Columnist cries wolf on AG Stein

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Lawsuits about voting rights inevitably involve the intersection of law and politics, and sometimes it can be hard to keep the two straight.

A recent guest column in the Wilson Times (“AG Stein flunks the ethics test,” March 6) may have left readers with a misunderstanding of the law, particularly with regard to the North Carolina attorney general’s professional responsibilities. A quick review of the facts and law is in order.

Last year, the United States Court of Appeals for the Fourth Circuit struck down a North Carolina voting law that had eliminated same-day registration, cut the early voting period by a week, done away with the pre-registration of 16- and 17-year olds and instituted a stricter voter ID requirement.

In the waning days of the McCrory administration, a petition was filed asking the Supreme Court to review the case — a purely voluntary move, and one that the court has discretion to accept or reject.

Last month, after being sworn in as North Carolina’s attorney general, Josh Stein filed a motion seeking to withdraw that petition, since none of the named petitioners had any interest in pursuing it. The General Assembly, however, insists that it is in control of the litigation, even though it is not and has never been a named party to the case.

Who gets to control the filings depends on technical questions about who controls state-related litigation in North Carolina. Fair enough.

But last week’s column in the Times focused instead on a short, page-and-a-half section at the end of the General Assembly’s brief. In that section, the legislature’s lawyers suggested almost in passing that Stein should be barred from the case because, while serving as a state senator, he testified as a witness at the trial regarding the voting law’s legality.

This is a misapplication of the ethics rules, which the column unfortunately makes worse.

The column notes — accurately — that the attorney general “has been accused … in a brief” of various forms of misconduct. But repeating accusations made in a brief is a far cry from referring, as the column does, to “a long list of professional ethics rules Stein has violated.”

A close look at the rules contradicts that conclusion.

First, North Carolina Rule of Professional Conduct 3.7 says that a lawyer generally may not act “as an advocate at a trial in which the lawyer is likely to be a necessary witness.”

The very text of the rule makes clear why it does not apply. Stein was not the lawyer at trial. A year and a half after the trial, having been duly elected as the state’s attorney general (a public official with very different powers and responsibilities), he is seeking to represent its interests on appeal. There is therefore no risk that a court would be confused or misled about his roles as witness and lawyer, which is what the rule is designed to prevent.

Second, Rule 1.7 prohibits representation where a lawyer has a “personal interest” that would “materially limit” his or her ability to represent his client.

But Stein’s participation as a fact witness does not constitute the relevant kind of “personal interest.” The commentary to the rule gives the example of having “an undisclosed financial interest” in the outcome of a case. That’s obviously not present here.

Finally, Rule 1.11 prohibits a lawyer from representing a client in a matter when that lawyer “personally and substantially” participated in the matter “as a public officer” in the past. But Stein appeared not as a public officer, but as a third-party fact witness, testifying almost entirely to matters of public record regarding the circumstances of the voting law’s passage.

None of the cited rules apply to this case, and invoking them distracts from the real legal issues in the case. That’s a real loss, because the actual issues are weighty enough on their own.

The author is unambiguously right about one thing: Professional ethics rules are incredibly important. That’s precisely why it’s so important to be careful and clear when invoking them.

Joseph Blocher is a professor of law at Duke Law School, where he specializes in constitutional law.