Law School of Harvard University / 2017–2018

The Role of the Attorney General Fall 2017

Professors James Tierney and Peter Brann Available for download: Beginning December 11, 2017

Must be electronically submitted by: 8 hours from download or by 4:30pm December 19, 2017, whichever is earlier.

Questions

1.  You are the newly–elected Attorney General of the State of Hamilton. Prior to the time that you were elected, an employment issue arose involving the Hamilton Department of Agriculture (“Department”). A Department employee, Stanley Jackson, filed an employment discrimination complaint, alleging that he was gay, and that he had been subjected to virulent attacks within the Department, including anti–gay slurs, taunting, and physical confrontations by fellow employees, and that his supervisor refused to do anything about it when he brought it to his attention. He alleged that the final straw was when he applied for a promotion and didn’t get the job, his supervisor laughed at him, and told him that he gave the promotion to a “real man.”

The long–time Assistant Attorney General advising the Department, Barbara Bragg, told the Department that although the conduct was highly inappropriate, it was not illegal under the Hamilton Employment Discrimination Act. According to Bragg, the Hamilton statute was based on federal law, and sex discrimination only included discrimination against the opposite sex. Bragg was apparently unaware that there recently has developed a split in the federal courts whether sex discrimination includes discrimination against the same sex (and for purposes of this question, you do not need to resolve that split). When Jackson sued the Department, the Commissioner of the Department, and the Department supervisor, Bragg met with them to discuss litigation strategy, and Bragg filed a motion to dismiss on behalf of all of the defendants, which is currently pending.

It is at this point in the litigation that you were elected and first apprised of this pending case. Your personal views align with the LGBTQ community that supported you in your election, and they and your newly appointed head of the Public Protection Bureau have strongly urged you to switch sides in this case and sue the Department for sex discrimination. Your options include, but are not limited to: 1. Continue to have Bragg represent the defendants; 2. Withdraw from representing the defendants; or 3.

Switch sides and sue the defendants. Who, if anyone, would you consult, how would decide what to do, and what would you do?

When the press asked your non–lawyer Chief of Staff what you were going to

do, she said that you were considering the issue carefully, but “you didn’t want to be on the wrong side of history.” When asked for a comment, the Commissioner responded: “We’ve been ably represented by the Office of Attorney General and Assistant Attorney General Bragg for years, and we have always appreciated their non–political legal

judgment. We don’t understand the Chief of Staff’s comments about ‘the wrong side of history.’ If the new Attorney General is going to abandon his clients, or not give us a

forceful defense, we are entitled to a lawyer who is looking out for our interests. Thus, we’re going to hire our own lawyer and send the bill to the Attorney General.” The Commissioner then hired a very good, but expensive, boutique law firm without getting your approval, as required under state law, and had them send their bills to you. What would you do?

2.  You are an Assistant Attorney General in the Consumer Division in the State of Madison. With great fanfare in September 2016, the State of Madison, and five other States, along with the Consumer Financial Protection Bureau (“CFPB”), led by former Ohio Attorney General Richard Cordray, jointly filed a lawsuit against the Madison Assurance Guaranty Association for improper student loan collection practices on behalf of for–profit colleges. You are the lead counsel for Madison and the other States in this matter, but the States have been relying on the expertise and enormous resources of the CFPB in this case. Because this case involves potentially hundreds of millions of dollars in restitution, the defendant has hired a large national law firm to represent them.

The defendant’s motion to dismiss was denied, and the inevitable onslaught of discovery has begun. You received some very damaging emails from the defendant in response to your discovery requests.

Unfortunately for you, discovery is a two–way street. The defendant has asked the States and the CFPB for all public and private emails and texts that refer to the defendant, loan collectors, or for–profit colleges. Because the state email system is so clunky, you have used your private email periodically to conduct state business, and you know that you have also said some fairly impolitic things to friends and former colleagues in personal emails and texts about the defendant, loan collectors, and for– profit colleges. Also, on your private email account, you have referred to the current Attorney General as a “moron” and you have sent out some feelers for a new job, so you don’t want anyone reviewing your private emails and texts. Who, if anyone, would you consult, how would decide what to do, and what would you do?

Yesterday morning you received a phone call from the lead lawyer for the CFPB, Gloria Pickett, who told you that the new Acting Director of the CFPB had told her to drop this case, which they are going to do next week. Pickett said that she was really sad that the CFPB was leaving Madison and the other States holding the bag, and asked if there was anything she could do to help in the next week. What do you say in response?

After receiving the call from Pickett, you hastily organize a conference call with the other five States on the executive committee. Everyone was concerned about the CFPB dropping out of the case, and a couple of the States thought that their Attorneys General might reconsider going forward without the support of the CFPB. But everyone agreed that the defendant’s actions were horrible, and that something should be done to stop such predatory practices, In light of the imminent departure of the CFPB, what do you do?

This afternoon you received a phone call from the defendant’s lead counsel, Joe Early. Early said that he expected that the CFPB would be dropping out of the case, and that there was no way that Madison and the other States could continue to litigate the case without the CFPB. He then asked you point blank whether the CFPB had told you that they would be dropping out of the case. What do you say in response?

Early then said that Madison and the other States should just drop the case, and if it did, the defendant wouldn’t seek attorneys’ fees or costs. Otherwise, they intend to litigate the case furiously. You don’t know if he is bluffing or not. You remind him that the defendant has turned over some pretty damaging emails that have not yet been released publicly. You think, but are not sure, that Early has concern about the release of these emails. What do you say and do in response to the demand that the States just drop the case?

3.  You are the Deputy Attorney General in charge of the Criminal Division of the State of Jefferson. A couple of years ago, Jefferson’s most successful prosecutor, Assistant Attorney General Jack Stuart, obtained a murder conviction in a very tough case. Although the defendant plainly had a motive to kill the victim, and one of his fingerprints was found on the gun that had been tossed into a dumpster, there was only one eye witness who placed him at the scene of the crime, Annie Hill. According to Hill at trial, the defendant was a drug dealer, and the murder occurred during a drug deal that went bad. Hill was the defendant’s former girlfriend. The defendant’s appeal of his conviction is currently pending in state court.

Hill has shown up unexpectedly in your office. She has been brought to you by the State’s lead investigator in the case, with whom she has already shared her story. Hill tells you that with all of the publicity about #MeToo concerning sexual harassment by men in positions of power, she felt she needed to come forward.

She tells you that when she met with Stuart alone the night before her testimony at trial, she admitted to him that she couldn’t unmistakably see the defendant at the scene of the crime because she was high on cocaine. Stuart told her that if she testified to her cocaine use at trial, she ran the risk of having kids taken by the Department of Health and Human Services (“DHHS”) for being an unfit mother. Alarmed, she claims that she asked Stuart what could be done about that.

Hill said that Stuart told her that she needed to testify as she had in her earlier police interviews that she witnessed the defendant clearly at the scene of the crime. She said that she then asked for assurances that Stuart wouldn’t tell the Assistant Attorneys General who represent DHHS that she was a drug addict. According to Hill, Stuart told her that would depend not only on her testimony the next day, but also on “other considerations.” Hill claimed that Stuart then demanded that she have sex with him, and feeling that she had no choice, she did. Needless to say, none of this was disclosed at trial the next day, and she unequivocally placed the defendant at the scene of the crime, who was then convicted of murder.

As his supervisor, you and the State’s lead investigator then meet with Stuart, who emphatically denies everything. He reminds you that Hill is the defendant’s former girlfriend, and this story is the best, and perhaps only, opportunity for the defendant to overturn his conviction. Stuart says he is insulted by these spurious allegations, and almost shouts that he never would throw away his 20–year career as the best prosecutor in Jefferson by threatening or having sex with a witness. After hearing both of them, you do not know who to believe.

Afterwards, you meet with the lead investigator on the case, who tells you that there is no doubt that the defendant committed the murder, based on the forensic evidence, but if Hill’s new story became public, the Office of the Attorney General would be castigated not only on this case, but on every other murder case handled by Stuart over the years. Also, he doubts that another lawyer, who would not be as good a trial lawyer as Stuart, could obtain another conviction of the defendant in this case without the eye witness testimony of Hill.

Who, if anyone, in the office do you tell about these developments? Do you recommend that this information be disclosed publicly? Do you convey any of this information to defense counsel handling the defendant’s post–conviction appeal? Do you recommend to Hill that she retain counsel in this matter? Explain your reasons for each of these actions.

What would you recommend to the Attorney General be done in this matter?

When you met with Stuart, he mentioned that he couldn’t meet with you for very long because he was preparing for a triple murder arson case that was going to trial in a couple of weeks, for which he had been preparing for over a year. Due to speedy trial concerns, the judge almost certainly would not grant the State an enlargement of time. No one else would be able to get up to speed to take over this prosecution in a couple of weeks if Stuart were placed on administrative leave or forced out of the office. Does this factor into your recommendation? Does it make a difference in any of your recommendations if you think that Hill will go to the press on this issue?

4.  You are an Assistant Attorney General who handles civil litigation for the State of Adams. One of the state agencies that you represent is the Judiciary, which means that you represent state judges when they get sued. Usually, that is pretty easy because ordinarily they have absolute immunity. Not this time.

Nancy Forrest, the Chief Judge of the Superior Court (the trial court in the State of Adams) has been sued for violating the First Amendment. A lawyer, Ben Anderson, alleged that Chief Judge Forrest ordered him to take off a political button (“Lee for

Senate”) in the courtroom. When Anderson retorted that he had a First Amendment right to wear a political button in the courtroom, Chief Judge Forrest responded, “Not in my courtroom.”

When you meet with Chief Judge Forrest, she tells you that this case should be dismissed because she wasn’t properly served in hand. Anderson simply mailed her the complaint, so technically that wasn’t good service. You remind him that all judges, including her, dislike hyper–technical arguments, and obviously the lawyer could easily serve her in hand with the complaint, so this argument just wastes everyone’s time and hurts one’s credibility. She responds, “I’m a judge and the client, and I know the law better than you do, so do as I tell you.” What would you do?

Regardless of how you resolve the service issue, the case goes forward.

Unfortunately, your motion to dismiss was denied. In preparing for her deposition, Chief Judge Forrest tells you “just between us” that courtroom decorum had nothing to do with her decision: “I was opposed to Lee for Senate, and I didn’t want to look at that stupid button in my courtroom. Hey, I like talking to my lawyer. It’s all covered by privilege.”

In the pleadings you had asserted that the judge’s actions were based on “courtroom decorum” and thus were protected. The judge’s “just between us” comment, however, now indicates that courtroom decorum had nothing to do with it, and that she apparently did intend to violate Anderson’s First Amendment rights. What would you do?

When you broach the possibility of settling the case, Chief Judge Forrest rejects that option out–of–hand on the grounds that it will harm her reputation and thus her chances of appointment to the Adams Supreme Court. When you again suggest settling the case, she darkly reminds you that the Office of Attorney General is currently litigating a number of high profile cases before her in which you are counsel of record, including a class action against the state prison in which the plaintiffs are seeking millions of dollars in damages and improvements. What would you do?