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Lawyers question Va. attorney general's role in private case

By Tom Jackman
Washington Post Staff Writer
Monday, February 1, 2010; B01

In just his second week in office, Ken Cuccinelli II, Virginia's attorney general, returned for a day to his private practice in Fairfax County to try a case in juvenile and domestic relations court.

Cuccinelli's appearance on the third floor of the courthouse sparked a buzz among the Fairfax bar but did not violate any state laws or rules.

Still, because Cuccinelli (R) is the head of the official law firm for Virginia, overseeing about 200 full-time lawyers and 140 support staff members, it struck many as odd that he was trying a private case.

"The practice has been that the attorney general is just the attorney general," said former Fairfax commonwealth's attorney Robert F. Horan Jr., who spent 40 years as a government lawyer. "But I'm not aware of any law that bars the attorney general from private practice."

A spokeswoman for the National Association of Attorneys General said a guidebook published by the association states that "private practice by the attorney general is prohibited in 49 states," by law in most and by custom in others. Only Montana allows its attorney general to maintain a law practice, spokeswoman Marjorie Tharp said.

Cuccinelli referred an inquiry to his chief deputy, Chuck James, who said the former general practitioner from Centreville was "closing out his private practice" with "a matter that had been previously scheduled."

James said the issue had been thoroughly researched before Cuccinelli appeared Tuesday in front of Fairfax Juvenile and Domestic Relations Court Judge Gayle B. Carr. "I believe the rule is, an attorney in state employment can appear and represent a client in private practice but cannot accept monies," James said.

James said Cuccinelli had previously been paid a retainer but was not paid for his appearance Tuesday. Cuccinelli will make a salary of $150,000 as attorney general, which would be a pay cut for many private lawyers in Fairfax.

"You try not to leave any client stranded," James said, "particularly when you're dealing with sensitive issues."

Jon Gould, a lawyer and director of the Center for Justice, Law and Society at George Mason University, said the court appearance was troubling.

"While it is understandable that the attorney general wanted to complete his prior duties as a private lawyer," Gould said, "he should have been able to hand this case off to a willing and qualified lawyer who could have served Mr. Cuccinelli's private clients."

Gould said that "the taxpayers of Virginia deserve to have the attorney general focused on public matters of the state and not his prior business."

James said the case involved "some sensitive issues and some child witnesses, and the client wanted some sensitivity, and he wanted Ken Cuccinelli, so he finished out that matter."

He said Cuccinelli would not be returning to court on any other private business. "Essentially that does conclude his private practice," James said.

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