Having perused University of St. Thomas School of Law Dean Thomas Mengler’s full 19-page report on the alleged ethical improprieties at the Minnesota Attorney General Office, I can break the findings into two distinct parts – one I agree with, and one I don’t.
Regarding the allegations against AG Lori Swanson and Deputy AG Karen Olson, Mengler (photo on right) correctly concludes that the necessary evidence to support such charges has not been brought forward. The one instance that (now former) assistant AG Amy Lawler had first-hand knowledge of -- being told to find and a file a mortgage-fraud case within an extremely tight time frame – does not rise to an ethics violation without some sort of evidence that this was to be done regardless of whether the claim had merit. Olson’s alleged statement, “Don’t worry, we’ll make it survive a Rule 11,” doesn’t cut it. If Olson had said the opposite (i.e. “Don’t worry if it doesn’t survive a Rule 11”), you’d have much better grounds for an ethical complaint. Moreover, the fact that Lawler was able to find and file two claims she believed to be meritorious within the designated time frame demonstrates that management's request of her did not require a breach of ethics. The rest of Lawler’s ethical allegations were based on statements allegedly made third parties who declined to come forward (at least for Mengler’s investigation anyway). Based on the evidence he had before him, Mengler’s finding with regard to Swanson and Olson stands up to scrutiny.
However, I strongly disagree with Mengler’s finding that Lawler’s conduct in going public with her concerns was a violation of the professional rules governing lawyers (specifically Rule 1.6, which prohibits lawyers from revealing the confidential information of a client). Viewing the public as the AG’s “client,” Mengler finds Lawler’s conduct in revealing her concerns publicly may have had a detrimental effect on that client by compromising the AG’s ability to represent it.
The logic strikes me as circular. If the public is your client, can you really be breaking your confidentiality to your client by expressing your concerns to that client? Moreover, Lawler went public not with the idea of hindering the AG’s representation of the public, but because of her conviction (rightly or wrongly) that management’s practices were doing the public a disservice. I think Mengler’s finding regarding Lawler fails to take into account the important public function played by whistleblowers. (I suppose, for example, an in-house counsel at a company like Enron who goes public with her concerns could be viewed as doing as doing something detrimental to her "client," but I doubt if anyone would seriously propose such a person be prosecuted for violating Rule 1.6. )
As far as the AG’s Office goes, I will wait until I see the Legislative Auditor’s independent report before reaching a final judgment on the merits of the various managerial concerns Lawler expressed when she went public. I only wish the AG had done the same rather than summarily firing her.
Regarding the allegations against AG Lori Swanson and Deputy AG Karen Olson, Mengler (photo on right) correctly concludes that the necessary evidence to support such charges has not been brought forward. The one instance that (now former) assistant AG Amy Lawler had first-hand knowledge of -- being told to find and a file a mortgage-fraud case within an extremely tight time frame – does not rise to an ethics violation without some sort of evidence that this was to be done regardless of whether the claim had merit. Olson’s alleged statement, “Don’t worry, we’ll make it survive a Rule 11,” doesn’t cut it. If Olson had said the opposite (i.e. “Don’t worry if it doesn’t survive a Rule 11”), you’d have much better grounds for an ethical complaint. Moreover, the fact that Lawler was able to find and file two claims she believed to be meritorious within the designated time frame demonstrates that management's request of her did not require a breach of ethics. The rest of Lawler’s ethical allegations were based on statements allegedly made third parties who declined to come forward (at least for Mengler’s investigation anyway). Based on the evidence he had before him, Mengler’s finding with regard to Swanson and Olson stands up to scrutiny.
However, I strongly disagree with Mengler’s finding that Lawler’s conduct in going public with her concerns was a violation of the professional rules governing lawyers (specifically Rule 1.6, which prohibits lawyers from revealing the confidential information of a client). Viewing the public as the AG’s “client,” Mengler finds Lawler’s conduct in revealing her concerns publicly may have had a detrimental effect on that client by compromising the AG’s ability to represent it.
The logic strikes me as circular. If the public is your client, can you really be breaking your confidentiality to your client by expressing your concerns to that client? Moreover, Lawler went public not with the idea of hindering the AG’s representation of the public, but because of her conviction (rightly or wrongly) that management’s practices were doing the public a disservice. I think Mengler’s finding regarding Lawler fails to take into account the important public function played by whistleblowers. (I suppose, for example, an in-house counsel at a company like Enron who goes public with her concerns could be viewed as doing as doing something detrimental to her "client," but I doubt if anyone would seriously propose such a person be prosecuted for violating Rule 1.6. )
As far as the AG’s Office goes, I will wait until I see the Legislative Auditor’s independent report before reaching a final judgment on the merits of the various managerial concerns Lawler expressed when she went public. I only wish the AG had done the same rather than summarily firing her.
