Thursday, December 20, 2012

UPDATE: Dustin McDaniel: He can hide, but can he run?

Posted By on Thu, Dec 20, 2012 at 11:17 AM

SHARED INTERESTS: Lawyer Andi Davis was involved in four cases with Attorney General Dustin McDaniels office.
  • SHARED INTERESTS: Lawyer Andi Davis was involved in four cases with Attorney General Dustin McDaniel's office. The photo is from her Facebook page.
I'd just sent questions to the attorney general's office relative to, among others, the school choice case involving both the office, headed by Attorney General Dustin McDaniel, and Hot Springs lawyer Andi Davis, with whom McDaniel has said he had an "inappropriate interaction."

Then I saw the AP had also been talking with press aide Aaron Sadler, who said Davis was the lawyer on three other cases that had the attorney general on the other side, but that McDaniel had no direct involvement in those cases.

I don't know what rules say about required disclosure when one lawyer in a case has had a personal connection with, effectively, the head of a major law firm also litigating a case through junior members. Doesn't look so hot, at a minimum.

But the point is that many questions remain to be answered and McDaniel's effort to stand mute after his brief acknowledgment of some sort of relationship is doomed ultimately to fail. The extent and timing of that relationship is part of what needs to be known to assess the propriety of his actions or inactions in the cases with shared interest. Questions remain, too, about whether his office's help was sought in the Hot Springs homicide case in which a young man was found shot outside Davis' houses. Though she was famously photographed leaving the house in handcuffs, she has not been named as a suspect. It remains under investigation, but lack of a criminal charge in the case, combined with the recent McDaniel revelation, is feeding a busy whispering mill.

McDaniel is due for a wide-ranging news conference on all these topics. It will be critical to his chances of going forward with a 2014 gubernatorial campaign. He can't hide and delegate his side to sketchy responses from Aaron Sadler forever. I'd guess he won't be seen in public before Christmas. But he best not wait too long after that to face the music. His candidacy rides on it.

FYI: The state Freedom of Information Act specifically exempts the attorney general's papers from disclosure. So efforts to dig into his e-mail and phone records are doomed. He's likely due some protection given his role as counsel for the state. But, as with the governor, I think the "working papers" exception should be exactly that, for true working papers, not for incidental billet doux, unrelated communications and other material, particularly on issues that have been concluded.

UPDATE: Aaron Sadler provides some direct answers on several questions related to cases involving both the office and Davis and about the Hot Springs murder case. The answers follow verbatim:

MAX ANDERSON CASE

The AG has no jurisdiction or role in the investigation into the death of Maxx Anderson and he has no knowledge of the incident itself or the status of the investigation.

The AG has never spoken to Ms. Davis about the Maxx Anderson matter.

No request has been made for the Attorney General to appoint a special prosecutor. Even if one were made, the Attorney General has no authority to do so in any case.



MUTUAL INTEREST IN SCHOOL CHOICE

The Arkansas Rules of Professional Conduct neither prohibit a relationship between opposing attorneys nor require that a client be notified of a relationship. The Rules do state that if there is a significant risk that representation of a client will be materially limited by the personal interests of the lawyer, then notification to the client is required.
The Attorney General submits that there was no risk that his interactions with Ms. Davis would materially limit the office’s representation of the State or the Arkansas Department of Education. The day-to-day responsibility for the case was placed with an Assistant Attorney General who was instructed by the AG, and other supervising attorneys in the office, to defend the claim as vigorously as possible. Indeed, the Attorney General’s office, through that Assistant AG, was successful in having the claim dismissed on procedural grounds in 2010. At all times since the inception of this particular case, the Attorney General has instructed and expected his office to protect the interests of the State and the legislation in question and it continues to do just that. The Attorney General never discussed litigation with Ms. Davis, and his interaction with her posed absolutely no risk to the State's interests in the case.

OTHER CASES

The Attorney General’s Office routinely deals with attorneys from across Arkansas, including Ms. Davis. Since January of 2010, she has represented clients in the following matters in which the Attorney General’s Office was counsel for opposing parties: Two cases before the Arkansas Veterinary Medical Examining Board in 2011 and 2012 involving her client, Dr. Bob Zepecki, an additional case involving Zepecki in Pulaski County Circuit Court, and a deceptive trade practices act case involving her client, Rex Allen Curtis, in 2011 and 2012. In each case the Attorney General's office prevailed. On the school choice litigation, which began in 2008 and is ongoing, the AG never discussed school choice with Ms. Davis at any time. All of these cases were handled by senior and assistant attorneys general without direct involvement by the Attorney General.

Additionally, in August 2012, an order was entered in Garland County Circuit Court directing any local, state, or other law enforcement agency to assist the Garland County Sheriff’s Office with the return of Ms. Davis’s children from New Jersey. The AG’s office is a certified law enforcement agency, and the order was copied to our office by the Circuit Court. The Special Investigations Division advised Ms. Davis that the AG's office was unable to assist her and referred her to law enforcement in New Jersey.

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