AG groups question HB 4490

CHARLESTON – In the continuing debate over HB 4490, the National Association of Attorneys General, along with a bipartisan group of attorneys general representing 36 states, districts and territories, sent a letter to the leadership of the West Virginia Legislature Friday outlining its concerns on the bill.

Authored by Arkansas Attorney General Dustin McDaniel, a Democrat, and Alabama Attorney General Luther Strange, a Republican, the letter said the proposed attorney general ethics bill is unprecedented in the restrictions it places on an attorney general. By garnering the signatories on the letter, the position expressed becomes national policy for the organization.

West Virginia Attorney General Patrick Morrisey, a Republican, said he appreciates support from the other attorneys general of both parties.

“I appreciate my colleagues and fellow attorneys general from both sides of the aisle who have weighed in on this important matter,” he said. “I’ll let the letter speak for itself; this legislation is unprecedented.”

Morrisey said the bill has become a national concern about an important state issue. He said the main concern is about the concept since it is so different as to how attorneys general operate under rules of professional conduct.

Another concern is the bill will move the role of attorneys general in a different direction.

“This legislation would move in a dramatically different direction,” he said. “It shows if legislation is passed, West Virginia would be way out of step with the rest of the nation.”

In the letter, a section requiring the attorney general to withdraw from any matter in which the officeholder or member of his or her immediate family received economic compensation and appoint outside counsel to handle the case is highlighted.

“We are not aware of any statute that imposes such a broadly sweeping prohibition on an attorney general’s office-at the state or federal levels,” the attorneys general wrote to leaders of the West Virginia Senate and House of Delegates. “Nor are we aware of any state’s high court – which traditionally regulates the practice of law – having imposed such a principle of disqualification either through rules of practice or judicial opinion. The absence of such a prohibition is unsurprising, as it would plainly discourage experienced attorneys from seeking the office of attorney general.

“Indeed, that is precisely why the American Bar Association’s model rules of professional conduct, as well as the rules in many states, include very different rules on disqualification for government attorneys.”

Concerns are also raised about language that would prohibit the entire Attorney General’s Office from ever representing a state agency, official, or political subdivision if the attorney general asserts a legal position that is contrary to the legal opinion ever taken by a state agency, official or political subdivision the office represents.

“It is well-recognized across the country that a state attorney general is uniquely permitted to represent state agencies, officials and subdivisions with conflicting viewpoints – even in the same litigation,” the letter states. “As many courts have explained, this dual representation must be permitted because of the ‘uniqueness of the attorney general’s office and its responsibility as the constitutional legal officer of the state to represent various and sometimes conflicting interests of numerous government agencies.”

In concluding their letter McDaniel and Strange said they were writing to simply to ensure the Legislature moves forward with deliberations aware of the unprecedented nature of the proposed bill.

“We have had a productive working relationship with the West Virginia attorney general and hope that it may continue,” they wrote.

They added there is no intent to interfere in West Virginia’s legislative process.

“We do not presume to understand the legislature’s intent in drafting this bill or to interfere with the legislative processes in your state,” the letter stated. “However, we believe it is important that your deliberations be fully informed. As chief legal officers and public officials independently accountable to the people, elected attorneys general such as the West Virginia attorney general play a vital and unique role in defending a state’s legal interests.”

Morrisey signed the letter along with Ohio Attorney General Michael DeWine, a Republican.

Democratic attorneys general signing the letter were from Arkansas, Hawaii, Iowa, Maine, Maryland, Missouri, Nevada, New Hampshire, New Mexico, Tennessee, Vermont, Washington, D.C., Puerto Rico and American Samoa.

Republican attorneys general signing the letter were from Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Montana, Nebraska, New Jersey, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, Wyoming and the Northern Mariana Islands. In Guam the attorney general is a non-partisan office.