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Decisions Affecting the Powers and Duties of Attorneys General
Emily Myers, NAAG Antitrust Counsel and Powers and Duties Counsel
Connecticut—Assistant Attorney General Representation of Medical Board and Its Director Does Not Give Rise to Conflict of InterestThe office of public defender had filed a request with the Connecticut Medical Examining Board for a declaratory ruling on whether a physician’s participation in the execution of an inmate by lethal injection was permitted. The complainants also sent a letter to the assistant attorney general representing the Board, noting a possible conflict of interest in his representation of both the Board and the commissioner of public health in connection with the matter. The Board held a meeting in executive session to discuss the letter. Connecticut law permits an executive session to discuss “strategy and negotiations with respect to pending claims or pending litigation to which the public agency . . . is a party. . .” The complainants challenged the designation of the meeting as an executive session. The Connecticut Supreme Court held that there was no “pending claim,” and therefore no permitted executive session. First, the assistant attorney general, not the Board, would be a party to the conflict of interest claim. Second, the court noted,
[E]ven if the Office of the Attorney General were representing both the board and [the commissioner of Public Health] concurrently, it would not make sense to treat this situation as a conflict of interest. This court has recognized that the Attorney General is in the “unique position” of representing the state, the state’s agencies, and the state’s citizens . . . The Attorney General’s ethical duties thus should be considered in relation to his “duties as the constitutional civil legal officer of the state,” which include being available to represent these various constituencies [citations omitted].
Finally, the court held that if the Board has a right to representation by the attorney general, the Board itself, rather than the complainants, would be the appropriate party to assert this right. Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276 (Ct. 2013).
Delaware—Attorney General’s Broad Subpoena Authority AffirmedIn connection with a prosecution for first-degree murder, the Attorney General’s Office issued subpoenas to various service providers seeking the defendant’s mental health and medical records. The defendant argued, among other things, that the attorney general exceeded the scope of his authority and that his medical records were protected from disclosure under Delaware law. The court disagreed with each of these arguments. With respect to the attorney general’s subpoena power, the court held,
The subpoena power conferred upon the Attorney General provides that office with nearly unfettered discretion to gather records, documents, and testimony as long as it can be established they are investigating “matters involving the public peace, safety and justice.” .. . . [T]he Court believes a fair interpretation of the statute is that as long as the Attorney General is conducting an investigation of alleged criminal activity, they are acting within the statutory authority provided to them by the General Assembly. The statute has never been interpreted to limit the investigative power of the Attorney General to documents unavailable in the normal litigation process and this Court refuses to do so now.
Turning to the argument that the defendant’s records were protected medical records, the court held that disclosure of such records is permitted under Delaware law pursuant to a “court order, court-ordered warrant, subpoena or summons by a judicial officer, grand jury subpoena, administrative subpoena or summons . . .” The court held that the attorney general’s subpoena authority was essentially equal to that of a grand jury: “Therefore, in view of their historic equality with grand jury subpoenas, Attorney General subpoenas are included within “permitted disclosure.” Delaware v. Salasky, 2013 Del. Super. LEXIS 421 (Del. Super. Sept. 26, 2013).
Florida—Attorney General Is Not Required to Testify.In two unrelated cases, defendants sought testimony from the Florida attorney general, and in each case, the request was denied. One case was a federal criminal case brought against a doctor who was charged with distribution of controlled substances. Defendant did not argue that the attorney general had any knowledge of the defendant or any facts in the case, but sought her testimony about a statement made to a congressional committee which defendant argued “indicat[es] that the actions which are the basis for the charges pending against [the defendant] in this case were legal.” In her congressional testimony, the attorney general stated, “These doctors who we call drug dealers wearing white coats are sitting in a back room just signing prescription pads, and it was legal, and it was killing our kids.” The court concluded, “Nothing the Attorney General said could be construed as providing any factual statements or legal conclusions relative to Defendant’s specific conduct in this case which is governed by federal law.” United States v. Cadet, No. 10-80149-CR-MARRA (S.D. Fla., July 22, 2013).
In the other case, a state criminal case involving money laundering, gambling and Racketeer Influenced and Corrupt Organizations (RICO) claims, defendants sought information about the attorney general’s personal solicitation of a $25,000 campaign contribution from a corporate defendant for the Republican Party of Florida. The defendants sought to obtain the attorney general’s testimony that she would not have sought the donation from a business engaged in illegal activity. The defendants did not allege that the attorney general had any information about the defendants’ business, other than information provided by the defendants themselves at the meeting. The court held that the attorney general’s “opinion of the culpability of the Defendants, or lack thereof, is irrelevant and inadmissible.” The attorney general argued that she was entitled to testimonial immunity as attorney general. The court held that although she did not enjoy unlimited executive immunity, her testimony must be necessary and relevant and unavailable from a lesser ranking official. Even though she was not attorney general at the time of the conversation, because she is now the attorney general, there must be a special need or situation compelling the testimony. Because the information sought is not relevant, the attorney general has testimonial immunity independent of any protective order. State of Florida v. Bass et al., No. 13-CF-0695 (Cir. Ct. for 18th Jud. Cir., Aug 6, 2013).
Illinois—Attorney General Lacks Standing to Appeal Decision on Unemployment BenefitsIrwin Shaw, an employee of the Chicago Transit Authority (CTA), was terminated and applied for unemployment benefits. Shaw was initially denied benefits, and pursued administrative appeals of those denials. After exhausting his administrative appeals, he filed an appeal in Cook County Circuit Court. The Illinois Department of Employment Security (IDES) and its Board of Review appeared in that proceeding, but Shaw’s former employer, the CTA, did not. The court reversed the decision of the Board and awarded Shaw benefits. The state agencies, represented by the attorney general, appealed. The appellate court asked the parties to brief the issue of standing where only the agency, and not the losing party in interest (CTA), appealed.
The attorney general made a number of arguments in support of her standing. First, the attorney general argued that the state has an ongoing, cognizable interest in the execution and enforcement of its laws, and the attorney general has been given the constitutional authority to conduct the legal affairs of the state to vindicate that interest. The court disagreed, holding that the state parties have executed their duty under the law by conducting a hearing and determining the propriety of granting or denying unemployment benefits. The state was the judge of the dispute, which was between employer and employee. The attorney general also argued that the state has an interest in the “correct interpretation ad application” of the relevant statute. The court also disagreed with this argument, noting that that attorney general cannot become a party to any private litigation “to advocate that an issue be resolved in a particular manner.” Finally, the attorney general argued that a decision that she has no standing would violate the attorney general’s constitutional or common law powers. The court reiterated that the legislature cannot diminish the attorney general’s common law powers, but held that Illinois cases do not allow the attorney general to “litigate private cases at will, but only stand for the proposition that state officials and agencies must be represented by the elected Attorney General, or a special Assistant Attorney General acting in her stead and with her permission.” In this case, the state agencies are only “nominal parties.” Shaw v. Department of Employment Security, 2013 IL App (1st) 122676 (Ill. App. Ct. 1st Div. 2013).
Kansas—Former Attorney General Violated Ethical Duties to the Legal System and the PublicThe Kansas Supreme Court suspended former Attorney General Phill Kline from the practice of law in Kansas for 11 violations of the Kansas Rules of Professional Conduct (KRPC). The suspension resulted from a disciplinary complaint alleging violations of KRPC in connection with an investigation of abortion clinics while he served as attorney general and as Johnson County district attorney. In several parts of the opinion, the Kansas Supreme Court addressed the role of the attorney general and the ethical duty owed by the attorney general.
In determining the punishment to be assessed for the violations alleged, the Kansas Supreme Court noted that Kline did not dispute the disciplinary panel’s finding that he had violated his duties to “the legal system, the legal profession, and the public to maintain his personal integrity.” Kline argued instead that the most important ethical duties are those obligations which a lawyer owes to clients (citing the ABA Standards for Imposing Lawyer Sanctions). The Supreme Court rejected this argument, noting that as attorney general of Kansas (and as Johnson County district attorney), “his ‘client’ was the public.” The court found that Kline violated his obligations to the public by engaging in “dishonest conduct in: directing the filing of a false motion to clarify . . . ; falsely advising [a lower court] he had no summaries of [medical] records; and misrepresenting the applicable law to the grand jury when he failed to inform it of [a relevant case]. Additionally, as chief prosecutor for the state and later for Johnson County, “by directing sealed documents to be attached to a publicly filed brief in disregard of the . . .court's order and later directed two enforcement motions be filed against the grand jury’s instructions and desire, he violated his duty to the public to act with integrity.” These actions also violated “rules implicating Kline’s duty to the legal system” because he “engaged in conduct prejudicial to the administration of justice.”
Turning to the question of the injury caused by Kline’s misconduct, the court noted that Kline argued that there was no prejudice or potential injury to any party, in particular because there was no monetary damage. The court disagreed, stating,
As Kansas Attorney General and later as Johnson County District Attorney, Kline held positions of particular honor, responsibility, and trust—positions bestowed on him by the citizens of Kansas and the Johnson County Republican Central Committee, respectively. When Kline violated rules regulating his professional conduct, he betrayed that trust, causing “incalculable harm to the public’s perception” of both offices. . . . Similarly, as the State’s chief prosecutor and later as Johnson County’s chief prosecutor, Kline was a highly visible member of the legal profession. Thus, Kline’s misconduct reflects poorly on his profession and the legal system with even greater prominence than might otherwise be the case.
Finally, the court addressed mitigating and aggravating factors affecting the discipline. The court found that Kline had a dishonest or selfish motive in taking the actions that are the basis for the discipline. Kline argued that “he acted at all times as a public official diligently performing his duties.” The court found that Kline attached sealed documents to a brief, in opposition to a court order, “so that ‘others’ could understand his argument. Thus, Kline not only disobeyed the court’s order and placed sealed court documents in the public domain, he did so intentionally to achieve public exposure of them to promote his own message, not to benefit the . . . court’s understanding of the issues.” With respect to other violations, the court held,
The evidence demonstrates that with respect to several violations, Kline acted to protect himself from perceived ridicule and unfavorable public scrutiny and cull favor with the public for his cause. But regardless of whatever fervid belief or desire to see his cause succeed, Kline’s efforts at casting a favorable public image toward himself or elsewhere was clearly an improper motive upon which to act . . .”
In the Matter of Phillip Dean Kline, No. 106,870 (Kansas, Oct. 18, 2013)
Massachusetts—Attorney General’s CID AuthorityThe state issued a civil investigative demand (CID) to a law firm that represented institutional mortgagees in connection with foreclosures. The state, acting under its general consumer protection law, Gen. L. c. 93A, sought information on the foreclosure and eviction practices of the defendant. The defendant filed a complaint seeking to dismiss the CID. The court noted that under Massachusetts law, a CID may be quashed only if the attorney general has acted arbitrarily or capriciously or the information sought is irrelevant. In this case, the law firm argued that compliance with the CID would require it to provide evidence against its clients in violation of the Rules of Professional Conduct. The court held that the rule cited by the defendant applied only to criminal proceedings, and this CID was issued in connection with a civil case. Defendant also argued that it does not engage in “trade or commerce” within the meaning of c. 93A, so it could not be investigated for violations of the statute and the CID was issued arbitrarily and capriciously. The court held that in issuing a CID, the attorney general need only have “a belief that a person (not necessarily the recipient of the CID . . . ) has engaged in or is engaging in unlawful conduct.” The question, according to the court, is whether the documents sought are relevant to a possible violation of c. 93A. Harmon Law Offices, P.C. v. Attorney General, 2013 Mass. App. Lexis 112 (Mass. Ct. App. June 28, 2013).
Missouri—State Has Standing to Appeal Defendant’s Removal from Sex Offender RegistryA sex offender convicted in 2001 of two counts of statutory rape petitioned for removal from the Missouri sex offender registry in 2012 on the grounds that he had successfully completed his sentence, he did not use force in the commission of his offenses, that the offenses had taken place more than 10 years ago, and that he had no offenses since that time. A hearing was held in which the county prosecutor participated. The court granted his petition and ordered him removed from the sex offender registry. The state appealed the trial court’s decision on a number of grounds, and the petitioner argued that the attorney general did not have standing to appeal the trial court’s judgment because the county prosecutor had been given notice of the petition and there was no requirement that the attorney general be given notice.
The appellate court noted that Missouri law authorizes the attorney general to bring actions “necessary to protect the rights and interests of the state.” Citing previous case law, the court held that “if it is in the interest of the State for the Attorney General to be able to challenge a judgment, the attorney general “should be regarded as having standing to argue.” The court determined that the state’s interest in the removal of a sex offender’s name from the state registry was evidenced by the statutory requirement that the prosecuting attorney in the court in which the petition is filed be given notice of the petition, and the fact that the failure to notify the prosecutor will result in automatic dismissal of the petition. Therefore, the attorney general had standing in this case. Kennedy v. State of Missouri, 2013 Mo. App. LEXIS 1259 (Mo. Ct. App. S. Dist. Oct. 25, 2013).
Virgin Islands—Assistant Attorney General Must Be Admitted to Practice in Virgin IslandsWilson Campbell, an attorney admitted in New Jersey, was hired as an assistant attorney general by the Virgin Islands attorney general. He sought special admission, but because of pending disciplinary proceedings in New Jersey, the Committee of Bar Examiners stayed the character and fitness hearing. After the attorney began working for the attorney general, the Unauthorized Practice of Law Committee (UPLC) received several complaints that he was engaging in unauthorized practice. After several years, the UPLC issued a report finding that he had engaged in the unauthorized practice of law. Campbell challenged the finding on several grounds, including his employment as an assistant attorney general.
The Virgin Islands statute prohibiting unauthorized practice includes the phrase “Except as otherwise provide by law or rule of court.” The Virgin Islands Code provides, “[a]ny Assistant Attorneys General appointed under [this section] shall perform such duties as the Attorney General prescribes” and “[the Department of Justice] shall be administered under the supervision and direction of the Attorney General.” Campbell argued that all assistant attorneys general are supervised by the attorney general, “who is statutorily permitted to delegate whatever duties to them that he sees fit.” The court held that “authorization to practice law is a prerequisite to performing the duties of an Assistant Attorney General.” In addition, Virgin Island statutes require that any rule, regulation or other practice employed by the attorney general “with respect to the Department of Justice and its personnel” may not be “inconsistent with law or other regulations authorized by law.” The court concluded, “Thus, the Attorney General’s statutorily-mandated supervision of Assistant Attorneys General does not permit an Assistant Attorney General to practice law without obtaining Virgin Islands Bar admission.” In The Matter of the Petition of the Virgin Islands Bar Association Committee on the Unauthorized Practice of Law Re: Wilson J. Campbell, 2013 V.I. Supreme LEXIS 57 (V.I. Sept. 16, 2013).
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