We’re one of the few Republican defense lawyers out here — and perhaps the only one living in Manhattan, so it’s odd that we’re so intrigued by the race for the Democratic nomination for the Florida Attorney General race.
Well, maybe not so odd. The issue of character has come up, and that always gets our interest.
We’ve been pretty outspoken about the role of prosecutors. Judgment and strength of character are the key prerequisites for those who would exercise the awesome discretion we give them. We may have been spoiled by our formative experiences in the SDNY and Morgenthau’s Manhattan DA’s office, but we’re frequently appalled by the very lack of judgment and character we find among prosecutors in some other offices. (And with respect to Florida, we often tell the story of how we got up and walked out of an interview with the Dade County DA’s office back when we were in law school. It had come out that their office philosophy was to zealously try to convict anyone the cops arrested, regardless of the justice or the rightness of doing so. We’d thought they were just testing us, but when it turned out that the interviewers were deadly serious we politely informed them that we couldn’t work for them.)
A state attorney general is a prosecutor. An AG’s role is a combination of consumer protection and crime-fighting. As head of the office, an AG sets the tone for everyone working there. Every assistant AG investigating an insurance scam is going to be influenced by the culture of the office, which comes straight from the top. There’s a reason why the Manhattan DA’s office is so vastly superior to nearby Nassau County’s office, and it has everything to do with who’s running the show. So even though the elected official never handles a case him- or herself, the character of that official is of the highest importance to the citizens of the state. (We remember a few years back, after Andrew Cuomo took over as New York’s AG, there seemed to be a general exodus from that office of our former Manhattan colleagues who had gone there. Character at the top seemed to us to be the primary reason for their leaving.)
And that brings us to the Democrat nomination for the Florida AG, and why we’re taking the time to write about it. The candidates for the nomination are Dan Gelber and Dave Aronberg, both state senators. When the BP oil spill happened back in April (dear lord, is it three months ago already?), it soon became obvious that the biggest case each of the Gulf states’ AGs would have to handle over the next few years would be their cases against BP for the damage to their coastlines, wildlife and economies.
In May, BP hired Florida law firm Ackerman Senterfitt to defend it against lawsuits arising from the catastrophe. A shareholder of the firm was Dan Gelber, one of the candidates for AG.
There’s nothing wrong with Ackerman Senterfitt representing BP. But there was an immediately obvious potential conflict of interest if Gelber were to continue being a shareholder of the firm while running for AG. If elected, he’d have to stay out of any involvement with his office’s biggest case. The obvious thing for Gelber to do, if he intended to stay in the race, would be to resign from the firm. He could always come back if he lost.
But Gelber didn’t do that. He stayed on. He showed no inclination to get out of the potential conflict. Even if he were Chinese-walled out of the case, the appearance of impropriety would be devastating if the AG suing BP had previously been part of the firm that represented BP in the same matters. It was really a no-brainer to resign at once, either from the firm or from the race. But it wasn’t until the other candidate called for him to resign at the end of June that Gelber finally did so.
Gelber claims that he took that month or so to wrap up his cases first, before resigning. We certainly understand what can be involved with winding down a caseload, but it’s not as if the firm was winding down. It doesn’t take that long to reassign matters. And we can find no indication that Gelber stated any intent to resign until after his opponent had made political hay out of it.
We don’t have a dog in this race — we’re Republican and in New York, and have never practiced in Florida — so it doesn’t matter one way or the other what we say here. Nevertheless, we can’t help but look at this little kerfuffle and see it as a telltale lack of either character or judgment (we’re not sure which) that is precisely what we’re always going on about. It seems like a little thing, but it’s exactly the kind of thing voters should pay attention to.