After suffering a crushing court decision over Lake Lanier water rights, Gov. Sonny Perdue tapped Paul Clement, one of the nation's top litigators, to head the state's appeal.
But Clement, a former U.S. solicitor general, will not be handling the appeal after all because of a possible conflict of interest. The state has now turned to yet another top lawyer to lead the case -- Seth Waxman, who was solicitor general during the Clinton administration.
As it turns out, Clement, while solicitor general, was the attorney of record for the U.S. Army Corps of Engineers -- another party to the case -- in an appeal to the U.S. Supreme Court in the tri-state water litigation.
The oversight sent state officials scrambling to find a replacement. Waxman chairs the appellate and U.S. Supreme Court litigation group for the Washington law firm WilmerHale.
The stakes of the appeal are enormous. The state and other parties, including the Atlanta Regional Commission, are appealing a July ruling by Senior U.S. District Judge Paul Magnuson, who found it is illegal for the Corps to draw water from Lake Lanier to meet metro Atlanta's needs.
Magnuson stayed the case for three years to give Georgia, Alabama and Florida time to work out a water-sharing plan. If the parties cannot work out a settlement, the judge said, metro Atlanta must get most of its water elsewhere.
Clement would have been "a great addition" to Georgia's legal team, Bert Brantley, a spokesman for Perdue, said Monday. "Unfortunately, this document came up with his name on it. It was not readily apparent when we first talked about him coming aboard."
The state did not believe Clement's involvement was a conflict of interest but accepted his withdrawal to prevent any possible delays, Brantley said. The state's ability to hire Waxman is "a great outcome," he said. The terms of Waxman's contract are to be finalized today, Brantley said.
Clement heads Atlanta law firm King & Spalding's appellate division in Washington. He did not return phone calls or an e-mail sent to him on Monday.
In a statement, King & Spalding said the firm was "honored" that Clement was asked to represent Georgia in the appeal.
"However, Mr. Clement has since concluded that the listing of his name on a government brief he did not review might create an appearance of a conflict," the firm said. For that reason, Clement "regretfully" decided not to represent Georgia in the appeal.
Todd Stacy, a spokesman for Alabama Gov. Bob Riley, said there are clear ethical rules governing the conduct of a lawyer who leaves government service. The lawyer may not engage in litigation involving a government agency he once represented if it is found that he was "personally and substantially involved" in representing the agency.
For this reason, Stacy said, Alabama has asked the U.S. Justice Department to assess whether these requirements also extend to King & Spalding. "We understand that the issue is being considered at the appropriate levels of the Justice Department," Stacy said.
It would be a huge blow to King & Spalding if the Justice Department makes such a determination and takes the position the firm should withdraw from the case entirely. In the water wars litigation, the firm already represents a number of parties, including the ARC, the city of Atlanta and Fulton and DeKalb counties.
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