george neville letters from jim hood's office
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Via E mail
Jonathan Ben-Asher, Esq.
Ritz Clark Ben-Asher LLP
40 Exchange Place - Suite 2010
ew York, N.Y. 10005
Jben [email protected]
ST TE OF MISSISSIPPI
JIM HOOD
TTORNEY GENER L
May 20, 2013
RE: Bruce D. Bernstein, Esq.
Dear Mr. Ben-Asher:
CIVIL LITIGATION DIVISION
This letter is being written to you in your capacity as counsel to one ofour former
counsel, Mr. Bruce Bernstein. t concerns confidential information Bruce learned
s
our counsel.
In addition, I consider you covered by this confidentiality as well since I was compelled to
communicate with Bruce s counsel having learned of your representation. We expect that Bruce
and you maintain the confidentiality
of
this letter and its contents.
Mississippi, like most states, has constitutional officers and offices,
s
well
s
statutorily
created state agencies and executive divisions that are all part of the state government. The
Mississippi Attorney General is a constitutional officer, Miss. Const. 1890 § 173. The
Mississippi Public Employees Retirement System is a state agency ofMississippi, created
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pursuant to Miss. Code
Ann
§25-11-1, et seq. (1972). By virtue
of
the powers bestowed upon
the Attorney General by the State's Constitution, statutes, and common law, the role
ofthe
Attorney General apropos of a State agency is not precisely akin to the traditional role of
private counsel apropos
of
a client.
State ex rei. Allain v Miss. Pub. Servo Comm n,
418 So.
2d
779 782
(1982) (quoting with approval
EPA
V
Pollution Control Board
372 N.E.2d 50, 52-53
(Ill. 1977». To the contrary, [t]he authority of the Attorney General,
as chieflaw
officer, to
assume primary control over the conduct of litigation which involves the interests of the
Commonwealth has the concomitant effect
of
creating a relationship with the State officers he
represents that is not constrained by the parameters
of
the traditional attorney-client
relationship. Allain 418 So. 2d at 783 (quoting Feeney
v
Commonwealth 366 N.E.2d 1262,
1266 (Mass. 1977».
As a consequence, the Attorney General has complete authority over litigation, such as
those matters Bruce worked on, that are brought
on
behalf
of
the State as well as all state entities.
The Attorney General does not require the Mississippi Public Employees' Retirement System
( MPERS ) and other state agencies to make decisions regarding the prosecution of such cases.
Therefore, the Attorney General serves not only as counsel to the State, but is the State for
purposes of litigation.
t has corne to our attention that Bruce has threatened to commence a lawsuit based on
confidential information that he learned
as
counsel to Mississippi, and its agency MPERS. We
understand that he plans to allege
in
public court papers that agents of Mississippi, and its agency
MPERS - namely, its outside counsel- engaged in impropriety
in
connection with the
engagement of a Mississippi lawyer and the award of attorneys' fees in the Satyam litigation.
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Specifically, we understand that you plan to allege (or otherwise litigate) that a lawyer in
Mississippi was improperly engaged and paid by lead counsel n Satyam and that lead counsel 's
fee application did not disclose, but should have disclosed, in the fee application the identity of
every lawyer and firm that performed work for the class and was to receive, even indirectly, any
part ofthe proceeds of the fee award in that case, even though the Local Rule in the Southern
District of ew York that fonnerly required such disclosure had been rescinded before the fee
application in
Satyam
was filed.
We find this troubling as Bruce was counsel for Mississippi and its agency MPERS; he
was personally involved in drafting and revising the fee application papers; he was aware that a
judgment was made by every law firm involved - including lead counsel for Mississippi and its
agency MPERS - that it was unnecessary to submit affidavits from, or otherwise disclose, those
lawyers who were not named class counsel on the case and were to be paid out of a client
approved fixed contingent fee lead counsel's award; he was aware that no additional fee award
was being sought for the work of these lawyers; and yet Bruce never brought this to the attention
of the Court at the time - or since - nor did he ever bring this to the attention of Mississippi.
Bruce is also aware - or would have been, if he had bothered to consult me - that it is a policy
of the State ofMississippi and its agencies to engage local counsel in litigation and, in particular,
a policy of this office to provide work to qualified minority attorneys such as the local counsel in
the Saty m case; that the engagement of the Mississippi lawyer was in accordance with
Mississippi law; and that this counsel is involved in other complex litigation for Mississippi. As
part
of
the Attorney General's power over litigation involving state agencies, the Attorney
General has control over the selection of outside counsel to represent state agencies. The case
law and statutes make it unquestionably clear that he is the state's chieflegal officer and is
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charged with managing all litigation on behalf o the state. Moreover, no state agency may
employ legal counsel without the prior approval o the attomey general and any such special legal
counsel appointed performs their duties under the supervision
nd
control of
h
attorney
general
and serves at his pleasure and may be dismissed by him.
Allain
418 So. 2d at 782
(emphasis added).
Further, Bruce never suggested to anyone from Mississippi that he perceived anything
amiss about the engagement o this lawyer in
Satyam
yet he plans to assert that it constituted
misconduct - which it did not - in his employment lawsnit seeking money danlages. Not only
am I troubled as a fellow attomey o what Bruce has threatened to do, I carmot fathom that during
the countless discussions that he and I had about the various matters he worked on for us,
including
Satyam
all o the friendly talks that we have had and the discussions o Bruce's
nuptials, he never once mentioned anything to me about concems he supposedly now has.
Additionally, I considered Bruce to be a friend. I was disappointed to learn on my most recent
visit to New York that he was not there when I came by to visit.
F or Bruce to make such claims in public court papers for his personal profit over an
employment dispute could subject Mississippi and its agency MPERS in a negative light. As
counsel for the State o Mississippi, its agency MPERS, and on behalf o the State o Mississippi
and its agency MPERS, I am directing Bruce not to disclose any confidential information he
learned
s
counsel to Mississippi and its agency MPERS.
t
is highly likely others could (or will)
attempt to use this information against Mississippi in future litigation or otherwise, just as Bruce
is attempting to use it for his benefit in his threatened lawsuit. Please be advised that the
foregoing direction to Bruce and you to preserve the confidentiality o all information Bruce
leamed in representing Mississippi and its agency MPERS comes from the State o Mississippi
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and MPERS itself.
We welcome Bruce contacting me directly to discuss these matters and any further
concerns he may have.
ve10
o.urs .
/
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7
/ ~ -,
eorge
N
eville
Speci ssistant Attorney General
Cc: Bruce D. Bernstein, Esq.
(via regular mail,
88
Leonard Street, Apt. 1401, New YOfk NY 10013)
Bernstein Litowitz Berger Grossmann LLP (via email)
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Via E-mail
Jonathan Ben-Asher, Esq.
Ritz Clark & Ben-Asher LLP
40 Exchange Place - Suite 20 I 0
New York, N.Y. 10005
ST TE OF MISSISSIPPI
J M
HOOD
TTORNEY GENER L
May 29,2013
RE: Bruce
D
Bernstein, Esq.
Dear Mr. Ben-Asher:
CIVIL LITIG TION DIVISION
I write in response to your letter dated May 24, 2013. Neither the State
of
Mississippi nor
any of its agencies, including the Office of the Attorney General ( AG ), has any interest in the
employment dispute between Bruce and Bernstein Litowitz. This office must protect
confidential
info=ation ofthe
State and its agencies from improper use by our
fo=er
counsel.
Your arguments as to why Bruce should be free to disregard his ethical duty to maintain the
confidentiality
of info=ation
he learned in the course
of
representing his client
in
Satyam are
thoroughly unconvincing.
The info=ation
on
which Bruce bases his threatened claims is known to him solely as a
result
of
representing MPERS in
Satyam.
He has no other source for this
info=ation
let alone a
public source, so your argument that the info=ation is generally known is untenable.
Your letter suggests that Bruce can pursue claims based upon BLB&G's improper
conduct without revealing facts concerning the conduct of
[aJ
third party. But the crux of
what I understand to be your threatened lawsuit is that Bernstein Litowitz failed to disclose facts
concerning arrangements with Ms. Martin and her work in Satyam. Bruce Imows these facts only
because he was counsel
in
Satyam.
Walter Sillefs Building - 550 High Street, Suite 1200 - Post Office Box 220 - Jackson, Mississippi
Tel (601) 359 3680 - fax (601) 359 2003
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Your reliance on Mississippi House Bill
211
( HB 211 ) is misplaced for at least three
reasons. First, information does not lose its confidential character under the ethical rules simply
because someone later contends that it should have been disclosed-otherwise, clients could
never safely seek legal advice on their disclosure obligations. Second, by its terms, HB 211 did
not take effect until July 1
2012,
well after the events in question. Your contention that HB
211
would somehow impact contracts and court proceedings retroactively is not based on any
American legal precedent. Third, there is nothing in HB 211 to support your contention that the
AG lacks authority to instruct Bruce on MPERS' behalf. The provision in
§7-5-39(2)
for a state
agency to be given advance written notice
of
a civil legal action taken on the agency's behalf
became effective on July 1,2012, and it does not diminish the AG s authority, under § 7-5-1, as
chief legal officer and advisor for the state . .. charged with managing all litigation on behal f
of
the state, except
as
otherwise specifically provided by law. See id (AG shall have the powers
of
the Attorney General at common law ); see lso my May 20, 2013 letter to you.
In
my
May
20, 2013
letter to you, I invited Bruce to contact me directly concerning these
matters, but he has not done so. There is not much more emphasis that I can place on how
disappointed I am in learning from representatives
of
BLBG that Bruce has attempted to use my
office and me in an employment dispute. He was one
of
several members
of
BLBG that I
genuinely liked and looked forward to having time in which to visit.
I see no purpose to be served by further communication with you. Your letter is devoid
of citation to any decision
of
any court or disciplinary authority holding that former counsel is
free, in pursuit of a lawsuit for personal gain, to dishonor his fonner client's instruction to
maintain the confidentiality
of
infonnation leamed in the course
of
representing the former client.
If you and your client disregard the instruction we have given, we will have no other choice but
to hold you both accountable.
Very truly yours,
e o ; : ; ; Neville
Special Assistant Attorney General
Cc: Bruce D. Bernstein, Esq.
(via regular mail, 88 Leonard Street, Apt.
1401,
New York, NY
10013)
Bernstein Litowitz Berger Grossmann LLP (via email)
Walter Sillers Building - 550 High Street, Suite J 200 - Post Oflice Box 220 - Jackson, Mississippi
Tel (601)
359 36802Fax
(601) 359 2003
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