Tuesday, March 29, 2011

Was Doug La Follette the forgotten client?

Wisconsin Secretary of State Douglas La Follette

When the website of a division of state government only has two FAQ's for its visitors, it is reasonable to assume that there is not a whole lot going on there. That's the case with the Secretary of State's official website, which list the following FAQ's:

Office Hours and Closure Dates
How soon can I get my Apostille or Authentication?

Douglas La Follette is the man in charge of apostilles ( as well as notary publics and tradenames), and he has been the state's Secretary of State since 1974, with a short hiatus after he unsuccessfully ran for Lieutenant Governor on a ticket with Martin Schreiber in 1978 against Republican Lee Sherman Dreyfus, the affable and smart guy in the red vest.  Mr. La Follette is a distant relative of "Fighting Bob La Follette," and presumably a pretty smart cookie himself, with advanced degrees from Stanford and Columbia.

Douglas La Follette has had perhaps the most exciting time of his career as Secretary of State over the last two and a half weeks.  Since March 11, when 2011 Act 10, the stripped down union-busting Budget Repair Bill was passed and signed by the Governor, Douglas La Follette's name has been all over national and state newspapers, in TV and radio news reports, and all over the blogosphere. His performance and duties have been scrutinized with the kind of attention to detail that Jon Gruden brings to analyzing  NFL quarterbacks on Sundays.  The free publicity from his time in the limelight would probably guarantee his re-election for many years to come, if the Republicans in the legislature don't do away with his office after what’s happened this week.

Douglas La Follette is the principal defendant in Dane County DA Ismael Ozanne's lawsuit seeking to invalidate Act 10 on the basis that it was passed in violation of the Open Meetings Law.  Mr. La Follette has already sat through a TRO hearing before Dane County Judge Sumi, and was awaiting the results of a Court of Appeals' certification to the Supreme Court of the propriety of Judge Sumi's TRO, when things got a little cloudy on the legal front last Friday.  The Legislative Reference Bureau (LRB) went ahead and ostensibly published Act 10 that day.  Attorney General Van Hollen announced yesterday his legal opinion that the law is now in effect, and that Mr. La Follette had no further role to play in its being officially published or becoming effective.  The LRB’s action on Friday, the AG argued, has rendered the propriety of the judge's TRO moot.

Yesterday, the Court of Appeals released a copy of a motion filed on behalf of the Secretary of State that seeks to have the pending motion for an interlocutory appeal to the Court of Appeals from Judge Sumi's TRO dismissed as moot, and have the case simply proceed forward under Judge Sumi.  I've talked about the legal maneuvering surrounding the challenge to Act 10 previously here and here, and don't want to re-till all the same ground.  I want instead to discuss legal ethics.
Short version to get the discussion started:  the motion to dismiss the pending petition for appeal is premised, in part, on an argument that once Secretary of State La Follette had initially designated to the LRB that March 25 (last Friday) should be the date for publication of Act 10 by the LRB, he had no authority to later rescind the designation and direct the LRB to await further clarification from the courts on publication.  You can see this argument at the top of page 10 of the new motion.  My question is:  Did Douglas La Follette authorize his attorneys to make this argument in a motion to the court to drop the requested appeal, when the argument serves to reduce him even more to being a mere functionary in this process, a rubber stamper, not a decision-maker.  While that may be the God’s honest truth about the role defined for him in the statutes when it comes to publication of laws, I question whether that is how the Secretary of State sees himself.
By the time that Secretary of State La Follette had been enjoined by Judge Sumi, he had already notified the LRB to publish the law on the last possible day for it to be done, last Friday, March 25.  Then on March 18, Judge Sumi issued the follow injunction in her written decision in the lawsuit brought by the Dane County DA:
I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10. The next step in implementation of that law would be the publication of that law by the Secretary of State. He is restrained and enjoined from such publication until further order of this court.
The Secretary of State immediately wrote the LRB and told it that he was rescinding his directive to the LRB to publish the law on March 25 due to the judge’s order.  You can see Mr. La Follette's letter rescinding the directive to publish here, at page 6. 
So the Secretary of State presumably felt he had the power and the duty to rescind the publication directive to the LRB on March 18, when he sent the letter to the LRB.  Is it a stretch then to assume he was still of the same mindset when Attorney General Van Hollen filed yesterday’s motion on his behalf stating he didn’t have the power to rescind?
The rules of professional conduct for lawyers make it mandatory for the client in a lawsuit to be fully informed about his or her legal rights.  The rules require that the client be consulted about all material issues that arise in the course of the lawsuit, and give the client the final call on how the objectives of the client are to be pursued as long as the client doesn’t insist on a position that is unethical.  Supreme Court Rule 20:1.2(a) says:
Subject to pars. (c) and (d) [which don't apply here], a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by SCR 20:1.4, shall consult with the client as to the means by which they are to be pursued.
Did Attorney General Van Hollen violate this rule when he filed yesterday’s motion?  If he discussed the motion with Mr. La Follette and got his approval for it, then he did what he was required under the ethics rules to do.  If he did not discuss the motion and get Mr. La Follette’s approval for it, then the Attorney General would have to rely on some exception to the rule that gives him, when representing a state official, the power to ignore the desires of the official and advance what the AG sees as a position that best serves the overall interest of the state.  There may be such an exception in case law in Wisconsin that I am unaware of.  I know of no such exception in the ethics rules themselves.
In defense of the AG's actions, he may have felt he was in a bit of a box.  The AG had asserted  in earlier arguments before Judge Sumi and the Court of Appeals that the legislator defendants who were originally co-defendants with Mr. La Follette could not be joined in the lawsuit because of legislative immunity.  The Dane County DA, presumably in response to this argument, dropped them as parties.  Those legislators could have been making the new argument against the Secretary of State’s power to rescind an earlier directive to the LRB to publish Act 10, but they are now gone from the case.   If the AG was in this box, then he could have petitioned the court, either Judge Sumi or the Court of Appeals, to let the director of the LRB intervene in the lawsuit to assert that the publication directive, once made by Mr. La Follette, could not then be later rescinded.  But that would have required explaining to the court what the LRB intended to do last Friday, and risking the possibility that the court would issue a more expansive TRO that would have prevented it.
Hopefully Attorney General Van Hollen will issue some clarification about the approval of the Secretary of State for yesterday's motion, or perhaps point out some exception to the ethics rules that permitted him to disregard the wishes of his client. 

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