Ten month ago, Delaware media sources published a series of articles that detailed horrific conditions within the Delaware Psychiatric Center (DPC), a state institution that has long been an object of controversy.  Delaware AG Joseph “Beau” Biden immediately, and without any public acknowledgement, commenced a full investigation. 

Last week, Biden announced that his investigation had found “systemic violations” of the Delaware Mental Health Patient’s Bill of Rights.  He stated that the DPC had failed to prevent both physical and emotional abuse, failed to correctly use restraints and used “unjustifiable force.”   He announced a comprehensive agreement that includes an outside monitor and has not ruled out charges should the agreement not be fully implemented.  

The DPC is a state agency and as such a “client” of the Delaware AG’s office.   Lawyers assigned to the DPC report to Biden and they continue to represent the DPC on a wide variety of cases including a pending investigation of the U.S. Dept of Civil Rights.  Despite the protestations of the Governor and her staff (she is of the same political party as Biden), the AG proceeded with his investigation by not using those on his staff representing the DPC and instead used the staff of his Medicaid Fraud Division.  Until last week’s announcement of an agreement, this entire matter took place outside the aura of media scrutiny.

AG Biden handled this matter with the highest degree of professionalism.  He took on his own “client” and leaders of his own party regardless of the political implications in order to do the right thing for those vulnerable citizens who live at the DPC. 

There are many in our country who do not understand that the state AG is unlike any other lawyer in their state.   As its Preamble suggests, the Model Rules of Professional Responsibility simply do not apply to a state AG whose first duties are to enforce the law.  The common law legacy of state AG’s allows them to take on corruption and malfeasance of their own “client” agencies which are too often captured by outside forces.

I addressed this precise issue in remarks to the Spring NAAG Meeting.  You may see either the notes or the video at the website of the National Association of Attorneys General at http;//www.stateag.org.