Wisconsin Attorney General J.B. Van Hollen
Earlier today I questioned whether Attorney General Van Hollen may have violated the rules of professional conduct by filing a motion yesterday in the Court of Appeals that took a position that I suspect was probably counter to the wishes of his client, Secretary of State Doug La Follette. (There have been earlier articles in the news quoting Mr. La Follette as saying he wasn't being consulted on the conduct of his defense in the Open Meetings Law lawsuit.)
After posting on this, I later read on The Wheeler Report a letter that Deputy Attorney General Kevin St. John wrote to Patrick Fuller, the Chief Clerk of the state Assembly. The letter was in response to a request by Mr. Fuller that the Attorney General provide Peter Barca, the minority leader of the Assembly, with legal representation given that Mr. Barca was recently added as a party defendant to the Open Meetings Law enforcement action that Dane County DA Ismael Ozanne filed seeking to invalidate 2011 Act 10. This is the lawsuit which is currently being heard by Judge Sumi today. The AG turned down the request to represent Mr. Barca and took the position that he was required to turn it down by the rules of professional conduct on conflicts of interest and confidentiality of attorney-client communications. You can read all those arguments in the letter.
In my earlier post I wondered if I had missed some statute, appellate decision, or other rule that would permit the AG to disregard the desires of Doug La Follette as to the manner in which the AG defended the lawsuit seeking to invalidate the union-busting law. Mr. St. John's letter shed some light on the AG's rationale for not having to listen to Mr. La Follette's desires in representing him in the Ozanne lawsuit. In my opinion, if what Mr. St. John put forward in his letter as the rationale for turning a deaf ear on Mr. La Follette is the sole legal basis, it is pretty thin soup. Here is the rationale from Mr. St. John:
Last, we wish to make clear that this conflict is not because legislative defendants are of a different party or because Mr. Barca or Mr. Miller may wish to proceed on a separate legal theory. They would not have the right to do so. As I am sure you are aware, the Attorney General's representation of state officials in this capacity is not like a typical attorney-client relationship. The Attorney General has the authority to control such litigation, including the right to compromise or settle matters, as he determines to be in the best interest of the state, not individual defendants. Wis. Stat. § 165.25(6). However, because there is a "significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client," it is not in the best interests of the state for the Department to provide representation.
Wis. Stats. sec. 165.25(6), cited by Mr. St. John in his letter, reads:
At the request of the head of any department of state government, the attorney general may appear for and defend any state department, or any state officer, employee, or agent of the department in any civil action or other matter brought before a court or an administrative agency which is brought against the state department, or officer, employee, or agent for or on account of any act growing out of or committed in the lawful course of an officer's, employee's, or agent's duties. Witness fees or other expenses determined by the attorney general to be reasonable and necessary to the defense in the action or proceeding shall be paid as provided for in s. 885.07. The attorney general may compromise and settle the action as the attorney general determines to be in the best interest of the state. . . . .The attorney general may compromise and settle claims asserted before such actions or matters formally are brought or may delegate such authority to the department of administration. This paragraph may not be construed as a consent to sue the state or any department thereof or as a waiver of state sovereign immunity.There is nothing expressly stated in that statute that justifies what has seemingly already happened in terms of the AG's representation of the Secretary of State. What the statute essentially says is that even if a government official desires to be vindicated by a trial, the AG can decide, in protecting the state's treasury, to settle the case without the approval of the official. The same kind of language is placed into all liability insurance policies to give the insurance companies protection against irrational insureds. In my view, the statute does not justify the AG blowing off the rules of professional ethics covering all lawyers, including state employed ones, as to the duty to consult with the client and follow lawful goals of the client.
I searched for cases that address the purpose of the statute, and there are only two unpublished decisions of the Court of Appeals that even mention the statute. Neither of them, if they had been published, provides support for the AG's position, (again, assuming that the AG disregarded Mr. La Follette's wishes in filing yesterday's motion or the petition for an interlocutory appeal on March 21). Maybe there is an Opinion of the Attorney General that supports Mr. St. John's contention quoted above, but you would sure think he would have pulled that out of the AG's files and referred to it in his letter to Clerk Fuller.