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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?
May 21, 2013
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