All lawyers in the United State and territories are sworn to adhere to the code of professional conduct and most lawyers are also required to participate in continuing legal education approved by the state judiciary or bar association programs that mandate ethics sessions. Lawyers who do not comply with these requirements forfeit their right to practice law in their state.
Attorneys general and their staffs are not exempt from these rules. Because attorneys general have varied responsibilities that are defined by their constitutions, statutes and the common law, it is often difficult to define the ethical duties of attorney general offices especially when representing other government agencies that have different and generally narrower responsibilities.
For the last ten years, James E. Tierney, the Director of the National State Attorneys General Program at Columbia Law School, has conducted approved continuing education sessions on ethics for state attorneys general and their staffs at annual meetings of the National Association of Attorneys General. He has also taught the ethics of state attorneys general in his capacity as a Lecturer-in-Law at both Columbia and Harvard Law Schools and presented before advocacy groups, businesses and private law firms.
The Program is now making teaching materials on attorney general ethics available in hopes that they will assist legal educators in their teaching duties. The Program is also making available experienced instructors who are available travel to make ethics presentations to interested offices of state attorney general or other entities. Although the materials presented on this page are for educational purposes and cannot substitute for specific state-approved CLE programs, they will hopefully facilitate the teaching of ethics to state governmental lawyers.
Because each state attorney general is afforded wide latitude in organizing their office, a key to understanding the ethical challenges of attorneys general can be found in the attached Generic Organization chart. While not representing any particular state's structure, this chart clearly outlines the wide number of responsibilities assigned to attorneys general. This Chart is therefore an invaluable teaching tool in an ethics format since it allows participants to "see" the sorts of challenges and conflicts that arise daily in providing legal services to state government.
The Modern State Attorney General: Power, Influence, and Ethics (January 2016)
On January 19th Program Director Tierney participated in a discussion at Stanford Law School on the legal and ethical issues of lobbying state attorneys general. He was joined by New York Times reporter Eric Lipton, and Terry Goddard, former attorney general of Arizona. The discussion was moderated by Stanford Law Professor Nora Engstrom. The video of the discussion can be viewed HERE
Attorneys General: Lawyering for Whom? April 9, 2015
Elected statewide in forty-three states, attorneys general are independent state constitutional officers vested with extraordinary prosecutorial discretion. The decisions of a single state attorney general often reverberate nationally and impact citizens across state lines.
As a consequence of their wide-ranging impact, state attorneys general have not been immune to the onslaught of special-interest lobbying. Media outlets, such as the New York Times, have called into question the independence of attorneys general in the face of concerted and sustained lobbying efforts by corporations and trial lawyers. Furthermore, in a post-Citizen United world, large campaign contributions from known and unknown donors have overwhelmed the election coffers of many state attorneys general, thus further eroding the perception of independence.
In light of these realities, what are the ethical duties and considerations for today's state attorneys general? Does the need of elected prosecutors to raise campaign funds affect their independence? Does the lobbbying of state attorneys general create undue influence? And are regulatory changes needed to ensure that state attorneys general continue to faithfully represent the communities they serve?
The discussion featured former Maryland Attorney General Douglas Gansler and former New Jersey Attorney General Peter Harvey, '82. The discussion was moderated by National State Attorneys General Program Director James Tierney.
Watch the event HERE
Co-hosted by Center for the Advancement of Public Integrity (CAPI), the Columbia Society of Law and Ethics and the Columbia Law School Social Justice Initiatives.
The remaining material falls into three general categories.
- Respected and thoughtful academic readings that address the ethical issues found within offices of attorneys general.
- Videos of presentations by Professor Tierney in front of attorneys general and senior staff where viewers are able to see for themselves how office holders grapple with seemingly intractable issues.
- Hypothetical fact patterns as to internal decisions that face attorneys general everyday. These hypotheticals are all based in actual situations and have been vetted with many government lawyers
These materials allow legal education instructors to create rigorous ethical presentations that will provide the opportunity for informed and interactive discussions of real life ethical challenges faced by committed state governmental lawyers as they work together to carry out the law.
The Model Rules of Professional Responsibility acknowledge that state attorneys general, because of state constitutional decisions, statutes and the common law, may ethically make decisions where other lawyers would be required to defer to clients.
Model Rules of Professional Conduct, Preamble and Scope,
 Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state's attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intergovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority.
Although this broad authority for attorneys general and their staffs is not well covered in academic writings, the following articles are relevant and helpful in the ethics education for state government lawyers.
- William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 YALE L. J. 2446 (2006).
- Justin Davids, State Attorneys General and the Client-Attorney Relationship: Establishing the Power to Sue State Officers, 38 COLUM. J.L. & SOC. PROBS. 365 (2005).
- Kathleen Clark, Government Lawyers and Confidentiality Norms, 85 WASH. L. REV. 1033, (2007).
- Jack B. Weinstein, Some Ethical and Political Problems of a Government Attorney, 18 ME. L. REV. 155, (1966).
- Rethinking the Professional Responsibilities of Federal Agency Lawyers, 115 HARV. L. REV. 1170 (2002).
- Steven K. Berenson, Public Lawyers, Private Values: Can, Should and Will Government Lawyers Serve the Public Interest?, 41 B.C.L. REV. 789 (2000).
Cases and Articles
From time to time, the conflicting representational responsibilities do result in reported cases or articles.
- South Carolina v. Peake, 579 S.E.2d 297 (S.C. 2003).
- Commonwealth v. Powers Fasteners, Inc., NO. 07-10802, mem, (Suffolk County Super. Ct. Dec. 18, 2007).
- Hawaii v. Peters, CR. No. 98-2467, mem, (Haw. Cir. Ct. Mar. 23, 1999).
- Marlene Kennedy, Prison Doctor Takes on New York AG, COURTHOUSENEWS.COM, (Oct. 17, 2011), available at http://www.courthousenews.com/2011/10/17/40656.htm.
For the last ten years, Program Director James Tierney, who is the former Attorney General of Maine, has conducted approved continuing legal education sessions on ethics for all state attorneys general at annual meetings of the National Association of Attorneys General. In the attached videos, attorneys general and former attorneys general grapple with true-to-life hypotheticals that reflect the ethical decisions that they make everyday.
Read Prof. Tierney’s citations and talking points
Hypotheticals have long served a valuable purpose in legal education. They allow the focusing of classroom discussion and the creation of interactive, role playing participation. Unlike actual reported cases, they allow for all relevant factors to be freely discussed by the decision makers.
The following six ethics hypotheticals are drawn from actual situations that have occurred within offices of state attorneys general. Each has been used many times before open and closed sessions with attorneys general and relevant staff.
None contain easily determined "right" or "wrong" answers and all reflect the day-to-day real life ethical pressures of state legal practice.