By Roberta M. Gubbins
Lisa Madigan, Illinois Attorney General, and featured speaker at the third annual lecture of MSU School of Law Frank J. Kelley Institute of Ethics and the Legal Profession on September 13th, began her lecture on "New Directions in Ethics: The Attorney General's Changing Role in the 21st Century" thanking Attorney General Frank Kelly for his role in the development of attorneys general across the nation.
"Frank Kelly," Madigan said, "defined what it means to serve as the people's lawyer. He used the law in groundbreaking ways to serve Michigan's residents. We all follow Frank Kelley who created the first Consumer Protection Division and the first Environmental Protection Division in the nation."
"The Illinois State Constitution says that I am the lawyer for the people of Illinois--it is my job to speak for the people," she said to the law students, professors and the general public present at Wharton Center's Pasant Theatre present to hear her lecture.
"I am an independently elected Constitutional officer," Madigan said. I am not connected to the Governor, I am not part of his cabinet and I am not mandated to carry out his policies." Her role is defined by the Illinois Constitution, which says, "The Attorney General shall be the legal officer of the State and shall have the duties and powers that may be proscribed by law."
There is also an attorney general's act that lists 15 duties covering only half a page but the real authority of the AG's office comes from over one hundred years of cases that interpret that one line in the Constitution. And, she noted, while the legislature may add to the powers, neither it nor the judiciary may limit them. Most importantly the courts have found that the AG's office has exclusive authority to conduct the state's legal affairs and to represent the state and its agencies in litigation. This is very different than the private attorney, she explained, "the rules of professional conduct dictate that the client controls the direction of litigation--in contrast, I state the state's position; whether to file a lawsuit and how to settle a case."
"I represent the broader interests of the people of the state even when t hat will create significant conflict with the officials and agencies that are technically my clients."
"How this works in practice," she said, is like this. "It is the AG's office that defends the law, whether I agree with the law or not," if it is constitutional, she will defend it. Since, she explained, she is elected to defend the rights of the people and the people choose the legislators and the governor, then they have created the law and it is her duty to defend it."
State attorneys general saw the first signs of the foreclosure issues, she noted. In response they "took action early on by suing lenders for consumer fraud violations and deceptive practices. Our first major investigation was a suit against personalized mortgage companies. But even our victories failed to avert the impending disaster."
"In 2008, I sued Country Wide. That case resulted in an multi state settlement of 8.7 billion dollars, establishing loan modification programs to change the predatory terms of mortgage loans."
In response to what became an avalanche of calls from foreclosed homeowners, she established a group of certified housing HUD counselors in her office. "In less than three years, we have received approximately 40,000 requests for assistance."
Madigan's work in foreclosures is an "example of what attorney's general do to fight private corruption and greed that impacts the public."
Attorneys general also address public corruption and use of public resources by public officials. The political and personal interests of our elected officials are not necessarily the same as the best interests of the people of the state," she said.
Indicating that the audience might be familiar with the name Rod Blagojevich, elected Governor of Illinois in 2002, she said, "I along with the Cook County state's attorney initiated a lengthy investigation" into Blagojevich's corrupt practices.
As a result of both Federal and state investigations, she sought to have the Governor declared unable to govern since, due to indictments, he was without authority to govern. The governor responded issuing an order that none of the departments of state government were to cooperate with "their lawyer--the Attorney General--on anything." She described the difficulties of working under that order, where hundreds of people may aid and abet a corrupt administration.
"As lawyers," she concluded, "you can not be afraid to speak truth to the powerful. It is, in fact, your job. Do not go into public service if you are mainly motivated to serve yourself. And know that whether you choose the public or private sector, we live in a time when there are ample opportunities and a great need for you to use your degree to help others."
Frank Kelly spoke of the importance of ethics in the practice of law and respect for "the rule of law as opposed to rule of man." Lawyers, he noted must try for ethical behavior for "if we don't try for ethical behavior, who will?"
Dean Joan Howarth both introduced and thanked Attorney General Madigan for her time and thoughts. Howarth noted that the hallmark of outstanding attorneys general, like Madigan, is a passion for justice. Professors Hannah Brenner and Rene Newman Knake, co-directors of the Frank J. Kelly Institute of Ethics, also thanked AG Madigan and Frank Kelly for offering their time and expertise making the lecture successful.
Published: Mon, Sep 19, 2011