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In Zoeller’s Defense

Indiana Attorney General Greg Zoeller has caught a lot of grief over the last few months for  defending Indiana’s marriage statute.   Because he defended the statute which defined marriage as one man and one woman, some people think his motivation was that he was opposed to same-sex marriage.

In all the time I written about the Attorney General’s office defense of the marriage statute, I never asked Zoeller what his opinion was, because to be  frank it didn’t matter.   He is an attorney and the State of Indiana is his client and absent some bizarre circumstances, the Attorney General has a duty to defend the law, regardless of what he thinks about it.

And just like he carried out his obligation to defend the prior marriage statute, guess what, Zoeller will defend the new law which says same-sex marriage is legal in Indiana.  He’s already instructed the County Clerks to start issuing marriage licenses.  I am willing to bet money his office has been going through volumes of Indiana Code as it applies to marriage to inform lawmakers how the new rules will apply to same-sex couples, because that is what the Attorney General does.

As lawyers, we have a duty to defend our clients within all ethical bounds.  When we start picking and choosing which cases we will and won’t do simply because we have a different ideological bent than the client, we start to run into problems.  I would argue it would be ground for malpractice if he didn’t.

When Zoeller defended the state’s marriage statute, he was doing his job and now that there is new statute, guess what, he will keep doing his job.

  • malercous

    An attorney is under no obligation to defend a law s/he believes is unconstitutional. In fact, the opposite is true. Zoeller would only be liable for malpractice if he defended the law & purposely didn’t make a good argument. Attorneys are permitted to recuse themselves, he could have requested for someone else to handle the case.
    Still, I agree that he was only doing his job, although he was under no ethical obligation to do so.

  • JSS

    I agree with much of what you write, Abdul; however, in this instance, I cannot.
    The fact is that the AG is very selective when choosing to defend (or not defend) statutes. I have various examples, but for a more publicized issue, see the immigration law. Furthermore he has the uncanny ability to expand his Title IV power to insert himself into policy decisions that are–and should be–made by the Governor. It happened with MD was in office and I know it happens with MP as well. Make no mistake, he is a calculated and savvy politician who chooses to use that “duty” he has as our AG very selectively.
    What an odd system we have where the Governor must go to the AG and play mother-may-I when desiring to hire outside counsel to defend (or settle) a suit.
    Just like the Supt of Public Instruction should be appointed by the Governor, so to should the AG (perhaps with confirmation by the Senate or House).