Legal trend utilizes AG experience

When he was the state’s top prosecutor, former Indiana Attorney General Jeff Modisett saw the beginning of a trend that’s now become a focus of his practice.

Working with colleagues throughout the country on issues including a multi-state tobacco settlement and sweepstakes industry reforms, the ex-AG was at the forefront of collective cooperation. A decade after leaving office, he’s joined a firm with a specialty practice focusing on many of the same issues he handled as a state attorney general.

This comes at a time when attorneys general around the country are increasingly flexing their enforcement muscles in high-profile matters, from health care suits to challenging new banking regulations.

“We really have a national AG practice now, not just a state-based AG practice these days,” Modisett said. “That’s been one of the most interesting developments in this area, and so we need people at the table who have the insight of being in those shoes, knowing how the AG world works and what they’re trying to achieve.”
 

Modisett

The new practice, SNR Denton, is an international law firm with more than a dozen offices throughout the U.S. and multiple locations worldwide. Modisett is one of two former AGs leading the state AG practice, the other being former Florida Attorney General Bill McCollum.

Modisett is working in the firm’s Los Angeles office. He has spent the last decade in the private sector after serving as Indiana AG from 1997 to 2001. During those years, he had a hand in high-profile matters including the multi-state legal battle against top tobacco product manufacturers that changed the industry’s marketing efforts and resulted in a $200 billion settlement split among the states, and an investigation of the sweepstakes industry that has helped protect the elderly.

Modisett also served as Marion County prosecutor and led the legal team that tried and convicted former heavy-weight boxing champion Mike Tyson for rape in the 1990s. Since leaving the state, Modisett has been a partner in the business and litigation firm Bryan Cave and served Fortune 500 and high-tech companies on privacy, competition, consumer protection, and related issues. He also served as deputy chief of the Public Corruption and Government Fraud Section of the U.S. Attorney’s Office for the Central District of California, and deputy CEO and general counsel of the 2000 Democratic National Convention in Los Angeles.

All of that led him to where he is now.

“I was basically working as solo practitioner inside a big firm before, and it’s a night and day difference now,” he said, noting his start in April. “I’d describe this being much more like a strategic advisor, and in some ways, it feels like an in-house role. That’s incredibly rewarding. The support this office and all the former deputy attorneys general provide in the practice is something I didn’t realize how much I’ve needed and could benefit from.”

Modisett says the legal issues involve everything from anti-trust to consumer protection, development of privacy policies among high-tech companies, and new definitions of privacy in the evolving intellectual property field. His work involves everything from navigating regulatory oversight at the national and state levels, to making sure companies can stay ahead of compliance standards and settle litigation or enforcement actions when needed. Drafting or reviewing amicus briefs on pending issues is also a job duty, he said. The firm’s new AG practice will be especially attuned to state enforcement matters, and Modisett said it will also respond to investigative inquiries and AG-initiated litigation.

“You’re almost always working with a multi-national corporation that needs to work with various states on consumer protection or regulatory issues, and they are looking for strategic advice and guidance,” Modisett said.

As the Internet became more popular, Modisett said states began communicating more regularly on issues and cases and working together on single issues like those he was involved in as AG.

State attorneys general have become major players in policing major industries and business practices, from bank lending to consumer advertising and privacy. Newspaper headlines tell stories about AGs signing on to challenges of the new national healthcare laws and immigration policies, and are regularly visible making statements on both civil and criminal matters that stretch across state lines.

Most recently, a group of state AGs notified the country’s five biggest banks that they face at least $17 billion in liability unless a settlement is reached to resolve improper home foreclosure practices. In late June, Indiana Attorney General Greg Zoeller wrote an amicus brief on behalf of 48 AGs opposing proposed federal standards that would preempt state laws protecting consumers against national banks.

The type of focused firm practice area Modisett is now engaged in doesn’t really exist in Indiana, Zoeller observed, though he credits the state’s larger firms for having established government affairs and regulatory attorneys who aptly handle these types of issues.

“This idea of representing multiple clients with an AG focus isn’t something we really have here, but I think you’ll see even more of what Denton is doing,” Zoeller said, referring to some of the same national efforts he’s been involved in during the past decade. “As former AGs, they have (credibility) and that at least gets you in the door. It allows for more efficient negotiations, because really it’s almost too late once you’re in court.”

Indianapolis attorney Paul Jefferson, a partner in Barnes & Thornburg’s appellate practice group, sees the need for this type of specialized practice with the growing role of AG enforcement. He’s handled about 30 of these types of cases and devotes about a third of his practice to government practices, serving as administrative law judge on the Microvote voting machine case less than a decade ago and more recently handling cases such as the East Chicago casino revenue case and robo-calls suit before the Indiana Supreme Court.

Understanding the practical and legal implications of these actions is important for those facing off against attorneys general or solicitors general, Jefferson said, and having someone who’s been in that position before can make all the difference.

“This is a specialized practice area and I’m surprised more people aren’t devoting more time to that, rather than just general litigation,” he said. “The states are taking a broad view of regulatory powers and trying to enforce those, and you’re seeing them be more practice active about that. It’s how you negotiate the tension between regulation and enforcement, and that’s what those cases most often turn on. So having someone who knows the system and can balance those interests in finding a resolution is very important.”•