Lawyer asks judge to disqualify Nessel's office from Flint civil lawsuits
A lead lawyer in the civil lawsuits linked to the Flint lead-contaminated water crisis has asked a judge to disqualify the entire Michigan Attorney General’s office from further representation in dozens of Genesee County civil lawsuits.
The state created “irreconcilable conflicts of interest” by assigning the same four assistant attorneys general to both defend state officials against suits from Flint residents and represent Flint residents in a civil lawsuit against engineering firms that performed work in the city prior to the water crisis, lawyer Corey Stern said in his motion.
“The conflict is much broader and goes much deeper than these four,” Stern said, before asking the judge to disqualify the attorney general's office from further representation of the state, state officials, and the people of the state in dozens of Genesee County civil cases.
Stern represents 2,500 Flint children suing the state, was appointed lead counsel for plaintiffs involved in Flint-related litigation in state courts in 2016, and is liaison counsel for individual plaintiffs in federal court.
The Attorney General’s office has received the motion and is reviewing it, said Dan Olsen, a spokesman for Attorney General Dana Nessel’s office.
The potential conflict developed when Solicitor General Fadwa Hammoud fired Special Assistant Attorney General Noah Hall from his lead role in a state-initiated civil lawsuit on behalf of the people of Michigan against engineering firms contracted for work leading up to the Flint water switch in April 2014.
Nessel, citing a desire to bring the case under the control of career prosecutors, replaced Hall with Assistant Attorney General Richard Kuhl and three other attorneys in the Attorney General’s Environment, Natural Resources and Agriculture Division.
Both Hall and Stern took issue with the appointments since Kuhl and the other assistant attorneys general have been defending the state for three years against thousands of state and federal civil claims related to the Flint water crisis.
With the appointment of those assistant attorneys general, whatever conflict wall had been in place in the Attorney General’s office to separate its handling of defense and prosecution in Flint “no longer existed,” Stern wrote in his motion.
An ethics officer in the Attorney General's office reviewed the case after Stern raised the issue in a letter to Nessel. Ethics officer Frank Monticello ruled in early March that there is no conflict in Kuhl's dual roles because the office's interest in the “health, safety and welfare” of Michigan residents doesn't conflict with its interest in “protecting the state treasury."
But Stern’s legal ethics expert, who submitted his opinion on the issue, disagreed with the Attorney General’s office.
University of Michigan Law School Professor Robert Hirshon wrote the dual appointments of the assistant attorneys general have “destroyed the very (conflict) wall” the Attorney General’s office “deemed necessary to create.”
It is clear, Hirshon wrote, that the assistant attorneys general “intend to walk on both sides of the proverbial conflict line, with one foot on the side of plaintiffs and the other on the side of defendants."
The dual roles of the assistant attorneys general would allow them to “commingle confidential information” that is usually kept segregated to ensure fair representation of parties on both sides of a lawsuit, Stern said.
For example, Stern’s motion noted a Feb. 13 email from Assistant Attorney General Nathan Gambill that asked Stern to share information from his conversations with a judge in the civil lawsuits, a discussion he undertook as liaison for the various groups suing the state.
Gambill, who also defends state officials in those cases, noted in his email that he wrote in his role representing the people in the state-initiated case and thus had a right to the information Stern shared with the judge.
“What did you talk about?" Gambill asked in the email, according to Stern's motion. "What should we be aware of from a plaintiff’s perspective? What should we focus on in the draft CMO (Case Management Order) submitted on Feb. 11? What is your sense of when and how the judge will handle all of the pending dispositive motions?”
Gambill’s “unmistakable demand to peer into the confidential conversation” threatens the confidentiality between a plaintiff and counsel, “the primary driver of Michigan’s conflict of interest rules,” Stern wrote.
The email shows “wild disregard for the appearance or the fact of impropriety,” Stern wrote, and leads one to assume the assistant attorneys general have already reviewed other segregated confidential information. “There is no unringing the bell,” he said.
Hirshon agreed with Stern, noting that Gambill’s email indicates a “brazenness … that on its face evidences a conflict.”
“It is also likely that this is one of those situations in which the entire Attorney General’s Office must be disqualified in order to avoid a conflict or even the appearance of a conflict, given the high visibility of the litigation involving the Flint Water Crisis,” Hirshon wrote.