GAO files reply on MSJ related to Maryland AG @BrianFrosh hiding documents

On Tuesday, Government Accountability & Oversight, P.C. filed a Reply in Support of its Motion for Summary Judgment, opposing Maryland AG Brian Frosh’s effort to keep hidden from the public his “application” seeking Michael Bloomberg’s resources to pursue the climate litigation agenda.

Frosh is the only AG so hiding this document – and the only AG with three Bloomberg-financed special climate prosecutors – as GAO pointed out to the Court. His Office outrageously claims that these three privately hired and financed “Special Assistant Attorneys General” – each apparently paid $125,000 plus benefits specifically to serve in this role – serve pro bono.

Each of whom, ahem, just got a raise. Nice pro bono if you can get it.

Key excerpts from GAO’s brief addressing these points:

“Pro bono”:

This is the meaning given to the term in Md. R. 19-306.1(b)(1), which requires Maryland-licensed attorneys to engage in “pro bono publico legal service,” defined as “rendering legal service, without fee or expectation of fee, or at a substantially reduced fee” to enumerated categories of public interests. It is difficult to conceive any arrangement more opposite to “without expectation of fee” than a contract asserting “[y]our annual base salary will be $125,000” plus employee benefits and that, “[d]uring your employment, you will be seconded to the Attorney General’s Office of the State of Maryland as a Special Assistant Attorney General.” Ex. E.

Claims these SAAGs are just going after Trump regulatory reforms so it’s ok:

Indeed, despite OAG’s assertion that its privately-funded prosecutors are to be used in a noble crusade against “the arbitrary, unlawful, or unconstitutional actions of the Trump Administration,” public filings show that SAAG Segal – and at least one other Bloomberg Center-funded SAAG – is exercising state authority to target not just the federal government, but private parties. (Mayor and City Council of Baltimore v. BP, P.L.C. et al, Case No. 19-1644, Dkt. No. 92-1 (4th Cir. Sept. 3, 2019). ) Earlier this month, Mr. Segal and SAAG Steven J. Goldstein filed a 37 page amicus brief supporting the Mayor of Baltimore’s lawsuit “seeking to hold 26 fossil fuel companies liable for injuries resulting from climate change.”

Notably, other OAG “Applications” to the Bloomberg Center released to the public expressly name supporting the tort litigation campaign against private energy companies as a use to which they would put Bloomberg Center-funded attorneys. The heavily redacted application by AG Frosh may have indicated it would do so, as well, although the public has no way of knowing this in the face of these redactions.

Re claims Frosh’s “application” is Attorney-Client Privileged:

Not only is he an attorney himself, but indeed he is the chief legal officer of the State of Maryland, entrusted with the confidential information of the state’s most important legal matters. If OAG’s responses at issue truly did reveal so casually as much privileged information as it claims is obscured by the redactions at issue, it represents a stunning lapse in professional judgment.

Fortunately, Plaintiff does not believe OAG truly did make such a blunder. Indeed, the Retainer Agreement that OAG ultimately executed three months later, after winning the contest, contains four full paragraphs addressing confidentiality in connection with the common interest privilege. Ex. G at 1-2. But putting to the side the contractual terms that may ultimately have been decided upon by the “ethics experts” and others when the later Retainer Agreement (Ex. G) was executed, applicability of the privilege to Ex. B at issue in this case hinges on the OAG’s reasonable expectation of confidentiality at the time it made the communication in September. Forma-Pack, 351 Md. at 416 (privilege does not attach to communications that “could not reasonably have been expected to remain confidential.”). Taken as a whole, an attorney general could not reasonably believe that his responses to such a generic, multi-jurisdictional solicitation—one that explicitly warns that confidentiality safeguards are still under active consideration—would be invested with a privilege that all attorneys know only too well is incredibly fragile.

Finally, OAG is of course correct that the contents of other states’ applications may differ and do not in and of themselves “mean that the privilege does not apply here.” However, the fact that twelve other states released their applications without claiming attorney client privilege – despite discussing the same issues identified as problematic by OAG, Cross Motion at 13-14, such as “resource limitations” and “types of cases and matters [they] would pursue” if successful speaks to the lack of reasonableness of OAG’s claimed expectation of confidentiality. If in fact the solicitation from the Bloomberg Center was one that would, under the totality of the circumstances, cause a reasonable attorney general to believe he or she was making a privileged request for confidential legal advice, one would expect that at least one other attorney general would have taken advantage of the confidential forum to put forward a more compelling bid. That OAG stands alone in its breathtakingly overbroad assertion of the privilege should give the Court reason to doubt its reasonableness.


2019-09-23 — Reply in Support of MSJ (PDF)

NYU gives 3 MD OAG SAAGs raises from 8.30.19 PIA production (PDF)

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