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 remaining material falls into three general categories.
#1. Respected and thoughtful academic readings
that address the ethical issues found within offices of attorneys general.
#2. 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.
#3. 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.
From time to time, the conflicting representational responsibilities do result in reported cases or articles.
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.
Accompanying documents for the 2012 Ethics Presentation
II. Alabama Case:
III. Assigned Readings:
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.
National State Attorneys General Program at Columbia Law School
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