Nessel's office refutes conflict concerns, asks judge to keep the AG on Flint water cases
Attorney General Dana Nessel’s office is fighting an effort to disqualify its attorneys from all Flint water litigation in Genesee County, arguing that the lawyer who wants them disqualified “relies on a series of misunderstandings” to do so.
The motion "misses the mark" and fails to recognize the leeway given to the Attorney General's office when it comes to conflicts, Assistant Attorney General Nathan Gambill wrote in his response.
New York-based attorney Corey Stern had filed the motion to disqualify the entire Attorney General’s office from all Flint water suits in Genesee County at the end of March.
The motion alleged the state created “irreconcilable conflicts of interest” when it assigned the same four assistant attorneys general to both defend state officials against lawsuits from Flint residents and claim civil damages for the state against engineering firms that performed work in the city prior to the water crisis.
While Stern expressed discomfort with the arrangement, he said the conflict became clear when Gambill asked Stern, a liaison for various groups suing the state, to share information from off-the-record conversations he held with the judge.
Stern, who represents 2,500 Flint kids suing the state, lacked standing to file the motion for disqualification, Gambill wrote. Further, the interests of the attorney general’s clients don’t conflict with one another and the department has not breached the confidentiality of its clients, he said.
The situation and the attorney general’s response “borders on absurdity,” Stern said in a statement.
“But when the AG takes it a step further, by seeking to sneak behind the curtain to obtain inside information from the lawyers who are suing her clients, the ‘borderline’ absurdity become pure madness,” Stern said, referring to Gambill's email earlier this year.
Stern has until Friday to file an official response to Nessel's office. According to online court records, McLaren Hospital and engineering firm Lockwood, Andrews & Newnam, Inc. have joined Stern’s motion.
The entire issue is “an unfortunate distraction” from the pursuit of justice for those harmed in Flint, Nessel spokesman Dan Olsen said in a statement.
“As we’ve said before and continue to maintain, our office holds itself to the highest ethical standards and has not violated the Rules of Professional Conduct with respect to its representation in the Flint civil litigation,” Olsen said.
Conflicts over potential conflict
The potential conflict with which Stern takes issue 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 LAN and Veolia, which contracted for work leading up to the Flint water switch in April 2014.
Nessel wanted to bring the case under control of career prosecutors so she replaced Hall with Assistant Attorney General Richard Kuhl, Gambill and two other assistant attorney generals. The quartet has been defending the state for roughly three years against thousands of state and federal civil claims related to the water crisis.
With their appointment to that case, the four assistant attorneys general crossed the conflict wall, Stern maintains, and now must argue simultaneously that the people of Michigan were not harmed by the state and that they were harmed because of the actions of negligence of the engineering firms.
Nessel’s ethics officer ruled in early March that the appointments created no conflict because the office's interest in the “health, safety and welfare” of Michigan residents doesn't conflict with its sovreign interest in “protecting the state treasury."
Stern wasn’t convinced by the ethics officer’s ruling and filed his motion to disqualify the office.
“The people of Flint and the citizenry of Michigan deserve leaders in their government who are humble enough to admit when they are wrong,” he said Wednesday. “Instead, they appear to have elected someone who doubles down when put in a corner."
In the response filed Friday, Gambill maintained the argument of the office's ethics officer and said Stern has no standing to file the motion because he is not involved in the two Genesee County cases at issue. Stern is, however, a lead counsel over the consolidated civil cases in which the state is a defendant.
Gambill also defended it inquiries to Stern regarding his off-the-record status conferences with the judge because a case management order prevents them from attending the conferences in person.
Instead of disqualifying the attorney general’s office, the judge should exempt it from the consolidation that groups several Flint water cases together with Stern at the head, Gambill argued.
Attorney general offices across the nation have some leeway when it comes to conflicts because of the unique roles they have to take as defendant, prosecutor and plaintiff, Gambill wrote. Typically, a conflict wall is put in place among members taking either side, as was done in Flint when former Attorney General Bill Schuette hired an private team to handle criminal prosecutions.
But issues arose, Gambill said, when Schuette made the “unusual move” to file a civil lawsuit against engineering defendants from the criminal side of the conflict wall.
When Nessel took office Jan. 1 and sought to retrieve cases from private lawyers such as Hall and Prosecutor Todd Flood, Hammoud took point on Flood’s criminal cases and Hall’s case was shifted to the civil side under Nessel.
“The attorneys from the department on the civil side of the wall could have filed it,” Gambill wrote, noting that the case has sat largely dormant since its filing.
Gambill said Stern should withdraw his motion as it “completely fails to demonstrate that the department has violated any rules of professional conduct—let alone a violation mandating the disqualification of the entire department of attorney general.”