Published 9/4/2015 in the Philadelphia Inquirer
Angela Couloumbis and Craig R. McCoy, Inquirer Staff Writers
HARRISBURG – Lawyers for embattled Pennsylvania Attorney General Kathleen G. Kane say the state’s Disciplinary Board is trampling her rights – and the public’s will – by seeking to suspend her law license.
In a legal filing to the Supreme Court late Friday, they said the board had wrongly suggested that public confidence in the attorney general has been “totally eroded.”
“How the Office of Disciplinary Counsel can purport to speak for the electorate – which expresses itself only in the voting booth, which last did so when it elected Attorney General Kane, and whose decision will be nullified if she is removed from office by suspension – is a mystery,” the lawyers wrote.
James F. Mundy and James J. Powell also said the disciplinary agency, which oversees lawyer conduct, is effectively circumventing the constitutional process for removing an elected official from office.
That is because state law requires the attorney general to be a member of the bar. If the high court suspends Kane’s law license, it would throw into question her ability to remain in the position.
The disciplinary agency has “no power to engage in the de facto impeachment or removal of an elected official – here, the commonwealth’s chief law enforcement officer – under the guise of a disciplinary proceeding,” Kane’s lawyers wrote.
Mundy and Powell are former chairmen of the Disciplinary Board.
As The Inquirer reported last week, the Office of Disciplinary Counsel notified Kane that it was seeking an emergency temporary suspension of her law license.
State rules allow the disciplinary agency to petition the Supreme Court for such a suspension in cases in which it believes a lawyer “is causing immediate and substantial public or private harm” by engaging in “egregious conduct.”
The high court will make the ultimate decision.
Kane was charged last month with conspiracy, official oppression, perjury, and other crimes for allegedly leaking secret grand jury information to the Philadelphia Daily News in an attempt to embarrass a former prosecutor in her office, Frank Fina, with whom she was feuding.
The alleged leak was about an old investigation, led by Fina, into the finances of Philadelphia civil rights leader J. Whyatt Mondesire. Mondesire was not charged, and the Daily News story noted that Kane’s office was questioning that decision.
Kane, the first woman and first Democrat elected attorney general, has pleaded not guilty in the criminal case and is fighting the charges.
In the documents filed with the Supreme Court, Kane’s lawyers argued that by seeking a suspension, the board’s Office of Disciplinary Counsel is attacking her “constitutionally protected property right: the right to continue to practice a lawful acquired profession.”
The disciplinary process is ordinarily secret, but Kane’s lawyers, who filed her response publicly Friday, said she was waiving her right to confidentiality.
In fact, her court filing Friday provided the first public confirmation that the board was pursuing action against her.
The Office of Disciplinary Counsel has 10 days to respond to Kane’s arguments.
A spokesman for the disciplinary agency could not be reached for comment late Friday. Its original petition to the high court seeking Kane’s emergency suspension remains secret.
But Kane’s lawyers described the charges against her in its filing. They said the board’s complaint mirrors the criminal charges alleging she illegally disclosed investigative material and then lied about it under oath. The board also said she failed to investigate the leak.
According to Kane’s filing, the disciplinary agency argued that Kane authorized the release to the Daily News of a key document that contained grand jury information: a transcript of an interview with the case agent in the Mondesire probe.
In rebuttal, they said Kane testified last November before the grand jury investigating the leak that she never directed or authorized specific documents to be delivered to the newspaper. In fact, she told the panel she was unaware of the transcript. The lawyers attached her previously secret 86-page transcript from that appearance to her filing Friday.
However, witnesses in her criminal case – including her own top aides – have testified that not only was she aware of it, but she also was seen leafing through it in her office and had the only copy of it.
Kane’s lawyers argued that the facts of the case are in dispute. Going forward with an emergency suspension would be tantamount to trying the criminal case against her, but without giving her the ability to confront witnesses and have her fate decided by a jury.
“It would be putting the cart before the horse,” Mundy said Friday.
The Disciplinary Board criticized Kane for failing to order her staff to aggressively look into how the Daily News obtained the material for its story.
In the documents filed Friday, as in her grand jury appearance, Kane said she discouraged an investigation because she did not want to be seen as interfering with the grand jury investigation of the leak that was already underway.
The criminal complaint against Kane paints a different picture. Prosecutors allege that her top deputy, Bruce Beemer, asked for permission last June, after the story appeared in the Daily News, to look into how the information became public.
According to the criminal complaint: “Beemer testified that Kane responded by saying, ‘Don’t worry about it. It’s not a big deal. We have more important things to do.’ ”