Qui Tam

Review of the Legal Experience of the 2009 Republican Candidates for Attorney General

By Zachary A. Kitts

                                                                                                                                                                                                                                                                                                                                                                                                                           


The 2009 Virginia statewide elections are now in full swing.  Today we focus on the most important race to qui tam practice in Virginia--i.e., the race for Virginia Attorney General--and on the qualifications of the individuals seeking the office. 

At this point, there are four men in the running to be Virginia's next Attorney General--three Republicans and one Democrat.  Republicans will nominate their candidate at a convention to be held on May 29 and 30. 

There is a rumor that a second contender for the Democratic nomination will emerge after the legislative session ends.  I will thus wait until the legislative session ends to do a comparison of the Democratic candidates.

It is necessary for Virginians to compare the candidates for AG as we head into the election season.  Unlike the other two statewide offices in Virginia, the AG's job is a technical one.  One doesn't really need any particular experience to be an excellent Governor or Lieutenant Governor.  Moreover, the Virginia Constitution vests most of the state's power in the Virginia General Assembly, further eroding the Governor's need for experience.     

The same thing, however, is just not true of the Attorney General, who has a technical and important role in state government.  The Attorney General is responsible for prosecuting a narrow--but extremely important-- category of criminal actions, along with all civil litigation by or against the Commonwealth.  Thus, a good AG needs extensive legal experience and the good legal judgment that comes from personally litigating a wide variety of cases.   

In addition, the Attorney General must be a talented administrator, as he or she is responsible for managing every department of the third largest law firm in the Commonwealth, managing a budget, choosing the right deputies, and so forth.  

Virginians have historically preferred to elect an Attorney General with significant legal experience, so it makes sense to take a look at the legal experience of the individuals in the running at this point, to see who might shape up to be the best AG.  To do so, I used the Westlaw Profiler function. 

Westlaw Profiler is a proprietary tool created by Westlaw to provide competitive intelligence for lawyers about their opponents in civil litigation.  Profiler automatically scans Westlaw, and creates a list of the number of times an attorney's name appears in Westlaw.  It includes things like the number of federal court cases in which an attorney has appeared (for our nonlawyer readers, when a lawyer "enters an appearance" he or she puts his or her name on the record as representing a party with an interest in a case), a list of all of the official and unofficial published opinions resulting from the lawyer's cases, the number of jury trials conducted and the results of those jury trials, settlement reports of cases, and so forth.  

The results show a stark contrast in the legal experience of the men running for the Republican nomination for Attorney General, as reflected by the chart at the top of this post.  John Brownlee has 1,632 Profiler references, Ken Cuccinelli has 45, and Dave Foster has 58. 

Based on the legal experience of the candidates, Brownlee emerges as the clear choice for Republicans. 

Factors other than the Profiler chart also support John Brownlee as the best man for the job.  Because Brownlee was United States Attorney for the Western District of Virginia, his legal experience completely sets him apart from anyone else in the race.  Brownlee has the leadership experience necessary from managing a prosecutor's office that covered half the state of Virginia. 

Moreover, the Virginia Attorney General and the U.S. Attorneys for the Eastern and Western Districts of Virginia work together quite a bit in joint prosecutions.  Virginians want and deserve an AG who will have the respect of officials in the U.S. Department of Justice. 

Further support for Brownlee's candidacy emerges from the fact that he has extensive federal court experience.  One of the Virginia Attorney General's specific statutory duties is to represent the Commonwealth in all federal court litigation.   

Several things speak well for Foster also.  For example, while Foster has a relatively low number of Profiler references, but he does have specific experience in antitrust, one specific area of law that is important to the Attorney General's role.  It is also reasonable to expect that Foster would be skilled in the use of legal instruments called "civil investigative demands" which are part of antitrust practice and are rather important to the office of the Attorney General. 

Also, because Foster has attained partnership at a major law firm, we can anticipate that Foster has the sort of leadership and administrative experience that would be necessary to run the AG's office. 

Before all of the Cuccinelli supporters line up and start making comments about Cuccinelli's leadership in getting elected to the state Senate, it is true that Cuccinelli is the only one in the race who has been elected to the legislature.  That, I suppose, is his biggest asset as a candidate for statewide office, but it does not make him qualified to be Attorney General of Virginia.

I will be happy to consider any comments or commentary on these items. 

Full post as published by Virginia Qui Tam Law on January 13, 2009 (boomark / email).