The role of the U.S. Attorney General has been a hot topic of conversation recently, with Attorney General Barr's testimony before a Senate committee. This debate highlights the unique role of attorneys in the public sector.
In the public sector, attorneys represent a particular agency or office, not an individual.
Minnesota's Rules of Professional Conduct for attorneys make it clear that if an individual is engaged in conduct contrary to that person's legal obligations to the agency or office, or in violation of the law, the attorney must "proceed as is reasonably necessary in the best interest of the organization."
An attorney's law license could be on the line if he or she lets personal loyalty to an individual trump their duty to their true client: the government entity. As our state Supreme Court described it in its 2000 decision in Ly v. Nystrom, "It is not the responsibility of the attorney general to protect private or individual interests independent of a public purpose."
There is one key distinction between the state and federal levels of this office. The U.S. Attorney General is a cabinet appointment, named by the president and confirmed by the Senate, while the Minnesota Attorney General is an independent constitutional officer in the executive branch, elected by the voters.
The statutes setting forth the duties of the state Attorney General leave no doubt about the independence of the office. Because both positions are elected, you can have the governor and Attorney General from opposite sides of the political aisle.
The duties of the U.S. Attorney general are set forth in broader terms, but there is no real question that the Attorney General's duty is to the U.S., not any particular individual.
Although this relationship is similar to an attorney representing a corporation, there is an additional obligation to protect the public trust in the public sector.
A public attorney might have both authority and responsibility to question an individual's conduct more extensively than in the private sector. Because the public's business in involved, a government attorney also has to strike a different balance between preventing or rectifying a wrongful act, and the standard duty of confidentiality that all attorneys owe to their clients. The public interest must be paramount to that determination.
In my own career, for several years I had the privilege of working as the assistant St. Louis County Attorney responsible for the Sheriff's Office. In that role, I worked closely with Sheriff Litman and his staff. In litigation, I would even represent the Sheriff or deputies named as individual defendants, as long as the actions at issue were within the scope of their duties.
However, everyone involved knew that my responsibilities to any individuals ended if there was a determination that they acted in bad faith or outside the scope of their duties.
It is not my place to evaluate Mr. Barr's testimony before the Senate, and none of those questions will come before a state court judge. But those of us who have worked for years in the public sector know that our loyalties must lie with an office, not a particular person.
Judge Dale Harris is a judge in the Sixth Judicial District, working out of the St. Louis County Courthouse in Duluth. He was born in Two Harbors. He and his wife, Barbara, live in Hermantown with their four children.