George Neville Letters from Jim Hood's Office

8/18/2019 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

Case 1:14-cv-06867-VEC Document 30-6 Filed 03/18/16 Page 1 of 5


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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 .

/

-.

r ~ ' ~

t f

. y ? ~ ~

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

[email protected]

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


George Neville Letters from Jim Hood's Office

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