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.