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Prosecutor should remember that his client is the public



Published: Sun, September 23, 2001 @ 12:00 a.m.



Mahoning County Prosecutor Paul Gains has decided not to represent county Probate Judge Timothy Maloney in his challenge of an Ohio Supreme Court ruling in a case involving Richard Goldberg, the suspended lawyer now serving time in federal prison.

But although Gains' decision means that taxpayer dollars will be used to pay the private lawyer that Judge Maloney has hired, the prosecutor refuses to publicly discuss the reasons for his withdrawal from the case.

"The reasons are valid. That's all I can say," Gains told The Vindicator last week.

No, that isn't all the prosecutor should get away with saying. He and Maloney are wrong in contending that the reasons for the decision are confidential and are protected by attorney-client privilege. We would point out to both these elected officials that while state law designates the county prosecutor to serve as the lawyer for county agencies and individual officeholders, such representation only applies to public duties. And since those duties are performed on behalf of the citizenry, the legal advice given by the prosecutor, in most instances, belongs in the public arena.

Gains seems to have forgotten that ultimately the taxpayer is the client, not the individual officeholder. Therefore, if a decision is made that results in public dollars being spent to represent a public official, the people footing the bill have a right to know why such an expenditure is necessary.

Search and seizure: This is especially true in the context of Maloney's clash with the Supreme Court, which ruled recently that the judge overstepped his authority when he ordered a search and seizure of property belonging to Goldberg.

After first saying that he would abide by the high court's ruling against him, Maloney said last week that he had a change of heart and would ask the court to reconsider its Sept. 5 decision.

Maloney pointed out that his initial reaction was not based on an actual reading of the Supreme Court's opinion, but on information that was related to him. However, after he received a copy of the opinion and reviewed it, he discovered what he believes are deficiencies in the majority ruling and decided to challenge it.

That's all well and good. But the public has a right to know why Prosecutor Gains, who represented Maloney as the case made it way through the judicial system, including the 7th District Court of Appeals, decided that he would not be involved in the latest legal move.

Judge Maloney has hired a private law firm out of Cincinnati to represent him.

Absent an explanation from Gains, the citizenry is justified in wondering whether Gains told Maloney that he was fighting a losing battle and, thus, did not want to participate in the challenge of the Supreme Court's ruling.

If that is so, then the following question must be asked: Should taxpayer dollars be used to enable an elected official to pursue what amounts to a private legal battle? We think not.




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