By: Jerry W. Kilgore and Christopher J. Allen
This is the second in a series of articles by the Cozen O’Connor State AG team providing guidance on what corporate America needs to know in planning legal, regulatory and political strategies to anticipate and react to shifts in the AG landscape. We go beyond the basic who-what-where of the election cycle and provide you with insights to properly prepare for the election outcomes. To read the first article in our series, go here: https://www.stateagreport.com/news/state-attorney-general-elections-matter-preparing-for-november-2022/
With nine open seat races in 2022, almost 20 percent of the country’s state attorneys general are guaranteed to be new to the job when they take office in 2023. Like their colleagues, these AGs will have come from a wide range of backgrounds and experiences—former prosecutors, civil litigators, legislators, executive branch officials, and businesspeople. Because AGs have both a wide range of authority, and considerable autonomy in setting and pursuing their agendas, their prior experience can significantly shape the approach each takes to their office. Understanding that impact provides insight into how best to develop strategies for accounting for and working with AGs.
Many AGs Have Served as Prosecutors or Legislators
The most common background for the current state AGs is having formerly served as a prosecutor. Five current AGs served as elected state, country, or district attorneys and the Rhode Island AG is a former U.S. Attorney. At least eleven other AGs either began or served at some point in their career as criminal prosecutors.
Prior legislative service is another of the most common backgrounds shared by AGs. Three current AGs were members of the U.S. Congress, and the AGs of at least 14 other states served in their state legislatures, many rising to leadership positions. A significant number of AGs also take office with prior executive branch experience, either at the state or federal level. This experience can vary widely. Current AGs include prior senior executive branch officials like Secretary of State, Treasurer, State Auditor, and Director of State Lands and Investments. A number of AGs have served as chief legal counsel to their governors or in leadership roles in other state commissions and departments. Other AGs have served on city and county councils, and some have federal executive branch experience, such as the Colorado AG’s former work in the Obama White House and U.S. DOJ Antitrust Division and the DC AG’s experience as a former Associate White House Counsel.
Some AGs Do Have Insight into Private Practice
Many AGs have prior experience at some point in civil practice, including the DC AG who once was managing partner of an AmLaw 100 law firm. Other AGs have run their own private practices, and many others have experience as litigators, labor and employment attorneys, and regulatory counsel. A relatively small number of AGs come from business backgrounds, either as executives or in-house general counsel. They include the AGs of Georgia and Texas who worked in corporate general counsel offices; the Utah AG who, in addition to at one time being in-house counsel was co-founder of a venture capital firm; and the Louisiana AG who was a small business owner.
Tailor the Approach to the AG
Varied as AGs’ prior experiences are, there are some interesting insights that can be gleaned. While it is understandable that the devotion to public service that lead many people to become prosecutors translates to a desire to later serve as a state AG, AGs actually have relatively limited front-line criminal authority. Only four AGs actually have original criminal jurisdiction, and although many AG offices do have some criminal role—handling criminal appeals, special jurisdiction over certain statewide crimes as in Florida, and the ability to convene statewide grand juries as in Pennsylvania—much of AGs’ day-to-day work takes place outside the criminal context. Even so, companies and others dealing with AGs should consider an AG’s specific history in shaping their engagement. It may be better to approach an AG who comes from a prosecutorial background with hard evidence and fact. AGs with civil litigation or in-house backgrounds are likely more familiar with civil litigation practice and, thus, more receptive to policy arguments based on the realities of running a business.
AGs who are former legislators similarly present distinct risks and opportunities. AGs must engage with their state legislatures in order to achieve important policy objectives. Prior legislators enter office with valuable experience in what this entails. Almost every office has a unit devoted to working with the legislature, including drafting and reviewing legislation, testifying before committees, and lobbying for the office’s priorities. In some states, such as Washington, the AG can even introduce legislation directly. As a result, most of the major recent reforms to state consumer protection and antitrust laws, as well as the wholesale adoption nationally of data breach notification and personal information protection laws, have originated in AG offices. If a state legislature takes an interest in a company’s activities—especially where that company is engaged in disruptive or novel businesses or sectors like consumer-facing businesses or financial services—an AG with a legislative background can be an influential ally, or an especially capable adversary.
Similarly, AGs who have run state executive offices or served in senior or advisory roles may be more aware and familiar with the dynamics within state governments. For example, AGs in most states are independent officers from the governor and may have divergent policy or political interests that can lead to both conflicts and opportunities. An AG with experience working alongside a governor’s office and understanding how the bureaucracy functions can be valuable for companies and organizations dealing with the interpretation, application, enforcement, and amendment of state rules and regulations, as well as broader public policy issues. In addition, AGs with specific policy expertise can emerge as leaders among their AG colleagues on critical issues. For example, Colorado AG Phil Weiser, a former federal antitrust official, has come forth as a highly-influential voice, as AGs lead the present effort to reform antitrust laws in the face of market dominance by large technology companies.
Study The Past, If You Would Divine The Future
Of course, an AG’s background is no guarantee of how they will act once in office. But thinking strategically about how an incoming AG is likely to exercise his or her authority based on their prior experience and knowledge can provide a useful edge in approaching the office, whether simply to educate the newly-elected office holder on a company’s business, or to avert or mitigate the impact of an inquiry or investigation. In the words of Confucius: “Study the past, if you would divine the future.”