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Executive Councilor: AG nominee must disclose all potential conflicts

New Hampshire Union Leader

April 02. 2013 8:54PM

While Gov. Maggie Hassan's selection for attorney general received high marks from some key players in legal and political fields Tuesday, several said Joseph Foster will have to wrestle with potential conflicts of interest. And an executive councilor said Foster should disclose all his potential conflicts.

Hassan announced Monday that she plans to nominate Foster, a former Democratic state senator from Nashua, for the job of attorney general. The nomination, expected today, is a break from the recent past, when attorneys generals were picked from the ranks of prosecutors or lawyers who worked in small practices.

Foster is a managing partner at McLane, Graf, a Manchester-based law firm that bills itself as the largest in the state. The firm's lawyers work in the fields of corporate law, utilities, tax, finance, bankrupty, energy, labor and other business-related fields. Recently, the firm launched its own lobbying arm.

If confirmed as attorney general, Foster will be running an office whose lawyers must deal with clients of his former law firm and people who are represented by his former partners.

"It presents an appearance issue he will have to be sensitive to," said John Broderick, a former chief justice of the New Hampshire Supreme Court and the dean of the University of New Hampshire Law School. "You have to avoid not only the conflict, but the appearance problem."

It will be especially challenging in the beginning of his tenure, when his former clients will be fresh, as will his relationships with former McLane, Graf partners, Broderick said. But he doesn't think everyone associated with McLane, Graf will be off-limits - only the clients Foster dealt with himself and lawyers he has a social relationship with.

The attorney general heads the Justice Department, which prosecutes homicides, protects consumers, oversees non-profits, and provides legal services to state government agencies.

To Republican Executive Councilor Chris Sununu, Foster's experience is a good thing. Few people have the reach into all corners of the state that Foster has, said Sununu, one of five councilors who will have to vote on Foster's confirmation.

But he also thinks the Executive Council should ask Foster to publicly disclose all potential conflicts.

"I disclose everything in my business as a servant of the state," Sununu said. "As an elected official, commissioner or attorney general, I'm a big believer you should disclose these conflicts."

Hassan's spokesman said any nominee for attorney general comes with potential conflicts and would be expected to address them according to codes of conduct and ethics.

"We are confident Joe Foster will address Councilor Sununu's concerns as the process moves forward,"

Goldberg said. He has already said that Foster will sell all his shares in the McLane, Graf firm if confirmed.

Phil McLaughlin, the attorney general under former Gov. Jeanne Shaheen, said he divested himself from his seven-lawyer firm and unaffiliated himself from any cases once he was confirmed attorney general.

As attorney general, he regularly removed himself from cases where any notion of a conflict arose. In those cases, his deputy filled in. McLaughlin said lawyers often have to handle conflict, and he's sure Foster considered before agreeing to the nomination.

"Lawyers come from all over," McLaughlin said. "The question is not what they did, but whether they can act independently."

Meanwhile, both Sununu and Chris Pappas, a Democratic executive councilor representing the Manchester area, said they will not rush Foster's confirmation.

"I think he's an outstanding nominee," Pappas said.

"We've got to let this process play out," Pappas said. "It's too soon to say I support or oppose this nominee, but I like what I see."

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