ETHICAL DILEMMAS FOR ATTORNEYS GENERAL:

Many decisions made within the offices of state attorney general do not fit easily with the Model Rules.  Representing the public interest in an office of attorney general can be exceedingly complex task with no easy solutions.

This section explores the ethical challenge of an attorney general and his/her staff.  It does so by presenting four hypotheticals drafted by the author and Prof. Peter Brann all of which draw from actual fact patterns that occur with some regularity within offices of attorney general.  

The use of hypotheticals is necessary because each fact patterns was resolved within the attorney general office itself and is appropriately veiled in the confidentiality required by the attorney-client privilege.  Each fact pattern can generate many ethical paths each of which is as ethical as the other.  It could also generate unethical response, and the difference between the two is always narrow and nuanced.

THE FOUR SEASONS: SPRING:

You are a brand new Assistant Attorney General in the State of Kennebec.

Inspired to apply from a class you took at Harvard Law School, you have just been sworn in by the Attorney General himself, Nathan Clifford, whose vision for the future had inspired you to return to Kennebec after time away at both your elite out-of-state college and Harvard Law School. Your life partner has meanwhile taken a job at McKernan & King, the largest firm in Kennebec.

After the ceremony, you are then taken to lunch at the State House Cafeteria (known locally as the “Bay of Pigs”) by Mel Fuller, your new Supervisor, who is the Civil Deputy Attorney General in charge of agency representation and civil litigation.

“We haven’t hired anyone out of law school in a long time,” Fuller begins, “but we’ve all been here forever and thought that it would be good to get some new, Ivy League blood. You won’t have any lack of work! See those cardboard boxes that are lining the halls? All cases … all the time. There is no end to the people who want to sue Kennebec!”

“You know, I’ve seen ‘em come and go over the years,” Fuller continued. “We’ve had some good AG’s—like the one we have now—and we have had some bad ones. But here representing state agencies, we just pick up the tools and get the job done. Our clients are career claims managers in the various state agencies and they are terrific, too. We like to settle whenever we can, of course, but you will get trial experience here that exceeds anything that life partner of yours will get in that fancy downtown firm!”

Forty-five minutes later you are sitting at your computer gazing at a docket list of cases. It appears that you are due in court the next day on a motion to dismiss that was filed by your well loved predecessor who has just retired.

You pick up the first file and see that you will be arguing to dismiss a case involving a former prisoner whose hand had been severed while working in the prison carpentry shop. According to an internal investigation (which has not yet been turned over to the plaintiff’s counsel), the prison guards all admit that there was no safety on the band saw, no instructions as to how to use the band saw, and no guard in the room to stop a fight that had broken out between two other prisoners, one of whom allegedly bumped into the plaintiff pushing him into the unprotected blade.

You read further and discover that the plaintiff had been a model prisoner incarcerated for filling out fraudulent loan statements on behalf of a local payday lender who somehow was never charged. The plaintiff has now served his nine months in prison and is home and unemployed while learning to use his prosthesis. He has sued under Kennebec’s Tort Claims Act where there is a$100,000 damage cap. You look at the statutes and see that the Attorney General has responsibility of all litigation against the State, but that the Governor has responsibility to “faithfully execute the laws.” You vaguely remember that this means it isn’t clear who calls the shots when the State gets sued.

A bit taken aback, you trot down the hall to see your friendly Civil Deputy and ask for a bit of guidance. Fuller leans back and says, “Hey! The guy was in prison! We make a motion to dismiss on all prison cases because some of the judges—who are elected in our fair State — actually grant them! Can you believe it? We get rid of 30% of our cases that way! If you lose, and you might, then we go to the Department of Corrections and see if they will put some money up to make this go away. The plaintiff must be starving to death by now and will probably take anything. Look, this is your first day, so let me make a couple things clear. The AG’s office doesn’t make those decisions. Our client makes those decisions. It would be unethical to not follow the directions of our clients.

We adhere to all the ethics rules here in the AG office.”

“But… but,” you stammer, “the plaintiff has no prior record and he has three kids in school. He is an Iraqi veteran! He lost his hand! At least tell me that if we lose the motion that we are going to throw in the $100,000?”

“Not a chance,” Fuller responds. Don’t you see the snow outside? This is February.”

“February? What has that got to do with it?” you ask.

“The Department of Corrections always settles in the first six months of the fiscal year—when it has money—and never in the second six months when it is broke,” Fuller explains. “This is February. End of discussion! Look, didn’t you say at your interview that you wanted to litigate? You will get some of that trial experience that you wanted!”

“But…but,” you persist, with unspoken memories of the common law and articles you read in some class at Harvard, “Don’t we have a higher duty to represent the public interest?” What do you do?

The Four Seasons: Summer

The last seven years in the Kennebec Attorney General’s Office have been good ones for you. After four years representing agencies, where you received a great deal of solid experience, you spent a couple years in the Consumer Protection Division before being promoted into a lead trial lawyer slot into the Civil Litigation Division.

On a personal level, life in Kennebec has been good. You and your life partner (who may detest the job downtown, but likes the big bucks salary) have a couple of cute red-headed kids, Jake and Kate, who are now two and four.

Because you work for the State and not a firm, you are working sane hours and trying to be a good parent. Coming home to Kennebec was a great move especially because the child care (your parents!) is free. Jake and Kate have also become close to their cousins because your sister, who is a high school teacher, used to live just a mile away, and still frequently brings her children to your parents’ house.

Just as they told you when you started in the AG’s office, Attorneys General come and go (you are on your third) but the work continues to be both varied and interesting. The Civil Litigation Division is a choice assignment and in many ways is the top job for the “non-political” lawyers in the office who want to try cases. It is very small (only four very talented lawyers) and it handles Kennebec’s most interesting and complex cases. You can’t imagine working anywhere else.

You are nonetheless working on a case that is troubling you personally.

A class action has been filed by the parents of developmentally disabled children who believe that they are not receiving the services mandated by state and federal law. The plaintiffs sued both the city where you live (the plaintiffs wanted to get the media in the Kennebec capitol for maximum pressure on the legislature) and the State of Kennebec. The City cross claimed against Kennebec and there has been a great deal of publicity. Because you won some other major cases for the Department of Education, and because the Department really likes you, you are the logical choice to handle this lawsuit.

Because one of your nieces, Bonnie, is developmentally disabled, she and your sister were part of the plaintiff class until last year when they moved just across the state line to the neighboring State of Penobscot after your sister got laid off at Quinn Tannery in part to get better benefits for Bonnie. You can’t help but think about the case everyday when you pick your kids up at your parents’ house where Bonnie often still comes to play. After all, you are only human.

The plaintiffs are asking for the world (including attorneys’ fees and a court-appointed “monitor” for 10 years). The State has a pretty good sovereign immunity defense, which, if successful, would prevent the plaintiffs from getting any relief whatsoever. On the merits, however, Kennebec’s legal position—“This is all up to the City! We have no liability!”—rings hollow to you both legally and morally. Moreover, given the State’s financial woes, absent a court-ordered consent decree, you have doubts whether the Legislature will follow through to provide adequate services for these kids.

You aren’t getting any direction or guidance from either your superiors in the Attorney General’s Office or from the decision makers in the Administration. Governor Jan Howaniec is a lame duck and is angling for a slot in Washington, D.C., and thus would be happy to see this case settled on any terms. Your “client,” The Commissioner of Education, Barbara Buschmann, is invisible except to say that the Department cannot afford either to settle the case or to finance the litigation because of the costly federal mandates, but otherwise always follows your advice without question. Your boss, Attorney General Julie Matus, is never around as she “tests the waters” for her own race for Governor against Speaker of the House Tom Kilmeister. Whenever you ask Chief Deputy George Ogilvie for guidance, he is too busy to talk. Thus, it is really up to decide what to do about this case. What do you do?

The Four Seasons: Fall

Eighteen years ago, on your first day of work, you were told that “We’ve had some good AG’s and we’ve had some bad ones,” and now you have a bad one, Jim Blaine. A really bad one.

After his election, you knew you better burrow down into the ranks, so you grabbed your old slot in the Consumer Protection Division that was vacated when most of that division took early retirement. Everyone knew that Blaine is an idiot, so you obviously considered leaving while you still could get out. But the kids are only in middle school and so you decided that you would try to stick it out.

Besides, what work would you do if you left? Who would want someone who has only worked in an AG’s office? Also, you are only a few years away from your vested state retirement.

Things are tight financially. Your so-called “life partner” ran off with that summer associate. Although you occasionally get notes from your Harvard classmates, who must be making millions now, you aren’t planning to go to your 20th reunion. Frankly, you can’t afford it, and you don’t want to endure their thinly disguised condescension that you are just a “government lawyer” driving a 10-year-old Subaru.

Although you had heard rumors about Blaine meeting privately with lawyers on the other side in cases and then ordering to AAG’s to settle or reverse their positions, it hadn’t happened to you. On the consumer fraud front, he let things roll along and joined in most of the multistate cases that other more activist AG’s negotiated. His press releases went out like clockwork, and he always took credit for any success of the office, but then, don’t they all?

One afternoon, you received an email from the AG’s Chief of Staff, Bill Fessenden. A non-lawyer and the Attorney General’s 26-year-old campaign manager, who allegedly was behind some recent lay-offs of some really good, long-time AAG’s, he said that he needed to see you immediately.

Your office was a good mile away from the State Capitol, so you grabbed your coat and off you went. Passing your old offices in the Civil Litigation Division, which were right next to the bosses, you were ushered into the Chief of Staff’s office. Also in attendance was Carl Milliken, a well known Statehouse lobbyist, political “fixer,” and lawyer at McKernan & King, the largest firm in Kennebec. For reasons that you can’t quite articulate, your stomach begins to ache.

While Milliken looked on benignly, Fessenden barked, “Let’s get right to the point. Carl tells me that you are pursuing trumped-up claims against Reed Auto Mall for some stupid paperwork errors on auto loan applications, and that he can’t get any information from you, or get you to drop the investigation. As you know, an AG investigation would be bad for business if it leaks to the press.”

This surprised you initially because you hadn’t spoken to Milliken about this investigation. Then you had remembered that you had been dealing with some “litigators” from his firm, McKernan & King, who had been stonewalling you on responding to your Civil Investigative Demand (“CID”) for documents about these loans. When one of them demanded to know the details of your on- going investigation, you explained that the CID process was confidential, and thus you couldn’t tell her what you had for evidence. You certainly did not want to give her the names of the customers who had complained because Reed Auto Mall had threatened to repossess their cars when they complained initially about the loans. The McKernan & King lawyer then warned darkly that “they might try to find someone more reasonable to deal with.”

Fessenden continued, “Do I need to remind you that Reed Auto Mall is Kennebec’s largest auto dealer, and that Tom Reed is a big supporter of the Attorney General? Or that the Attorney General is committed to working with the business community in an open and cooperative fashion to resolve problems, instead of just filing headline-grabbing lawsuits?”

Fessenden did not need to remind you. Tom Reed and Carl Milliken had given the maximum to Blaine’s election campaign, and Reed Auto Mall had paid for ads attacking Blaine’s opponent, now former Attorney General Betty Curtis, who had pursued several car dealers for rolling back odometers, for being “anti- business.”

“Although you can refuse to answer questions from Reed’s lawyers,” Fessenden explained, “you can’t refuse to answer questions from the Attorney General. So, what is your evidence that Reed Auto Mall has done anything wrong? And why can’t we just put this paperwork snafu to bed because Carl says that it is just the mistakes of a few bad apples, and Reed Auto Mall will do its best to make sure it doesn’t happen again?” What do you do?

The Four Seasons: Winter

What a ride it has been! You weren’t planning on spending your entire career in the Attorney General’s Office.  You barely survived during the term of that idiot Jim Blaine’s term and were saved when his Chief of Staff Bill Fessenden was fired after his indictment on election law violations.  So here you are 33 years later. Your kids, Jake and Kate, got scholarships to great colleges, and, after you failed to dissuade her from going to law school, Kate is now a third year student at Harvard Law School. You are feeling pretty good about your career, having handled important cases reported in U.S. Law Week and the New York Times.   And of course, using your five weeks of vacation each year to travel with your new partner (a non-lawyer!) helps. And when you went to your 30th reunion at Harvard Law School, most of your classmates did not look happy, and none of them ever spoke about their work.

As a senior member of the office, it is occasionally your job to weigh in on matters that pit one division of the office against another. You have no criminal experience yourself, but you know enough to be concerned about this one.

The Quinn Shoe Tannery has long been a mainstay of the economy of Bayside, Kennebec. It employs 4,500 unionized workers, and somehow it has remained competitive against foreign competitors. Roxanne Quinn, great- granddaughter of the founder and Kennebec's most respected philanthropist, remains the vibrant CEO. She has resisted many lucrative offers to sell because “I know that they will steal the Quinn trademark and move it all to Asia!”

Thus, it was not initially bothersome when wastewater from the tannery dribbled into the Bayside Bay. Although the smell was horrendous, the head scientist in the lab at the Kennebec Department of Environmental Protection, Mike Dunlap (who had worked at the tannery one summer in high school), concluded that the actual environmental damage was not “all that serious.”

Quinn's long time counsel, your former life partner (of course!), negotiated a civil administrative consent agreement on behalf of the Kennebec DEP with a low level Assistant Attorney General, Charlotte Summers, which allowed Quinn to pay no fine based on its promise “to invest at least $10 million in new environmental equipment.”

The truth is that the Quinn family is not universally loved in the neighboring State of Penobscot that faces Bayside (and the tannery) directly across the narrows where McMansions now dominate the shore. Penobscot’s summer residents rose up in fury upon learning that the Quinn Tannery “was let off the hook.”