures of "information relating to representation of a client[.]" (emphasis added). The use of the word "information" indicates that more than mere "confidences" are covered. Anchor Packing Co. v. Pro-Seal, Inc., 688 F.Supp. 1215, 1218 (E.D.Mich.1988); St. Albans Financial Co. v. Blair, 559 F.Supp. 523, 526 (E.D.Pa.1983); Brennan's, Inc., 590 F.2d at 172.[24] Accord Harris v. Baltimore Sun, 330 Md. 595, 625 A.2d 941 (1993).


      We thus do not accept respondent's arguments. We fail to see how his voluntary disclosure to Ms. Hogbin, a third party, was impliedly authorized simply because respondent was directed to file, in the future, a public pleading, and how such disclosure furthered respondent's legal representation of his client. Furthermore, though respondent dimly asserts that the communication between Director Callaghan and LCS and Chambers was subject to public inspection under FOIA, he offers no legal authority for his position that FOIA either nullifies or supersedes his ethical duty of confidentiality.[25] Unlike the evidentiary attorney-client privilege recognized under West Virginia Rules of Evidence 501, a lawyer's ethical duty of confidentiality under Rule 1.6 of the Rules of Professional Conduct applies to all information relating to representation of a client, protecting more than just "confidences" or "secrets" of a client. The ethical duty of confidentiality is not nullified by the fact that the information is part of a public 862*862 record or by the fact that someone else is privy to it.


      In Manchin v. Browning, supra, this Court discussed the Attorney General's powers and duties to represent state officials in civil actions.[26] We determined that the Attorney General should not exercise the common law powers of the office but "`shall perform such duties as may be prescribed by law.'" Id. at 785, 296 S.E.2d at 915 (quoting W.Va. Const. art. VII, § 1).[27]


      Upon determining that the role of the Attorney General "is not to make public policy in his own right on behalf of the state[,]" but rather "to exercise his skill as the state's chief lawyer to zealously advocate and defend the policy position of the officer or agency in the litigation[,]" this Court declared there to be a traditional attorney-client relationship between the Attorney General and the state officer he represents. Id. at 790, 296 S.E.2d at 920. See State ex rel. Caryl v. MacQueen, 182 W.Va. 50, 385 S.E.2d 646 (1989). Accordingly, "[t]he Attorney General has the duty to conform his conduct to that prescribed by the rules of professional ethics." Syl. pt. 4, Manchin, supra.


      Furthermore, "[a]s a lawyer and an officer of the courts of this state, the Attorney General is subject to the rules of this Court governing the practice of law and the conduct of lawyers[.]" Id. at syl. pt. 5, in part. The Attorney General is thus required to conform his actions to the Rules of Professional Conduct, as is every lawyer in this State. Id. See Preamble, Rules of Professional Conduct at 537. ("Every lawyer is responsible for observance of the Rules of Professional Conduct.")[28]


      This Court has previously observed that "`[a]n attorney who is a public official is held to a high standard of conduct because of his or her (1) professional and (2) public trustee responsibilities.'" Committee on Legal Ethics v. Roark, 181 W.Va. 260, 265, 382 S.E.2d 313, 318 (1989) (citing Graf v. Frame, 177 W.Va. 282, 288, 352 S.E.2d 31, 38 (1986)). Furthermore, "`"[l]awyer insensitivity to ethical impropriety [or perceived ethical impropriety] is one of the primary sources of this lack of public confidence in the Bar. The problem is exacerbated when ethical violations are committed by an attorney holding an important public office."`" Roark, at 265, 382 S.E .2d at 318 (quoting Graf, at 289, 352 S.E.2d at 38 and Sanders v. Mississippi State Bar Ass'n., 466 So.2d 891, 893 (Miss.), cert. denied, 474 U.S. 844, 106 S.Ct. 133, 88 L.Ed.2d 109 (1985) (emphasis omitted)).[29]


      Respondent agrees that the Attorney General must conform his conduct to the Rules of Professional Conduct. However, he proposes that, in some instances, the Rules apply differently to the Attorney General than to a lawyer representing a private litigant. Respondent maintains that, as an elected official, he has a constitutional duty to act as a "servant of the people" and that this duty takes precedence over the Rules of Professional Conduct. See W.Va. Const. art. III, § 2.


      We see no conflict between respondent's duty as a servant of the public and his ethical duty of confidentiality under Rule 1.6(a) of the Rules of Professional Conduct. See State ex rel. Caryl, supra; Rules of Professional Conduct 1.6 cmt. ("The requirement 863*863 of maintaining confidentiality of information relating to representation applies to government lawyers who may disagree with the policy goals that their representation is designed to advance.") A lawyer's relationship to the people "`is one of high responsibility, involving complete trust and confidence and absolute fidelity to integrity.'" McCain, 330 So.2d at 714 (citation omitted). Such responsibility is clearly consistent with respondent's function as the Attorney General of the state. To conclude otherwise would serve to denigrate the legal profession and destroy the public's trust and confidence in the entire judicial system.


      The Office of Disciplinary Counsel objects to the Lawyer Disciplinary Board's finding that respondent did not violate Rule 1.2(a) of the Rules of Professional Conduct when he moved to withdraw as counsel for the DEP. See Charge Three, supra. Rule 1.16 of the Rules of Professional Conduct permits a lawyer to withdraw from representing a client if such withdrawal "can be accomplished without material adverse effect on the interests of the client[.]" Rule 1.16(b). The Board found there to be no contention that respondent's attempted withdrawal prejudiced the DEP. This finding is supported by reliable, probative and substantial evidence on the whole record. McCorkle, supra.


      Similarly, we agree with the Board's finding that the Office of Disciplinary Counsel failed to prove that respondent encouraged Ms. Hogbin to apply pressure to legislators as a means of opposing the DEP's decision to support LCS' Rule 59(e) motion, as alleged in Charge Two. We further agree with the Board's dismissal of Charge Four, based upon the evidence that it was Assistant Attorney General Adams, and not respondent, who attached a copy of an in-house legal memorandum to the Office of Attorney General's motion to withdraw.


      Finally, the Lawyer Disciplinary Board has recommended that respondent be publicly reprimanded, pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure. We agree with this portion of the Board's recommended discipline, despite the Office of Disciplinary Counsel's objection. We conclude that respondent's violation of Rule 1.6(a) of the Rules of Professional Conduct does not warrant a three-month suspension from the practice of law, as Disciplinary Counsel argues:


      `"`This Court is the final arbiter of legal ethic problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law.' Syl. Point 3, Committee on Legal Ethics v. Blair, [174] W.Va. [494], 327 S.E .2d 671 (1984)." Syl. pt. 1, Committee on Legal Ethics v. Charonis, 184 W.Va. 268, 400 S.E.2d 276 (1990).' Syl. pt. 1, Committee on Legal Ethics v. Ikner, 190 W.Va. 433, 438 S.E.2d 613 (1993).


      Syl. pt. 7, Karl, supra.


      Accordingly, we order that respondent be publicly reprimanded.


      The Board has further recommended that respondent pay $4,430.55 for the costs incurred by the Office of Disciplinary Counsel in connection with this disciplinary proceeding. We shall not adopt this recommendation.


      According to the itemized certificate of expenses submitted by the Office of Disciplinary Counsel, the amount of $2,716.99 was incurred in attorney fees in the case of In re: State ex rel. Darrell V. McGraw, Jr. v. The Committee on Legal Ethics of The West Virginia State Bar and Sherri D. Goodman, Civil Action No. 94-Misc.-177, a petition for a writ of mandamus seeking, inter alia, a suspension of all proceedings against respondent until the Committee on Legal Ethics and its counsel, Ms. Goodman, properly investigated the complaint filed against him.[30] We find that respondent is not responsible 864*864 for the costs incurred by the Office of Disciplinary Counsel in connection with this collateral proceeding. Accordingly, respondent is ordered to pay $1,713.56.


      For the reasons stated herein, we conclude that respondent violated Rule 1.6(a) of the Rules of Professional Conduct when he disclosed client information. We, therefore, order that respondent be publicly reprimanded and pay $1,713.56 for the costs incurred for this disciplinary proceeding.


      Public Reprimand Plus Costs.


      [1] Article VI of the By-Laws of the West Virginia State Bar, Procedure for Disciplining, Suspending and Disbarring Attorneys at Law, was superseded by the Rules of Lawyer Disciplinary Procedure, effective July 1, 1994. As a result of these new rules, it is now the Lawyer Disciplinary Board, and no longer the Committee on Legal Ethics, which investigates complaints of violations of the Rules of Professional Conduct and which takes appropriate action in accordance with the Rules of Lawyer Disciplinary Procedure.


      The hearings in this matter were conducted on April 6, 1994 and April 29, 1994, before the Rules of Lawyer Disciplinary Procedure became effective. Thus, the hearings were heard before the Hearing Panel of the Committee on Legal Ethics. By the time the findings of fact, conclusions of law and recommendation concerning discipline were prepared, the Rules of Lawyer Disciplinary Procedure had become effective and, consequently, it was the Full Hearing Panel of the Lawyer Disciplinary Board which deliberated the matter and made recommendations to this Court. We shall use the aforementioned terms as they existed at various phases of these proceedings.


      [2] Rule 3.15 of the Rules of Lawyer Disciplinary Procedure provides:


      Rule 3.15. Permissible Sanctions. A Hearing Panel Subcommittee may recommend or the Supreme Court of Appeals may impose any one or more of the following sanctions for a violation of the Rules of Professional Conduct or pursuant to Rule 3.14: (1) probation; (2) restitution; (3) limitation on the nature or extent of future practice; (4) supervised practice; (5) community service; (6) admonishment; (7) reprimand; (8) suspension; or (9) annulment. When a sanction is imposed, the Hearing Panel Subcommittee or the Court shall order the lawyer to reimburse the Lawyer Disciplinary Board for the costs of the disciplinary proceeding unless the Panel or the Court finds the reimbursement will pose an undue hardship on the lawyer. Willful failure to reimburse the Board may be punished as contempt of the Court.


      Former article VI, § 20 of the By-Laws of the West Virginia State Bar provided that "[i]f the court determines that the attorney should receive a public reprimand, the same shall be administered by the chief justice in open court." (emphasis added). The Rules of Lawyer Disciplinary Procedure, however, do not require that a disciplined attorney be publicly reprimanded "in open court."


      [3] See Rule 3.15 of the Rules of Lawyer Disciplinary Procedure, supra.


      [4] The litigation underlying this disciplinary proceeding has a complex procedural history. For purposes of this opinion, we shall recount only that which is relevant to the resolution of this case. A more detailed account of this litigation may be found in. State ex rel. Hamrick v. LCS Services, Inc., 186 W.Va. 702, 414 S.E.2d 620 (1992) and State ex rel. Hamrick v. LCS Services, Inc., 193 W.Va. 111, 454 S.E.2d 405 (1994).


      [5] Ms. Poland was not counsel of record for either Chambers or LCS in the landfill litigation.


      [6] Assistant Attorney General Stephen Van Camp testified that he warned Deputy Director Spaner not to communicate with LCS without the Attorney General Office's approval or participation. However, Deputy Director Spaner denies that she was ever warned in that regard.


      [7] Director Callaghan testified that the DEP must approve any sale and any new permittees who assume responsibility for landfills in West Virginia.


      [8] Director Callaghan testified that he had previously met with Ed Wiles and Dusty Williams, of Chambers and LCS, respectively, who had indicated that they were considering selling the Berkeley County landfill. Ms. Poland testified that the purpose of the meeting, as communicated to the DEP prior thereto, was to discuss, in light of the circuit court's July 29, 1993 order, the requirements of the LCS landfill. However, Ms. Poland further testified that the potential sale of the LCS facility was also discussed.


      [9] Neither Director Callaghan nor Deputy Director Spaner had been furnished a copy of either the motion for summary judgment filed on the DEP's behalf by the Attorney General's Office or the circuit court's order granting said motion. Ms. Poland had a copy of the motion for summary judgment with her at the meeting. A copy of it was made for Director Callaghan and Deputy Director Spaner.


      [10] The essence of LCS' Rule 59(e) motion was that the relevant statutory siting provision requires siting approval for Class A landfills and Class B landfills seeking to be upgraded to Class A status. It was LCS' contention that theirs was a Class B landfill not fitting either of these categories and that such facilities have typically obtained site approval by virtue of their inclusion in a county's solid waste disposal plan. Thus, LCS' facility should not be held to a siting standard different than that applied to other Class B facilities around the state.


      [11] Ms. Hogbin's husband serves on the Berkeley County Solid Waste Authority, a party to the landfill litigation. Despite some confusion on this issue, she is not a member of Citizens United to Rescue the Environment ("CURE"), an intervenor in the litigation. Ms. Hogbin testified that she is a member of the West Virginia Environmental Council and that she had previously met respondent on July 21, 1993 when she and fourteen other environmental activists from around the State met with him concerning the landfill litigation. Specifically, Ms. Hogbin and the others presented respondent with a signed petition demanding that he remove Assistant Attorney General Van Camp from the litigation for the reason that Mr. Van Camp had, at a previous hearing in Berkeley County, referred to the landfill as "state-of-the-art" and a part of the state's waste management plan. Ms. Hogbin's group apparently viewed this remark as an endorsement of the landfill. However, respondent refused to remove Mr. Van Camp from the case.


      [12] Respondent testified that he did not recall this portion of his conversation with Ms. Hogbin.


      [13] In fact, Ms. Hogbin is not an intervenor in the landfill litigation. See n. 11, supra.


      [14] The Manchin decision discusses the powers and duties of the Attorney General to represent state officials in civil actions. See discussion, infra.


      [15] A hearing on LCS' Rule 59(e) motion was scheduled for August 31, 1993.


      [16] We point out, however, that Deputy Attorney General Adams also stated in the memorandum his belief that the respective legal positions of the DEP and the Office of Attorney General were conflicting and irreconcilable. His ultimate recommendation to the managing committee was that a special assistant attorney general be appointed to represent the DEP and that such special assistant not be a current assistant attorney general.


      [17] See State ex rel. Hamrick v. LCS Services, Inc., 193 W.Va. 111, 454 S.E.2d 405 (1994), wherein this Court ultimately ruled that LCS was not required to obtain specific site approval from the Berkeley County Solid Waste Authority in order to continue the operation of its landfill.


      [18] Paragraph (b) of Rule 1.6 states:


      A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:


      (1) to prevent the client from committing a criminal act; or


      (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of a client.


      [19] The Board points out that, had the allegations been proven, they would clearly constitute a violation of Rule 1.7(b).


      [20] The Board found that respondent's disclosure of the fact that this meeting took place was not a violation of Rule 1.6(a) because such fact was never considered to be confidential.


      [21] West Virginia Rules of Evidence 501 states: "The privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the principles of the common law except as modified by the Constitution of the United States or West Virginia, statute or court rule."


      [22] See Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987); X Corp., supra; The Florida Bar v. McCain, 330 So.2d 712 (Fla.1976); E.F. Hutton & Company, Inc. v. Brown, 305 F.Supp 371 (S.D.Tex.1969).


      [23] Though Ms. Hogbin happened to be philosophically united with the DEP in its lawsuit against LCS, her interest in the litigation is irrelevant as to whether respondent breached his duty of confidentiality to his client.


      [24] Though these cases refer to what is now Rule 1.9 of the Rules of Professional Conduct ("A lawyer who has formerly represented a client ... shall not thereafter: ... (b) use information relating to the representation to the disadvantage of the former client" (emphasis added)), their conclusions apply equally to Rule 1.6(a). See Anchor Packing, 688 F.Supp. at 1218 n. 19.


      [25] Were Ms. Hogbin or anyone else interested in seeking information from the August 16, 1993 meeting, FOIA sets forth specific procedures for requesting and obtaining public records. See W.Va.Code, 29B-1-3 [1992]. However, whether the meeting was subject to public inspection under FOIA is not presently before this Court.


      [26] Then Justice McGraw authored the Manchin opinion during his tenure as Justice of this Court.


      [27] We came to this conclusion after tracing the ancient origins of the office. Id. at 783-787, 296 S.E.2d at 913-17. Among the "duties ... prescribed by law" are those articulated in W.Va. Code, 5-3-1 [1994] and 5-3-2 [1987], which, inter alia, designate the Attorney General to be the legal adviser to state officers sued in their official capacities. Id. at 787-89, 296 S.E.2d at 917-18.


      [28] The Manchin case resulted from a petition for a writ of mandamus and not a lawyer disciplinary proceeding. Thus, there were no allegations that any particular ethical rules were violated.


      [29] See Committee on Legal Ethics v. Karl, 192 W.Va. 23, 449 S.E.2d 277 (1994) (imposing three-month suspension upon sitting circuit judge for ethical violations which occurred during his practice of law); Roark, supra (imposing three-year suspension upon city mayor, and former prosecuting attorney, following guilty plea on drug charges.)


      [30] The Circuit Court of Kanawha County subsequently granted motions on behalf of the Committee and Ms. Goodman to strike the petition for writ of mandamus and to dismiss the proceeding and related rule to show cause.

  • 4 State AGs Refuse to Defend Statutes

    Attorneys general are often called upon to “confess judgment” or refuse to appeal when they believe that a state law or practice violates the state or federal constitution.

    • 4.1 Nebraska Attorney General Won’t File Appeal to Defend Abortion Screening Law

      Nebraska Attorney General Won’t File Appeal to Defend Abortion Screening Law

      by Steven Ertelt Editor
      August 18, 2010

      Lincoln, NE ( – Nebraska Attorney General Jon Bruning will not file an appeal to defend new state law that helps women obtain more information about abortion risks. Planned Parenthood of the Heartland filed a lawsuit against a bill supported by pro-life advocates.

      The measure is designed to help women get the kind of information on abortion’s risks and alternatives that it fails to provide.

      The new law tightens informed consent requirements that help women choose abortion alternatives. It helps women understand the “physical, psychological, emotional, demographic or situational” risk factors associated with an abortion.

      Bruning is concerned about the time and expense of defending a law he and pro-life groups say can be improved in the next legislative session to address the points raised in the lawsuit.

      His spokesman confirmed today he will agree to a permanent federal injunction against enforcement of the law.

      In July, U.S. District Judge Laurie Smith Camp issued a ruling blocking the state from enforcing the law.

      In her decision, Judge Smith Camp said the evidence shows her the law may make it more difficult for women to get abortions and said she is concerned abortion practitioners may be subject to crippling lawsuits.

      “The effect of LB 594 will be to place substantial, likely insurmountable, obstacles in the path of women seeking abortions in Nebraska,” AP reported the judge saying. “Plaintiffs have presented substantial evidence that the disclosures mandated by LB 594, if applied literally, will require medical providers to give untruthful, misleading and irrelevant information to patients.”

      In his brief he initially filed, Bruning argued Planned Parenthood is not the proper party to bring suit because only physicians are subject to liability under the Act. He also said the officials are not properly named defendants as they have no authority to enforce LB 594.

      The abortion business is challenging LB 594, the “Women’s Health Protection Act” and complained the bill “imposes requirements that are both impossible to meet and require physicians to flood their patients with false and misleading information.”

      Nebraska Right to Life executive director Julie Schmit-Albin told today she concurs with Bruning.

      “LB 594′s lead lobbyist, the Nebraska Catholic Conference, agrees that legal concerns raised about the statute can addressed by going back through the legislative process,” she said. “If the Nebraska Catholic Conference and the bill’s sponsor, Senator Cap Dierks, are amenable to returning to the Legislature to address the constitutionality concerns; then Nebraska Right to Life defers to their lead on this issue.”

      She said pro-life advocates in the state need to know that this decision was not made because Bruning is backing down from his pro-life principles.

      “Any suggestion that Attorney General Bruning is shirking his responsibility to defend pro-life legislation is not shared by Nebraska Right to Life,’ she said.

      Schmit-Albin said she fully expects the attorney general to mount a strong defense of the other new pro-life Nebraska law which informs women of the pain an unborn child will experience during the abortion procedure. The goal of that law is to persuade mothers to choose life for their unborn children.

      “If LB 1103, the Pain Capable Unborn Child Protection Act, is legally challenged upon its enactment on October 15th; we are confident that the Attorney General will vigorously defend any attack on that law. LB 1103 has a solid legislative history based upon medical documentation and testimony,” she said.

      Republican Gov. Dave Heineman signed the bill into law in April after the unicameral Nebraska legislature approved it 44-5.

      He said the bill, and another educating women on the pain their unborn child will feel during an abortion, is ” important legislation for Nebraska and I want to thank both senators for their thoughtful approach to this issue.”

      “Women are suffering from avoidable physical and psychological complications that may have been prevented or minimized had they received adequate pre-abortion screening and counseling,” Sen. Cap Dierks, who introduced LB 594, said at the time of the bill signing. “Women deserve better. LB 594 will ensure that women receive the appropriate standard of care.”

      Abortion advocates complained about the lack of a mental health exception in the bill even though studies repeatedly show abortions cause mental health problems for women more so than women who carry their pregnancy to term.

      LB 594 allows for civil lawsuits against abortion practitioners who fail to screen women for risk factors of abortion or to inform them of the potential complications of the abortion procedure.

      LeRoy Carhart, who does abortions and late-term abortions at his Omaha-based abortion facility, called the bill “yet another piece of anti-choice legislation that does nothing but hinder a woman’s access to safe, legal abortion care.”

      But the Nebraska Catholic Conference says it is abortion businesses like Planned Parenthood that “have compromised the standard of care for counseling and screening of patients in order to reduce costs and maximize profits.”

      “In hundreds of cases each day, known risk factors for physical and psychological complications are not being detected because of negligent pre-abortion screening,” it says. “Women are suffering from avoidable physical and psychological complications that may have been prevented or minimized if the proper pre-abortion screening standards had been met.”

      The bill does not impose any requirements on abortion providers that are contrary to the standard of care for screening which applies to other medical procedures.

    • 4.2 Maine AG Rejects Challenge To Privacy Law

      Maine AG Rejects Challenge To Privacy Law
      by Wendy Davis, Tuesday, September 8, 2009, 7:30 AM

      Maine Attorney General Janet Mills has asked a federal court to dismiss a lawsuit by media groups and Web companies challenging a controversial new privacy law.

      Mills argues that the court should not get involved because she has no plans to prosecute companies for violating the measure. “The attorney general has publicly stated, and hereby confirms, that she will not enforce this law, to which the governor concurs,” her office wrote in papers filed Thursday with the federal district court in Maine. “It is well-established that a federal court has no jurisdiction over a challenge to a state statute when there is no credible risk of enforcement.”

      The new law, slated to take effect Sept. 12, would bar companies from collecting personal information or health-related information from minors under 18 without their parents’ consent. The measure also prohibits companies from selling or transferring health information about minors that identifies them, regardless of how the data was collected.

      A coalition of media organizations including the Maine Press Association, and Web companies including AOL, Yahoo and eBay, recently asked the court to issue an injunction against the measure.

      They contend that the law would violate their First Amendment right to publish newsworthy information about teens, as well as restricting teens’ right to receive information. The Web companies also say the measure would require them to block teens from their sites.

      The measure, signed by Maine Governor John Baldacci in June, sailed through the state legislature with no opposition—apparently because watchdogs lost sight of the bill.

      Although Mills has no plans to carry out the law, opponents say they are seeking an injunction because the measure also allows private parties to sue for $250 damages per violation. But Mills says the case should nonetheless be dismissed. “Essentially, the courts do not require state officials to defend against theoretical lawsuits that might be brought by private parties against private parties,” her office argues.

    • 4.3 Indiana AG Will not Appeal Loss in Immigration Case

      State won’t Appeal Court Ruling Freezing New Immigration Law

      Written by Heather Gillers

      The state will not appeal a federal court decision to put on hold parts of Indiana’s newimmigration law, Attorney General Greg Zoeller announced today.

      U.S. District Judge Sarah Evans Barker issued a preliminary injunction June 24 againsttwo provisions of the law, one barring the use of consular identification cards and another allowing the arrests of people whose immigration status is questionable.

      Zoeller’s decision not to appeal the injunction means those parts of the law will not be enforced while Barker is hearing arguments by the American Civil Liberties Union of Indiana that the provisions should be thrown out.

      “Hoosiers’ frustration with the federal government’s inability to enact and enforce immigration policies prompted the Legislature to turn the wheels of state government to respond to this issue—and I remain committed to defending legislative enactments against outside challenges,” Zoeller said in a statement.

      The law, Senate Enrolled Act 590, originally empowered local police to investigate drivers’ immigration status. It was significantly watered down amidst opposition from many public figures, including Zoeller himself.

      In her June 24 order, Barker said the law violated the Constitution’s due process and search and seizure provisions, as well as other protections, by allowing local police to arrest people whose immigration status has been questioned by federal authorities—even if those authorities have determined that a person should be able to remain in the country. Other provisions, which penalize employers for hiring illegal immigrants, remain in effect.

      Zoeller, who is already appealing a separate federal court injunction that put on hold a new law de-funding Planned Parenthood, emphasized that his office is not stretched thin. “Although our office would have adequate resources to appeal the preliminary injunction to the U.S. 7th Circuit,” his statement said, “for strategic reasons we will instead push forward in U.S. District Court and vigorously oppose a permanent injunction.”

      Call Star reporter Heather Gillers at (317) 444 6405.

  • 5 Investigation by Delaware Attorney General

    Attorneys general are from time to time called upon to actually investigate and litigate against state agencies who are also their day-to-day “clients.”

    • 5.1 A-G Biden Quit Representing Psychiatric Center in Classic Conflict

      Posted: Sept. 15, 2007


      By Celia Cohen
      Grapevine Political Writer

      State officials had to scramble to find a lawyer for the vilified Delaware Psychiatric Center this summer, when Attorney General Joseph R. “Beau” Biden III delivered a surprise notice that the Justice Department no longer would provide representation because it was investigating the facility.

      The psychiatric center, then and now, was in dire need of legal advice as the subject of swelling scrutiny by government investigators, legislative overseers and the news media looking into accounts of patient mistreatment, a hostile work atmosphere and mismanagement at the state-operated hospital near New Castle.

      The unexpected attorney-juggling arose from a classic bind in a state that invests potentially-conflicting powers—to prosecute, investigate and also to represent and defend the government—in the attorney general, its chief legal officer who additionally must keep the will of the voters in mind as an elected official.

      This conflict, in fact, occurred even though Biden and Gov. Ruth Ann Minner are fellow Democrats.

      The Justice Department’s withdrawal as counsel freed it to pursue an investigation through its Medicaid Fraud Control Unit, which checks into charges of the misuse of federal money and the mistreatment of people whose care is provided by the federal dollars. But it left the psychiatric center in the lurch.

      Minner administration officials handled this legal crisis by retaining Joseph C. Schoell, the governor’s former counsel now in private practice at WolfBlock, to represent the psychiatric center. Schoell took on the assignment in early August at an hourly rate of $300, discounted 20 percent for the state from his regular hourly rate of $375.

      “We had an operational agency that was being bombarded with legal and management issues and was left with no immediate legal representation. It clearly took us by surprise. We responded as quickly as possible. Luckily we had a law firm with experience in state government,” said Mark T. Brainard, the governor’s chief of staff.

      The situation reinvigorates a strenuous public policy debate that has simmered for decades, dating back to the last years of Republican Gov. Pierre S. “Pete” du Pont’s administration in the mid-1980s and reviewed in depth in the early 1990s by a government reorganization commission that Minner chaired as lieutenant governor.

      Both du Pont and the Minner Commission concluded that the state would be better off with the creation of an Office of Executive Counsel, which would report to the governor and be responsible for representing state agencies. The attorney general would retain prosecutorial and investigatory powers and continue to represent the state in litigation.

      It never came about, primarily because of vigorous objections from Attorney General Charles M. Oberly III, a Democrat now in private practice, and Attorney General M. Jane Brady, a Republican now on the Superior Court, both three-term officeholders whose combined tenure stretched from 1983 to 2005.

      Beau Biden was largely noncommittal. “I understand why these suggestions have been made over the years. Are there potentials for conflict? Yes. If and when those occasions arise, we will take appropriate action,” he said.

      The arguments on both sides exploit the dual nature of the attorney general as a lawyer and a public official. Lawyers owe essentially ironclad loyalty to their clients. Public officials have a broader portfolio for the state’s welfare with a duty to give independent advice.

      David S. Swayze, a lawyer who was du Pont’s gubernatorial counsel and also served on the Minner Commission, is unwavering in his view favoring an Office of Executive Counsel so that a state agency does not have to rely on a deputy attorney general, answerable not to that agency but to the Justice Department, for legal representation.

      “Who has the loyalty of the lawyer? If it is otherwise than the client, it is a breach. This is so foreign to the concept of the attorney-client relationship. It is out of bounds,” Swayze said.

      Oberly believes the public is served better by making no changes. “It would be incredibly dangerous to tinker with the system. You would destroy the Attorney General’s Office as we know it, and we would have a partisan [executive counsel] office that would do the governor’s bidding. There will occasionally be a conflict that will arise, but they’re overreacting to a problem that really doesn’t exist,” he said.

      Oberly predicted that an Office of Executive Counsel would create the state equivalent of Alberto R. Gonzales as the counsel to the president and beholden to him.

      The present design certainly has its tensions—and not just those as dramatic as Biden’s decision to investigate the psychiatric center and abandon its representation. For a time Jane Brady was not only the attorney general but a potential Republican candidate against Minner for governor, not exactly someone the administration would want to consult on confidential legal matters.

      The annual budget bill also has been known to exacerbate the conflicts, because sometimes the salary and the supervision of an attorney general come from different sources. “Under the current system, you’ve had the awkward situation with deputies located in a department and in the department’s budget while reporting to the attorney general,” said Anthony G. Flynn, a lawyer who was the counsel to du Pont and to Gov. Michael N. Castle, now a Republican congressman.

      Some agencies have tried to get around the problem by squirreling away attorneys in their administrative offices in something of a shadow Office of the Executive Counsel. As a lawyer aware of the potential for divided loyalties, Democratic Insurance Commissioner Matthew P. Denn brought in Michael L. Vild, a lawyer, to be the deputy commissioner, even though the Insurance Department has a deputy attorney general assigned to it.

      Because of the psychiatric center’s woes, there could be a new push in the 2008 legislative session for a bill to set up an Office of Executive Counsel.

      “We cannot operate with our agencies wondering day to day whether they have legal representation,” said Brainard, the governor’s chief of staff. “This is an issue we are clearly going to have to look at before January.”

    • 5.2 Delaware Department of Justice’s Public Statement Regarding the Conclusion of the Department’s Investigation of the Delaware Psychiatric Center

      Media Release

      May 12, 2008

      Delaware Department of Justice’s Public Statement Regarding the Conclusion of the Department’s Investigation of the Delaware Psychiatric Center

      Delaware Attorney General Joseph R. Biden, III, announced today that the Delaware Department of Justice (DDOJ) has concluded its ten-month investigation of allegations of patient abuse at the Delaware Psychiatric Center (“DPC”). The DDOJ investigation concluded that there were systemic violations of Delaware’s Mental Health Patients’ Bill of Rights, 16 Del. C. §§ 5161 & 5162. Such violations included, but were not limited to, DPC’s failure (1) to prevent physical and emotional abuse of patients by employees and other patients; (2) to prevent mistreatment of patients through inappropriate use of medications, isolation, and physical and chemical restraints; (3) to prevent neglect of patients through lack of attention to their physical needs including safety concerns; (4) to prevent the use of unjustifiable force against patients; (5) to provide to each DPC patient care and treatment suited to the patient’s needs, skillfully, safely and humanely administered with full respect for the patient’s dignity and personal integrity in a setting and under conditions that restrict the patient’s personal liberty only to the extent required by the patient’s treatment needs, applicable law and judicial orders; and (6) to provide each patient with an outcome-oriented, individualized, written treatment plan, treatment based on such plan, periodic review or revision of the plan consistent with treatment progress, and a description of treatment and other support services needed upon discharge.

      As a result of this investigation, the DDOJ prosecuted and convicted two members of the DPC staff: Woods Etherington and Anthony Liggians.

      In addition to holding staff criminally liable and in order to remedy the systemic violations of the Mental Health Patients’ Bill of Rights, the DDOJ and the Delaware Department of Health and Human Services (“DHSS”) have entered into a legally binding “Memorandum of Agreement Between the Delaware Psychiatric Center and the Delaware Department of Justice to Ensure Enforcement of and Compliance with the Mental Health Patients’ Bill of Rights at the Delaware Psychiatric Center” (“Memorandum of Agreement”). The Memorandum of Agreement contains a comprehensive plan of action listing the necessary corrective measures and accomplishment dates that the DPC must meet in order to fully comply with the Delaware Mental Health Patients’ Bill of Rights.

      These measures include but are not limited to: (1) submission of a protocol and set of procedures governing the use of its currently deployed system of video-monitoring throughout DPC patient areas as a management and prevention tool for the purpose of ensuring patient safety andquality of care; (2) identification of the categories and definitions of incidents to be reported and investigated; immediate reporting by staff to supervisory personnel, DPC’s director, and State officials of serious incidents; and the prompt reporting by staff of all other unusual incidents, using standardized reporting across all settings; (3) mechanisms to ensure that, when serious credible allegations of abuse, neglect, and/or serious injury occur, staff take immediate and appropriate action to protect the individuals involved, including removing alleged perpetrators from direct contact with individuals pending the investigation’s outcome; (4) adequate training for all staff on recognizing and reporting incidents; (5) notification of all staff when commencing employment and adequate training thereafter of their obligation to report incidents to DPC and State officials; (6) posting in each patient care unit a brief and easily understood statement of how to report incidents; (7) procedures for referring incidents, as appropriate, to law enforcement; (8) mechanisms to ensure that any staff person, individual, family member, or visitor who, in good faith, reports an allegation of abuse or neglects is not subject to retaliatory action by DPC and/or the State, including but not limited to reprimands, discipline, harassment, threats, or censure, except for appropriate counseling, reprimands, or discipline because of an employee’s failure to report an incident in an appropriate or timely manner; and (9) mandatory investigation of the criminal history and other relevant background factors of all staff, whether full-time or part-time, temporary or permanent, or a person who volunteers on a regular basis and performance of drug testing of any person engaged in direct patient care.

      The parties have agreed that an independent “Compliance Chair,” the Honorable Vincent A. Bifferato, Sr., former Resident Judge of the Superior Court of the State of Delaware, will determine DPC’s compliance with the Memorandum of Agreement. If Judge Bifferato determines that the DPC has failed to comply with the Memorandum of Agreement, the DDOJ will move to enforce the Mental Health Patients’ Bill of Rights in the Court of Chancery for the State of Delaware.

      DPC administrators fully cooperated with the DDOJ investigation. Moreover, DPC has taken positive steps, such as reducing staff vacancies and hiring a new director, to improve conditions at the facility. Indeed, absolutely no evidence was discovered that DHSS and/or DPC destroyed or shredded any documents relevant to the investigation or the protection of patient rights.

      All parties agree that violations of the Mental Health Patients’ Bill of Rights must immediately and permanently cease. DPC administration and staff must create and enforce an environment that does not tolerate abuse, mistreatment or neglect of any patient and which provides and fosters a safe and humane hospital setting where the highest quality of therapeutic treatment is available to all patients.

      DPC’s decision to enter into this Memorandum of Agreement with the DOJ demonstrates that DPC has committed to ensuring its patients the care and treatment they are entitled to under the law. It also allows us to begin to cure the problems at DPC now rather than engage in a lengthy litigation process.

  • 6 Changing Sides Mid-Litigation

    Attorneys general are also from time to time called upon to actually change sides in the middle of litigation.

    • 6.1 Pryor Offenses

      Pryor offenses: Bill Pryor has led a religious right crusade against church-state separation in Alabama. Now the Bush administration wants him on the federal appeals court.

      Jeremy Learning

      Bill Pryor was preaching to the choir.

      It was April 12, 1997, and Pryor, Alabama’s young attorney general, basked on the stage before a spirited gathering of thousands who had come to Montgomery to support a state judge being sued for displaying the Ten Commandments in his courtroom.

      “God has chosen, through his son Jesus Christ, this time, this place for all Christians-Protestants, Catholics and Orthodox-to save our country and save our courts,” bellowed Pryor before the wildly receptive throng.

      Pryor pledged to use all of the powers of his office to defend Judge Roy Moore. In the months and years to come, he did just that, filing briefs on Moore’s behalf and arguing in the media that Moore, who is now chief justice of the Alabama Supreme Court, has the right to display religious symbols in court.

      Six years later, Pryor is still the state’s attorney general and still defending Moore, whose case is now in the federal courts. But soon Pryor may be elevated to a much more powerful position and given an influential platform for his extreme views.

      On April 9, President George W. Bush nominated Pryor to a lifetime spot on the 11th U.S. Circuit Court of Appeals. The announcement immediately sparked opposition from state and national civil rights and civil liberties organizations.

      Continuing his pattern of nominating fight-wing ideologues to the federal bench, Bush may have outdone himself with the nomination of Pryor. Not only has Pryor loudly defended Judge Roy Moore’s installation of a gigantic granite Ten Commandments monument within the Alabama Supreme Court building, he has also raised the ire of reproductive rights groups by referring to the Supreme Court’s landmark Roe v. Wade ruling as “the worst abomination of constitutional law in our history.”

      “Bill Pryor is a determined foe of the separation of church and state,” said Barry W. Lynn, executive director of Americans United for Separation of Church and State. “His contempt for this fundamental constitutional principle disqualifies him from the federal bench. We will staunchly oppose his promotion to a lifetime seat on the appeals court.”

      Pryor, frequently described in the Alabama press as a protege of the state’s conservative U.S. Sen. Jeff Sessions, has built a reputation for being hostile to the constitutional principle of church-state separation as well as an ardent advocate of states’ rights. In a mid-April editorial headlined “Unfit to Judge,” The Washington Post noted that Pryor “is probably best known as a zealous advocate of relaxing the wall between church and state.”

      The Post’s critique of Pryor came quickly after Bush nominated the 41-year-old to a seat on the 11th Circuit. Like many of Bush’s federal court nominees, Pryor is a member of the Federalist Society, a nationwide network of attorneys that advocate for a federal bench made up of judges in the mold of Supreme Court justices Antonin Scalia and Clarence Thomas.

      Because of Pryor’s comments before Federalist Society events as well as the Supreme Court, where he argued that Alabama could not be sued based on violations of federal disabilities and civil rights laws, among others, his nomination has ignited opposition from an array of public interest groups.

      It is Pryor’s reputation as an outspoken, often confrontational, advocate of a public square infused with religion that concerns church-state watchdog groups like Americans United.

      Pryor’s hostility to the separation of church and state was laid bare during his defense of Moore, who became a darling of the Religious Right for his promotion of the Ten Commandments in courtrooms.

      In the mid-1990s, Moore was a low-ranking state judge in Etowah County. He made it a practice to open his court sessions with Christian prayers and posted over his bench-visible to the jury box-two hand-carved wooden plaques of the Ten Commandments. Etowah residents, represented by civil liberties groups, sued the judge, arguing that his religious actions in the public courtroom violated the separation of church and state.

      Pryor and then-Gov. Fob James came to Moore’s defense, even seeking a court declaration that Moore had a right to bring his religion into the courtroom in the form of the Ten Commandments without violating the Constitution.

      The lawsuit against Moore sparked a brouhaha, to say the least. The Etowah County judge quickly became a hero among local and national Religious Right groups. More than 20,000 people gathered in Montgomery in April 1997 as a show of support for Moore. Pryor joined James, then-Christian Coalition leader Ralph Reed and GOP presidential candidate Alan Keyes at the Moore rally.

      In February of the same year, Pryor told The Gadsden Times that the lawsuit against Moore was “astounding.” Pryor proclaimed that the “willing acknowledgment of God by government” is constitutional and asserted that the Decalogue is displayed in the U.S. Supreme Court building.

      Pryor made similar comments two years later at a forum hosted by the Dallas chapter of the Federalist Society. During a debate over the placement of the Ten Commandments in public buildings with a professor of church-state studies at Baylor University, Pryor said, “The Ten Commandments are recognized not just by Christians but by all of the world’s three great religions.” He also reiterated his belief that the First Amendment does not prevent government from “acknowledging God or our Judeo-Christian heritage.”

      The Moore courtroom fiasco erupted not long after Pryor had been appointed the state’s attorney general in 1997 by James. Pryor was 34 and had only been out of law school for a decade. The young attorney general quickly provided Alabama and national media with some controversial legal musings.

      For example, in March 1997, Pryor told The Alabama Baptist that Supreme Court precedent does not always need to be adhered to by state officials. The newspaper reported that Pryor did not say that the executive branch could ignore the ruling of the judicial branch, but he said there are ways the executive branch “does not have to implement rulings with which it disagrees.”

      “One of the things I think is critical in a constitutional democracy is that executive branch and legislative branch officials feel free to criticize court rulings with which they disagree,” Pryor said. “There are those who believe that when the Supreme Court of the United States announces a ruling, it is on par with the Constitution itself, and I am sorry, it is not.”

      Pryor also told the Baptist publication that religion and politics “need to be intertwined.”

      A month after that interview, Pryor defended Moore’s practice of only allowing Christian prayers to open his court sessions. According to an AP report, Pryor admitted that he was unsure whether the Constitution provided the same religious liberty rights to non-Christians as it does Christians.

      “It’s not been an issue in this case,” Pryor said.

      The lawsuit against Moore was eventually tossed out of state court on technicalities. The controversy, however, helped make Moore a statewide name, thereby launching his effort to become the chief justice of the Alabama Supreme Court. Moore campaigned as the “Ten Commandments judge” and promised if elected he would bring the Ten Commandments into the state building that houses the high court.

      At that time TV preacher D. James Kennedy and his Coral Ridge Ministries got behind Moore’s campaign and has defended and raised money for Moore ever since. Moore easily won election in November 2000. In mid-summer 2001, Moore oversaw and commissioned the placement of a large granite monument with the Ten Commandments engraved on top within the building’s rotunda. That action drew a lawsuit from Americans United, the ACLU of Alabama and the Southern Poverty Law Center.

      Pryor immediately came to Moore’s defense again, deputizing attorneys affiliated with Religious Right legal groups and declaring, “The display of the Ten Commandments in the rotunda of the judicial building does not violate the First Amendment.”

      In fall 2002, a U.S. district court invalidated Moore’s action on church-state grounds.

      The attorneys chosen by Pryor include Stephen Melchior, who has managed Moore’s legal defense fund, Herbert Titus, founding dean of the College of Law at TV preacher Pat Robertson’s Regent University, and John Eidsmoe, professor at a Montgomery law school not accredited by the American Bar Association. The group of attorneys will represent Moore’s appeal before the 11th Circuit.

      Pryor informed the Associated Press that the state would not pay for Moore’s unique legal team, but that private funds being raised by TV preacher Kennedy would cover the legal fees. Melchior also told the AP that the lawsuit against Moore promoted “the most brazen form of intolerance and censorship.”

      Pryor’s vigorous defense of Moore’s public displays of the Ten Commandments is not his only venture across the church-state line. A reporter with The Birmingham News noted in a January 2003 report that Pryor has “taken strident positions supporting the right to student-led prayer in public schools.” The Washington Post’s April 11 editorial also pointed out that Pryor had “teamed up with one of Pat Robertson’s organizations in a court effort to defend student-led prayer in the public schools.”

      The Birmingham News and The Washington Post were referring to a situation of pervasive religious practices in DeKalb County, Ala., public schools that had been ongoing at least since 1993.

      In 1997, U.S. District Judge Ira DeMent issued an order barring DeKalb County school officials from sponsoring religious activity in the classrooms and declaring a 1993 state prayer law a violation of the separation of church and state. DeMent concluded that the Alabama law essentially permitted state-organized prayer in the public schools. In declaring the state’s 1993 law unconstitutional, DeMent noted that “when prayer is introduced into a public school curriculum, students who find the particular prayer, or prayer in general, offensive cannot express their dissent by walking away or verbally objecting.”

      Gov. James went ballistic, claiming that the First Amendment was never meant to apply to the states and urging school officials to flout the federal judge’s ruling. Though Pryor publicly distanced himself from some of James’ more over-the-top rhetoric, he nonetheless recruited two attorneys from Pat Robertson’s legal arm, the American Center for Law and Justice, to help him argue before the 11th Circuit that DeMent’s ruling should be reversed. Indeed, in a Nov. 7, 1997, press release announcing the appointment of Robertson’s lawyers, Pryor, gushed that, “Jay Sekulow and Stuart Roth bring the best legal minds in the country to this case.”

      In a 40-page brief filed before the 11th Circuit, Pryor and the ACLJ charged that DeMent, a Republican appointed to the bench by the first President Bush, was simply hostile to religion, seeking a “relentless extirpation of all contact between government and religion.”

      Pamela Sumners, a Birmingham attorney who argued before the 11th Circuit that DeMent’s ruling should stand, told the Freedom Forum that federal courts had previously ruled that “you can’t come into court and accuse a judge who has acted to preserve [church-state separation] of being hostile toward religion.” Sumners added that she thought it was “wholly repugnant that the state would hire the Christian Coalition to help out.”

      At an Oct. 2, 1999, Christian Coalition gathering in Washington, D.C., Pryor described the prayer controversy in DeKalb County schools as a struggle against “moral relativism—the notion that there are no universal or moral standards.” He proclaimed that perspective was at odds with the “founding principles of this nation” and fueled by “the exclusion of religious expression.” Pryor again derided DeMent’s ruling as hostile to religion.

      The 11th Circuit eventually upheld more than 90 percent of DeMent’s order and his declaration that the 1993 Alabama law was unconstitutional.

      In 2000, Pryor also derided the U.S. Supreme Court decision invalidating prayer before public high school football games in Texas. In a 63 ruling, the high court ruled that the school district’s “Prayer at Football Games” policy provided for a majoritarian election that did “nothing to protect the minority; indeed, it likely serves to intensify their offense.”

      Pryor had directed his office to join in a friend-of-the-court brief with Texas and other state officials arguing that public school students should have a First Amendment right to vote on whether to include prayer before football games. Pryor told the AP that he agreed with the three dissenting justices that the ruling bristled “with hostility to all things religious in public life.” He also said the ruling would not alter Alabama public school practices of allowing students to vote on whether to include prayer in school functions.

      The opposition to Pryor’s nomination to a lifetime seat on the 11th Circuit is, not surprisingly, drawing the ire of social conservatives.

      Following The Washington Post’s editorial calling Pryor’s nomination a dramatic “escalation of the judicial nomination wars,” the National Review and the ACLJ quickly came to Pryor’s defense.

      Writing for the National Review, Quin Hillyer, a columnist for the Mobile Register, refers to Pryor as “brilliant,” quotes a law school buddy of his who said Pryor does not have a “political bone in his body,” and proclaims Pryor is the latest victim of “the Left’s character-assassination machine.”

      Sekulow, the ACLJ’s chief counsel, in a letter to the Post, trotted out the tired line of media “liberal bias” and defended Pryor as a guardian of constitutional rights of “all students in Alabama.”

      But Hank Caddell, a longtime civil rights attorney in Mobile, in an interview on National Public Radio in mid-May, took issue with Pryor’s supporters.

      “If you had gone and designed a candidate for a judicial appointment who would be most destructive to the areas of civil rights, environmental protection, separation of church and state, reproductive rights,” said Caddell, “you would be hard-pressed to come up with any candidate other than Bill Pryor.”

    • 6.2 Pryor Calls for Removal of Moore Says Expulsion Needed to Protect the Public



      MONTGOMERY – Attorney General Bill Pryor called Monday for suspended Alabama Chief Justice Roy Moore to be removed from office for what he called flagrant ethics violations.

      Moore placed himself above the law when he defied a federal court order to remove his Ten Commandments monument from the state judicial building rotunda and his removal is necessary to protect the public, Pryor wrote in legal documents filed in preparation for Moore’s trial Wednesday before the Court of the Judiciary.

      “Because the chief justice intentionally and publicly engaged in misconduct, and because he remains unrepentant for his behavior, this court must remove the chief justice from office to protect the Alabama judiciary and the citizens who depend upon it for fair and impartial justice,” Pryor wrote. Moore, Page 2A 1A

      “While the head of Alabama’s judicial system, Chief Justice Moore flagrantly disobeyed the law, incited the public to support his misconduct and undermined the integrity, independence, and impartiality of the judiciary,” Pryor stated.

      Moore’s attorney disagreed. “The exact opposite is true,” said Terry Butts, a former state Supreme Court justice. “The chief justice, by following his oath, upheld the integrity of the judiciary, because as chief justice he has a fundamental duty to restore the moral foundation of law and to speak on it.”

      A recent poll by the Alabama Education Association showed that 67 percent of Alabamians think Moore shouldn’t be removed from office, which “bolsters our argument that the vast majority of the people out there thinks that he has upheld the integrity of the court system,” Butts said.

      In that same poll, however, 58 percent of Alabamians said Moore should have obeyed the court order and removed the monument.

      Pryor is prosecuting Moore on behalf of the state Judicial Inquiry Commission, which accused Moore of violating six state judicial ethics rules. Under the state constitution, he is suspended with pay while the charges are pending. If the court finds that Moore has violated the ethics rules, it can remove him from office, continue his suspension with or without pay or impose other sanctions.

      At a news conference Monday, Moore said he is apprehensive about his upcoming trial but “not afraid of the truth.”

      “My apprehension is that the truth is not going to come out,” he said. He wouldn’t say what he might do if he is removed from office. He did criticize an earlier decision to bar television cameras from the courtroom.

      “The Court of the Judiciary should be afraid of the public” and of adverse public opinion for banning cameras from the courtroom, Moore said. “It’s supposed to be a public trial.”

      The Supreme Court courtroom and another room equipped with electronic monitors have a combined seating capacity of about 290. All of those seats already have been reserved for the trial. Moore said he would have been willing to rent an auditorium and wanted cameras covering the trial so the public could see it.

      Pryor said Moore’s six ethics violations are that he failed to respect and comply with the law; to uphold the integrity and independence of the judiciary; to observe high standards of conduct; to avoid impropriety and the appearance of impropriety; to conduct himself in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and to avoid conduct prejudicial to the administration of justice.

      Butts said Moore is innocent of all six of the charges.

      Pryor said Moore not only defied the federal order but also “sought to incite the public to support his lawless behavior.”

      Pryor cited a Moore decision while a circuit judge in Gadsden to find a man in contempt of court for failing to obey one of Moore’s orders. The Court of Civil Appeals later ruled that Moore lacked authority to decide the case but that he had correctly held the man in contempt of court because he had failed to obey the order.

      Butts, in his pre-trial brief, noted that Pryor supported Moore’s placement of the Ten Commandments monument in the judicial building rotunda. He said Pryor appears to be “a man of courage and a man who acts on principle,” but he argued that Pryor’s actions now are tantamount to saying Moore’s oath of office was taken to a federal judge rather than to the state constitution.

    • 6.3 State Court Orders Commandments' Removal; All Eight Colleagues of Ala. Chief Justice Vote to Overrule Him


      Lyle Denniston, Globe Correspondent

      WASHINGTON – Chief Justice Roy S. Moore’s eight colleagues on the Alabama Supreme Court overruled him yesterday and ordered the removal of his Ten Commandments monument from the rotunda of the state courts building in Montgomery.

      The unanimous order, signed by each of the associate justices, was intended to end a standoff between Moore and a federal judge, who ruled nine months ago that the chief justice had put up the display to promote religion in violation of the Constitution.

      The saga over the 5,280-pound granite tablet, placed so that no one can miss it on entering the courthouse, has brought new visibility to a decades-long struggle by religious conservatives to restore the Ten Commandments to a prominent place in the nation’s public life, especially in government buildings.

      Moore, who won election in 2000 after campaigning as the “Ten Commandments Judge,” repeatedly has said he would not remove the monument despite several orders from US District Judge Myron Thompson. Thompson had set a deadline of Wednesday at midnight for his order to be followed and threatened $5,000-a-day fines if it was ignored. The US Supreme Court refused to intervene to keep the monument in the rotunda.

      The chief justice continued his defiance in a speech yesterday to supporters outside the courthouse, saying he would not obey the removal mandate. “I have been ordered to do something I cannot do, violate my conscience,” he said.

      Under Alabama law, Moore has administrative control over his court’s activity, and his colleagues had not previously challenged his use of that power to place the Ten Commandments in the building’s most public space. But state law also allows the associate justices to “countermand” action by the chief justice by a majority of five votes, and that is what his colleagues did yesterday, unanimously.

      The justices ordered plywood partitions put up around the monument yesterday morning. But Moore, returning from a funeral out of town, ordered the partitions to be removed.

      Later in the day, state Attorney General Bill Pryor, who has supported the idea of the Commandments’ display even while saying he would not support Moore’s disobedience of a court order, notified Judge Thompson that justices had issued their command to the building manager to “take all steps necessary to comply with the [Thompson] injunction as soon as practicable.”

      Chastising Moore, his colleagues said in the order that “the justices of this court are bound by solemn oath to follow the law, whether they agree or disagree with it.” They said refusal to obey a legitimate order of a federal court “would impair the authority and ability of all of the courts of this
      state to enforce their judgments.”

      The associate justices also pointed out that Thompson had said he would impose “substantial, escalating, daily fines” if the court or its officers disobeyed the mandate to move the monument to a private space, such as Moore’s chambers at the courthouse.

      There was no indication when the monument actually would be moved out of the rotunda. A conservative religious organization, the Christian Defense Coalition, has been holding daily rallies at the courthouse, and its leader, the Rev. Patrick Mahoney, has vowed to resist any effort to move the display. Nearly two dozen protesters were arrested Wednesday night when they refused to leave the courthouse at closing time.

      Supporters of the display also have threatened political reprisals against Moore’s colleagues on the court. The justices are elected to six-year terms, which are staggered so they do not all run the same year.

      Whatever happens to the monument in the next few days, the drama will not end for the chief justice. Yesterday morning, groups that had sued to challenge the Ten Commandments display formally asked Thompson to hold Moore in contempt and to impose heavy fines for his refusal to follow Thompson’s orders. Moore also faces an ethics investigation by a state judicial commission, potentially threatening his ouster from the bench.

      The Rev. Barry W. Lynn, executive director of one of the groups seeking a contempt finding, Americans United for Separation of Church and State, said it was not clear what might happen to the contempt motion if the other justices achieve the removal of the monument.

      At that point, though, Lynn added, “there will be this period where he has been in continuous defiance of the order,” and that should amount to contempt.

      Thompson is scheduled to hold a telephone conference call this morning with lawyers on all sides of the controversy, and is expected to give some indication of what he intends to do about the contempt question, according to Lynn.

  • 7 Delaney: Bill violates the Constitution

    Delaney: Bill violates the Constitution

    Attorney general won’t take orders

    By: Matthew Spolar

    January 14, 2011

    At a standing-room-only hearing yesterday, state Attorney General Michael Delaney told a House committee a bill ordering him to challenge the constitutionality of last year’s federal health care reform law is, in itself, unconstitutional.

    The House Federal Relations and Veterans Affairs Committee is considering a bill directing Delaney to join a federal lawsuit in Florida that argues the health care overhaul’s individual mandate requiring Americans to buy health insurance exceeds Congress’s constitutional authority. The suit is backed by 20 states.

    Responding to the bill, which is sponsored by six Republicans including House Majority Leader D.J. Bettencourt of Salem and Finance Committee Chairman Kenneth Weyler of Kingston, Delaney read from a prepared statement urging the committee to reject the legislation.

    “For important reasons that strike at the heart of our democracy, the Legislature does not have the right to tell the attorney general what state and federal laws he or she should enforce or challenge,” Delaney said.

    Delaney cited the separation of powers doctrine from the state Constitution, which reads that the legislative, executive and judicial branches “ought to be kept as separate from, and independent of, each other, as the nature of free government will admit.”

    Delaney said the bill encroached on the essential functions of the executive branch. While the Legislature has the power to make laws, it cannot tell the executive branch how to enforce them, he said.

    “If the attorney general can be ordered to join federal lawsuits on health care, one could logically conclude that I could be compelled to commence or withdraw criminal prosecutions by similar legislative mandate,” he said.

    New Hampshire is one of five states where the attorney general is appointed by the governor. In Maine, where newly sworn-in Attorney General William Schneider says he intends to join the lawsuit, the post is elected by the Legislature. In Tennessee, the attorney general is appointed by the state Supreme Court.

    In the rest of the states, the attorney general is elected by the general public.

    “Given the fact that most attorneys general are partisan officials who are popularly elected in their respective states, they have little choice but to engage more directly in national politics,” Delaney said.

    As a state that appoints its attorney general, New Hampshire allows the position more independence from the influence of politics, Delaney said. If the bill passes out of the Legislature, Delaney said he would challenge its legality.

    “Do not make your first act as a committee an unconstitutional attempt to handcuff the independence of the attorney general,” he said.

    After Delaney spoke, freshman Rep. Andrew Manuse, a Republican from Derry, addressed the committee.

    “I think, as a Legislature, we may pass a law that in fact instructs the attorney general to stand up for our rights as protected under the Constitution,” he said.

    In an interview afterward, Manuse said he found some of Delaney’s comments “abhorrent.”

    “What he neglected to include in his testimony was the doctrine of checks and balances,” he said. “The Legislature has a check on the executive by passing laws, which he then has to enforce.”

    Bettencourt said the attorney general routinely testifies for or against legislation and asks lawmakers to file legislation on his office’s behalf.

    “I see no problem with the reverse, when the Legislature wants to direct him to do something on our behalf,” he said. The health care reform law “is unconstitutional, and that should concern Attorney General Delaney.”

    Calls about Delaney’s comments left with the office of U.S. Sen. Kelly Ayotte, the previous attorney general who advocated repealing the health care law on the campaign trail, went unreturned yesterday.

    Manuse said he felt Ayotte “probably would have joined the lawsuit without us asking her to.” Bettencourt also felt Ayotte would have been receptive to the bill.

    “I believe if the Legislature sent a strong and clear message about where we stood on an issue, she would certainly take that into consideration and move forward,” he said.

    House Bill 89 is scheduled to be heard by the Federal Relations and Veterans Affairs Subcommittee at 10:30 a.m. Wednesday in Room 203 of the Legislative Office Building. The full committee is set to consider recommending the bill to the House floor at 9:30 a.m. Thursday.

  • 8 Who is the Client - Hypothetical


    You are the newly–elected Attorney General of Freedonia, and you arrive at your office to find that an emergency meeting has been convened by your newly appointed Chief Deputy who is joined by the Deputy Attorney General in charge of the Criminal Division, the Assistant Attorney General assigned to the Department of Corrections, the Assistant Attorney General assigned to handle tort claims against the State, and the Press Officer (PIO) for the Attorney General’s Office who was also your press secretary in your recently hard won election. The Press Officer is the only person in the room with whom you have a personal relationship although you think you know the names of the others.

    The PIO informs you that he had just been informed by the Associated Press that there is going to be a press conference in 30 minutes in which “explosive” allegations are going to be made about four regional youth detention centers operated by the Department of Corrections, and that the press is going to be looking for a reaction from you.

    For the last ten years, the State of Freedonia has proudly operated four regional youth detention centers that assist troubled adolescents before they commit serious crimes. These “boot camps” each house, educate, and rehabilitate 40 to 50 young boys between the ages of 13 and 17. The success of these centers has been so high that the senior Senator of Freedonia, has regularly praised them on the floor of the U.S. Senate and last spring held a widely publicized hearing of the Judiciary Committee at a center that was even attended by his Democratic colleagues.

    None of this, however, makes any difference to Mark Trail (Columbia ’68 and Harvard Law School ’75). Having lived as a recluse in the mountains of Freedonia for thirty years, Trail has reactivated his law license and believes that he has in his possession information that will stagger Freedonia’s elected leadership. Trail has put together his case with the help of a clinic of law students from Roger Taney School of Law at the University of Freedonia. They have interviewed dozens of young boys who have recently been released from these “boot camps” and each of these boys are ready to tell the chilling story of having been repeatedly assaulted and abused by Center staff. Several are also prepared to state that older inmates and other staff often watched and actually filmed these abusive encounters. It also appears that Trail has been assisted with the secret help of at least unnamed whistleblower from the Department of Corrections. Freedonia has a new qui tam statute that incentivizes whistleblowers.

    Trail, who will be joined by several legislators from both parties, is about to hold a press conference to announce his allegations and is prepared to state that he will: (1) File a public records request in which he asks for the personnel records of all Center staff; (2) File a similar request for any and all photographs or films in the possession of the Department of Corrections that in any way depict his clients; (3) Demand that the Attorney General, as part of his oft stated initiative on the protection of Freedonia’s children, initiate a complete investigation of his charges and bring whatever action—
    criminal or civil—that he deems appropriate; and (4) Announce his intention to sue the State of Freedonia for monetary damages, including legal fees, on behalf of his clients and all similarly victimized.

    You go around the room and ask those present what you should do.

    The Assistant Attorney General assigned to the Department of Corrections, says that the Department is outraged by these allegations, insists that they are completely false, and wants you to open an investigation into the leaking of confidential information by some obviously disgruntled Department employee who is probably the President of the SEIU chapter who recently organized the employees. She reminds you that there are strict confidentiality statutes designed to prevent the release of any information about youthful offenders and the release of any information about personnel matters. You know that this AAG is a career employee whose salary is paid by the Department of Corrections.

    The Assistant Attorney General assigned to handle tort claims, says that these allegations, if true, could result in substantial exposure not only for the State, but also for the individuals who allegedly participated in such actions. Unless the (budget–strapped) Attorney General’s Office is prepared to foot the bills for hiring outside counsel to defend the State and the individual employees, it is best to say as little as possible to avoid being disqualified in any subsequent civil litigation. You know that this AAG is also a career employee whose salary is paid from a fund that derives its money from agencies that are regularly sued, e.g. the Department of Corrections.

    The Deputy Attorney General in charge of the Criminal Division, says that there is a criminal statute that you sponsored while in the Freedonia legislature that specifically makes it a crime not only for individuals in charge of youthful offenders to abuse kids in their custody, but also to fail to report others who condone such abuse. He believes that a criminal investigation into these allegations should be opened immediately, and pursued wherever it goes, and that little should be said to avoid compromising the investigation.

    Your PIO reminds that you ran on a “Law and Order,” “Kid’s First” and “Open Government” platform. He thinks that even if it would cause problems in later prosecuting the people who abused the kids, or defending the employees accused of abusing the kids or doing nothing while others abused the kids, you cannot remain silent. Left unsaid is his belief that if you are able to skate through the next four years, you will be Freedonia’s next Governor.

    The Chief Deputy Attorney General says that everyone in the room has a legitimate point, and that you were elected Attorney General to make the right decision.

    Freedonia’s term limited Governor has just called your personal secretary and would like to speak to you immediately as does the Speaker of the House, the President of the Senate, the State Senator in charge of your budget, the President of the Freedonia SEIU, the Chair of Freedonia’s “Tea Bag”organization, the former NY Eliot Spitzer who would like you to appear on “Parker and Spitzer” this evening and your wife who needs to talk to you about picking up your daughter Shelby’s after her basketball practice.

    What do you do?

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