(The Center Square) – A North Carolina district attorney represented by Attorney General Josh Stein in a lawsuit regarding the state’s felon voting law has filed a formal conflict of interest complaint with the state bar.
The complaint filed by District Attorney Mike Hardin, who works in the Sandhills counties of Hoke and Moore, last week alleges a conflict of interest and multiple violations of the rules of professional conduct in Stein’s representation of county district attorneys in the case NC APRI v. NC State Board of Elections, et al.
“To be honest, I am not sure what the Bar will do now,” Hardin, an experienced trial attorney, wrote in an email to The Center Square. “I am hesitant to make too many more comments before the Bar has the opportunity to address this. I am hopeful that they will take this seriously.”
The lawsuit involves a challenge to state law that requires felons to complete probation or parole to regain the right to vote. It was originally filed against the attorney general and others in September 2020, before the U.S. District Court granted the attorney general’s motion to dismiss him from the case, which was refiled naming the state’s individual district attorneys in February 2021.
The case is separate from Community Success Initiative v. Moore that played out in state courts and ultimately resulted in the North Carolina Supreme Court upholding the state law in April.
In the federal case, the attorney general’s office requested district attorneys allow him to accept service for the lawsuit to defend the case on their behalf, and Hardin repeatedly refused to grant consent but was nonetheless included in the lawsuit, according to the complaint.
“No written consent has ever been requested by the Attorney General from any of the elected District Attorneys,” the complaint reads. “The Attorney General has never reasonably communicated with the District Attorneys regarding this lawsuit, or any potential conflicts raised by his actions. The Attorney General has never made the District Attorneys aware that he consented and stipulated to them being added to a lawsuit, nor did he ever consult with them prior to this action.”
Hardin says Stein violated the Rules of Professional Conduct by arguing a defense for himself that caused district attorneys to be sued, and is required to secure informed consent to represent them. Other rules were violated by failing to consult with district attorney clients on how to proceed with the case, revealing confidential information, and “failing to properly communicate with his client,” according to the complaint.
Emails included in the complaint show Hardin requested Stein declare a conflict of interest and request new counsel to represent him, but the attorney general refused. Hardin also urged the attorney general to request a formal state bar opinion, and to inform the federal courts of the conflict, both of which were also refused. Hardin further says requests to the attorney general’s office for updates on proceedings in the case, but only received one update more than two years later.
“DA Hardin has made every effort to resolve this issue through means other than filing a bar complaint,” the complaint reads. “DA Hardin has even requested the State Bar Ethics Committee consider this matter. It is imperative that this conflict be resolved based on the history and status of the case.”
Communications included in the complaint show the state bar’s ethics committee declined in May 2022 to issue an opinion on the issues Hardin raised.
Special Deputy Attorney General Kathryn Shields responded to Hardin’s request to file a stay in the case on his behalf by asserting in a July 2021 email it would “delay a potentially favorable ruling” and “be harmful to the defense of this action on behalf of the District Attorneys.”
An update to the case provided to district attorneys last month outlines the basic claims, the attorney general’s opposition to the plaintiff’s request for a summary judgment in the case, and how Senate Bill 747 – elections legislation Gov. Roy Cooper vetoed last week – could render matters in the case moot.
“We believe if this law is enacted it will moot this lawsuit entirely,” Special Deputy Attorney General Elizabeth O’Brien wrote in the update. “If, and when, the amended (law) is enacted, we will move the court to dismiss all claims because they will likely be moot.”
A trial date is set for April 1 in the event the case is not moot or decided on summary judgment, she wrote.
A message from The Center Square seeking comment on the case and complaint from the attorney general’s office was not answered before publication on Tuesday.
Stein is a Democrat running for governor in 2024. Hardin, a Republican, was chief deputy DA in Hoke County prior to winning election in 2020.
