A candidate masquerading as a lawyer…
Roy Cooper, North Carolina’s elected Attorney General, has so many conflicts of interest that he can’t credibly do his job in an ethical manner. Fortunately for him doing his job ethically seems to hold no interest for him.
To start with, he is an announced political opponent of the current Republican governor, Pat McCrory. This situation is not unique, but if an Attorney General is going to do his job ethically, for remember he is the state’s lawyer, he has to make an effort to put his political interests aside and not allow them to interfere with his duty to represent his client the state, whose voters have made McCrory its top decision-maker.
Cooper, however, isn’t making any such effort. House Bill 2, a state law passed last week that bars local governments from enacting nondiscrimination protections for the LGBT community, is anathema to Cooper’s constituency, so he is refusing to defend it in court against a federal lawsuit. If he were a private attorney whose beliefs rendered it impossible for him to represent his client, Cooper would have to resign. Since he is elected, he need not do that, but he can’t actively interfere with his client’s legal needs either. His proper course under the legal ethics rules governing all lawyers would be to find an outside counsel to do his job in this case, since he is incapable of doing it, and to defend the law.
Instead, Cooper is actively undermining his client’s legitimate objectives. Cooper said in a news conference that the law is a “national embarrassment” and it “will set North Carolina’s economy back if we don’t repeal it.” That’s the candidate talking, not the state’s lawyer, and thus the state’s lawyer is engaged in a bright-line breach of loyalty by talking like that in public. His duty, and his only ethical option, is to shut up. He may not be able to support his client’s objectives, but he absolutely must not impede them.
Cooper has even gone beyond that ethical violation to a massive conflict of interest breach. Instead of defending McCrory, the Board of Governors and the others being sued in the federal lawsuit, Cooper has announced that he will defend the two LGBT people and the lesbian professor bringing the lawsuit against the state!
He needs to be sanctioned for this. North Carolina Rules of Professional Conduct contain this unambiguous provision:
RULE 1.7 CONFLICT OF INTEREST: GENERAL RULE
(a) A lawyer shall not represent a client if the lawyer’s ability to consider, recommend, or carry out a course of action on behalf of the client will be adversely affected by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests.
(b) A lawyer shall not represent a client when the lawyer’s own interests are likely to adversely affect the representation.
(c) A lawyer shall not represent a client if the representation of that client might be adversely affected by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
Cooper’s client, the state, has not consented; indeed, the governor has demanded that Cooper resign. He’s right. Cooper is directly and intentionally engaging in unethical conduct and a violation of legal ethics rules. He is opposing his client while representing his client.
The four organizations also representing the three individuals Cooper is calling his clients are the American Civil Liberties Union, ACLU of North Carolina, Equality NC and Lambda Legal, and they sent out a statement commending Cooper’s decision. This means they are encouraging him to violate the legal ethics rules. Their lawyers could be sanctioned under Rule 8.4, which directs that
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate these Rules, knowingly assist or induce another to do so, or do so through the acts of another…
There’s no justification, loophole, wiggle room or excuse for what Cooper is doing. He’s actively opposing his own client, representing clients against his current client, and ignoring both a personal and professional conflict of interest without his client’s consent.
An Attorney General can’t be more unethical short of embezzling funds from the state treasury.
____________________________
Sources: Washington Post, NCSU Technician
Ethics Alarms 
Incredible.
Roy Cooper is no better than Kim Davis.
This is true.
Much as it pains me to say so, I agree, except he’s worse.
I’ll see if I can locate the multipage legal discussion on the duties of the NC AG, which includes duties to only uphold those state laws that are not unconstitutional, and to act in the public interest.
As the discussion states – who decides if a state law is unconstitutional? There is an implied power for the AG to have discretion there.
While I have very grave misgivings about the principle, the AG is an elected, not appointed position, and the law seems relatively clear that this conflict – uphold state law, don’t uphold unconstitional state law, act in the public interest – is by design, with discretion given.
OK, on this occasion, it’s convenient for my views. But my fear is that it not just can be, but will be, misused in future by those who oppose my principles. I’d rightly be outraged. Those whose views I abhor have every right to be outraged too, this legal situation is Bad Law, and through gritted teeth, I’d support its repeal.
It is the law though now. As regards ethics, so far, so good, I’d just be happier if there wasn’t also an obvious political side to it, meaning that the whole thing could be pretextual. It’s more than just deeply worrying.
Nope. No longer can I convince myself that this is not all about politics, and the upcoming election. It doesn’t pass the “smell” test, any more than the legislature removing the rights to sue for discrimination under state law, rights given in 1980 when the 1970’s discrimination laws were found not to work as they were toothless, can be justified as “preventing predators from committing assaults in restrooms”. There is no “benefit of the doubt” to be given any more.
Worse than Kim Davis, by far.
(Expletive Deleted)
This is stuff the other side does. If we’re no better, what’s the point?
One Multipage legal discussion….
http://www.nclawreview.org/2014/08/holes-in-the-defense-evaluating-the-north-carolina-attorney-generals-duty-to-defend-and-the-responses-of-other-government-actors/
I’ve not yet seen the statement by the AG that he will be representing the plaintiffs rather than the defendants in this one in court though. Are you sure this is the case?
The buggerist agenda trumps all.
This isn’t even close.
In a sense, then, he IS embezzling funds from the state treasury if he is still receiving a salary from the state and prosecuting it at the same time.
All he had to do was keep his mouth shut and hire some firm that contributed to his election campaign to handle the case. Remember, this is the state that produced the local district attorney who went after the Duke lacrosse players. (Why weren’t they referred to a ‘children?’) At least the NC State Bar tossed that guy out fairly promptly.
An elected AG may claim to represent the people, rather than the state. This is different from even an elected state’s atty, who expressly represents the state. Other than while preening in front of a jury or TV camera, the SA represents the state rather than the people.
An atty is not to bring a frivolous action or assert frivolous defenses. If the NC AG has done the research and knows that the statute is unconstitutional and that there is no plausible defense, it would be unethical for him to defend the statute. He ought to communicate these things to his client, the voters of NC.
An atty should not counsel another atty to violate the rules. Advising the AG to defend a statute which his research shows to be unconstitutional would be urging the AG to violate the rules, and such urging is then itself a violation.
I have not done the research and cannot say whether the NC AG’s position is sound.
It’s not up to the AG whether a law is unconstitutional or not. I know the argument/rationalization/excuse, but it is baloney. This was the same excuse used by Holder with DOMA, but t least he had the President’s support (he was wrong too.) An AG doesn’t have a veto over what the legislature passes. Moreover, he cannot give arguments against the law in public, or take the side of those opposing it. “The people” still elected the legislators.
Ed Whelan testified before the Senate on this very issue.
http://eppc.org/publications/senate-testimony-on-defending-marriage/
Jack, are you following the news surrounding the governor of Alabama?
Ugh. This same story keeps surfacing in various forms. In Maryland, the governor divorced his wife and married his aide. In Detroit, it ended up with the mayor going to jail. If I can get the shower head in my bathroom replaced, I mau dare to wade into this slop.
It was the talk about strange financials that made the story stand out to me. The rest of the song is, as you point out, all too familiar.
Oh – I see that Roy Cooper is evidently a Democrat. [yawn]
Phil Bryant throws down the gauntlet…