Ethics

In a case that gets stranger by the day, an assistant attorney general in Texas has filed a grievance against her boss, Texas Attorney General Greg Abbott, concerning Mr. Abbott's involvement in the Hood case (background on the case here and here). 

Although the nature of the allegations are not entirely clear, the grievance appears to be that Mr. Abbott should be representing the interests of the judge who allegedly had an affair with Mr. Hood's prosecutor and not the interests of Mr. Hood himself.  If that's the allegation, it raises a very interesting question: whom does a government lawyer represent? 

The answer is often unclear, but in this particular case, I see nothing wrong with Mr. Abbott's conduct. An Attorney General should care first and foremost about the interests of justice. Attorneys general are not like typical attorneys, who arguably should pursue zealous advocacy in most cases.  Attorneys general, and government lawyers more broadly, should care about pursuing the public interest, even if it means that an internal government "client" is adversely affected.  Indeed, consider this comment to Model Rule 3.8, which governs a prosecutor's ethical duties:

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.

In my mind, this comment is right on point.  If  Mr. Abbott believes that Mr. Hood's allegations raise a serious question about a potential procedural injustice, Mr. Abbott should say so, even if it means that a former state court judge -- and nominal client -- isn't happy about it. There are a number of cases that stand for a similar proposition, such as this case from the Massachusetts SJC. 

The grievance seems to me like just another effort to cover up what happened in this case, so I applaud Mr. Abbott for trying to get to the bottom of an alleged procedural injustice, even though doing so is likely to be politically unpopular in a state that has a particular fondness for the death penalty.