Sadly, lived experience has taught be not to be surprised by almost anything in politics anymore.
While I’ll never normalize how outrageous and lawless things are becoming, I also am rarely surprised. I’ve made it my mission to understand how those in unaccountable power operate, which lets me see where they will take things. It’s actually highly predictable.
That’s politics these days.
But I’m also a lawyer.
And as a lawyer, I still do expect a certain standard of behavior from my fellow lawyers. We all are taught the basic rules from the first year of law school on, including through continuing legal education. There’s an ethos to and infrastructure within the profession that keeps lawyers following these understood ground rules, or face accountability when they don’t. I still generally expect that code of conduct to be followed.
Lately, I’ll admit, there’s been an exception to this rule:
The lawless, principle-less world of politics routinely overcomes the basic rules of the law when the lawyers involved also happen to be the political actors. It’s why we see a lawyer/governor repeatedly violating the state’s Constitution, or a lawyer/Justice refusing to recuse in cases involving his own father (any lawyer knows that’s wrong), a lawyer/Attorney General doing the exact opposite of what you’d expect from a prosecutor when a 10-year old rape victim needed justice and not politics, or a lawyer/former prosecutor (Giuliani) doing all the things he does.
For these political actors, their political sides and the politics of the moment overwhelm the bedrock principles they’ve been taught as lawyers. So I’ve seen enough to expect even this as well. (Although I do think these lawyers, although also politicians, should be held accountable whenever their actions violate legal or judicial rules— we weaken the rule of law and the legal profession when we don’t do so).
But what about the lawyers who aren’t politicians? The pure lawyers.
Well, I must admit, I still expect more of them. I do expect them to follow bedrock legal rules and principles. Yes, even the ethics rules!
Which is why what came out this week in Ohio really did shock me. It will shock most of you too! (But I promise, I’ve learned my new lesson).
So what happened?
First, the incident I’m going to describe involves a big case, with huge implications. A battle over democracy itself, not to mention the education of Ohio’s future generations. Oh, and a whole lot money is at stake too.
As I’ve described before, after years of scandal due to reckless GOP for-profit school schemes, and after three public school champions swept three elections last November for the state school board, the very people who led the reckless schemes are trying to take power away from that state school board. If successful, they will strip most of the power from the elected/appointed board, and pull it behind closed doors within a bureaucracy they control.
Terrible idea, right? No doubt—but again, what we expect. It’s what they do of late.
But those grabbing power have a problem—the independent Board and Department of Education infrastructure they are trying to destroy is mandated by the Ohio Constitution.
And to their great credit, parents and school board members have taken Ohio Gov. DeWine to court to stop the power grab from happening. A court in Franklin County already issued a restraining order to stop any action on the power grab pending the litigation. (The Governor and his minions already appear to have violated that order by eliminating the old Department of Education last week and trying to scuttle the Board’s scheduled meeting early this week. We’ll soon see how the court responds to those actions).
But again, per my rules above, I’m still not shocked by any these facts—DeWine (even though a lawyer by training) now routinely violates the Constitution as well as court orders.
But here comes the shocking part.
Because the original plaintiffs suing were state school board members, they were represented by a lawyer from the Ohio Attorney General’s Office. And of course, the Governor as defendant is also represented by a lawyer from the Ohio Attorney General’s office.
Seems awkward, right? Like a conflict of interest?
Well, the judge in the case asked the lawyers this very question. And the Attorney General lawyer representing the plaintiffs in the case (who also happens to serve as the “Ethics Officer” of the entire Attorney General’s Office) assured the judge that these potential conflicts arise from time to time, and the Office has a policy of “screening off” the attorneys involved from one another so there is no conflict. Here’s that discussion:
This way, each client still receives the zealous advocacy the law entitles them to without any worries that their lawyers are housed in the same overall office. (Creating these ethical screens is pretty standard in the law, BTW, so this issue and solution are relatively common).
Note that at the bottom of the transcript above, the lawyer was so prepared for this issue that she even assured the judge that the screen had already been established.
Assured about this process, the judge allowed the representations to go forward and set a schedule.
And then…
Days after this hearing, the judge’s staff received an email from the attorney who had made that assurance. Who’d told the judge she’d set up that “screen".
But the email wasn’t sent directly to that staff member. The staffer was cc’d on it. (Turns out, the email was supposed to go to another Attorney General recipient with the same name as the court staff member).
Ooops. BIG oops! As in, the worst case scenario of an accidental “cc:” I’ve ever seen!
Who was the direct recipient of the email?
Despite the “screen” that was assured by that AG’s plaintiffs lawyer/“Ethics Officer,” the email was sent directly to the AG lawyer for the defendants/DeWine who was supposed to be walled off from the lawyer sending the email.
That’s a pretty see-through screen. More like a window with no screen at all!
But maybe it was an email about something else entirely? Happy hour after work, or something harmless like that.
Nope.
According to the court itself, the email “clearly related to the case.” In fact, the email involved the plaintiffs lawyer “offer[ing] legal advice to [the defendant’s lawyer” on documents that the latter was drafting and planning to submit to the court, in response to documents plaintiffs had already filed with the court!?!?
Here’s the Court’s account:
Yes—it looks like she was instructing the other side’s lawyers how to respond to her own clients’ filings! The Court elaborated:
Whoa!
At this point, I hope that any lawyer or non-lawyer is as absolutely stunned as I am. Or as the Court wrote in more sober language, this was both “serious and disturbing”:
To its credit, the Court held an emergency hearing and rejected all the first lawyer’s arguments for why this email was not as outrageous as it appeared.
Should the attorney be disqualified, the Court asked: “the answer is a resounding yes.”
But think about the whole incident:
An enormous case. Huge stakes for democracy, education, money, etc. A top lawyer in the Attorney General’s Office—the “Ethics Officer,” no less.
And an egregious ethical breach only uncovered because another AG lawyer and the court staff member happened to share the same name.
All of which begs the question: what the hell else goes on this bad that we don’t ever know about?
Which takes me back to my original rule: never be surprised again. Don’t normalize it, but never be surprised. The broken politics of Ohio is infecting everything, even the most bedrock rules of the legal profession.
But there’s one other lesson. And it comes wrapped in a huge thank you to the democracy heroes who brought this very important suit.
Always fight for democracy and the rule of law, even when the odds are long. Win or lose, that never-ending pressure and accountability can bring all sorts of things—things we all need to see and learn from—into the sunlight.
Keep going!
I keep getting accused of being irrationally angry but I’m only angry about the things I know... I’m sure I would be FURIOUS if I knew more. If the average Ohioan isn’t angry, they can’t possibly be paying attention.
OMG -- David, you’re exactly right. I can’t tell you how resonant you piece is for this Kansan dealing with the return of Kris Kobach, only now as AG. It’s truly cuckoo!