McKenna vs. McKenna . . . vs. A Plaintiff Group of Ninety Women

Well, I suppose it was bound to happen: About a month ago, Attorney General Rob McKenna was tagged as “McKenna vs. McKenna” when he publicly claimed to be in favor of the bulk of the Affordable Care Act while at the same time signing his name to brief arguing that the entire law should be invalidated. (I previously wrote some about the McKenna vs. McKenna phenomenon here and here.) Now, McKenna’s contradictory statements have gotten him more than bad press; they’ve gotten him on the wrong side of a lawsuit.

The Lawsuit

Yesterday morning, a group of Ninety women filed a complaint against McKenna in King County Superior Court claiming that McKenna breached various ethical duties and Rules of Professional Conduct. If you’re interested, you should read the entire complaint here. But in short, the Plaintiffs make two general allegations. First, they claim that McKenna has an ethical duty to represent his clients’ (the people of Washington) interests. McKenna has conceded that the bulk of the ACA is in Washington’s interest — he’s publicly stated that he is for most of the ACA’s provisions. However, by signing his name to a brief arguing for the invalidation of the entire ACA (on severability grounds) he has taken an action directly against the interests of Washington, even based on McKenna’s own articulation of those interests. McKenna has explained his actions, in part, by referring to the group of states’ “majority rules” method of decisionmaking in the ACA litigation. The Plaintiffs’ claim that it is unethical for McKenna to subvert the interests of Washington to the interests of the majority vote of other states.

Second, the Plaintiffs claim that McKenna has an ethical duty to keep his clients (again, the people of Washington!) reasonably and honestly informed regarding the litigation. McKenna has made the following statements about the lawsuit: that the lawsuit “does not challenge” most of the ACA or that the lawsuit “will not” affect the bill as a whole. The Plaintiffs claim these statements are misleading and therefore violate McKenna’s ethical duties. Indeed, the lawsuit does seek to strike down the entire ACA and may well do so.

So those are the Plaintiffs’ claims, or at least the gist of the claims. Really, you should check out the full complaint. What do the Plaintiffs want? Well, they have requested the following relief:

  1. A declaration that McKenna is subject to the RPC when bringing litigation on behalf of the State.
  2. A declaration that McKenna is subject to “a lawyer’s duty of truthfulness when issuing official public statements on State litigation.”
  3. A declaration that McKenna violated the duty of truthfulness “in his official statements about State litigation.”
  4. A declaration that McKenna violated various provisions of the RPC.
  5. An order directing McKenna to “file corrective pleadings in the pending action before the U.S. Supreme Court.”
  6. An order directing McKenna to “correct his official public statements to provide the public with accurate information about State litigation.”

As I’ve discussed previously, I think there can be good reasons for a party, at least in some circumstances, to join a brief in a multi-party case even when that party might not agree with everything in the brief. But that’s not the question presented by this lawsuit. The question is whether, by joining the brief and making related statements regarding the brief, McKenna acted consistently with his ethical and professional obligations to his clients. I don’t think there is anything necessarily wrong with McKenna joining the brief as a general matter, but that doesn’t mean that the way he went about it in this case was consistent with his ethical duties.

In support of the complaint, the Plaintiffs have obtained an opinion from Professor Robert Aronson of the University of Washington School of Law. As you can tell by looking at his C.V. (filed along with the complaint), Professor Aronson is a lion of the bar on matters of ethics and professional responsibility. He’ll be an asset to the Plaintiffs.

It’s no surprise that, as Plaintiffs’ expert, Professor Aronson’s opinion supports and informs the Plaintiffs’ claims. He opines that the RPC apply to all lawyers, even elected government lawyers like McKenna. And he also states that, in his view, McKenna’s (a) public statements regarding the case and (b) decision to take a position contrary to his clients’ interests, both violated his ethical duties.

Are the Plaintiffs Right?

Okay, so that’s what’s going on. But as you might have guessed, I’ve got a few thoughts about all of this. I am going to yield to Professor Aronson on the scope of the RPC and their applicability to McKenna’s actions in this case. There are, however, a few issues that Professor Aronson’s opinion does not address and that might have some applicability to the outcome of this case.

On the Clients’ Interest(s)

Clients have more than one interest. Indeed, in any litigation clients generally have many interests — interests that are directly connected to the litigation along with other tangentially related interests, such as matters of cost or time or a desire to litigate. Sometimes (maybe often times!) these various interests are in conflict with each other and the client must therefore decide how to balance or choose among competing interests.

So when the Plaintiffs here say that it is in Washington’s “interest” for the ACA (apart from the individual mandate) to remain intact, that may well be Washington’s interest. McKenna has said that it is! But that doesn’t mean preserving the entirety of the ACA is Washington’s only interest. Matters of cost and time are also part of Washington’s interest. In fact, the Plaintiffs themselves acknowledge this; in the Complaint they allege “an interest in preventing the attorney general from spending State funds to represent a position that is harmful to the State. Rob McKenna has devoted tax moneys and State resources to participating in and publicizing the litigation over the Act.”

Indeed, saving money and resources is a State interest. McKenna himself has discussed this interest in connection with the ACA case. On the ACA FAQ page — a page that is cited to and relied on by the Plaintiffs in the complaint — McKenna explains that as part of the cost-sharing agreement with the other participating states, Washington is not contributing any costs: “No additional state resources have been set aside for use on this case.” And when discussing why he chose not to go it alone when he was “out-voted” on the severability issue, McKenna states: “Filing a separate suit which argues that the mandate is severable would entail significant legal costs that we’ve avoided at this point. Leaving the suit would eliminate any ability for Washington to help shape the arguments.” So cost and resources are certainly interests that McKenna is weighing here.

Also, McKenna notes on the FAQ that regardless of whether he joined the severability brief or filed his own brief, the actual outcome was unlikely to be affected. In either case, the Supreme Court would be forced to decide the severability issue based on a very full and well-argued record.

So this seems like a classic case of the need to balance interests and decide whether (a) the (slight?) increase in the possibility of obtaining a favorable severability outcome was worth (b) the definite increase in cost to taxpayers and expenditure of Attorney General resources in filing a separate brief. I don’t know if McKenna balanced it the right way, or the way I would have, or the way the citizens of Washington would have had the issue been put to a referendum. But that’s the sort of balancing of interests that seems to be within the reasonable range of choices a client can make. And because McKenna is the one making the decisions on behalf of the client (elections have consequences, I suppose) then he gets to balance those interests. Who else is going to do it?

On the Allegedly False or Misleading Statements

I’ve already discussed McKenna’s statements that the ACA lawsuit isn’t “challenging” the entire law and “will not” invalidate the entire law. The best I could say about those statements at the time was that they were “fine parsing.” I don’t think I can say anything better about them today.

But if we are trying to determine whether a statement is misleading or false under the ethical rules, shouldn’t we look at it in context? I think the statements the Plaintiffs quote are probably the worst statements that McKenna has made on the subject. However, it’s not as if McKenna has been totally on/over the line with his descriptions of the severability issue. The FAQ page, which Plaintiffs themselves rely on, specifically explains how the severability argument works, how the other states disagree with McKenna, and why McKenna decided it was best for Washington to stay in the group despite the disagreement. Perhaps I’m infected by the standards that apply in securities law, but I think a broader view is appropriate, rather than just looking at two statements in isolation. Has McKenna, on the whole, provided the necessary accurate information to his clients, the people of Washington? I don’t know. But I would like to hear from Professor Aronson on how to go about analyzing individual statements. Do they stand alone? Do you look in context? Is there a “truth on the market” sort of defense? I’m not sure, but that’s the sort of thing the Court or jury would need to know before deciding the issue.

What About the Special Circumstances of Plaintiff Groups?

Professor Aronson’s letter speaks generally of a lawyer’s responsibility to his/her client. I would have liked to hear Professor Aronson’s take on a client group that is made up of various separately represented entities. There are benefits to joining a group such as the group of plaintiff states in the ACA case. But there are costs as well. Each individual party may have different interests and those interests may conflict with other individuals in the group. There is another interest, however: the interest of being in the group! Each party therefore has to decide whether, at any given point, the disagreements within the group outweigh the benefits of being in the group. The decision to stay in the group is not against the party’s interest; it is just the expression of a different interest — the interest to continue to obtain the benefits of group membership. I would have liked to read what Professor Aronson had to say about considerations of client interests in a group-representation context.

Is There Any Remedy for This?

Even assuming that McKenna violated all sorts of ethical rules, ethical rules don’t necessarily create causes of action for clients to sue their lawyers, even in malpractice cases. But here, the Plaintiffs are not even bringing a malpractice claim; it’s just a claim that McKenna did X but ethically was required to do Y.

My hunch is that the allegations do not state a valid claim against McKenna — not because he didn’t do anything wrong, but because usually clients don’t get to sue their own lawyers to enjoin them against violating ethical rules during the course of representation. The client can fire the lawyer, or file a bar complaint, or sue him/her for malpractice. In the malpractice suit, however, the client would have to prove that the lawyer’s breach actually caused some harm to the client. (Here, if the Supreme Court strikes down the ACA, it would be darn tough to prove that McKenna’s decision to sign his name to a brief actually caused the result.) But suing your lawyer to force him/her to take a particular action because that action is required by the rules of ethics, that seems totally novel to me. I doubt the court goes for it. It would not surprise me, however, if after this whole ACA case gets resolved someone files a bar complaint against McKenna, and that might get some traction.


4 thoughts on “McKenna vs. McKenna . . . vs. A Plaintiff Group of Ninety Women

  1. “The client can fire the lawyer, or file a bar complaint, or sue him/her for malpractice. In the malpractice suit, however, the client would have to prove that the lawyer’s breach actually caused some harm to the client.”

    Under Washington State case law (HIzey v. Carpenter), a client cannot introduce the Rules of Professional Conduct into a malpractice case. The remedy for a violation of the RPCs are limited to firing the lawyer and filing a bar complaint. That’s how you know this lawsuit is simply grandstanding.

    Even assuming that every resident in the State of Washington is a client of the Attorney General (and how insane is that–read the State Constitution; we’re not–and if we were, what would happen if some Tea Party resident intervened to say the AG is doing a fine job!), the Superior Court has no jurisdiction to resolve this disupte.

    • kk- Thanks for the comment. I hear you on Hizey. I wasn’t sure, however, if that would apply in this case, since the Plaintiffs are seeking only equitable relief from the Judge, so there would be no jury, so Hizey’s concern re prejudice/confusion would not apply. I think the problem for the Plaintiffs is not so much whether they get to mention the RPC (they already have!) but whether the RPC violations provide any kind of substantive basis for an injunctive action against any lawyer, let alone the Attorney General.

      On AG-as-client, I agree that we are not each individually his client. But if the RPCs do apply to McKenna, and if he has some sort of duty to some amorphous client — however you want to conceive of it — then I think it’s an interesting question what that even means. The Plaintiffs here try to get around that my alleging that McKenna has already stated his view of the public interest: keeping most of the ACA. So they think they have him in a Catch-22; either he “lied” when he said what the State’s interest was, or he has done something against the State’s interest by signing on the brief. For the reasons in the post, I don’t think that trick works. But I can see why it’s an important move for them to make, so they can get around having to define what the State’s interest is, or even have a coherent theory about how one goes about determining that interest.

      I’m particularly interested in your statement at the end, that the Superior Court has no jurisdiction to resolve the dispute. What would divest the Court of jurisdiction in this case? I hadn’t thought of that angle, and nothing quickly comes to mind.

  2. Pingback: ACA Litigation Update: Court Refuses to Force McKenna to File Severability Brief with Supreme Court | Ziff Blog

  3. Pingback: The Lawyer Professor as His Own Client | Ziff Blog

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