
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: FRIDAY, March 30, 1990                   TAG: 9003300777
SECTION: EDITORIAL                    PAGE: A10   EDITION: METRO 
SOURCE: CLIFTON A. WOODRUM
DATELINE:                                 LENGTH: Medium

MARY SUE MUST DEFEND VMI

IN THE FUROR over VMI's single-sex policy, many people - including columnist Ellen Goodman and editorial writer Sue Lindsey - have questioned whether Attorney General Mary Sue Terry was legally obligated to furnish a defense to that institution in response to the complaint of the U.S. Department of Justice. Ms. Lindsey also suggests that Ms. Terry should go public to say "she's searched her soul and believes the school ought to go coed."

Two interesting issues. What is the commonwealth's chief legal officer's legal obligation in this instance? Secondly, can she exercise the luxury of expressing her own "personal" opinion on the issue - whether or not it conflicts with her professional opinion or her legal duty?

First, does Mary Sue Terry have a legal obligation to defend VMI? The answer is an unequivocal yes.

The attorney general is the head of Virginia's Department of Law. Statutes require her to provide "all legal service in civil matters for the commonwealth, the governor and every state department, institution, division, commission, board, bureau, agency, entity, official, court or judge, including the conduct of all civil litigation in which any of them are interested . . . " That about covers the waterfront.

Even her authority to resolve or settle disputes is limited in this instance, because she must have the approval of both the governor and the head of the institution (in cases involving more than $50,000) or the head of the institution (in cases involving less than $50,000). Can there be any doubt of the reaction of the institution were Mary Sue Terry to suggest a settlement of this dispute? The attorney general in this situation is a prisoner of the law - she cannot refuse to defend the case.

Now, what about Mary Sue Terry's giving her "personal opinion" on the merits or demerits of VMI's policy?

The Code of Professional Responsibility requires the lawyer to "represent [her] client zealously within the bounds of the law . . . " and to that end seek "the lawful objectives of [her] client through reasonably available means permitted by law . . . " The expression by the attorney general of her personal opinion as to the justness or unjustness of her client's cause would be improper and, indeed, could prejudice that cause and violate her professional obligation to the client - in this case, VMI.

Mary Sue Terry is bound by the Code of Professional Responsibility to preserve the confidences of her client and her communications with the client. To reveal this would breach the attorney-client privilege.

The irony of her political situation is clear, but her legal and professional obligations are equally clear. She is obligated to follow the general course she has taken by law and is limited in defending her actions by the Code of Professional Responsibility. She has become an inviting target for political opponents on both sides of the issue. Some attack her for not doing enough to defend VMI; others snipe at her for doing anything at all.

In more barbaric times, the sport of bear-baiting was popular. The bear would be chained down so that it could not defend itself and the dogs would be turned loose on it. Mary Sue-bashing on this issue is an entertaining spectator sport that is about as fair as bear-baiting.

by CNB