Attorney General Sam Olens and one of his predecessors are exchanging pointed accusations in a testy legal dispute that ended with long-sought action by the governor.
Former Attorney General Mike Bowers accused Olens in a court filing this week of having “abandoned the state’s judges” after Olens said he could not represent a group of South Georgia judges in a class-action lawsuit.
While Deal’s decision solves the legal dispute, the spat between Bowers and Olens has gone public, with both sides accusing the other of being misinformed.
“Mr. Bowers’ claims regarding the attorney general’s representation of judges are, with all due respect, simply untrue,” Olens spokeswoman Lauren Kane said.
Bowers’ response was direct.
“Like everything else that the attorney general has been involved with in recent years, he does not know what he’s talking about,” Bowers told The Atlanta Journal-Constitution.
The dispute centers on a lawsuit involving judges more than 100 miles south of Atlanta in Crisp County. The Southern Center for Human Rights and a Washington law firm sued the state of Georgia, the governor, Cordele Circuit judges, county commissioners, the district attorney and public defenders over an alleged failure to provide adequate representation for indigent defendants.
In January 2014, shortly after the suit was filed, Olens told the judges his office would not represent them in the lawsuit, although he would defend the state, the governor and public defenders — the executive branch defendants. Olens said there was reasonable expectation of a conflict of interest in defending all three entities, and he told the judges to find their own legal counsel.
Kane, Olens’ spokeswoman, said the judges agreed that a conflict existed. In response, the judges hired Bowers and his firm at an agreed upon rate of $300 an hour, a considerable discount from Bowers’ typical $650 rate.
The question then became one of constitutional and statutory theory: What is the responsibility of the attorney general when entities of the state are sued? And who is going to pay Bowers’ firm?
The latter question was answered Wednesday, after Deal used his authority to appoint Bowers’ firm to represent the judges. The judges and Bowers first asked Deal’s office to make that move more than nine months ago.
Deal spokesman Brian Robinson said the governor’s chief counsel and chief of staff spoke with one of the defendant judges “many months ago and confirmed that the governor’s office would make sure that these judges were properly represented and the expenses for their counsel was covered.”
In filing the motion, Robinson said, Bowers was apparently “not aware of the commitment made directly to (his) clients, the judges, so this was all just a simple misunderstanding. It’s now resolved.”
Olens’ staff was caught off guard when Bowers on Dec. 23 wrote to demand payment for more than $60,000 in fees already accrued. Chief Deputy Attorney General Jeff Milsteen responded to Bowers on Friday and said Bowers’ “frustration should not be directed at this office.” Instead, he said any disagreement over fees is between Bowers, the judges and the governor’s office.
“Whatever the motivation for the Dec. 23 letter and the subsequent motion, the process established by law for resolving attorney general representation conflicts was followed,” Kane, Olens’ spokeswoman, said Wednesday. “The governor was asked to provide representation and he did.”
But that first question — what are the attorney general’s responsibilities — is still a sore spot for Bowers.
Olens and his top aides have told the judges and Bowers’ team that his responsibilities are primarily to represent the executive branch but that his office has also represented the judiciary when there is no conflict. Far from having “abandoned” judges, Olens’ spokeswoman said the office currently has 150 open cases where it is representing the judiciary or individual judges and it has represented more than 1,500 since 1997.
In that time there have been but a handful of instances where the attorney general has had to recuse the office because of a conflict. Once was in 2009 when a Fulton County judge and the county district attorney were at odds and both asked then-Attorney General Thurbert Baker to represent them. Baker’s office, citing a conflict of interest, declined.
Baker is a Democrat. Olens and Bowers are Republicans.
Bowers, who served as attorney general from 1981 to 1997, said in a December letter to Olens that state law requires him to defend the judges.
State law, Bowers wrote, requires the attorney general to “represent the state in all civil actions tried in any court.” Judges sued in their official capacity are clearly part of “the state,” he said.
“It is unprecedented and shameful for the attorney general of Georgia to refuse to give judicial officers representation when needed,” Bowers wrote.
In fact, Bowers signed an affidavit as part of his court filing this week declaring that as attorney general his office “never refused to represent a judge in a civil matter except for State Bar complaints and matters before the Judicial Qualifications Commission.”
Norman Underwood, a retired lawyer and former judge on the Georgia Court of Appeals, said he tends to side with Bowers’ point of view.
“I have a kind of simple-minded notion of ‘the state’ being composed of an entity made up of three branches: legislative, executive and judicial, but all very much part of the state,” Underwood said. “For that reason, my view of the attorney general’s duties would be much closer to those articulated by Mike Bowers.”
It’s not “far-fetched” for Olens to raise the question of a conflict, Underwood said. “I’m just a little surprised,” he said, “that having raised the question and thought it through that there is a view that the judges are without legal representation.”
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