Tuesday, October 28, 2008

290. Sorting through the Legal-Speak

I read the article in today's Tribune where Greg Baka responds to Tina Sablan's Open Government Act request. I can't help but comment! I'm thinking out loud here, so please feel free to point out where I've gone astray.

Greg seems to give 2 basic reasons not to disclose how the CNMI government is funding the lawsuit against the US challenging federalization of our immigration. The Open Government Act doesn't apply because the information is "litigation related" and there are no other "non-litigation related documents."

The Open Government Act--OGA
The people of the CNMI did not yield their sovereignty to the Governor or government which serves them. The people, in delegating authority, did not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people must remain informed so that they may retain control over the government they've created.

We have an "open government act" which provides us access to information in our government. It is to be construed in favor of access; any and all exceptions are to be construed narrowly or strictly.

We have a right to know how the government spends our public funds. We have given the government a narrow exception that provides for non-disclosure of documents necessary to allow it to prosecute and defend legal cases. But this exception is subject to interpretation. Is it so broad that we have given up the right to know how public funds are spent in litigation? Or is it a narrower exception?

The litigation exception to the OGA
Greg seems to argue that the "litigation" exception for disclosure under the OGA is co-extensive with the attorney-client privilege.

The attorney-client privilege is a privilege between client and attorney and is invoked by the client. Attorneys, of course, must keep their client's confidences. So one question to begin with here is "who is the client?" The CNMI is the plaintiff--that means our government is the client. To me that means the people are all part of that client base. (Think government "of the people, by the people, for the people.") The OGA seems to recognize that the people, who hold sovereignty, must be kept in the loop of information.

EDIT: I've now learned that it is clear law that
the identity of a client, the fee agreement and payments of fees are NOT protected by the attorney client privilege or the work product doctrine.

There's a whole string of cases in the federal courts on the issue and all going in the same direction--not protected. In the 9th circuit, a case to look at is In re Michaelson, 511 F. 2d 882, 888 (9th Cir. 1975). So Greg gains nothing by arguing that attorney-client privilege protects this information. IT DOESN'T.

Even if the privilege generally did, however, protect such information, I don't think that there is necessarily a co-extensive protection from the OGA, which requires limited, strictly-construed protection to litigation-related matters in order to keep secrets from the public.

The federal courts rulings that fee arrangements are "peripheral" and not litigation-related, not work product, all seem to undermine Greg's supposed analysis. I wonder what he cites as authority for his position. (The newspapers don't say and don't carry his full letter.)

It seems reasonable to me that the people should be allowed in on the secret of who represents them and how that firm is being paid. An attorney would not be able to keep this information secret from his client. And the government shouldn't be allowed to keep this information secret from the people who are, ultimately, the client.

The protection of litigation materials from discovery by the adverse party should be narrowly construed to mean only those materials necessary in the prosecution or defense, the untimely disclosure of which could affect the outcome. The Marianas Variety article mentions a report Howard Willens gave in a cabinet meeting on the progress of the lawsuit; to me, this clearly falls within the exception. In contrast, though, the OGA requires that employment and salary matters are within the clear ambit of public information. I don't think you can cloak this information under the "litigation" label and then claim that it's protected from disclosure.

And in this particular instance, it doesn't seem as if we're talking about some great secret that, in the hands of the opposition, would give them an unfair advantage in the litigation. We're talking about public funds and how they're used. It isn't likely going to help the Federal Government in the lawsuit to know how much money we're spending on it--unless the Governor is illegally using federal dollars for the project (in which case, the Feds could find out anyway by an audit of their own). There's no suggestion that he is using federal funds, so why not disclose the truth?

And this is where I can't figure things out. Why doesn't our Governor want to tell us where the money is coming from? Has he started thinking that the public funds are his alone and that he's not constrained by the CNMI Constitution and his public duty? Has he no obligation to report to the people?

And that's a very scary thought. Tina Sablan is right to be using the OGA, whose very purpose is to keep the citizenry informed so we can make sure our government is operating the way we want it to.

If the money is coming from elsewhere, not public funds, then we, the people are possibly NOT the client. And the lawsuit should not be filed in the name of the CNMI. At the very least, we need to know about this, if this is happening. The professional rules of conduct prohibit an attorney from being directed or regulated in his/her professional judgment by anyone other than the client. If the law firm representing the CNMI is being paid by someone other than the CNMI, we need to know so we can make sure that someone else isn't the one directing the litigation.

No documents that aren't litigation-related?
Greg says there are no documents that aren't "litigation-related." That no re-programing of funds is involved. That the money is coming from the Governor's discretionary fund. That's what we want to know more about. How does the Governor have half-a-million dollars in discretionary funds? Why can't those funds be used for more pressing needs? That's why we need to be informed.

Greg has construed the "litigation-related" term so broadly that everything about the lawsuit is said to fall within its bounds. He also insists that it is perfectly normal to use outside counsel for CNMI-government lawsuits, despite the CNMI Constitution's clear prescriptive statement that all legal actions by the CNMI must be filed by the CNMI Office of Attorney General (OAG). This is in apparent answer to the underlying question, the reason we want the information-why are we spending money on an outside firm and why isn't the CNMI AG handling this case?

As to the use of "outside counsel," the OAG does work through all of its assistant AGs and the AG himself cannot personally review every piece of litigation before it is filed. That makes sense. But it doesn't necessarily follow that you can constitutionally delegate the responsibility of the AG to represent the CNMI outside of the AG office to private counsel, or to do so without a written delegation.

The reason the AG delegates within the office is because of the workload. I also see the necessity of being able to have different counsel when there are "conflicts of interest" but theoretically, if you (the AG's office) represent only one client-the CNMI government-then you shouldn't have any conflicts. (Conflicts arise when you represent more than one client.) That leaves "lack of specialized experience" or "resource constraints" as justifications for needing outside counsel. The latter-resource constraints-is a bogus suggestion. If you have hundred of thousands of dollars to hire private counsel, you are not constrained by limited resources.

So that leaves delegating to outside counsel because of lack of specialized experience. But the CNMI Constitution doesn't give a loophole to the requirement for the AG to represent the CNMI in all litigation for this reason. And the OAG could just as easily hire an attorney in-house who does have the experience. So again, none of these reasons for why the CNMI executive is saying they can hire private, outside counsel and NOT have the AG's Office sign on the complaint and do the work are persuasive or logical.

And saying that the Governor does not have to create documents to disclose is just ludicrous. There are documents: Do you really expect us to believe that you've hired a law firm and are paying thousands of dollars (hundreds of thousands of dollars) and have no written agreement? Of course there is a writing /contract. Even the model rules of professional conduct strongly urge attorneys to put their fee-agreements in writing. The issue is simply whether these documents are "litigation related" and exempt under the OPA or not.

The CNMI Government, including Governor Benigno R. Fitial, should not be allowed to hide information from the public, deciding what we need to know and what we don't, when it comes to where public money is coming from, how it's being spent, and how matters and actions being done in the public's name are being paid.

So all in all, I'm not impressed by Greg Baka's obfuscation with Legal Speak. Who is paying for this litigation and where are the funds coming from? If we're using public funds, we have a right to know. Tell us.

And Saipan Tribune--use a photo of Greg Baka-not Alan Barak!


Lil' Hammerhead said...

Maybe Stanley Torres is helping to fund the suit via his office's allotment. These are funds that require almost no accountability.

Saipan Writer said...

Interesting thought, Lil.

Lil' Hammerhead said...

I wasn't all that serious.. and Stanley's account is less than a third of what was said to be needed.. but you never know?

Lil' Hammerhead said...

Gregory Baka responded to you and Ed on my blog.

carlos the mackerel said...

"And Saipan Tribune--use a photo of Greg Baka-not Alan Barak!"

Maybe they're really the same person -- i.e., Barak O'Baka!

Saipan Writer said...

Lil, I read Greg's response. It's circular reasoning: the OGA says you don't have to disclose what's not discoverable (even if relevant) so it's not discoverable and I don't have to disclose.

But in fact, the information, if relevant in the litigation, is discoverable and not protected by the attorney-client privilege or work product doctrine.

I don't see how it's relevant in the litigation, but that doesn't shield it from disclosure under the OGA.

Greg cites nothing for his opinion. And although he speaks highly of his duty and his ethics (and I've found him to be honest and ethical in all my dealings with him), I still think he's reached his conclusion to please the governor, as a political concession, and not because the law supports the conclusion.


Saipan Writer said...

Carlos the Mackeral,

I like that mack in your name! But i've seen both Alan and Greg side-by-side, so alas, no Barak O'Baka...

too funny.

Fwend of Ben & Tim said...

Great post SW. I hope you sent this to the papers for those who do no read blogs.

Stanley funding suit is funny, Lil.

I would have guessed Tim, Howie, or perhaps one of Ric Ataligs ghosts.

Perhaps Ben is using federal $ so he and Tim can join Club Fed on the buddy program.

the teacher said...

Well class, regarding this post...

Baka's seeking to spin doctor this in two respects: First Baka ignores the fact well known to him as a former Asst. U.S. Atty. (and known equalloy well by you as you cited 7 fed court cases in your media comments) that in litigation there's no "privilege" by which fee agreements/arrangements can generally be witheld...

Next Baka seeks to sidestep the very crux of the matter---that being that members of the general public are wholly entitled to know in what manner and in what amount public funds are being spend by government officials to provide publicly-paid-salaries and benefits to public servants...in this case those public servants being the lawyers hired by Fitial to ostensibly represent those garment facroty magnate Fitial and his garment puppeteers have deemed somehow tantamount to "public" interests...the public has every right to know how and how much public money is being used to pay each and every public servant...this is of course separate and distinct from knowing or seeking to obtain the medical records of those public servants which analogy a person with Baka's background and legal knowledge must therefore be wholly known by him to be utterly inapposite and calculated to mislead.

Nobody's asking for the medical recorde of these private attorneys hired with tax dollars paid by the CNMI general public---though, in this vein, production of their respective educational backgrounds/CVs would certainly be appropriate.

What is sought and irrefuteably appropriate under the CNMI's OGA, however, is for the public to learn how and how much these private lawyers serving the CNMI general public are being paid...to the penny.

Had such a ludicrous position have been adopted during Mr. Baka's tenure with the U.S. Attorney's Office, he would likely have been sanctioned not only by the court but professinally disciplined as well---would or does Mr. Baka now suggest, for example, that all U.S. Freedom Of Information Act ("FOIA") requests as to expenditures of federal funds must be denied at any and all times issues pertaining to federal funds are being litigated in U.S. Courts?! Would he suggest, for example, that where private counsel or temporary judges (e.g., so-called ALJs or Administrative Law Judges) are retained and paid with U.S. tax dollars that U.S. taxpayers via FOIA and/or persons litigating in U.S. courts should be precluded from knowing how and how much these private attorneys and/or ALJs are being paid?!

Of course not. (Heck, not even the Guma In Husticia judges'/justices' salaries/compansation (nor that of U.S. Judges) can be lawfully hidden from the public.)

And given the ludicrous hyporcrisy of this scenario, Mr. Baka's current motive and intent should be viewed as precisely what it is---pure obfuscation designed to hide and cloud from the public what each and every CNMI taxpayer deserves to know, i.e., just how and how much taxpayer funding is being used to yet again bolster this Governor's unbridled support of the private sector affiliates primarily responsible for not only this Governor's present incumbency...but as was the case when not long ago when this Governor---via convicted Abramoff associates like Neil Volz and Tony Rudy, on Rota, wheedled the House Speakership, and then parlayed this Speakership-----at CNMI private business magnate directive-----into CNMI taxpayer funded pay days of $10 million or so to Abramoff...thus, in turn, bringing about the very federalization this Governor now would dupe others into believing is so very harmful to the CNMI.

In short, Fitial assured $10 million public funding to Abramoff. This led to federalization. And now Fitial wants millions more in public funding to be used to combat the results derived from Fitial's prior misdealings with convicted felon Abramoff.

Baka claims that "transparency" is not the most important issue here. But he's not only wrong, but transparently so---because the CNMI public who foot the bill for the private attorneys involved---the bill Firial led all to believe at the outset was NOT being publicly funded---are not stupid, are not blind, and can see clearly through the obfuscatory veil Mr. Baka now seeks to use in clouding reality as to what is and is not a public right-----full knowledge about, candid disclosure of, and forthright accountability of, any and all public funds being used to fuel Fitial's private-sector-anti-fed campaign.