Gibbons official suggests attorney general may have violated conduct code

The fight over health care between Gov. Jim Gibbons and Attorney General Catherine Cortez Masto took yet another twist Friday when a spokesman for Gibbons suggested Masto ran afoul of Nevada’s rules of professional conduct for lawyers when she publicly advised the governor against taking legal action to block the federal Patient Protection and Affordable Care Act from taking effect.

It’s the latest in a dispute between Gibbons, a Republican, and Masto, a Democrat, that dates back to January when the governor first proposed the idea of asking the attorney general to take the fight against national health reform legislation to court.

Now Gibbons appears poised to question whether Masto, the state’s lawyer, violated attorney-client confidentiality rules by releasing to the public a March 30 letter in which she advised the governor a lawsuit to block reform “is not warranted by existing law at this time.”

Gibbons’ spokesman Dan Burns said it’s been discussed whether the letter, sent to news media across the state, violated rule 1.6 of the rules of professional conduct that states, in part, a lawyer “shall not reveal information relating to representation of a client unless the client gives informed consent.”

Burns said it will also “be discussed further on Tuesday,” the day Gibbons is expected to hold a news conference to discuss how he might go forward with a lawsuit to block the reform law.

Asked whether Gibbons gave consent to make the letter public, Burns said: “The governor feels that he has waived no privilege.”

Edie Cartwright, a spokeswoman for Masto, said the attorney general didn’t violate a confidentiality privilege because the governor didn’t ask for legal advice.

“Through a letter and a press release, he demanded that she join the lawsuit and asked for a decision as to whether or not she would file this suit,” Cartwright wrote. “She responded no, she would not join the suit at this time. She chose to elaborate on the reasons for her answer because she felt the citizens of the state had a right to understand why she decided not to join the suit.”

Legal experts differ on whether Gibbons could make a case Masto violated the lawyers’ code of conduct.

“Disclosing something that is confidential is never just an oops,” said Nancy Rapoport, a University of Nevada, Las Vegas law professor . “Every lawyer everywhere lives in fear of inadvertently disclosing confidential information.”

Former Sen. Richard Bryan, D-Nev., who has also served as governor and attorney general, said the fact Masto and Gibbons were engaged in an ongoing public conversation about the issue means she likely didn’t run afoul of the code.

“The governor has made this a very public political issue. I think she had no choice but to provide a public response,” Bryan said.

The suggestion that Masto breached confidentiality is one of several volleys in the dispute with Gibbons that has raised unique constitutional questions for Nevada.

Gibbons, who like every Republican in Congress opposed the federal legislation, is adamant that a mandate in the new law for people to buy health insurance or face a fine violates the 10th amendment of the United States Constitution that limits the power of the federal government. He also says the law represents an unfunded mandate for the state of
$613 million from 2014-2019 by increasing the cost of Medicaid.

Attorneys general from 14 other states have made similar arguments, with 13 banding together to file suit to block the reform law in a federal court in Florida. Virginia filed its own suit separately.

Gibbons has been pressuring Masto to join the anti-reform law crowd since January, before the legislation was even signed into law.

At first Masto resisted by saying it was too early pass judgment because the then-bill was still changing.

When President Barack Obama signed the bill into law last month, Gibbons turned up the heat again and Masto said she needed time to read the law and make a decision.

On March 30 she sent the letter advising Gibbons against a suit.

“There is no practical reason for Nevada to join the litigation, absent a clear and separate legal interest that Nevada has apart from those other states,” Masto wrote. “We are not aware of such a reason and you have not directed our attention to one.”

Legal scholars have offered mixed opinions about the constitutional legitimacy of the reform bill.

Most say if a suit were to make it to the U.S. Supreme Court the justices would be highly likely to say the law falls within Congress’ broad power to regulate interstate commerce.

There’s less agreement among scholars about the constitutional purity of such an argument. Scholars on the left have called the states’ suits a “sham” and “totally frivolous.”

Others have said have said the 10th amendment argument raises a “serious constitutional issue.”

At the same time Gibbons was pressuring Masto to file suit on the grounds the reform law violated the U.S. Constitution he was also suggesting if she didn’t take the case he would find another lawyer to do the work. That a move raised questions about the balance of power between the governor and the attorney general under the Nevada constitution.

In a recent interview Masto didn’t say directly she would try to block Gibbons from taking action on his own, neither did she rule it out.

“I can’t say this enough, I would encourage the governor not to create a showdown between my office and his office,” Masto said.

The showdown may already be under way.

Jacob Hafter, one of the Republicans vying to challenge Masto in the November election, is among the attorneys who have offered to take the case for free.

Hafter says he has suggested the governor form a coalition of lawyers to work the case pro bono and start by joining the Florida case.

His suggestion is to file an amended complaint in that case and add elements that aren’t already included, such as a request to block enactment of any part of the law until the cases are settled.

“It is not about ego for me, it is about to make sure this law gets killed. We just can’t afford it,” Hafter said.

Contact reporter Benjamin Spillman at bspillman@reviewjournal.com or 702-477-3861.

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