Administration’s dual position on marriage law is unusual

The state’s response to a federal court challenge to the same-sex marriage ban here surprised many last month when Gov. Neil Abercrombie said the ban violates the U.S. Constitution, while his Health Director Loretta Fuddy said she would defend the law.

Joshua Wisch, spokesman for the Attorney General’s Office, would not comment on why the governor did not direct his Cabinet member to join in his response to the federal court lawsuit.

"The Department of Attorney General does not disclose internal litigation discussions," Wisch said last week.

The governor’s decision not to defend the law and the dual positions by state officials are unusual, but not unprecedented.

Ethics rules prohibit an attorney from representing a client to the detriment of another client.

But the decision also raises the practical issue of whether two sets of lawyers with the same boss, Attorney General David Louie, can present the best arguments for the conflicting interests of their clients, especially when Abercrombie appointed Louie.

Wisch said the Hawaii Supreme Court ruled in 1990 and 1998 that the Attorney General’s Office may represent multiple parties concurrently and not violate conflict of interest provisions of the Hawaii Rules of Professional Conduct governing lawyers.

Janet Hunt, head of the Office of Disciplinary Counsel, said she could not comment specifically on the same-sex marriage case, but said that generally an attorney may represent multiple clients if they consent after the lawyer discloses the risks and advantages.

Wisch also cited the office’s earlier statements that it would assign two separate teams of its lawyers to represent the governor and the health director.

The office would set up legal "firewalls" between the two sets of lawyers to ensure the lawyers independently represent their clients.

Abercrombie isn’t the first government leader to refrain from defending a law.

Nationally, President Barack Obama and Attorney General Eric Holder announced last year that they would not defend the federal Defense of Marriage Act from constitutional attacks. The 1996 law was passed by Congress in reaction to Hawaii court decisions that could have made the state the first in the country to legalize same-sex marriage.

The Defense of Marriage Act directs the federal government not to recognize same-sex marriages, and allows states to disregard those marriages in other states.

A recent Hawaii case also involved Abercrombie taking a position opposite of a state government official.

Two sets of lawyers from the Attorney General’s Office provided the Hawaii Supreme Court separate written and oral arguments on the state’s Reapportionment Plan.

One set represented Abercrombie, who agreed with the challengers that the plan was flawed, while another represented the state elections chief and the Reapportionment Commission in defending the plan. In January, the Hawaii Supreme Court agreed with Abercrombie and the challengers and threw out the plan.