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Lt. Gov. Mallott to assess governor's, attorney general's legal conflicts

  • Author: Nathaniel Herz
  • Updated: September 28, 2016
  • Published December 31, 2014

New Alaska Gov. Bill Walker has given Lt. Gov. Byron Mallott the power to decide whether Walker can participate in at least a half-dozen legal proceedings he was involved in as a private attorney that could pose a conflict of interest for the state.

The proceedings, including a challenge Walker's law firm filed to a state settlement with ExxonMobil over the long-delayed Point Thomson oil and gas field on the North Slope, encompass legal work that Walker did with his former law firm, Walker & Richards LLC, and his law partner Craig Richards.

Walker appointed Richards his attorney general in late November. Both men have signed papers in the past week delegating away their authority in the legal proceedings until they no longer have any financial interest in their former law firm, which was sold in November. In an interview Wednesday, Walker said the two no longer have any "financial entanglement," though one still existed at the start of their review process.

According to the signed papers, Mallott will have the authority to decide whether Walker or Richards should be allowed to participate in the cases they worked on while in private practice. Mallott was in Hawaii and unavailable for comment Wednesday, but Walker said that after discussing it with Mallott, he expected the lieutenant governor to make decisions after seeking advice from a lawyer -- either one from the attorney general's office or from hired outside counsel.

Richards described the steps as "a normal course of business for a lawyer," and legal experts also said they appeared routine.

"The devil's going to be in the details and how they actually implement it," said John Strait, an associate professor at Seattle University's law school. But, Strait added: "At least on paper, they're trying to do something to make sure there aren't private interests being utilized to manipulate the state's legal positions, and that's exactly what they should do."

The papers filed by Walker and Richards refer to six specific proceedings, most of them related to tax matters involving Valdez, for which the pair's law firm served as city attorney.

There's also the Point Thomson lawsuit, which Walker filed himself in 2012 alleging insufficient public input in a settlement between the state and ExxonMobil creating a development plan for the field, which has roughly a quarter of the North Slope's natural gas reserves and is viewed as key to the construction of a large-scale natural gas pipeline.

An appeal of a lower court dismissal of the case is currently before the Alaska Supreme Court. Walker said he has filed to remove himself from the case, and if the court allows it, he would be replaced by an attorney who has offered to substitute for him -- either Robin Brena, whose firm purchased Walker's firm, or Jack Wakeland.

Walker and Richards said they took their steps after getting an independent legal opinion and consulting with state ethics attorneys. Walker said he viewed it as unlikely that any of the legal matters would ever rise to his level, "but we just wanted to err on the side of caution."

Richards downplayed the significance of the potential conflicts by describing how he was given a 90-page briefing on various cases in his first day on the job. Just three of those pages contained redactions, he said.

Strait, the law professor, said attorneys in the state are governed by the Alaska Rules of Professional Conduct, which contain specific sections pertaining to lawyers moving from private practice into government service.

Under the rules, attorneys working in government are barred from participating in matters they worked on in private practice unless they get the consent of the relevant government agency in writing. That's both to protect the attorney's former clients and to make sure that public officials don't use government resources to push former clients' interests, according to an explanatory note published alongside the rules.

In a phone interview, Strait raised the question of whether Richards' involvement in past cases could still influence other attorneys in the Department of Law even if he's screened out of direct involvement -- based on Richards' authority over hiring and promotion decisions.

Richards responded by saying that the process he and Walker set up to delegate their authority to Mallott follows a standard legal model.

"Government has to function," he added.

In a phone interview, Sen. Lesil McGuire, R-Anchorage, the incoming chair of the Senate's judiciary committee, said she'd been worried about potential legal conflicts "ever since this governor was elected," and since Richards' appointment. She said she's planning a meeting with the Alaska Bar Association's legal counsel to discuss the issue.

McGuire said it was "great" and "wholly appropriate" that Mallott was planning to rely on an attorney for advice. The potential conflicts, she added, are "the single issue that sits out there" for the new administration.

"And it's not one that is insurmountable at all," she said. "They're just going to have to deal with it in their administration -- every administration has something they've got to deal with."