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The Operations and Ethics of the State Attorney General Fall 2016 Reading Group

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The Operations and Ethics of the State Attorney General Fall 2016 Reading Group Tierney, James The Operations and Ethics of the State Attorney General Fall 2016 reading group The Operations and Ethics of the State Attorney General Syllabus — Fall 2016 Reading Group (1 Credit) Harvard Law School Professor James E. Tierney Lecturer-in-Law, Harvard Law School (http://www.stateag.org) Attorney General of Maine (1980 - 1990) Note: Syllabus is subject to change subject to classroom discussion on September 12, 2016 Introduction The goal of this one credit Reading Group is to give the class both a “nuts ‘n bolts” understanding of the operations of attorneys general as well as provide insight into the role attorneys general are playing on the national legal stage. This Syllabus contains federal and state statutes and case law, law review and descriptive articles from a variety of sources, and hypotheticals that describe the nature and function of the Office of State Attorney General. All materials have been collected from over thirty years of studying and participating in the decision making of attorneys general and their staffs. Two books have been put on reserve portions of which are assigned for the last three classes, and are also recommended to you for purchase. They are No Freedom without Regulation: The Hidden Lesson of the Subprime Crisis, Prof. Joseph Singer (Yale University Press, 2015) and Federalism on Trial: State Attorneys general and National Policymaking in Contemporary American, Prof. Paul Nolette (University of Kansas Press, 2015) The roots of the Office of State Attorney General run deep in American jurisprudence. All thirteen American colonies had an attorney general and today all fifty states have opted for providing legal services through an office of state attorney general. Each office possesses extraordinarily broad jurisdiction and to varying degrees is independent from the executive branch of state government thereby raising a host of separation of power issues. Attorneys general in forty three states are elected statewide on a partisan basis The combination of sweeping jurisdiction and constitutional independence has given rise to a unique American legal institution of growing importance. Although the final three classes will discuss the national implications of the largest and most controversial of legal issues, the first three will focus will be on the day to day challenges faced by attorneys general and their staffs in delivering the high quality legal advice that will guide state government in a constitutional and ethical manner. The readings will also touch on the relationship of attorneys general with the other state entities, the federal government, the private bar and a myriad of advocacy organizations. Although each state is unique, the reading group will demonstrate the remarkable congruence that exists among state attorneys general when addressing similar challenges and issues. Unlike 1 Tierney, James The Operations and Ethics of the State Attorney General Fall 2016 reading group private and other government lawyers, who work subject to ethical rules that defer decision making to “clients,” attorneys general are often required to make legal decisions themselves. The Syllabus contains numerous hypotheticals, almost all of which have been drafted by Lecturer-in-Law, Professor Peter Brann and are drawn from actual cases but that because of their nature have not been studied or, in most cases, ever been made public. 2 Tierney, James The Operations and Ethics of the State Attorney General Fall 2016 reading group Week #1— September 12, 2016 The Authority and the Culture of the Role of the Attorney General This week explores the nature of the authority and the culture that pervades offices of attorney general. The first chapter of Walter Mondale's The Good Fight, (Scribner, 2010) which covers Mondale's time as the Attorney General of Minnesota over 50 years ago, serves as an excellent introduction to the Role of the Attorney General. Used with the permission (and to the personal delight) of the author, this edited chapter combines almost all aspects of the office of attorney general, e.g., the common law, statutory authority, conflicting legal and policy demands, resource restriction, the role of academics and outside counsel, hard core partisan politics and personal ambition. The chapter is also testimony that for all of the changes in the legal and political world, some things remain remarkably the same. Also included in this first week are edited sections of Paul Wilson's A Time to Lose: Representing Kansas in Brown v. Board of Education, (University of Kansas Press, 1995) that depict a very different side of state attorney general authority that is also covered in the course. Because the culture of offices of attorney general is marked by a "fix it" agenda, the first week also contains readings that describe state "parens patriae" and the duty of state attorneys general to represent all the people of their states and not be limited to representing a specific state agency. Finally, I include the reflections of three attorneys general who left office at the end of 2014. 1. Walter Mondale, The Good Fight (2010) (Chapter 1, edited) 2. Wilson, Paul E. A Time To Lose, Representing Kansas In Brown v. Board Of Education. Kansas: University Press of Kansas, 1995 (Edited) 3. State v. Lead Industries Association, Inc. 951 A.2d 428 (R.I. 2008) (Edited) (Track III, A and B) 4. Memorandum of Former Members of the New Hampshire Attorney General Office on HB 89, Docket No. 2011-0319, May 23, 2011 (Amici to the NH Supreme Court on an Opinion of the Justices.) 5. William P. Marshall, Break Up the Presidency? Governors, State Attorneys General and Lessons from the Divided Executive, 115 Yale L.J. 2445-2469 (2006) 6. Attorney General Doug Gansler Reflects on His Eight Years as AG of Maryland (January 2015) In a radio interview just hours before leaving office as the 43rd Attorney General, Doug Gansler reflects on his eight years as Attorney General of Maryland. Gansler said the billion dollar multi-state mortgage settlement is among his biggest accomplishment and that he is proud of his advocacy on same sex marriage. Listen to his radio interview on WBAL News Radio 1090 HERE 3 Tierney, James The Operations and Ethics of the State Attorney General Fall 2016 reading group 7. Attorney General Jon Bruning on the Role of the Attorney General On October 30, 2014, 1011 TV of Lincoln, Nebraska ran an excellent special report that contains an insightful in depth interview with Nebraska Attorney General Jon Bruning, in which he describes the functions of his office. View the video HERE 8. Wisconsin Attorney General J. B. Van Hollen Says Scrutiny From Media And Partisans Contributed To His "Burn Out" As Attorney General in TV Interview. (December 18, 2014) "This job didn't become any more partisan in my books, but it did in the minds of some people," said Van Hollen. "And whereas I could walk around in this town during my first term, and with very limited exceptions, people treated me with great respect because I was the Attorney General, I found myself being disparaged because I was the Republican Attorney General. That was unfortunate." View the Video HERE 4 Tierney, James The Operations and Ethics of the State Attorney General Fall 2016 reading group Week #2 – September 26, 2016 The Structure of the Office of the Attorney General State attorneys general have never fit easily into the existing framework of state government. This week explores the independence inherent in the office of modern attorney general together with a discussion of attorney general budgeting and a hypothetical that demonstrates the uniqueness of the role that assistant attorneys general often perform. 1. Feeney v. Commonwealth, 373 Mass. 359, 366 N.E.2d 1266 (1977) 2. Generic State Attorney General’s Office Organization Chart. 3. Delaware AG Investigates Own Client, Celia Cohen, Grapevine Political Writer, Sept. 15, 2007 4. “AGs' powers a subject of contention.” Denver Post Capitol Bureau, Martinez, J. C. (2003, December 7). 5. No Charges to Be Filed In Prison Sentence Screw-Up, Nebraskawatchdog.Org, November 24, 2014 6. Dumcius, Gintautas, “Judge rips into Attorney General Maura Healey's office, asking, 'Who speaks for the children,' over alleged Bridgewater State University rape case,” MassLive.com, February 1, 2016 7. Dumcius, Gintautas,”Attorney General Maura Healey: Office will work with families of Bridgewater State University child rape case” (Video), MassLive.com, February 2, 2016 8. State Attorneys General Powers and Responsibilities, Chapter 17, “Attorneys General and Criminal Law” Chris Toth, Deputy Director, NAAG; Adam Eisenstein, AAG Visiting Fellow; Salini Nandipati, NAAG Visiting Fellow 9. State Attorneys General Powers and Responsibilities, Chapter 12, “Protection and Regulation of Nonprofits and Charitable Assets.” Bob Carlson, Missouri, Assistant Attorney General. NAAG, 2013 10. “Who is the Client?” – A Role Playing Hypothetical 5 Tierney, James The Operations and Ethics of the State Attorney General Fall 2016 reading group Week #3 – October 10, 2016 Model Rules and the Ethics of Client Representation The constitutional and statutory duties of attorneys general can be at variance with the Model Rules of Professional Responsibility. This week focuses on core ethical readings as well as concrete ethical dilemmas that are faced by almost every attorney general. 1. Justin G. Davids, State Attorneys General and Client-Attorney Relationship: Establishing the Power to Sue State Officiers, 38 Colum. J.L. & Soc. Probs. 365 (2005) 2. Jack B. Weinstein, Some Ethical and Political Problems of a Government Attorney, 18 Me. L. Rev. 155 (1966) 3. State Attorneys General Powers and Responsibilities, Chapter 5, “Opinions,” Emily Myers, Antitrust Chief Counsel, NAAG; Andy Bennett, Judge, Tennessee Court of Appeals, 2013 4. Aid for Women v. Foulston, 427 F. Supp. 2d 1093 (D. Kan. 2006), vacated as moot following repeal of statute, 2007 WL 6787808 (10th Cir.
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