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Thursday, May 3, 2012

Ninety Women Sue McKenna for Breach of Ethics in Health Care Lawsuit

Posted by on Thu, May 3, 2012 at 10:00 AM

Ninety woman have filed a lawsuit in King County Superior Court this morning (Melissa Mackey vs. Rob McKenna) alleging multiple breaches of professional ethics by Attorney General Rob McKenna in his conduct of the lawsuit seeking to overturn the Affordable Care Act (ACA). The plaintiffs seek both declaratory and injunctive relief, declaring that McKenna is subject to and has violated Rules of Professional Conduct (the legal profession's ethical code) on multiple counts, and compelling McKenna to both file corrective pleadings before the US Supreme Court reversing his assertion that the individual mandate is not severable from the rest of the ACA, and... well... to tell the fucking truth.

A press conference is scheduled for 10:00am this morning at the YWCA in Belltown. Cienna is on the scene, and will report back later.

I gotta say, I was a little skeptical when I first got word of this suit that it would amount to anything more than a one-day stunt. But after reading the brief and supporting documents (available here on attorney Knoll Lowney's website), it sure does look like they got McKenna by the short and curlies. I don't have the legal expertise to predict the outcome, but the arguments are compelling and the facts simply devastating to McKenna's reputation as a lawyer.

The case in a nutshell is that McKenna, in his official capacity as the state's attorney, has repeatedly stated that it is in the interest of the state and its residents to only invalidate the individual mandate, leaving the rest of the ACA intact, while at the same time repeatedly submitting pleadings and filings on behalf of the state arguing the exact opposite. McKenna has publicly claimed that he was "overruled" by a "majority vote" of the other attorneys general, which this suit labels an "egregious violation of his ethical duties." Under the Rules of Professional Conduct McKenna is duty bound to his clients' interests, his client being the residents of Washington State (including the women named as plaintiffs in this case, many of whom will be denied lifesaving health care if the ACA is overturned), not 13 male attorneys general from other states who, according to the suit, have "no moral standing to decide the fate of women's health care."

The suit also accuses McKenna of breaching his duty to keep his client truthfully informed of the litigation. McKenna has publicly claimed that he couldn't file pleadings separate from the other attorneys general, when the Federal Rules of Civil Procedure (Fed.R.Civ.P. 20) specifically empower him to do so. McKenna has posted statements to the attorney general's website saying he is not seeking to invalidate the entire ACA when in fact his pleadings and arguments have consistently asked the court to do exactly that. And according to the brief:

[McKenna] even told the public that the Obama administration agreed with his position in the U.S. Supreme Court, which is patently false. McKenna made these false statements as a lawyer, not as a politician, and they were subject to the highest standards of truthfulness.

A politician caught in a lie is not particularly shocking. An attorney caught lying to his client is potentially grounds for disbarment.

But perhaps most devastating to McKenna is not the legal brief itself but rather the expert testimony that accompanies it, in which Robert Aronson, a University of Washington law professor, concludes:

Either Mr. McKenna has falsely stated his position concerning the best interests of his client – the citizens of Washington – or he has acted directly against those interests.

It's hard to conclude otherwise. My inexpert opinion is that the real issue before the court is not whether McKenna has violated the Rules of Professional Conduct—in lying to the public and in failing to represent what he himself admits to be the state's interests, he clearly has—but whether the political dimensions of his office mean McKenna is not fully subject to these rules, an issue that Washington's courts have never fully resolved.

But if McKenna prevails on that technical point, it would be a hollow and embarrassing victory at best.

 

Comments (23) RSS

Oldest First Unregistered On Registered On Add a comment
BombasticMO 1
Woah. This is huge.
Posted by BombasticMO http://www.BombasticMo.com on May 3, 2012 at 10:50 AM
JonnoN 2
Take this teabagger down!
Posted by JonnoN on May 3, 2012 at 10:52 AM
Original Andrew 3
VAPORIZE HIM!
Posted by Original Andrew on May 3, 2012 at 11:16 AM
Westlake, son! 4
You go, 90 girls!
Posted by Westlake, son! on May 3, 2012 at 11:16 AM
Original Andrew 5
Also, McKenna should be added to the Men Who Look Like Old Lesbians blog.
Posted by Original Andrew on May 3, 2012 at 11:17 AM
Phoebe in Wallingford 6
@5 boo!
Posted by Phoebe in Wallingford on May 3, 2012 at 11:43 AM
laterite 7
Phoebe! How uncouth of you.
Posted by laterite on May 3, 2012 at 11:53 AM
8
"I don't have the legal expertise to predict the outcome"

SOMEONE ENSHRINE THIS QUOTE FOR ALL TIME
Posted by Reader01 on May 3, 2012 at 12:07 PM
9
Geez, instead of interfering with the operation of the state of Washington, why don't these bitchez just go get a job?
Posted by seatackled on May 3, 2012 at 12:11 PM
10
(And seriously? 7 people ahead of me and no one came up with get a job?)
Posted by seatackled on May 3, 2012 at 12:13 PM
merry 11
@ 9 - I see what you did there....

Posted by merry on May 3, 2012 at 12:14 PM
whitznd 12
"but whether the political dimensions of his office means McKenna is not fully subject to these rules, an issue that Washington's courts have never fully resolved. "

Seems to me we had some local elected judges make it legal and ok to lie in campaigns. That may be what the above quote is saying. I made a list of those judges to be sure to work to get them thrown out when they next come up for election.

unfortunately, the list is at home and I'm at work and I'll forget by then.

Posted by whitznd on May 3, 2012 at 12:28 PM
whitznd 13
"but whether the political dimensions of his office means McKenna is not fully subject to these rules, an issue that Washington's courts have never fully resolved. "

I wonder if the author was referring to the little law that 5 elected judges passed to make it ok to lie in campaigns. I made a list of them to be sure to vote them out of office next time they were up for election. One is gone so far. Sorry the list is at home and I'm at work. By the time I get home, I'll have forgotten about getting that list so you can all vote them out as well.
Posted by whitznd on May 3, 2012 at 12:39 PM
the idiot formerly known as kk 14
Knoll Lowney is a blowhard publicity hound. McKenna is not these women's lawyer, so they have no basis for a complaint. Plus, the proper means of filing an ethics complaint is with the Bar Association, not in superior court.

This is a bullshit publicity stunt, perfectly in character for this moron.
Posted by the idiot formerly known as kk on May 3, 2012 at 12:49 PM
amyl 15
Note to Jay Inslee: This would be a great time to remind people that you are an alternative to McKenna by, oh, I don't know, being in the public eye a little bit more. Just a thought...
Posted by amyl on May 3, 2012 at 1:17 PM
Phoebe in Wallingford 16
@7 - really? I was speaking up for old lesbians!
Posted by Phoebe in Wallingford on May 3, 2012 at 1:19 PM
17
@14 - He isn't our lawyer, HE'S OUR ATTORNEY GENERAL. That means he's your lawyer too.
Posted by oneofthe90 on May 3, 2012 at 1:26 PM
18
I couldn't really tell you if it's merely a publicity stunt or not, but if it is, I guess shouting, "No fair," is a pretty effective response.
Posted by seatackled on May 3, 2012 at 2:19 PM
19
Nice campaign stunt, but this lawsuit is going nowhere fast.
Posted by Mr. X on May 3, 2012 at 2:57 PM
20
Oh, and out here on the far left, lots of us remember that the individual mandate was originally thought up by a right-wing think tank.
Posted by Mr. X on May 3, 2012 at 2:58 PM
the idiot formerly known as kk 21
@17: You couldn't be more wrong. Read Article III, Section 21 of the State Constitution:

The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.


I am not a state officer, are you?

And here are the laws prescribing the dutuies of the Attorney General (chapter 43.10 RCW). I'll save you some time by assuring you that those duties do not include taking on every person in the State as a client.
Posted by the idiot formerly known as kk on May 3, 2012 at 4:35 PM
22
A couple thoughts: (1) Clients have multiple interests, not a single interest. So even if it is the State's interest to keep the non-mandate portions of the ACA, doing something contrary to that interest is not necessarily unethical because McKenna has to balance competing interests. He's explained that cost/resources are an important interest as well, and they are. By staying in the "group" of states, McKenna is saving money, which is another interest of the State. (2) On the misleading statements, I agree they are pretty finely parsed. But I don't know if the law requires the statements to be examined in a vacuum or if a more totality-of-the-circumstances test is used. Elsewhere, in other statements, McKenna has been more clear about what is going on with the severability issue. Does that mean the client (in other words, us folks) has been properly and ethically informed about the case, despite some possibly misleading omissions? Or are the omissions alone enough to get him in hot water. The Plaintiffs' ethics expert doesn't really get into that, but I'd like to hear what he has to say about it. More thoughts here: http://ziffblog.wordpress.com/2012/05/04…
Posted by David Ziff http://ziffblog.wordpress.com/ on May 4, 2012 at 1:45 AM
23
A couple thoughts: (1) Clients have multiple interests, not a single interest. So even if it is the State's interest to keep the non-mandate portions of the ACA, doing something contrary to that interest is not necessarily unethical because McKenna has to balance competing interests. He's explained that cost/resources are an important interest as well, and they are. By staying in the "group" of states, McKenna is saving money, which is another interest of the State. (2) On the misleading statements, I agree they are pretty finely parsed. But I don't know if the law requires the statements to be examined in a vacuum or if a more totality-of-the-circumstances test is used. Elsewhere, in other statements, McKenna has been more clear about what is going on with the severability issue. Does that mean the client (in other words, us folks) has been properly and ethically informed about the case, despite some possibly misleading omissions? Or are the omissions alone enough to get him in hot water. The Plaintiffs' ethics expert doesn't really get into that, but I'd like to hear what he has to say about it. More thoughts here: http://ziffblog.wordpress.com/2012/05/04…
Posted by David Ziff http://ziffblog.wordpress.com/ on May 4, 2012 at 1:46 AM

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