Why outside counsel is necessary to defend NC voter ID law

by Robert Orr, former Supreme Court Justice and NC SPIN panelist, published in News and Observer,  October 8, 2013.

Any criticism of Gov. Pat McCrory’s decision to hire outside legal counsel in the litigation over the voter ID legislation is not only wrong but reflects a lack of understanding of the duties a lawyer owes to his client.

Historically, the attorney general, through the lawyers in his office, has exercised the responsibility of representing the state when legislation is challenged in court. Without question there have been many occasions over the years when the attorney general and members of his staff did not like or agree with the legislation they were defending. But as professionals, they put their personal opinions aside and did the best they could to defend the legislation in question.

In fact the N.C. Rules of Professional Conduct require just that, stating: “As advocate, a lawyer zealously asserts the client’s position ….”

What fundamentally separates this situation from the historical model rests on two very obvious occurrences.

First, the attorney general has publicly criticized the voter ID legislation. In fact the suit filed by the U.S. government quotes Cooper’s opposition to the legislation in the complaint filed last week.

Second, The N&O has noted that a recent appearance by Attorney General Cooper “will serve as his unofficial debut in the 2016 governor’s race” and that he has made his intentions to run for governor clear.

Cooper’s rationalization that as attorney general his office has “defended other laws with which he did not agree” begs the question. In my 38 years of practicing law in North Carolina, 18 of which I spent as an appellate judge, I am unaware of any occasion where the attorney general publicly criticized an act of the General Assembly and then represented the state in defending the validity of that law.

And while the attorney general’s post has been a launching pad for runs for governor going back to the 1980s, I am again unaware of any instance where the sitting attorney general has openly begun positioning himself to run against a sitting governor and then complained about the governor hiring outside counsel in a lawsuit involving a controversial law with which the Attorney General had publicly disagreed.

While the professional staff in the attorney general’s office is comprised of individuals who are excellent attorneys and apolitical when it comes to doing their job representing the state, the attorney general’s actions have put them in an untenable position. The attorney-client relationship demands candor and trust between the client – in this case the governor – and his attorneys.

In defending the voter ID litigation, a straightforward, honest conversation between the governor and his attorneys is necessary to determine the legal strategy for handling the lawsuit. The attorney general’s actions undoubtedly interfere with the mutual trust that is necessary to litigate this case.

I have every confidence in the independence and integrity of the attorney general’s professional staff. However, it is undisputed that the attorney general’s staff is hired, fired, promoted, demoted, assigned and transferred under the ultimate authority of the attorney general. Knowing as each staff member now does that the attorney general opposes the legislation and is considering running against McCrory creates the kind of perceived conflict that necessitates McCrory hiring independent counsel that he trusts and is comfortable with in defending the legislation.

Finally, the N.C. Constitution provides no specific duties for the Office of the Attorney General and in fact leaves it to the General Assembly to assign such duties as it chooses to that office. If the attorney general wants to run for governor or any other office, that is his right and talking about issues of political interest goes with that territory. However, as long as he is responsible for representing the state – including the governor and the General Assembly – his personal or political thoughts on legislation he is supposed to be defending should be kept to himself. Otherwise, the governor and General Assembly are left with no practical choice but to hire independent counsel to represent their interest.