By Mar-Vic Cagurangan
The attorney general serves concurrently as the chief legal officer for the government of Guam and the attorney for the people of Guam, but when the dual functions present a conflict that demands a loyalty check, the public takes precedence, according to Douglas Moylan.
When a government agency is found to have violated the law, the attorney general is duty-bound to take legal action on behalf of the people, Moylan said, noting that the attorney-client privilege in this case belongs to the public.
“The attorney general protects the public interest and the attorney general is supposed to also consider that public interest protecting the government
department,” Guam’s attorney general argued before the Supreme Court Monday.
“When you think of the competing loyalties that the attorney general faces, the attorney general is the attorney for the people of Guam and has a duty pursuant to the legislature's statutes. This is what you're supposed to do,” he added.
The Supreme Court justices dissected the complex role of the attorney general during a hearing on Gov. Lou Leon Guerrero’s petition for a declaratory judgment to clarify the chief legal officer’s duties to government agencies.
The petition was prompted by Moylan’s move to withdraw his representation of 22 government agencies being investigated by his office.
“We're looking for the direction that is needed in order for us to act ethically.
We withdrew temporarily because we wanted to act ethically,” Moylan told the panel consisting of Chief Justice Robert Torres and Associate Justices Phillip Carbullido and Katherine Maraman.
Leslie Travis, legal counsel for the administration, argued that the attorney general can perform dual roles as a prosecutor and attorney for government agencies and that providing legal services “cannot be defeated by ethical restrictions.”
“In the vast majority of cases, the conflict of interest isn't even implicated,” Travis said. “However, the attorney general has self-inflicted a conflict in this case."
In terms of prioritization, Travis rebuffed Moylan’s premise that his office's loyalty belongs to the people of Guam. “That cannot be," Travis said, “because that's part and parcel of what makes a lawyer. You owe loyalty to your clients.”
Moylan was Guam’s first elected attorney general since the office was converted from an appointive to an elective office. During his first term, he served from 2003 to 2007 but was unsuccessful in his bid for reelection. He returned to the seat after being elected again in 2022.
The court has previously dealt with the conflict of interest confronting the Office of the Attorney General. Moylan was the sitting attorney general when the Supreme Court ruled in favor of the Guam International Airport Authority. In this 2005 ruling, the court held that the attorney general had a legal obligation to sign the airport authority's legal service contract with a private firm.
Attorneys for four autonomous agencies—Guam Memorial Hospital, Port Authority of Guam, Guam Power Authority and Guam Waterworks Authority— that filed a joint amicus brief invoked the GIAA ruling in asking the justices to rule in favor of the governor.
Jordan Lawrence Pauluhn, legal counsel for GMH, noted that Moylan contradicts his own instructions to autonomous agencies.
“He tries to tell us that we should go hire our own (legal counsel) and then when we do, he tells us that we cannot do it unless we get his permission and then accuses us of misconduct. That is a textbook definition of gaslighting,” Pauluhn said, arguing for the four autonomous agencies.
“I don't know how we can stand here and credibly have legal services from somebody who has abandoned us without notice to the detriment of ongoing services from somebody who has abandoned us without notice to the detriment of ongoing projects,” he added.
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Pauluhn also asked the high court to rule that the attorney general has an attorney-client relationship with the government of Guam, including the autonomous agencies.
“(Moylan) claims that everything related to procurement is a public record. That's just not true. The procurement record is a public record. Our agencies are still entitled in that process to confidential advice from attorneys,” he argued.
Moylan's interpretation of his role, on the other hand, tips the balance in favor of the people of Guam, who he said hold the privilege.
He cited a previous Supreme Court ruling involving the perceived conflict between then-deputy attorney general Pat Mason and the Department of Revenue and Taxation, in which the justices “gave guidance on how to interpret the applicable rules of confidentiality in those sorts of issues.”
Unlike in private practice where the corporate client is entitled to confidentiality, Moylan argued that the attorney general's role takes public stake into account.
“If the attorney general gets information, which is the people's information, and then finds out that this is an improper act that occurred that morning, the attorney general that afternoon could convene a grand jury and then prosecute because the attorney general represents the people,” Moylan said.
He noted that the 22 cases being investigated by his office for civil and criminal liabilities involved audit reports from the public auditor.
Moylan said his decision to pull the special assistant attorneys general from the 22 agencies was made “to ensure there's no corruption going on in those over 500,000 procurements.”
In response, Carbullido pointed out that when the attorney general was representing the government agencies, he was dealing with them in their official capacity.
“You can do both,” Carbullido told Moylan. “You can continue with the Office of the Prosecution Division looking into those items.”
Under the rules of professional responsibility, Carbullido said, “You can't abandon, you can't pull these assistant AGs from advising the agencies in reference to previous advice they had given or force them to disclose what's in it.”
In a civil case, Carbullido said the “civil attorney is not the holder of the privilege.”
Torres pointed out, that the attorney general’s duties to the government and the people of Guam “appear to be mandatory.”
The chief justice suggested that the governor could petition the court for a writ of mandate to compel the attorney general to resume his duties as the legal counsel for government agencies.
Travis said such a legal course of action could take time to resolve. She pointed out that the procurement process for several government projects and services has been stalled as a result of Moylan’s withdrawal of his representation and the pullout of special assistant attorneys general.
Torres, on the other hand, said the government could ask for an expedited court action.
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