. Legal ethics

“Were you aware of it?” – Friday edition (A tale of two AGs)

Were you aware that 4% of the state attorneys general (attorney generals?) in the United States have been indicted already in August 2015?  Well, they were.  First, Texas’ Attorney General was indicted as we learned when his indictment was unsealed on August 3, 2015.  Then, Pennsylvania’s Attorney General was indicted on August 6, 2015.

For Pennsylvania’s AG, the indictment was a culmination of a slow drip of negative publicity and public accusations of wrongdoing.  In fact, back in December, a grand jury had recommended that Pennsylvania’s AG be criminally charged, so the specter of having to mount a defense to criminal charges has been looming over her head for all of 2015.

As to the Texas AG, the indictment seemingly came out of the blue.  Texas’s AG had been in the news, and under public scrutiny of late, because of his public reaction to the U.S. Supreme Court’s ruling on same sex marriage and his issuance of a legal opinion to county clerks in Texas about how they could refuse to issue licenses if doing so violated their religious beliefs.  A group of lawyers actually had filed a bar complaint against him over that opinion in July 2015, in no small part, likely because he went so far as to go on record calling the Supreme Court’s decision a “lawless ruling” and making disparaging statements about the Justices while also, as the complaining lawyers saw it, advocating for county clerks to violate their oath of office.  I found the willingness of a collection of lawyers to sign off on that bar complaint to be a fascinating development, but really before I could find the time to write about it the Texas AG found himself with bigger problems.

Pennsylvania’s AG is a Democrat; Texas’s AG is a Republican.  Like the two AGs, the two indictments differ pretty significantly, most importantly, the Texas AG was indicted for alleged conduct while in private practice before taking office — alleged securities fraud and failure to register with the proper regulatory board — while the Pennsylvania AG has been indicted for allegedly violating grand jury secrecy to get political payback and then lying about it under oath.  If you’d like to dig in more to the backstory and allegations about the Pennsylvania situation, here is the link to a pretty thorough Pittsburgh Post-Gazette story.

In addition to now being criminal defendants, there is one other thing these two AGs have in common and that is that they each agree that they can continue to do their job despite facing criminal charges.  From a common sense standpoint, that seems like a logical answer from their perspective.  And, even if you scrutinize the additional layer of ethical obligations imposed on prosecutors under ethics rules such as ABA Model Rule 3.8, there is nothing inherently impossible about the idea that they can diligently and competently perform their jobs despite their circumstances.

There are two final things though that I find interesting about the developments.  The first is that both of these AGs were elected in public elections; thankfully, at least for now, Tennessee does not have such a state of affairs as we have an unique approach where our AG is chosen by the our Tennessee Supreme Court.  Admittedly, I have no idea what role politics plays in either or both of these indictments, but I certainly worry about the prospect that Tennessee will open up the position of its state AG to popular vote.

The second is, I hope, an entirely human reaction to one detail in the story about the Texas AG’s indictment … why in the world would there be a system in place in a Texas county to usually have those arrested wear a towel in their mug shots?  What’s that about (was what I wondered as it seemed really arbitrary and weird).  Turns out though there is actually a method (I guess) to that madness, as this article explains that having a gray towel draped over the shoulders in every booking photo helps with witness identifications from mug shots to not be distracted by clothing in the photo.