UPDATED 04/29/14 to address privilege waiver question.
It has been pointed out to The Bull Elephant that the letter released by the Attorney General is not a formal published opinion of the type that may be requested under certain circumstances by legislators and other governmental entities.
Instead, this is legal advice directed toward the Attorney General’s clients (in this case, the State Council on Higher Education in Virginia, the Community College System, and Presidents of the state’s public colleges and universities). What’s the distinction? Legal advice is protected against disclosure by attorney-client privilege, a privilege that is “owned” by the client. When the attorney in that relationship discloses the material publicly, he is said to have waived the privilege. This is a problem.
Because the client owns the privilege, the client is free to waive it. But the attorney is not. In fact, in most cases it constitutes a violation of professional ethics. From the Virginia Bar Professional Guidelines Rule 1.6(a):
A lawyer shall not reveal information protected by the attorney-client privilege under applicable law
I am intensely curious as to what, if any, justification for this apparent lapse the Attorney General may offer.
Original story follows:
What began as a single instance of lawless behavior by the Attorney General is now emerging as a pattern: the lawyer for the Commonwealth won’t uphold the law.
Former State GOP Chairman Pat McSweeney wrote last week about Mark Herring’s refusal to defend state law regarding marriage. He wrote,
Herring had an obligation to these Virginians and to the General Assembly, which submitted the proposition to the voters in 2006, to assure that their position was vigorously defended. Instead, he exalted his personal view on the issue over their interests.
Apparently the push back on that issue wasn’t enough to get Herring’s attention, because he’s now done it again, this time on in-state tuition rates for illegal immigrants.
At a news conference this morning, Herring announced his support for an interpretation of state law that students covered by the federal Deferred Action for Childhood Arrivals (“DACA”) program should be granted in-state tuition if they are domiciled in Virginia. This comes as some illegal immigrants are actually suing the state to achieve the same goal, a suit to overturn existing state law—which the Attorney General is obligated to defend. Moreover, Herring is addressing an issue properly dealt with by the legislature, where the legislature earlier this year actually acted to block the interpretation the Attorney General is now advancing.
Leaders of the Virginia House GOP caucus reacted swiftly to the news, releasing a statement excoriating the Attorney General for his failure to do his duty as the Commonwealth’s top lawyer:
We are deeply concerned by the Attorney General’s actions today and what appears to be a continued willingness to ignore and circumvent the duly-adopted laws of the Commonwealth. For the second time since taking office just a few short months ago, Mark Herring has demonstrated blatant disregard for his oath of office, his responsibilities as Attorney General of Virginia, and most importantly, the rule of law. Attorney General Herring has once again placed his personal, political ideology ahead of the will of the people and their elected representatives.
“The numerous and complex policy questions surrounding immigration are the subject of a vigorous and ongoing political and legislative debate at both the federal and state level. Undoubtedly, many Virginians hold sharply contrasting views on these issues and how they should be resolved.
“What is clear and not subject to debate, however, is that these issues should be considered, discussed and eventually resolved through the legislative and democratic processes, not by the unilateral actions of one individual.
“As a candidate, Mark Herring promised to take politics out of the Attorney General’s office. Herring said that decision making driven by ideology undermines “the credibility and integrity of the office.” His actions today and in January raise serious questions about the credibility and integrity of his leadership and should cause concern among anyone who cares for or believes in the rule of law.”
Friends, wherever you are on the immigration debate doesn’t really matter on this question. This is an issue of having a lawless and out-of-control government that quite literally feels unconstrained by the law. That its application here on illegal immigration tends to subsidize further lawlessness is only icing on the cake.
Herring’s complete written opinion can be found here.