When can an AG refuse to defend a law?

Last week U.S. Attorney General Eric Holder urged state attorneys general to refuse to defend state laws and state constitutional amendments they believe violate the U.S. Constitution.

Holder’s comments may not be fresh news at this point, but it’s still an interesting and ongoing problem faced by state attorneys general. If the attorney general’s client is the state, to what extent does he or she have an ethical duty to represent the state’s interests in challenges against state laws or constitutional amendments?

There are extreme circumstances in which most people would agree there would be no duty to defend a blatantly unconstitutional law such as, hypothetically speaking, a law reestablishing racial segregation. In fact, I’m not sure an attorney general could ethically (under rule 3.1 of the NC Rules of Professional Conduct) defend such a law knowing the defense would be almost the definition of frivolous.

In cases where it is not clear, which I think applies to most cases, I think an attorney general has to zealously represent his or her client, the state, regardless of personal opinions. That comes with the territory.

But in a system where the attorney general is elected independently of the other branches of government, there will inevitably be conflicts depending on political affiliation. These conflicts can be exacerbated when disagreements on public policy are aired in public.

To address this problem of conflicts of interest, SB 473 was passed last year, putting North Carolina in the company of several other states that give the governor, legislature, or individual legislators standing to intervene in lawsuits to defend state laws.

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