Arkansas AG replies to prison board, certifies that it needs its own lawyer

The Arkansas Board of Corrections needs its own attorney to represent it in a lawsuit filed by Attorney General Tim Griffin’s office, the attorney general’s office confirmed in a letter Tuesday.

But the board cannot simply keep the attorney it hired in 2023, according to the letter written by Zach A. Mayo, Griffin’s general counsel. The law requires the board to ask the governor to appoint someone or authorize the hiring of a lawyer to represent it, Mayo wrote.

The letter comes as a dispute between the attorney general and the corrections board reheats in the wake of a state Supreme Court ruling that revived Griffin’s lawsuit, which alleges the board violated the state Freedom of Information Act in hiring Abtin Mehdizadegan in December 2023.

Mayo’s letter responded to a letter the board sent Monday certifying that it needs outside counsel to defend it against Griffin’s lawsuit because it poses a conflict of interest for the state’s attorney to sue one of his clients. The board’s letter said it desired to retain Mehdizadegan and would object if another attorney is chosen.

“Now that the Board has certified its need and the Attorney General has determined that he cannot undertake the requested representation, the decision of whether to appoint and who to appoint as outside counsel or to authorize the Board to employ outside counsel is solely the prerogative of the Governor,” Mayo wrote.

The prison board initially hired Mehdizadegan to help it sue the governor and others over the constitutionality of two laws it said usurped its authority over the corrections secretary and other top corrections officials. Board members said they hired the lawyer because the attorney general would have to defend the suit, creating a conflict of interest.

Griffin filed his suit alleging state open meetings and public records law violations the day after the board sued over the laws affecting its authority. Board members saw it as retaliation. Griffin said the board violated the FOIA by holding two executive sessions before hiring Mehdizadegan and by not providing documents he requested.

Mehdizadegan wrote the letter the board sent to Griffin on Monday.

Mayo’s response letter strongly re-asserts Griffin’s view that Mehdizadegan’s representation of the Board of Corrections “has been illegal from the start.”

The board’s efforts to hire and pay Mehdizadegan and his firm, Hall Booth Smith, “have violated the Arkansas Freedom of Information Act, the laws governing the retention of outside counsel, and procurement law,” Mayo wrote.

“Without conceding these legal objections,” Mayo says, the attorney general’s office will nevertheless communicate through Mehdizadegan about the board’s letter in light of a Supreme Court expectation that attorneys involved in litigation cooperate professionally.

“Even if there is a dispute over counsel’s official role and employment, we expect attorneys in Arkansas to communicate with each other while that is sorted out through the orderly process of law,” the court wrote in its May decision on Griffin’s FOIA case.

The attorney general’s letter to the board on Tuesday notes that his acceptance of the need for private counsel for the corrections board applies only to the FOIA suit, not the board’s suit against the governor.

The letter also directs the board to consult with the state procurement office regarding other rules it must follow regarding contracting with outside counsel.