Law School of Harvard University / 2015-2016

The Role of the Attorney General Spring 2016

Professors James Tierney and Peter Brann

Available for download: Beginning Wednesday, April 27 at 12:30am.

Must be electronically submitted by: 8 hours from download or by 4:30pm on Friday, May 6, whichever is earlier.

Instructions

The exam mode for this examination is TAKEHOME. Students will be able to download the question beginning at 12:30am on April 27 until May 6. Once you view the questions, you will have 8 hours to submit your answer.

This exam is 9 pages long – including this cover sheet. Please check to see that you have all 9 pages. Please read these instructions and the entire exam carefully before beginning a response.

While taking this examination you may consult any materials that you are able to access including but not limited to the assigned course materials and any of your own or other class member’s outlines or notes. You may engage in legal research if you believe it to be relevant to your answers, but this is not an exam about the proper resolution of a legal issue. Your answer must be entirely your own work. You may not discuss the examination with anyone, either while taking it or thereafter until everyone has taken the exam.

The purpose of this seminar has been to promote an understanding as to the law and culture surrounding the office of state attorney general. As we have learned, state attorneys general are bound first by the law and the constitution. We have also learned that attorneys general possess a culture of problem solving that is bound by resources, politics, relationships and the potential of other local, state and federal actors who can be either in support or in opposition to an attorney general initiative.

The goal of this examination is both to continue your education about attorneys general as well as to assess what you have learned. The exam is drafted in a way that will help you expand your ability to use your own reflective legal judgment consistent with the public interest. We are therefore looking for answers that indicate your grasp

of the law relating to attorneys general and public policy that we have covered this semester. The premium should therefore be on insight and not length.

In answering these questions, you should refer to everything you have learned in this seminar including but not limited to statutes, structure, ethics, statutory powers, common law authority, the relationship with the federal government, and available resources. Do not exclude information learned in other classes and in your own life experiences.

Unless instructed otherwise, in answering the questions assume that you are operating within the State of Hamilton where the "chart" defines the organizational structure of the Office of Attorney General. Assume further that the Attorney General and the District Attorneys are elected officials. Assume finally that the Hamilton Supreme Court has adopted the law of Feeney v. Massachusetts, 373 Mass 359 (1977).

While the questions contain all of the facts required to respond, your answer may advise the commencing of verbal communications, investigations or informal meetings that might uncover other additional “facts.” As long as you clearly state the “facts” the office discovers and therefor is relying upon, feel free to incorporate them into your answer. You should also recall our conversations as to the “sequencing” of events, e.g. “if we find this, we do that….if we don’t find this, we do something else…” You will also recall our discussions of the use of email. Be mindful of existing expertise and resources within other state and federal governmental agencies as well as the private sector, academia and the private bar. As we have discussed, simply because the attorney general has jurisdiction does not mean that the office is the only agency capable of addressing the situation. If you believe that political issues are relevant, feel free to address them and afford to them what weight, if any, you deem appropriate.

Please remember that this seminar has been about law and not politics.

Try to not use the word "however." (This is a pet peeve of Professor Tierney.

Professor Brann, however, does not share this concern.)

Questions

1.  You are the Attorney General of Hamilton. Although the State’s economy has been recovering, unfortunately, you have been involved in some bruising battles with the Governor. The Legislature adjourned for the year late last night, and you have just learned that at the Governor’s insistence, your core, non–agency funded budget was cut by 10% when the state budget was approved just before the Legislature adjourned.

You now must decide what to do about the 10% cut to your budget. Looking at the chart and all of the functions that your office performs, what function or functions would you cut back or eliminate altogether? Please explain why you would make the cuts that you would make. Please also explain if there are any alternatives for the function or functions that you would cut back or eliminate, or, if not, why you think that is an appropriate choice.

Part of being Attorney General is setting priorities. Are there any functions, or things that aren’t being done currently, or that you think should be expanded, even if something else must be cut back or eliminated? Please explain why this function should be a higher priority. Also, please describe what additional cutbacks you would make to fund your higher priority.

Interest groups that support you have heard about the midnight cuts to your budget and have offered to “help.” If you are a Democrat, they are donors and supporters who are plaintiffs’ class action lawyers who volunteer to bring consumer and antitrust cases in your name on a contingency basis, or issue–oriented lawyers financed by unions and interest groups who volunteer to defend the State on hot button issues that you care about. If you are a Republican, they are donors and issue–oriented lawyers who volunteer to bring lawsuits in your name against the federal government, or to defend the State on hot button issues that you care about.

Do you accept these offers of assistance, and if so, what, if any, limits do you place on this free assistance?

2.  You are an Assistant Attorney General in the Consumer Division in charge of charities in Hamilton. You receive a call from a former employee of the “Make Hamilton Great Foundation.”

The foundation is very prominent in Hamilton, frequently appearing in the media announcing grants to local worthy organizations that help disadvantaged children, youth, families and seniors in Hamilton. It claims to be the biggest foundation focused exclusively on Hamilton. The Chair of the Board of Trustees is a prominent businessperson and served as the finance chair for the Attorney General’s election campaign.

According to the former employee, the foundation spends an excessive amount of its contributions on salaries and perks for the Executive Director and the Board of Trustees, and that the foundation’s claim on its website that “90% of contributions go to the disadvantaged in Hamilton” is simply false. The whistleblower gave you purloined documents that show that from the $20 million a year in contributions, over $8 million a year goes to salaries and benefits for the Executive Director and the Board of Trustees (including a personal chef, private jet rentals, and luxury European hotel stays), another

$2 million goes to unspecified “operational” costs, and over $4 million a year goes to a private fundraising company affiliated with the Chair of the Board of Trustees.

Although only $6 million or less goes to the disadvantaged in Hamilton, that is still the largest source of revenue for such groups in Hamilton.

Armed with this information, what would you do? Would you contact the foundation to try to resolve this matter, and if so, what would you attempt to accomplish? If not, why not? Would you file a civil action against the foundation or the Executive Director or the Board of Trustees? If not, why not? Would you refer this matter to the Criminal Division? If not, why not?

Before you are able to decide what to do with the information, you do a little more digging because you discover from the foundation’s IRS filings that there was a mysterious payment of $100,000 from the foundation to XYZ, Inc. You discover that the Chair of the Board of Trustees is the sole shareholder of XYZ, Inc., and that its only activity was to purchase $100,000 of television “issue” ads supporting initiatives taken by the Attorney General during his last campaign. Political ads supporting or opposing a particular candidate may be a violation of the federal tax laws, and anyone who participated could likewise be in trouble. On the other hand, these “issue” advertisements could be protected speech.

Do you refer this matter to the IRS or the U.S. Attorney for a federal civil or criminal investigation? If not, why not? Do you consult with others in the office, and if so, who would you contact and why?

Before you can take whatever action you were going to take, you receive a call from the Attorney General, who says “I understand that you have been investigating the Make Hamilton Great Foundation, and you may have some questions. The guy who is in charge of the foundation is a good friend of mine, and the foundation does good, important, work. So, tell me, what has your investigation found out, and what are you thinking of doing?”

What do you say and do in response, and why?

3.  You are an Assistant Attorney General and the environmental chief of the Hamilton Office of Attorney General. Because your boss believes that climate change is manmade, he recently issued a press release at the same time as the Attorneys General of 20 other states and former Vice President Al Gore. The press release calls for unspecified immediate action, but no one has yet filed a lawsuit. You personally feel very strongly about this issue, and would love the opportunity to file a lawsuit against the large energy companies, although your own scarce resources would of necessity make this a multistate case.

Your boss's press statement said, in part, “We must save our planet from the merchants of total destruction whose greed endangers our very existence as a species.” You deleted the reference to “Exxon” from the Chief of Staff's draft, and inserted the words “merchants of total destruction,” but the earlier draft, including the reference to Exxon, had been circulated already to the other 20 States without your knowledge.

Unknown to you, one of the states has retained plaintiffs’ class action counsel, working on a contingency, who, without telling the other 20 States, issued a lengthy civil investigative demand to Exxon and advocacy organizations that publicly dispute the notion that fossil fuels cause climate change.

Last week, Exxon and these organizations sued all 21 states, including Hamilton, in state court in Texas alleging that a conspiracy of Al Gore, attorneys general, contingent counsel, and environmental radicals has been created to deprive Exxon and the affiliated private organizations of their First Amendment rights. Included in this suit is the treasure trove of emails that circulated among the 21 states, which include the original draft from your boss that included the word “Exxon” that you had deleted.

All 21 states get on a conference call. At the outset of the call, an Assistant Attorney General from another State asks, “Who leaked these emails and draft press releases to Exxon?” Although no one admits that he or she leaked these materials, one of the other Assistant Attorneys Generals concedes that he emailed “a few” of the materials to his Attorney General, who then demanded to see “the entire file.” You and most people on the call believe, but can’t be certain, that this State likely turned over the materials to Exxon or someone else who gave them to Exxon.

What, if anything, do you recommend doing about the State that you believe leaked these materials to Exxon? Please explain your reasoning.

The discussion now turns to the plaintiffs’ class action counsel who sent out the CID without telling anyone, and who, according to Exxon’s complaint, has been actively fighting Exxon in several other class actions, seeking millions, if not billions, of dollars in damages and attorneys’ fees. Under sharp questioning from the career Assistant Attorneys’ General, she argues that she is a lot more interested in suing Exxon for billions of dollars as the best way to stop climate change, and that she intends to pursue this matter as aggressively as she can. All the government lawyers believe that she is only interested in the money.

What, if anything, do you recommend doing about the State that retained the plaintiffs’ class action counsel? Please explain your reasoning.

Shortly after the acrimonious conference call, your Chief Deputy Attorney General summons you and the Chief of Staff to her office. She explains that this Exxon lawsuit is a disaster—the Attorney General is getting pummeled in the press for stomping on the First Amendment rights of Exxon and others, the affiliation with the plaintiffs’ class action attorney is causing heartburn given her terrible reputation, and the cost and distraction of a lawsuit before an elected state court judge in state court in Texas is not something the Attorney General wants or can afford.

She asks for your advice on how to proceed. What do you say in response?

4.  You are the Assistant Attorney General in charge of the Criminal Division of the State of Hamilton. The police have an uneasy relationship with the minority community in the largest city in Hamilton. There have been allegations of racial profiling and excessive force, and civil rights groups asked the Attorney General a year ago to investigate the police department.

Last week, police shot and killed an unarmed male black teenager, and the minority community erupted in outrage. Some of the protests turned violent, and the District Attorney defended the police response to the violent protests as “necessary to stop a few thugs from burning down our city.”

Community activists and ministers have stated that they don’t believe that the District Attorney can fairly investigate this matter anymore in light of what they believe to be his inflammatory comments. The Attorney General and the District Attorney have concurrent criminal authority in Hamilton. The community activists and ministers have come to see you to ask that the Attorney General take over the investigation of the police shooting of the unarmed male black teenager, and to convene a grand jury to indict the police officer.

Do you agree to meet with the community activists and ministers? What do you do in response to their requests that the Attorney General take over the investigation and convene a grand jury?

The head of the police union has stated publicly that he does not believe the Attorney General should take over the investigation of the police shooting because the AG’s Civil Rights Division has been conducting a secret, year–long “witch–hunt” into the police department, and they recently sent the police department an onerous settlement proposal. The union chief thinks that the AG’s Office has a conflict of interest, and he would like to meet with you to discuss this.

Do you agree to meet with the head of the police union? Do you seek out the head of the Civil Rights Division in the Attorney General’s Office to find out more about their investigation? What do you do in response to the claim that this amounts to a conflict of interest?

Assume that the Attorney General’s Office takes over the investigation of the police shooting. A month later, the Chief of Staff contacts you and says that the Attorney General has been asked to speak at the annual meeting of the Sheriff’s Association of Hamilton, and that he really wants to speak about the issue of police shootings and what should be done about this issue.

The Role of the State Attorney General Mr. James Tierney and Mr. Peter Brann Spring 2017

TAKEHOME

Available for download: Starting at 12:30am on Wednesday, April 26th. Due 8 hours after download, or by 4:30pm on Friday, May 5th, whichever time is earlier.

                        1.   You are the Attorney General of the State of Griswold, and you were re–elected to this position in November 2016.

To call your relationship with the current Governor, Janet Ames, who also was re–elected in November 2016, rocky is an understatement. Not only are you members of different parties, but you are polar opposites. Although state statutes give the Griswold Attorney General responsibility for all state litigation, the Griswold Supreme Court has never ruled whether Griswold is a Feeney state or a Deukmejian state, and neither you nor the Governor are confident how that fight would turn out.

When you refused to join several multistate lawsuits or to sign onto amicus briefs on several hot button issues, the Governor went ahead without you, joining the law suits and amicus briefs as “Governor Janet Ames, pro se.” She recently signed onto a major amicus brief in the U.S. Supreme Court this way. Your Solicitor General tells you that you could simply inform the Supreme Court that the Governor has no authority to take a position in litigation, and get her stricken from the case. What do you do?

Meanwhile, the Governor is outraged by your repeated refusal to go along with her proposed changes to Griswold’s Medicaid program. Assistant Attorneys General keep telling the Department of Health and Human Services (“DHHS”) that their desired actions are illegal. So, DHHS has hired a number of lawyers, most of whom are not licensed in Griswold, in what are claimed to be policy roles, but, in fact, are in–house counsel roles. Your Deputy Attorney General in charge of the Criminal Division tells you that you could prosecute the out–of–state lawyers for the unauthorized practice of law.

What do you do?

Finally, the Governor just convinced the Legislature to cut your budget 15%.

Looking over the generic Attorney General organizational chart, what functions would you cut back or eliminate, and why? Conversely, are there any Attorney General functions that you think are so important that they should be increased, even if it leads to bigger cutbacks in the functions that you think should be cut back or eliminated?

2.   You are the Deputy Attorney General in charge of the Public Protection Division (the “white hat division”) of the Attorney General’s Office in the State of Austin.

In addition to charities, consumer protection, and antitrust, the Public Protection Division has responsibility for enforcing Austin’s labor laws. The Division is financed through the Attorney General’s budget, as well and the Attorney General’s share of multistate consumer protection settlements.

In recent years, the number of often anonymous complaints about wage and hour violations, particularly involving the immigrant community, has skyrocketed.

Unscrupulous employers have been hiring undocumented, low wage workers with limited

English skills and then refusing to pay them overtime or even minimum wage on the assumption that they won’t complain or sue. What steps do you think should be taken to address this problem?

Assume that one of the things you do is launch an investigation, and that word of your investigation becomes public. The powerful Speaker of the House has well–known anti–immigrant views. He has previously blasted the Attorney General for “wasting taxpayer money” to pursue cases on behalf of “illegals” instead of focusing his energy on cases involving the “hard–working citizens of Austin.” When the Speaker calls you to discuss your investigation, what do you do?

Assume that you then bring a lawsuit against one of the worst offenders, a large day laborer company. After acrimonious discovery in which you finally obtain the personnel and wage records for over 300 current and former employees, who are predominantly immigrants, you then negotiate a $1 million settlement to pay these current and former employees back wages and overtime.

Immediately after this settlement is announced to great fanfare, an official from

U.S. Immigration and Customs Enforcement (“ICE”) calls you and asks for the names and addresses of each of the current and former employees who are going to get paid under your settlement. What do you do?

3.   You are the Chief Deputy Attorney General of the State of Lewis.

The State of Lewis has been hit hard by the opioid crisis—more people in Lewis died from drug overdoses than from murder last year. Particularly in its rural communities that have seen its mills and small manufacturing facilities close, the crisis has reached epidemic proportions.

The Attorney General has asked you to come up with a proposal to address this crisis, but with the caveat that the disadvantages cannot outweigh the advantages. You convene a meeting of Assistant Attorneys General to come up a plan.

First, from the Criminal Division, you are told that they could ramp up prosecutions against drug dealers, perhaps charging them with manslaughter in drug overdose deaths, but because these cases are more difficult and time intensive, they would probably have to cut back on prosecutions of other violent crimes.

Second, from the lawyer representing the Department of Corrections, you are told that they could work with the Department to divert addicts from prisons to treatment facilities, but this could jeopardize significant federal funding due to the current federal Administration’s “war on drugs” approach.

Third, from the lawyer representing professional licensing agencies, you are told that they could pursue licensing actions against doctors who run “pill mills,” but because these cases are more difficult and time intensive, they would probably have to cut back on enforcement actions against unlicensed and incompetent professionals.

Fourth, from the lawyer handling consumer cases, you are told that you could bring deceptive advertising cases against major pharmaceutical companies for failing to adequately disclose the risks of opioids, but it would take years to win such a case against well–heeled defendants, and meanwhile it would divert resources from other small, run– of–the–mill consumer cases.

Fifth, from the Chief of Staff, you are told that they could work on an aggressive education and outreach campaign, but other state and federal agencies already are engaging in such (apparently ineffective) campaigns and potential 2018 opponents to the Attorney General are already labeling her as “soft on crime.”

How would you rank these recommendations to the Attorney General, and why? Are there other people in the Office who you would talk to, and are there other things that you would suggest, and what are their advantages and disadvantages?

4.   You are the Deputy Attorney General in charge of Civil Litigation in the State of Pound.

The Legislature passed, and the Governor signed, a bill containing the most restrictive abortion provisions in the country. Some of these provisions had been invalidated in other Circuits, while other provisions had been upheld in different Circuits. Neither your Circuit nor the Supreme Court has ruled directly on any of the strictest provisions.

As one of the top litigators in the Office, the Attorney General asks you to handle this matter. On a professional level, you have some questions about the constitutionality of the new statute, at least for some of the most stringent provisions, and on a personal level, although you are not strongly pro–life or pro–choice, you have qualms about some of the strictest restrictions. What, if anything, do you do about this situation?

A week later, the Attorney General tells you, “This is your lucky day! We have just been approached by an aggressive, pro–life legal defense fund that will handle the case for the State for free!” When you ask what your role is, the Attorney General said you should supervise outside counsel like the court described in State v. Lead Industries.

You have a tough time working with the outside lawyers, who keep wanting to take extreme legal positions and to use highly inflammatory language in the briefs, which you know the long–time local federal judge will loathe, and may even hold against the State in future Attorney General cases. The outside lawyers regularly reject your

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?

The Role of the Attorney General Fall 2018

Professors Peter Brann and James Tierney Available for download: Beginning December 10, 2018

Must be electronically submitted by: 8 hours from download or by 4:30 pm on December 19, 2018, whichever is earlier.

Instructions

The exam mode for this examination is TAKEHOME. Students will be able to download the question beginning at 12:30 am on December 10, 2018, until December 19, 2018. Once you view the questions, you will have 8 hours to submit your answer.

This exam is 11 pages long – including these cover instructions. Please check to see that you have all 11 pages. Please read these instructions and the entire exam carefully before beginning a response.

While taking this examination you may consult any materials that you are able to access including but not limited to the assigned course materials and any of your own or other class member’s outlines or notes. You may engage in legal research if you believe it to be relevant to your answers, but this is not an exam about the proper resolution of a legal issue. Your answer must be entirely your own work. You may not discuss the examination with anyone, either while taking it or thereafter until everyone has taken the exam.

The purpose of this seminar has been to promote an understanding as to the law and culture surrounding the office of state attorney general. As we have learned, State Attorneys General are bound first by the law and the constitution. We have also learned that Attorneys General possess a culture of problem solving that is bound by resources, politics, relationships and the potential of other local, state and federal actors who can be either in support or in opposition to an attorney general initiative.

The goal of this examination is both to continue your education about Attorneys General as well as to assess what you have learned. The exam is drafted in a way that will help you expand your ability to use your own

reflective legal judgment consistent with the public interest. We are therefore looking for answers that indicate your grasp of the law relating to Attorneys General and public policy that we have covered this semester. There is a 5,000 word limit for the entire exam.

In answering these questions, you should refer to what you have learned in this class, including statutes, structure, ethics, statutory powers, common law authority, the relationship with the federal government, and available resources. Do not exclude information learned in other classes and in your own life experiences.

Unless instructed otherwise, in answering the questions assume that you are operating within states where the chart defines the organizational structure of the Office of Attorney General. In each State, the State Supreme Court has not yet ruled definitely whether that State is a Feeney State or a Deukmejian State.

While the questions contain all of the facts required to respond, your answer may include the need for verbal communications, investigations, or informal meetings that might uncover other additional “facts.” As long as you clearly state the “facts” the office discovers and therefore is relying upon, feel free to incorporate them into your answer. Be mindful of existing expertise and resources within other state and federal governmental agencies, as well as the private sector, academia, and the private bar. As we have discussed, simply because the Attorney General has jurisdiction does not mean that the office is the only agency capable of addressing the situation. If you believe that political issues are relevant, feel free to address them and afford to them what weight, if any, you deem appropriate. Please remember that this seminar has been about law and policy, but not politics.

Try not to use the word “however.” (This is a pet peeve of Professor Tierney. Professor Brann, however, does not share this concern.)

END OF INSTRUCTIONS

Questions

1.                   You are the newly elected Attorney General of the State of Oxford. Congratulations, but there is trouble brewing. You will be sworn in on January 2, 2019.

The State of Oxford is a so-called purple state, and the newly elected Governor, Sally Knight, is from the other party. Knight ran on a slogan of “Fix the Damn Potholes!” and now has her sights on the Attorney General’s Office. She was quoted in the press recently: “The Attorney General should focus on the problems here in the State of Oxford, and stop spending the time and money on political lawsuits against the President, and multi-state shakedown lawsuits against big corporations.” Governor-elect Knight has proposed to reduce the budget for the Attorney General’s Office by 15%.

As part of your transition, you meet with the current senior staff from the Attorney General’s Office. The Deputy Attorney General in charge of the Consumer Division tells you: “She’s just mad because we had told her that we were just about to file suit as part of a multi-state investigation into Knight’s tech company. Her company is engaging in unfair and deceptive practices through its sale of customer data in violation of its privacy policy. The case is not yet public and I’m not sure when the other States will be ready to file. It may be after you are sworn in, but I’m not sure.”

What, if anything, do you do in light of this revelation?

The legislature is equally dived between the two parties, and you have to take the threat of a 15% budget cut seriously in setting your priorities as the new Attorney General. If you have to make a 15% budget cut in the office, where would you look to cut back or eliminate from the current Attorney General responsibilities, and why, and what, if anything, would you do to cushion the blow caused by such cuts? Be specific as to where you believe the cuts should be made.

To make matters worse, presumably you ran because there were things that you wanted to do. What do you think should be the additional or different priorities of the Attorney General’s Office, even if it leads to additional cutbacks in current responsibilities, and why? Again, please be specific.

2.                   You are the Deputy Attorney General of the State of Hancock in charge of the lawyers who represent the Department of Environmental Protection (“DEP”). And someone is making you an offer you cannot refuse.

A West Coast billionaire environmentalist, Jennifer Lewis, has teamed up with well-known top tier law school, to create the Lewis Honor Fellowships for recent law graduates to work on climate change. The Lewis Honors Fellows would be paid by the Lewis Foundation, and would be offered, free of charge, to State Attorneys General around the country to work as Assistant Attorneys General on climate change projects and litigation under grants approved and financed by the Lewis Foundation.

While your boss, the Attorney General, would get the final say over hiring, the Lewis Foundation would conduct the initial screening of the applicants, and the Lewis Honors Fellows would be paid significantly more than the Assistant Attorneys General who currently represent the DEP (some of whom have been working in the office for 20 years). You are not so naïve as to not understand that the successful applicants are more likely to come from so-called top tier law schools, as opposed to the University of Hancock Law School, which most of your legacy staff attended.

The head of the Lewis Foundation has offered two of these Lewis Honors Fellows to work in your office, and you know your boss has been quoted repeatedly as saying that “climate change is an existential threat. We must do something now to save our planet.” You also know that despite these grandiose statements, he hasn’t done a thing about climate change.

What do you do and say in response to this offer, and why? Whether based on your recommendation or over your objection, two

Lewis Honors Fellows are hired for a two-year fellowship in your office. You

have to admit that they are terrific lawyers who do exceptionally good work. Because they are not from Hancock, you doubt that they will stay in the office after their two-year fellowships end.

Your office has been part of a multi-year, multi-state, investigation into large oil companies’ alleged misrepresentations concerning climate change that has been bogged down in preemptive lawsuits filed by the oil companies around the country. (For purposes of this question, do not be concerned about the substance of such lawsuits.)

In an effort to shake things up, you decide to replace the 20-year veteran from your office who has been representing Hancock in the investigation and lawsuits, Assistant Attorney General Carmen Curbelo, with one of Lewis Honors Fellows. Curbelo, who may not have the same pedigree as the Lewis Honors Fellows, is competent and hard-working, and unlike the Lewis Honors Fellows, will still be working in Hancock in two years. Curbelo comes to you and says: “This isn’t fair. Just because they have a fancy degree, they shouldn’t be allowed to waltz in here and get the plum assignments. If I’m replaced in this case, I am going to quit.”

What do you say and do in response to this?

After weathering that storm, the other Lewis Honors Fellow, Martha Coffman, comes to you quite excitedly one day. She explains that the Lewis Honors Fellows meet quarterly at the San Francisco headquarters of the Lewis Foundation—something you hadn’t known—and at the meeting a week ago, senior counsel from the foundation handed out a PowerPoint, a proposed complaint, and a draft press release that would come from the Lewis Foundation. The Lewis Foundation wants every State with a Lewis Honors Fellow to join a lawsuit that is going to be filed in federal court in San Francisco in a couple of weeks. Coffman further explained that while they wanted all of the States to join the suit, the Lewis Foundation would pay for the entire lawsuit, and “the heavy lifting would be done by lawyers who work for the Lewis Foundation.” She also said that the on-going commitment to the participating States to provide Lewis Honors Fellows would be extended for those States that sued.

What do you say and do in response to this?

3.                   You are an Assistant Attorney General in the State of Knox representing the Board of Funeral Home Operators. You are investigating Donovan Funeral Home and its president, David Donovan, concerning a few customer complaints about alleged failure to honor pre-paid burial contracts.

Utilizing the Attorney General’s confidential civil investigative demand (“CID”) authority, you have obtained a large number of documents from the Donovan Funeral Home, including bank records. The bank records don’t match up very well—you can’t trace the money paid with the funerals or cremations provided. When you spoke to their counsel about it, she told you that it was small family-run business and sometimes the money may have gotten comingled with David Donovan’s personal bank account, but all the money was available for the funeral services purchased.

Because spreadsheets are not your forté, and you cannot tell if there is a problem or not, you took the bank records down the hall to the forensic investigator in the Criminal Division who works on the white collar cases. A few days later, an Assistant Attorney General in the Criminal Division, Dennis Young, stops by your office, and says: “These bank records look promising. I think there could be a theft case here, and I am going to open a file on this one, but I don’t see enough yet to convene a grand jury. What else do you have for evidence in this case?”

What do you say and do in response to this?

Regardless, you were thinking of using your CID authority to take a confidential deposition of David Donovan. To prepare for the deposition, you would really like some help understanding the cash flow in the bank records,

and you would like the Criminal Division investigator to help you decipher them. When you mention it to the investigator, he says that it’s fine with him, but just check with Young. When you call Young, he says: “You want to take Donovan’s deposition using your CID authority? Perfect. That way he won’t get wind of my criminal investigation. Just don’t forget to send me a copy of the transcript afterwards.”

What do you say and do in response to this?

Before you can take the confidential deposition of David Donovan, opposing counsel contacts you to settle the matter against both Donovan Funeral Home and David Donovan. She tells you that they have discovered some

“bookkeeping” errors, and her clients are willing not only to pay back all the missing money, but they’re willing to pay the maximum fine and agree to some licensing restrictions. The offer exceeds what you could obtain if you pursued a licensing action, so you accept the offer. Just before the papers are signed, Donovan’s counsel asks you: “We’re looking for 100% peace. Will this be a complete resolution of this matter?”

What do you say and do in response to this?

4.                 You are the Chief Deputy Attorney General of the State of Somerset. You have been left to deal with the aftermath of the recent election.

The voters just passed by a large margin a citizen initiative to legalize marijuana in the State of Somerset. This is quite a turnaround because Somerset used to have one of the most stringent marijuana laws in the country— possession of an ounce of marijuana used to be a felony.

You convene a meeting of various divisions in the office to discuss the ramifications of the new law. Unfortunately, the Attorney General is off lecturing at the NAAG conference for newly elected Attorneys General on your office’s organizational “chart” that is the gold standard of Attorney General office organization. Meanwhile, he did not provide you with any guidance—he did not take a position on the initiative (“that’s up to the citizens”), and he declined to issue any formal opinions concerning the legal implications of the initiative (“I agree with Tierney that opinions are a waste of time”).

The first to speak up is the Deputy Attorney General in charge of the Criminal Division, Jackie Faso, who says that she received a call from a senior lawyer at the U.S. Department of Justice (“DOJ”), who reminded Faso that possession of marijuana was still a crime under federal law. The DOJ official also reminded Faso that the federal government paid 90% of the cost of the Somerset Drug Enforcement Agency, which was leading the fight against opioids in the State of Somerset. The DOJ official asked Faso if the Attorney General was going to keep prosecuting people for marijuana possession and sale under federal law (the state lawyers are all cross-deputized as Assistant U.S. Attorneys), or if the federal government should reallocate resources from the Somerset Drug Enforcement Agency to a more deserving State.

What do you say and do in response, and why?

Next up is the Solicitor General, Susan Taylor, who says that she has been fielding calls from defense counsel concerning the effect of the new marijuana law. Somerset has a tough “three strikes” law in which conviction of three felonies leads to a mandatory life sentence. In a case pending in the Somerset Supreme Court, in which Taylor’s brief is due in a few weeks, one of the

defendant’s three felony convictions was for possession of one ounce of marijuana (and the other two were for theft to finance his drug habit). Taylor wants to know whether the State should take a different position in the Somerset Supreme Court in light of the citizen imitative.

What do you say and do in response, and why?

The Assistant Attorney General representing the Department of Motor Vehicles (“DMV”), Kathy Yoder, said that she too had a question. Although the citizens may have legalized marijuana, that didn’t change the fact that people who were high shouldn’t be driving. According to Yoder, DMV was about to issue emergency rules that classified driving while high as the same as driving under the influence, and the standard would be based on a highly controversial study financed by the DOJ. Yoder said that the study was “junk science” and the proposed rules were a “bad idea.” Yoder is the Assistant Attorney General who approves DMV rules for legality, and she wants to know if she can refuse to sign off on these rules.

What do you say and do in response, and why?

The Assistant Attorney General representing the Department of Health & Human Services (“DHHS”), Emily Paulsen, has a different problem. Somerset has a state program for disabled veterans that pays for drugs to alleviate chronic pain. Although studies show that, for some patients, marijuana is a cheaper and better alternative than opioids for pain management, Somerset had never allowed the use of marijuana because it was illegal. Paulsen said that representatives of various veteran groups had contacted her and asked her to advise DHHS that it had to change its position in light of the citizen initiative.

What do you say and do in response, and why?

5.                   You are an Assistant Attorney General in the State of Cumberland, handling civil litigation defense of state agencies and state employees. You are handling a lawsuit concerning the suicide of a patient at the Cumberland Mental Health Institute (“CMHI”).

The patient’s children have sued a nurse who was disciplined for signing off on the patient’s unescorted grounds pass, which he used to go drown himself in the river next to CMHI, the nurse’s supervisor who disciplined the nurse, and the Commissioner of the Department of Mental Health (“DMH”), along with others. You are defending all of the state employees who have been sued, and due to budget constraints, you are the only lawyer defending all of the state employee defendants.

When you meet with the nurse, Martha Bishop, she is still angry at having been disciplined following the suicide. “I am being made a scapegoat in this awful tragedy. We nurses work round-the-clock without adequate support, and then take the fall if anything goes wrong.” When you tell her that you are also representing the supervisors, she is incredulous: “How can you be my lawyer when they are trying to pin the blame on me?”

What do you say and do in response to this, and why?

Afterwards, you meet with the nurse’s supervisor who disciplined the nurse, Stephanie Russell, who has also been sued in this matter. When you ask her to tell you what happened, she responds: “Before I tell you anything, I just want to confirm that you are my lawyer, right? What we say is confidential, right?”

What do you say and do in response to this, and why?

Whatever you say to her apparently calmed the waters because Russell then speaks to you at length about the incident. “I really hated to discipline Bishop about this tragic accident. She is one of our best nurses and I am broken up over the situation. I felt I had no choice. The real cause is the chronic underfunding and mismanagement from senior management, but you certainly can’t say anything about that! The Commissioner of DMH made it clear to me that the “public” was demanding “action” in response to this suicide, and I felt that if I didn’t discipline Bishop, I might lose my job. As a single mother taking care of my disabled son, I couldn’t take that chance, so I did what I had to do.”

The Role of the Attorney General Yale Law School

Spring 2019

Professors Peter Brann and James Tierney Instructions

This is an 8-hour, self-scheduled, exam. All four questions are equally weighted.

There is a 5,000 word limit for the entire exam.

This exam is 11 pages long, including these cover instructions. Please read these instructions and the entire exam carefully before beginning a response.

While taking this examination you may consult any materials that you are able to access including but not limited to the assigned course materials and any of your own or other class member’s outlines or notes. You may engage in legal research if you believe it to be relevant to your answers, but this is not an exam about the proper resolution of a legal issue, and thus such legal research is not recommended. Your answer must be entirely your own work. You may not discuss the examination with anyone, either while taking it or thereafter until everyone has taken the exam.

In answering these questions, you should refer to what you have learned in this class, including statutes, structure, ethics, statutory powers, common law authority, the relationship with other governmental agencies, and available resources. Do not exclude information learned in other classes and in your own life experiences.

Unless instructed otherwise, in answering the questions assume that you are operating within States where the chart defines the organizational structure of the Office of Attorney General. In each State, the State Supreme Court has not yet ruled definitely whether that State is a Feeney State or a Deukmejian State.

While the questions contain all of the facts required to respond, your answer may include the need for verbal communications, investigations, or informal meetings that might uncover other additional facts. As long as you clearly state the facts the office discovers and therefore is relying upon, feel free to incorporate them into your answer. Be mindful of existing expertise and resources within other state and federal governmental agencies, as well as the private sector, academia, and the private bar. As

we have discussed, simply because the Attorney General has jurisdiction does not mean that the office is the only agency capable of addressing the situation. If you believe that political issues are relevant, feel free to address them and afford to them what weight, if any, you deem appropriate. Please remember that this class has been about law and policy, but not politics.

Try not to use the word “however.” (This is a pet peeve of Professor Tierney.

Professor Brann, however, does not share this concern.)

End of Instructions

Questions

1.                   You are an Assistant Attorney General in the Civil Litigation Division handling tort claims against the State of Wilmington. In Wilmington, the Attorney General represents the University of Wilmington (“UW”).

UW has a very successful football team. It has appeared in numerous bowl games and has won the conference championship several times, including last year. The star of the team last year was All-American quarterback, senior Marty Shelley. In the conference championship, Shelley was taken out of the game after a particularly vicious blind hit, but he returned in the fourth quarter to throw the winning touchdown.

The celebrations were short-lived. Two weeks after the championship game, Shelley committed suicide by hanging. His parents authorized a brain scan, and discovered that he had chronic traumatic encephalopathy (“CTE”). CTE often results from excessive or repeated head injuries, and has been linked to depression and suicide. Recent studies have found that 87% of former football players, and 99% of NFL players who have had brain scans suffer from CTE.

This is the third suicide of a former UW football player (although the other players did not have brain scans done). Shelley’s parents, along with the parents of the other two student-athletes, have sued UW, the President of UW, the team physician, and the head trainer, and you represent all of the defendants. It is rumored that the parents reached a separate, secret settlement with the highly paid head coach, who recently left UW for a more prestigious job in the Big Ten. (Assume for purposes of this question that there are no sovereign immunity or tort claim limitations on this lawsuit.)

A.                As you look at the case file, you realize that this is going to be a massive, high profile, case, with lots of complicated discovery and expert testimony. The parents have hired a famed plaintiff’s lawyer, Eddie Wharton, who has a string of multi-million dollar, medical malpractice, verdicts. You have concerns about taking this case to a jury against Wharton.

You receive a call from the president of the UW football booster club, Henry Lee, who has given millions of dollars to UW, and is also a major financial contributor to politicians in Wilmington, including your boss the Attorney General. Lee immediately cuts to the chase: “This is an enormous case, and a lot more complicated than those prisoner cases you usually handle where the prisoner cuts off his hand in shop. You are up against Eddie Wharton, the top plaintiff’s lawyer in Wilmington. You need help. The

UW football booster club and I are willing to spend whatever is necessary to defend this case. We are willing to pay to hire the best medical defense firm in Wilmington to handle this case.” What do you say and do in response to this offer?

B.                  Regardless of your response to Lee’s offer, you continue to be involved in the case. When you meet with the defendant trainer of the football team, he provides some disturbing information after confirming that you are “his” lawyer. He tells you that Shelley had been acting increasingly erratically as the football season went along. He said Shelley often muttered to himself, “I’m lost and I’m failing.” The trainer said he did not do anything about it other than mention it to the defendant team physician, who did nothing. In the conference championship, after the blind side hit, the trainer said that Shelley’s eyes were glassy and he didn’t appear to know where he was. The trainer claims he told the team physician that Shelley shouldn’t go back into the game, but the physician just laughed: “Are you kidding? This is the championship game.”

While you are digesting this information, you receive a call from the famed plaintiff’s lawyer, Eddie Wharton. He said he would like to talk settlement, but the only way this case can settle is if everyone puts their cards on the table. Wharton then asks you pointblank: “Did any of the defendants know anything about Shelley’s mental state before or during the championship game?” What do you say and do in response to this question and the information you learned from the trainer?

C.                 A few months later, after the disastrous deposition of the defendant trainer disclosing all of the information he told you, you receive another call from Wharton. He confirms that you still represent UW, the President of UW, the team physician, and the head trainer.

Wharton then makes the following settlement offer: “My clients are terribly distraught parents who have lost their  children, and  want more than anything else to see to it that this tragedy never happens to another parent. Accordingly, they have authorized me to settle this case for $1.00 against each of the individual defendants if defendant UW agrees to an injunction banning football. If you don’t take this offer, I have no doubt that I will obtain a verdict against each individual defendant for tens of millions of dollars, bankrupting all of them. I also will ring the bell for hundreds of millions of dollars against UW, which will lead to increased state taxes, higher UW tuition, and the elimination of lots of UW programs and sports.” What do you say and do in response to this offer?

2.                   You are the Solicitor General for the State of Livermore. You were very excited to get this job and be able to work on some of the most important legal issues facing the State of Livermore and the country today. No one mentioned that many of the appeals you will be handling on a day-to-day basis are less glamorous than filing briefs in the U.S. Supreme Court. Three cases coming out of the Department of Health and Human Services (“DHHS”) concern you.

A.                The largest number of appellate briefs to the Livermore Supreme Court that you review involve parental termination cases. In these cases, the Attorney General’s office represents DHHS in its efforts to terminate the rights of unfit parents to their children. The cases usually involve some combination of abuse, neglect, substance abuse, or mental illness. Termination is necessary before the child can be eligible for a permanent foster home placement or adoption. The lawyers representing the parents are poorly paid, often recently admitted solo practitioners, and often not very good.

In reviewing one appeal, the parents’ appellate brief said that the procedure was “not fair,” but did not otherwise develop the argument. The draft appellate brief from Assistant Attorney General Helen Stowe stated, correctly, that failure to develop an argument waives the argument under Livermore law, but otherwise did not discuss the procedure provided to the parents in the trial court.

In looking at the underlying case file, you believe that the procedure did not comply with the Livermore parental termination statute, and was not only unfair, but might even violate due process. When you tell Stowe that you think the brief should discuss the issue further and perhaps concede that the procedure was improper, she pushes back: “That’s a terrible idea. The parents have waived any procedural objection. If the decision is vacated, the trial judge will simply rubber-stamp the termination of the parental rights of these abusive and drug addicted parents. Meanwhile, this will delay adoption of this special needs child for months or even a year. We bring these cases to protect children. If we confess error, who speaks for the children?” What do you say and do in response?

B.                    Meanwhile, DHHS would like you to file a cert. petition to the U.S. Supreme Court on its behalf. The Assistant Attorney General handling Medicaid issues for DHHS, Ayanna Christie, meets with you to convince you to file the possible cert. petition.

The Centers for Medicare and Medicaid Services (“CMS”) ordered Livermore to repay over $80 million that CMS claimed had been improperly spent under its Medicaid regulations. Livermore sued CMS to prevent the repayment, and in the federal district

court, Livermore won. In the appeal filed by CMS to the U.S. Court of Appeals, CMS won in a split 2-1 decision, with the dissent arguing that this case was ripe for Supreme Court review. The interpretation of these Medicaid regulations has been challenged in numerous courts, and the U.S. Courts of Appeals are split on whether CMS is correct or not.

Christie explains to you that this is obviously very important to the State, and this decision will blow a $80 million hole in the budget if it is not overturned. When you press her on the merits, her answers are not terribly convincing, except to say that several other Circuits have come out the other way in interpreting the same regulations. Your reading of the case law and regulations, and your familiarity with the current make-up of the Supreme Court tells you that although the Court is likely to take the case (especially if you can get some other States to support your cert. petition), the Court is also likely to affirm the ruling against Livermore.

Before you can make a final decision, several lawyers you know well (fellow clerks) from the leading advocacy group supporting Livermore’s position call you. They strongly urge you not to a file a cert. petition because Livermore’s case is worse than some other States that won in their Circuits, and they think the Supreme Court will affirm, creating a terrible rule for the entire country that will cost the States collectively up to a billion dollars. When you protest that this decision is going to cost Livermore

$80 million, they argue that Livermore is unlikely to win and it shouldn’t ruin things for everyone else. What do you say and do in response?

C.                 Every time you turn around, DHHS is getting sued. In administering a pilot welfare-for-work program for 150 people, DHHS had its computer system hacked, exposing the personal data of the 150 people in the program for a week or so before the hack was discovered and shut down. No one appeared to suffer any tangible damages from the data breach. Nevertheless, one of the participants brought a class action against DHHS based on the data breach.

In the trial court, Assistant Attorney General Gretchen Stein filed a motion to dismiss on behalf of DHHS on numerous grounds, including Stein’s argument that without any evidence of tangible damages, the plaintiffs lacked standing under Livermore law. The trial court granted the motion to dismiss solely on the grounds of standing. (For purposes of this question, do not worry about any possible sovereign immunity defense.) The plaintiffs appealed to the Livermore Supreme Court, which has not previously ruled on this standing issue.

The Consumer Division has consulted with you on several occasions about a confidential multistate investigation into the privacy practices of Facebook, which affect over 1 million people in Livermore. They asked you whether the Attorney General could bring an action under Livermore law against Facebook even if there was no evidence of consumers suffering tangible damages. You told them that it was a close call, but you thought it was possible. Obviously, a ruling in this pending DHHS appeal could resolve this issue one way or the other. What, if anything, do you do in connection with the appeal against DHHS in light of the much larger potential case against Facebook, and what, if anything, do you say to Stein and DHHS about this issue?

3.                   You are the Deputy Attorney General in charge of the Criminal Division in the State of Columbus. You recall hearing somewhere that it was important for the Attorney General to get along with the District Attorney, but recent events are making that very difficult.

Last year, a prominent local defense attorney, Grace Eliot, was elected District Attorney in Arlington, which is the largest city in Columbus. She ran on a criminal justice reform platform, promising to put an end to mass incarceration and to stop civil rights violations by the Arlington police. Eliot won by a large margin, and commentators are describing her as an up and coming star who could be a serious gubernatorial candidate next year. This doesn’t help your relationship with her because your boss, the Attorney General, is one of the other likely gubernatorial candidates next year.

A.                A month ago, a famous television celebrity, Larry Alcott, reported to the Arlington police that he had been attacked by two men, who shouted racist and homophobic slurs at him while beating him up. A national outcry followed. The Arlington police put over a dozen detectives on the case. Almost immediately, the Arlington police began to question Alcott’s story. After a week or so, the Arlington police concluded that Alcott had faked the entire attack, and they charged Alcott with filing a false police report, which is a misdemeanor punishable by less than a year in jail. Alcott pushed back with a team of expensive lawyers and PR flaks.

To the surprise of virtually everyone, District Attorney Eliot dismissed the charge of filing a false police report against Alcott. She told reporters, “Larry Alcott is not getting special treatment because he is a famous television celebrity. Under my new charging guidelines, which were inspired by the criminal justice reforms adopted in Delaware, my office isn’t going to expend the enormous resources to prosecute misdemeanor charges like these when there are more important cases to bring.”

The Arlington police department, and many others, are outraged. In the State of Columbus, the Attorney General has concurrent criminal jurisdiction with the District Attorney. The chief of the Arlington police department calls you up and urges you to refile the charges against Alcott. On the one hand, the Attorney General has never pursued such charges before. On the other hand, the District Attorney has never refused to prosecute such charges before. What do you say and do?

B.                  District Attorney Eliot’s reluctance to file misdemeanor charges of lying to the police is matched by her enthusiasm for bringing charges against the police. Shortly after being elected, Eliot announced that Arlington was now a “sanctuary city” even

though Arlington had not passed any such ordinance. Eliot’s announcement was particularly surprising because the State of Columbus had passed a state statute a few years ago, patterned on a similar law in Texas, that prohibited cities from passing so- called sanctuary laws. Even though the Attorney General opposed this bill when it was proposed, she is now responsible for enforcing this “anti-sanctuary city” statute.

Following up on her announcement, Eliot then ordered the Arlington police department to refuse to tell ICE about the immigration status of arrestees, and to ignore detainers issued by ICE for undocumented immigrant arrestees to hold them for 48 hours when they are released from custody so that ICE could arrest and deport them. In order to drive the point home, after an Arlington police officer informed ICE about the imminent release of an undocumented immigrant arrestee and detained that individual, as requested by ICE, District Attorney Eliot brought a criminal state civil rights action against the police officer.

The Arlington police chief immediately calls you up, and asks you to “put a stop to this outrageous situation.” What, if anything, do you do and say in response to this request?

C.                 You receive a call from Frieda O’Connor, the U.S. Attorney for the District of Wilmington. “I need to talk to you about District Attorney Grace Eliot.” “Not you, too,” you sigh.

O’Connor explains that the FBI is conducting a major criminal investigation, including wiretaps. (Assume for purposes of this question that the U.S. Attorney can share the information described below.) In addition to discussing the criminal conspiracy on the wiretaps, several of the co-conspirators also discussed funneling tens of thousands of dollars in cash to their defense lawyer, Grace Eliot, who was running for District Attorney at the time. On one wiretap, Eliot can be heard saying, “thanks for all your help. Without all this cash, I don’t know how I could possibly win this election.” Suffice it to say, the alleged cash contributions were well in excess of the contribution limits in Columbus, and none of them were reported in Eliot’s state campaign filings that she signed under state penalty of perjury.

O’Connor tells you that the U.S. Attorney is not going to be pursuing these possible state election violations, but thought you ought to be aware of them. You have no doubt that if the Attorney General brings a criminal action against Eliot, she will claim vociferously that this is political vendetta to get rid of a potential rival. What, if anything, do you do and say in response to this information?

4.                   You are the newly appointed Deputy Attorney General in charge of the Public Protection Division of the Attorney General’s Office for the State of Auburn. In meeting with the five Assistant Attorneys General assigned to the division, it becomes apparent that no one has ever tried to prioritize the work in the division. In asking the five lawyers what should be the division’s top priorities, you get five different answers.

“We should put at least two lawyers on the opioid crisis,” argues Debbie Parker. “This crisis is killing four people a day in the State of Auburn, and we can’t just rely on the multidistrict litigation being pursued by plaintiffs’ lawyers, who are more interested in their attorneys’ fees than solving this crisis, to sue Big Pharma. If we had at least two lawyers working on this issue,” continued Parker, “we could bring licensing actions against doctors running pill mills, and work with local law enforcement officials to get addicts into treatment instead of jail.”

“Instead of chasing after the opioid crisis like everyone else, we should assign at least two lawyers to handle healthcare mergers,” explains Gordon Sand. “Given the state of healthcare economics today,” Sand noted, “we can expect a tsunami of healthcare mergers in the next few years. The two largest hospitals in our biggest city are exploring a merger, and many of our failing rural hospitals are actively looking for merger partners. We need local input into these mergers to make sure that citizens can still get healthcare, but aren’t getting gouged in the process.”

“No, no, no,” exclaimed Valerie Woolf. “We should focus instead on stamping out a national scourge that for some reason has taken root in the State of Auburn,” Woolf explained. “For some reason, numerous fly-by-night companies that engage in robocalls have set up shop in our fine State, national efforts to stop such calls through large, uncollected, fines have not succeeded, and no other State Attorney General is stepping up to the plate. If we had a couple of lawyers working on going after these people with injunctions and attachments on their assets in the State, we could make a big difference on this national problem.”

“Everyone always wants to focus on big cases with the big headlines,” complained Steve Jackson. “What would really make a difference in the lives of actual people would be to have a couple of lawyers focus on bringing cases to help individuals who would otherwise not get any help,” Jackson continued. “This would include cases where the individual recovery is too small to bring an individual action under the unfair and deceptive trade practices act or where the consumer is too vulnerable (old, uneducated, non-English speaking, etc.) to bring an action. We should be helping those who can’t help themselves.”

Law School of Harvard University / 2019-2020

The Role of the Attorney General Fall 2019

Professors Peter Brann and James Tierney Available for download: December 9, 2019

Must be electronically submitted by: 8 hours from download or by 4:30 pm on December 18, 2019, whichever is earlier.

Instructions

The exam mode for this examination is TAKEHOME. Students will be able to download the question beginning at 12:30 am on December 9, 2019, until December 18, 2019. Once you view the questions, you will have 8 hours to submit your answer. All four questions are equally weighted. There is a 4,000 word limit for the entire exam.

This exam is 11 pages long – including these cover instructions. Please check to see that you have all 11 pages. Please read these instructions and the entire exam carefully before beginning a response.

While taking this examination you may consult any materials that you are able to access, including the assigned course materials and any of your own or other class member’s outlines or notes. You may engage in legal research if you believe it to be relevant to your answers, but this is not an exam about the proper resolution of a legal issue, and thus such legal research is discouraged. Your answer must be entirely your own work. You may not discuss the examination with anyone until after the end of the exam period.

In answering these questions, you should refer to what you have learned in this class, including statutes, structure, ethics, statutory powers, common law authority, the relationship with other governmental agencies, and available resources. Do not exclude information learned in other classes or from your own life experiences.

Unless instructed otherwise, in answering the questions, assume that you are operating within States where the generic chart defines the organizational structure of the Office of Attorney General. In each State, the State Supreme Court has not yet ruled definitely whether that State is a Feeney State or a Deukmejian State.

While the questions contain all of the facts required to respond, your answer may include the need for verbal communications, investigations, or informal meetings that might uncover other additional facts. As long as you clearly state the facts that you are assuming or relying upon, feel free to incorporate them into your answer.

Be mindful of existing expertise and resources within other state and federal governmental agencies, as well as the private sector, academia, and the private bar. As we have discussed, simply because the Attorney General has jurisdiction does not mean that the office is the only agency capable of addressing the situation. If you believe that political issues are relevant, feel free to address them and afford to them what weight, if any, you deem appropriate. Please remember that this class has been about law and policy, but not politics.

Try not to use the word “however.” (This is a pet peeve of Professor Tierney.

Professor Brann, however, does not share this concern.)

End of Instructions

Questions

1.                   You are the Chief Deputy Attorney General of the State of Winthrop. In passing, the Attorney General says to you, “This college admissions scandal really ticks me off. Hollywood celebrities and hedge fund managers buying their kids’ way into elite colleges, and then getting just a wrist slap in federal court. Isn’t there anything we can do about this?”

One of the schools implicated in the media accounts of the scandal is Ivy College, located in the State of Winthrop. According to media accounts, the sailing coach helped several non-sailors gain admission in exchange for “donations” to the sailing program.

You need to develop recommendations for the Attorney General as to what to do

— if anything because the U.S. Attorney is already pursuing the matter — so you convene a meeting with the Deputy Attorneys General in charge of the following divisions in the office: Public Protection, Criminal, and Charities.

A.                The Deputy Attorney General in charge of the Public Protection Division, Joe Martinez, speaks up first. “I’m glad you set up this meeting. I was just about to come tell you about an investigation that I started. This scandal is a lot bigger than a few non-sailors getting into Ivy College.” Surprised that Martinez had launched an investigation of this size without your knowledge, Martinez describes the following.

Martinez has a daughter, Martina, who is a high school senior. When she took the SAT, like virtually everyone else she checked the box that allowed the College Board to share her scores and other information with colleges that might be interested in them. Martina received solicitations from at least six elite schools, including Ivy College, encouraging her to apply because she “would be a really strong candidate” based on her “great grades and test scores.” She did, in fact, apply only be rejected by all six schools. According to published reports, the College Board sells student names to colleges for $0.47 apiece, and colleges can request names with certain SAT test score ranges. The College Board sells millions of names of prospective students to colleges all across the country. It turns out that Martina’s SAT scores were below the average score of students admitted to Ivy College, as well as the other five elite schools, and that having hundreds, if not thousands, of such students apply and be rejected made Ivy College and the other elite schools look more selective, which, in turn, boosted their

U.S. News college rankings.

“I thought that it was unfair and deceptive for Ivy College to recruit students like Martina on the promise that they want them, and then dump them by the side of the

road just to make themselves look more selective, so I sent Ivy College a civil investigative demand to find out about their admissions practices,” Martinez continued. “I am really looking forward to prosecuting this case.”

What do you do and say in response to this?

B.                    The Deputy Attorney General in charge of the Criminal Division, Donna Price, chimes in next. “As everyone knows, I am a proud graduate of Winthrop State University and its law school, and I am sick and tired of these elite school graduates looking down their noses at people like me who worked their way through state schools and are just as good a lawyer as they are. I have always thought that the people who got into Ivy College were rich kids whose parents bought their way in, so I don’t find this scandal at all surprising.”

“I am outraged that these Hollywood celebrities and hedge fund managers aren’t getting serious jail time in federal court for their actions,” Price continued. “But I am not shocked because these federal prosecutors and federal judges all went to the same elite schools, and they don’t want to do anything to upset the apple cart.”

“If we want to achieve real justice,” Price explained, “we should charge these people with violating Winthrop’s state criminal laws in Winthrop state court, and let them find out how buying admission to Ivy College plays in front of a Winthrop state jury.” (For purposes of this question, accept that the Supreme Court upheld the dual sovereignty doctrine recently in Gamble v. United States, and thus the State could file separate charges notwithstanding the federal prosecutions.) “I am really looking forward to prosecuting this case.”

What do you do and say in response to this?

C.                 You point out that Ivy College is a non-profit corporation subject to the oversight and supervision of the Attorney General, and you ask what the Charities Division can do in this regard. The Deputy Attorney General in charge of the Charities Division, Samuel Wright III, responds: “Nothing.” You are surprised a bit by this response, but then you remember that Wright was a lacrosse star at Ivy College, and his father and grandfather had also attended Ivy College.

What do you do and say in response to this?

2.                   You are an Assistant Attorney General in the Civil Litigation Division for the State of Quincy. You generally handle constitutional and election challenges filed against the State. You serve at the pleasure of the Attorney General and have been in the office for over 20 years.

Next year’s U.S. Senate race in Quincy is going to going to be a major donnybrook. The incumbent is retiring, and the two major party candidates likely are going to be the current Governor, Barbara Phillips, and the current Attorney General, Jeff Haley. Both Phillips and Haley are certain to run because their terms run until 2022, and thus, whoever loses the Senate race will continue to be Governor or Attorney General. Phillips and Haley are currently polling neck-and-neck.

Enter Rachel Devers, who just announced her candidacy for U.S. Senate as an independent. Pundits think that she is more likely to draw votes from the Governor than the Attorney General, which could be enough to tip the election. Unfortunately for her, the deadline to submit signatures to qualify for the ballot as an independent is substantially earlier than that of major party candidates, as well as similar deadlines in most other States, and the filing deadline has already passed. Accordingly, Devers has filed a constitutional challenge to the early deadline, but because she is running her campaign on a shoestring relying exclusively on social media, she has filed her lawsuit pro se. In your review of the applicable law, you believe that it is slightly more likely than not that the early deadline is unconstitutional. (For purposes of this question, don’t be concerned with the many cases discussing the constitutionality of election deadlines.)

A.                You have barely finished reading the relevant cases when your boss the Attorney General summons you to his ornate office to discuss the case. What do you do in response to that request?

Assuming that you meet with the Attorney General, Haley asks you what is the likelihood that a court will strike down the early signature deadline, and you tell him that it is slightly more likely than not, i.e., 60-40, that a court will strike down the

deadline. “Great,” he responds. “I’m the Attorney General in charge of all litigation against the State of Quincy, so let’s confess judgment and concede that this early signature deadline is unconstitutional.” What do you do and say in response to this?

B.                  While you mull over the request by the Attorney General, you return to your office. Shortly afterwards, the Governor asks you to meet in her ornate office to discuss the case. What do you do in response to that request?

Assuming that you meet with the Governor, Phillips greets you warmly when you arrive: “It’s great to see you once again. You are the best legal writer in the State of Quincy, and don't worry, I haven’t forgotten about your pending application for a judgeship. As you know, the Governor is responsible for executing the laws in the State of Quincy, so that makes me your real client. I just want to make sure that you are going to defend vigorously the State in this challenge to the presumably constitutional Quincy statute setting the signature deadline. You are going to do that, right?” What do you do and say in response to this?

C.                 Once you have extricated yourself from your meeting with Phillips, you return to your office. You have a voicemail from the independent candidate, Rachel Devers, asking you to call her back to discuss the case. What do you do in response to that request?

Assuming that you return the call, Devers reminds you that she is proceeding without an attorney and thus is unfamiliar with court procedure. Devers continues, “I heard Attorney General Haley speak once and he said that his job was to represent the public interest and do justice. Because I can’t afford a lawyer, I assume that means that you will act in the public interest and tell me what is the correct procedure I need to follow and what is the relevant law I need to give to judge to get her to do the right thing.” What do you do and say in response to this?

3.                   You are the Attorney General of the State of Lowell. Lowell is a northern State with some of the highest electricity costs in the country. Butler Energy Company is the largest and most despised utility in the State. Butler Energy somehow managed to receive the lowest consumer ranking in the country. It even ranked behind Pacific Gas & Electric, which is currently in bankruptcy, accused of starting wildfires in California that caused billions of dollars in damages and killed dozens of people.

A.                Last winter, Butler Energy customers saw their electric bills spike, in some cases by as much as 250%. Consumers were outraged and demanded that public officials “do something.” Your Consumer Division sent out an extensive civil investigative demand (CID), and took numerous depositions, to find out what happened. In Lowell, Attorney General investigations, including the CID and deposition process, are confidential by statute. So far, nothing has leaked about the investigation.

Your Chief of Staff, Mickey Barnes, who was your campaign manager in the last campaign, comes to see you. “General, we’ve got to let people know that we are investigating Butler Energy. People are up in arms about these price spikes from last winter, and advocacy groups are asking why their Attorney General isn’t doing something about this. The largest newspaper in the State, The Lowell Times, asked me for a comment on a story that they are going to run about the ‘do nothing’ Attorney General.”

After you point out that consumer investigations are confidential by statute,

Barnes responds: “Look, I’m not a lawyer but I see that AGs in other States often hold press conferences when they issue these so-called ‘confidential’ CIDs. We need to get this story out.”

What do you say and do in response to this?

B.                  Regardless of what you decide to do about announcing the investigation, your Consumer Division has prepared a draft complaint, accusing Butler Energy of engaging in fraudulent and negligent conduct. The draft complaint is given to you for final approval, and pursuant to Lowell law, is sent to Butler Energy, giving them 30- days notice before suit is filed. While the draft complaint is on your desk for approval, you receive a request from the new President of Butler Energy, Emilia Núñez, urgently requesting a meeting to discuss this matter.

What do you do in response to that request?

Assuming that you take the meeting, Núñez makes the following pitch to you: “When I took over this job last spring, I told my folks that we had to get to the bottom of last winter’s price spike and make things right. I learned that mistakes were made, and the responsible people are no longer with the company. I agree that we were sloppy and negligent, but it certainly wasn’t fraud. We are prepared to settle this matter, but if you accuse Butler Energy of fraud, the accusation alone will almost certainly prohibit us from raising money from the bond market next month. If that happens, we’ll have to declare bankruptcy, lay off employees, and discontinue our energy assistance program for low income customers. So, if you proceed against Butler Energy, just charge us with negligent, not fraudulent, conduct.”

What do you say and do in response to this?

C.                 Regardless of what you decide to do, Butler Energy’s problems continue to mount. Within a few months after you make your decision on the draft complaint, consumers filed private class action lawsuits. Then, the Lowell Public Utilities Commission (PUC) denied the proposed 10% rate increase filed by Butler Energy even though Butler Energy told the PUC that the rate increase was critical to its financial solvency. Finally, due to a winter “cyclone” over Thanksgiving that damaged the major port in the State, Butler Energy shut down its natural gas terminal and pipeline, which powered plants that provided 11% of the electricity in Lowell.

Butler Energy has announced that the “only way” it will be able to continue operating as a viable utility, supplying the necessary electricity to Lowell consumers and businesses at a reasonable rate, is to reactivate three coal-fired power plants. Butler Energy shut down these plants several years ago to great fanfare because coal contributes more to climate change than any other electricity source used by Butler Energy.

One of your largest supporters, David Pomeranz, asks to meet with you to discuss Butler Energy’s proposal. Pomeranz is a billionaire who has made climate

change his top priority, spending millions of dollars on the issue. Although he made his initial fortune through software start-ups in Silicon Valley, he is also the founder and owner of the largest solar panel company in Lowell, Sun City. Sun City is a direct competitor of Butler Energy.

What do you do in response to the request for a meeting?

Assuming that you take the meeting, unsurprisingly, Pomeranz strongly encourages you to oppose Butler Energy’s attempts to restart the three coal-fired power

plants. “We’ve been fighting with Butler Energy for years,” Pomeranz explains. “When they say they can’t survive without restarting these dirty coal-fired plants, they’re lying. We have documents that show their finances are a lot better than they claim. We have economists who can explain these documents. We have scientists who can explain why these coal-fired plants are an environmental catastrophe. I am willing to make these available to you and your staff for free. I have always supported you because I believed you were with me on the existential issue of our time. Are you?”

What do you say and do in response to this offer?

4.                   You are an Assistant Attorney General in the State of Adams. You represent a number of professional licensing boards, including the Board of Dentistry.

A.                Like many States, Adams has a shortage of dentists, particularly in rural areas. In an effort to address that shortage, the Adams Legislature passed a bill (and the Governor signed it into law), which created a position of “dental therapist,” who are licensed by the Board of Dentistry. They provide evaluative, preventive, restorative, and minor surgical dental care “under the direction and supervision of a dentist.” There are no dental therapists on the Board of Dentistry, and none of the dentists on the Board of Dentistry employs any dental therapists.

One entrepreneurial dentist in Adams, Jocelyn Kelly, D.D.S., has set up a number of cut-rate dental clinics in small towns in rural parts of the State. The clinics have video monitors and broadband connections that allow Dr. Kelly to oversee in real time the resident dental therapists while they work in each clinic. Unlike most dentists, Dr.

Kelly’s clinics also offer service on nights and weekends, which along with their cheaper rates, make them very popular with poorer, working people.

In a public meeting of the Board of Dentistry, two of the seven board members complained that rural cut-rate dental clinics were driving local dentists out of business. They did not mention Dr. Kelly by name. The Board then voted unanimously to ask the Attorney General for an official opinion whether it would violate the Adams statute requiring dental therapists to operate “under the direction and supervision of a dentist” if the dentist is not physically present in the dental clinic. The resolution did not refer to any specific dentist.

What do you do and say in response to this?

B.                  Regardless of the position taken on the Board’s request for an official Attorney General opinion, Dr. Kelly’s rural cut-rate dental clinics continue to thrive.

Meanwhile, the Board of Dentistry received a number of complaints about the quality of the dental work performed at several of Dr. Kelly’s clinics. Indeed, the Board received more complaints about Dr. Kelly’s clinics than any other dentist office in Adams. One of the complaints was from the Chair of the Board of Dentistry, Henry Ramirez, D.D.S., who said that he had to perform an emergency root canal to correct botched dental procedures performed on several teeth by one of Dr. Kelly’s dental therapists in the cut- rate dental clinic in his town.

In the Board meeting to discuss whether to proceed with a licensing hearing against Dr. Kelly, Dr. Ramirez vociferously argued in favor of proceeding, claiming,