Posted: Sept. 15, 2007


By Celia Cohen
Grapevine Political Writer

State officials had to scramble to find a lawyer for the vilified Delaware Psychiatric Center this summer, when Attorney General Joseph R. "Beau" Biden III delivered a surprise notice that the Justice Department no longer would provide representation because it was investigating the facility.

The psychiatric center, then and now, was in dire need of legal advice as the subject of swelling scrutiny by government investigators, legislative overseers and the news media looking into accounts of patient mistreatment, a hostile work atmosphere and mismanagement at the state-operated hospital near New Castle.

The unexpected attorney-juggling arose from a classic bind in a state that invests potentially-conflicting powers -- to prosecute, investigate and also to represent and defend the government -- in the attorney general, its chief legal officer who additionally must keep the will of the voters in mind as an elected official.

This conflict, in fact, occurred even though Biden and Gov. Ruth Ann Minner are fellow Democrats.

The Justice Department's withdrawal as counsel freed it to pursue an investigation through its Medicaid Fraud Control Unit, which checks into charges of the misuse of federal money and the mistreatment of people whose care is provided by the federal dollars. But it left the psychiatric center in the lurch. 

Minner administration officials handled this legal crisis by retaining Joseph C. Schoell, the governor's former counsel now in private practice at WolfBlock, to represent the psychiatric center. Schoell took on the assignment in early August at an hourly rate of $300, discounted 20 percent for the state from his regular hourly rate of $375.

"We had an operational agency that was being bombarded with legal and management issues and was left with no immediate legal representation. It clearly took us by surprise. We responded as quickly as possible. Luckily we had a law firm with experience in state government," said Mark T. Brainard, the governor's chief of staff.

The situation reinvigorates a strenuous public policy debate that has simmered for decades, dating back to the last years of Republican Gov. Pierre S. "Pete" du Pont's administration in the mid-1980s and reviewed in depth in the early 1990s by a government reorganization commission that Minner chaired as lieutenant governor.

Both du Pont and the Minner Commission concluded that the state would be better off with the creation of an Office of Executive Counsel, which would report to the governor and be responsible for representing state agencies. The attorney general would retain prosecutorial and investigatory powers and continue to represent the state in litigation.

It never came about, primarily because of vigorous objections from Attorney General Charles M. Oberly III, a Democrat now in private practice, and Attorney General M. Jane Brady, a Republican now on the Superior Court, both three-term officeholders whose combined tenure stretched from 1983 to 2005.

Beau Biden was largely noncommittal. "I understand why these suggestions have been made over the years. Are there potentials for conflict? Yes. If and when those occasions arise, we will take appropriate action," he said.

The arguments on both sides exploit the dual nature of the attorney general as a lawyer and a public official. Lawyers owe essentially ironclad loyalty to their clients. Public officials have a broader portfolio for the state's welfare with a duty to give independent advice.

David S. Swayze, a lawyer who was du Pont's gubernatorial counsel and also served on the Minner Commission, is unwavering in his view favoring an Office of Executive Counsel so that a state agency does not have to rely on a deputy attorney general, answerable not to that agency but to the Justice Department, for legal representation.

"Who has the loyalty of the lawyer? If it is otherwise than the client, it is a breach. This is so foreign to the concept of the attorney-client relationship. It is out of bounds," Swayze said.

Oberly believes the public is served better by making no changes. "It would be incredibly dangerous to tinker with the system. You would destroy the Attorney General's Office as we know it, and we would have a partisan [executive counsel] office that would do the governor's bidding. There will occasionally be a conflict that will arise, but they're overreacting to a problem that really doesn't exist," he said.

Oberly predicted that an Office of Executive Counsel would create the state equivalent of Alberto R. Gonzales as the counsel to the president and beholden to him.

The present design certainly has its tensions -- and not just those as dramatic as Biden's decision to investigate the psychiatric center and abandon its representation. For a time Jane Brady was not only the attorney general but a potential Republican candidate against Minner for governor, not exactly someone the administration would want to consult on confidential legal matters.

The annual budget bill also has been known to exacerbate the conflicts, because sometimes the salary and the supervision of an attorney general come from different sources. "Under the current system, you've had the awkward situation with deputies located in a department and in the department's budget while reporting to the attorney general," said Anthony G. Flynn, a lawyer who was the counsel to du Pont and to Gov. Michael N. Castle, now a Republican congressman.

Some agencies have tried to get around the problem by squirreling away attorneys in their administrative offices in something of a shadow Office of the Executive Counsel. As a lawyer aware of the potential for divided loyalties, Democratic Insurance Commissioner Matthew P. Denn brought in Michael L. Vild, a lawyer, to be the deputy commissioner, even though the Insurance Department has a deputy attorney general assigned to it.

Because of the psychiatric center's woes, there could be a new push in the 2008 legislative session for a bill to set up an Office of Executive Counsel.

"We cannot operate with our agencies wondering day to day whether they have legal representation," said Brainard, the governor's chief of staff. "This is an issue we are clearly going to have to look at before January."