Ninety Women Sue McKenna for Breach of Ethics in Health Care Lawsuit

Ninety woman have filed a lawsuit in King County Superior Court this morning (Melissa Mackey vs. Rob McKenna) alleging multiple breaches of professional ethics by Attorney General Rob McKenna in his conduct of the lawsuit seeking to overturn the Affordable Care Act (ACA). The plaintiffs seek both declaratory and injunctive relief, declaring that McKenna is subject to and has violated Rules of Professional Conduct (the legal profession's ethical code) on multiple counts, and compelling McKenna to both file corrective pleadings before the US Supreme Court reversing his assertion that the individual mandate is not severable from the rest of the ACA, and... well... to tell the fucking truth.

A press conference is scheduled for 10:00am this morning at the YWCA in Belltown. Cienna is on the scene, and will report back later.

I gotta say, I was a little skeptical when I first got word of this suit that it would amount to anything more than a one-day stunt. But after reading the brief and supporting documents (available here on attorney Knoll Lowney's website), it sure does look like they got McKenna by the short and curlies. I don't have the legal expertise to predict the outcome, but the arguments are compelling and the facts simply devastating to McKenna's reputation as a lawyer.

The case in a nutshell is that McKenna, in his official capacity as the state's attorney, has repeatedly stated that it is in the interest of the state and its residents to only invalidate the individual mandate, leaving the rest of the ACA intact, while at the same time repeatedly submitting pleadings and filings on behalf of the state arguing the exact opposite. McKenna has publicly claimed that he was "overruled" by a "majority vote" of the other attorneys general, which this suit labels an "egregious violation of his ethical duties." Under the Rules of Professional Conduct McKenna is duty bound to his clients' interests, his client being the residents of Washington State (including the women named as plaintiffs in this case, many of whom will be denied lifesaving health care if the ACA is overturned), not 13 male attorneys general from other states who, according to the suit, have "no moral standing to decide the fate of women's health care."

The suit also accuses McKenna of breaching his duty to keep his client truthfully informed of the litigation. McKenna has publicly claimed that he couldn't file pleadings separate from the other attorneys general, when the Federal Rules of Civil Procedure (Fed.R.Civ.P. 20) specifically empower him to do so. McKenna has posted statements to the attorney general's website saying he is not seeking to invalidate the entire ACA when in fact his pleadings and arguments have consistently asked the court to do exactly that. And according to the brief:

[McKenna] even told the public that the Obama administration agreed with his position in the U.S. Supreme Court, which is patently false. McKenna made these false statements as a lawyer, not as a politician, and they were subject to the highest standards of truthfulness.

A politician caught in a lie is not particularly shocking. An attorney caught lying to his client is potentially grounds for disbarment.

But perhaps most devastating to McKenna is not the legal brief itself but rather the expert testimony that accompanies it, in which Robert Aronson, a University of Washington law professor, concludes:

Either Mr. McKenna has falsely stated his position concerning the best interests of his client – the citizens of Washington – or he has acted directly against those interests.

It's hard to conclude otherwise. My inexpert opinion is that the real issue before the court is not whether McKenna has violated the Rules of Professional Conduct—in lying to the public and in failing to represent what he himself admits to be the state's interests, he clearly has—but whether the political dimensions of his office mean McKenna is not fully subject to these rules, an issue that Washington's courts have never fully resolved.

But if McKenna prevails on that technical point, it would be a hollow and embarrassing victory at best.