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Kane’s staffers could face sanctions if she engages in legal decisions

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Pennsylvania Attorney General Kathleen Kane

HARRISBURG — Lawyers in the state Attorney General’s Office could be subject to disciplinary sanctions for going along with decisions by their boss, Kathleen Kane, whose law license is suspended, her senior attorneys told her.

“Any action that could be construed as you practicing law exposes the attorney staff to disciplinary sanction, either for allowing you to make such a decision or not reporting it,” said an Oct. 22 memo from Kane’s top lawyers that was publicly released Monday by a special Senate committee looking into her removal from office.

Lawyer discipline can range from censure and suspension to disbarment.

The memo, first reported by the Tribune-Review on Oct. 29, appears to be a warning from senior staff to Kane on what she can and cannot do.

All attorneys have ethical obligations to “not foster the unauthorized practice of law,” said the memo signed by First Deputy Bruce Beemer and three executive deputies.

Kane, charged with 12 criminal counts in Montgomery County, lost her law license indefinitely on the day the memo was written. But the state Supreme Court said in its order that it was not removing her from office.

The Senate is considering using an obscure constitutional provision called “direct address” that allows the removal of certain statewide elected officials for “reasonable cause.” The first stage of the Senate’s review looks at whether Kane’s suspension renders her incapable of legally performing her duties.

Kane contends the Senate Committee on Direct Address lacks jurisdiction. But in an about-face on Friday, she agreed to comply with a Senate subpoena for records related to her suspension.

The Senate panel will meet Tuesday to take testimony from constitutional experts Bruce Antkowiak, a law professor at St. Vincent College and former federal prosecutor; Beth L. Weisser, an attorney with Fox Rothschild who has represented attorneys in disciplinary cases; and Robert Davis, a former bar prosecutor and acting chief counsel of the Pennsylvania Lawyer Disciplinary Board, who specializes in defending lawyers accused of ethical transgressions.

Kane’s office provided the memo from Beemer to the Senate panel. Kane said she did so to maintain the “respect and decorum of our government.”

“Practically speaking, it would be impossible for the attorney general to operate without the delegation of duties to the approximately 835 members of the (office), with statewide jurisdiction, dealing with numerous divisions in the agency,” Kane told the committee.

Aside from the Beemer memo, Kane said she was not aware of other documents, including communications to employees, related to her license suspension.

Committee chairman Sen. John Gordner, R-Bloomsburg, said he has not ruled out calling Beemer and Kane’s other senior deputies to testify.

Kane maintained that documents relating to disciplinary counsel in her case are confidential.

“Therefore, I will not subject myself to possible disciplinary action or create a perceived waiver of confidentiality of these proceedings,” Kane said.

The first deputy should make decisions on matters such as bringing a criminal or civil action, whether to accept or reject a plea bargain, any decision involving grand juries, settling a lawsuit or deciding which defense to use when defending a state agency, the memo stated.

Beemer and the other deputies wrote that they expect challenges from opposing counsel in any “legal” decision Kane makes to bring or settle a case.

“We recognize that this is not a simple problem. It may be a policy decision to emphasize criminal enforcement in one area, as opposed to another, or to clean up a particular line of business which is treating consumers poorly, like contractors” and to move office resources to deal with such problems, the memo said.

The staff recommended changes “in the interest of ensuring neither you nor others in the office face any further sanction.”

Kane is charged with perjury, obstruction of justice and official oppression stemming from a leak of grand jury material that prosecutors say was intended to embarrass a former state prosecutor with whom she was feuding.

If the committee moves beyond the first phase, it would give Kane an opportunity to testify. Its report on her job is due Thanksgiving eve.

Brad Bumsted is Trib Total Media’s state Capitol reporter. Reach him at 717-787-1405 or [email protected]

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