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Case 1:14-cv-06867-VEC Document 30-6 Filed 03/18/16 Page 1 of 5

STATE OF MISSISSIPPI

JIM HOOD
ATTORNEY GENERAL

CIVIL LITIGATION DIVISION

May 20, 2013

Via E-mail

Jonathan Ben-Asher, Esq.


Ritz Clark & Ben-Asher LLP
40 Exchange Place - Suite 2010
New York, N.Y. 10005
Jben-asher@RCBALaw.com

RE: Bruce D. Bernstein, Esq.


Dear Mr. Ben-Asher:
This letter is being written to you in your capacity as counsel to one of our former
counsel, Mr. Bruce Bernstein. It concerns confidential information Bruce learned as our counsel.
In addition, I consider you covered by this confidentiality as well since I was compelled to
communicate with Bruce's counsel having learned of your representation. We expect that Bruce
and you maintain the confidentiality of this letter and its contents.
Mississippi, like most states, has constitutional officers and offices, as well as statutorily
created state agencies and executive divisions that are all part of the state government. The
Mississippi Attorney General is a constitutional officer, Miss. Const. 1890 173. The
Mississippi Public Employees Retirement System is a state agency of Mississippi, created

Case 1:14-cv-06867-VEC Document 30-6 Filed 03/18/16 Page 2 of 5

pursuant to Miss. Code Ann. 25-11-1, et seq. (1972). By virtue of the powers bestowed upon
the Attorney General by the State's Constitution, statutes, and common law, "the role ofthe
Attorney General apropos of a State agency" is not "precisely akin to the traditional role of
private counsel apropos of a client." State ex rei. Allain v. Miss. Pub. Servo Comm 'n, 418 So. 2d
779,782 (1982) (quoting with approval EPA

V.

Pollution Control Board, 372 N.E.2d 50, 52-53

(Ill. 1977. To the contrary, "[t]he authority of the Attorney General, as chieflaw officer, to
assume primary control over the conduct of litigation which involves the interests of the
Commonwealth has the concomitant effect of creating a relationship with the State officers he
represents that is not constrained by the parameters of the traditional attorney-client
relationship." Allain, 418 So. 2d at 783 (quoting Feeney v. Commonwealth, 366 N.E.2d 1262,
1266 (Mass. 1977.

As a consequence, the Attorney General has complete authority over litigation, such as
those matters Bruce worked on, that are brought on behalf of the State as well as all state entities.
The Attorney General does not require the Mississippi Public Employees' Retirement System
("MPERS") and other state agencies to make decisions regarding the prosecution of such cases.
Therefore, the Attorney General serves not only as counsel to the State, but is the State for
purposes of litigation.
It has corne to our attention that Bruce has threatened to commence a lawsuit based on

confidential information that he learned as counsel to Mississippi, and its agency MPERS. We
understand that he plans to allege in public court papers that agents of Mississippi, and its agency
MPERS - namely, its outside counsel- engaged in impropriety in connection with the
engagement of a Mississippi lawyer and the award of attorneys' fees in the Satyam litigation.

Case 1:14-cv-06867-VEC Document 30-6 Filed 03/18/16 Page 3 of 5

Specifically, we understand that you plan to allege (or otherwise litigate) that a lawyer in
Mississippi was improperly engaged and paid by lead counsel in Satyam, and that lead counsel's
fee application did not disclose, but should have disclosed, in the fee application the identity of
every lawyer and firm that performed work for the class and was to receive, even indirectly, any
part ofthe proceeds of the fee award in that case, even though the Local Rule in the Southern
District of New York that fonnerly required such disclosure had been rescinded before the fee
application in Satyam was filed.
We find this troubling as Bruce was counsel for Mississippi and its agency MPERS; he
was personally involved in drafting and revising the fee application papers; he was aware that a
judgment was made by every law firm involved agency MPERS -

including lead counsel for Mississippi and its

that it was unnecessary to submit affidavits from, or otherwise disclose, those

lawyers who were not named class counsel on the case and were to be paid out of a client
approved fixed contingent fee lead counsel's award; he was aware that no additional fee award
was being sought for the work of these lawyers; and yet Bruce never brought this to the attention
of the Court at the time - or since Bruce is also aware -

nor did he ever bring this to the attention of Mississippi.

or would have been, if he had bothered to consult me -

that it is a policy

of the State of Mississippi and its agencies to engage local counsel in litigation and, in particular,
a policy of this office to provide work to qualified minority attorneys such as the local counsel in
the Satyam case; that the engagement of the Mississippi lawyer was in accordance with
Mississippi law; and that this counsel is involved in other complex litigation for Mississippi. As
part of the Attorney General's power over litigation involving state agencies, the Attorney
General has control over the selection of outside counsel to represent state agencies. "The case
law and statutes make it unquestionably clear that he is the state's chieflegal officer and is
3

Case 1:14-cv-06867-VEC Document 30-6 Filed 03/18/16 Page 4 of 5

charged with managing all litigation on behalf of the state. Moreover, no state agency may
employ legal counsel without the prior approval of the attomey general and any such special legal
counsel appointed performs their duties under the supervision and control of the attorney

general and serves at his pleasure and may be dismissed by him." Allain, 418 So. 2d at 782
(emphasis added).
Further, Bruce never suggested to anyone from Mississippi that he perceived anything
amiss about the engagement of this lawyer in Satyam, yet he plans to assert that it constituted
misconduct -

which it did not -

in his employment lawsnit seeking money danlages. Not only

am I troubled as a fellow attomey of what Bruce has threatened to do, I carmot fathom that during
the countless discussions that he and I had about the various matters he worked on for us,
including Satyam, all of the friendly talks that we have had and the discussions of Bruce's
nuptials, he never once mentioned anything to me about concems he supposedly now has.
Additionally, I considered Bruce to be a friend. I was disappointed to learn on my most recent
visit to New York that he was not there when I came by to visit.
F or Bruce to make such claims in public court papers for his personal profit over an
employment dispute could subject Mississippi and its agency MPERS in a negative light. As
counsel for the State of Mississippi, its agency MPERS, and on behalf of the State of Mississippi
and its agency MPERS, I am directing Bruce not to disclose any confidential information he
learned as counsel to Mississippi and its agency MPERS. It is highly likely others could (or will)
attempt to use this information against Mississippi in future litigation or otherwise, just as Bruce
is attempting to use it for his benefit in his threatened lawsuit. Please be advised that the
foregoing direction to Bruce and you to preserve the confidentiality of all information Bruce
leamed in representing Mississippi and its agency MPERS comes from the State of Mississippi
4

Case 1:14-cv-06867-VEC Document 30-6 Filed 03/18/16 Page 5 of 5

and MPERS itself.


We welcome Bruce contacting me directly to discuss these matters and any further
concerns he may have.

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eorge /Neville
Speci
Cc:

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ssistant Attorney General

Bruce D. Bernstein, Esq.


(via regular mail, 88 Leonard Street, Apt. 1401, New YOfk, NY 10013)
Bernstein Litowitz Berger & Grossmann LLP (via email)

Case 1:14-cv-06867-VEC Document 30-7 Filed 03/18/16 Page 1 of 2

STATE OF MISSISSIPPI

JIM HOOD
ATTORNEY GENERAL

CIVIL LITIGATION DIVISION

May 29,2013

Via E-mail
Jonathan Ben-Asher, Esq.
Ritz Clark & Ben-Asher LLP
40 Exchange Place - Suite 20 I 0
New York, N.Y. 10005
.Tben-asher@RCBALaw.com

RE: Bruce D. Bernstein, Esq.


Dear Mr. Ben-Asher:
I write in response to your letter dated May 24, 2013. Neither the State of Mississippi nor
any of its agencies, including the Office of the Attorney General ("AG"), has any interest in the
employment dispute between Bruce and Bernstein Litowitz. This office must protect
confidential info=ation ofthe State and its agencies from improper use by our fo=er counsel.
Your arguments as to why Bruce should be free to disregard his ethical duty to maintain the
confidentiality of info=ation he learned in the course of representing his client in Satyam are
thoroughly unconvincing.
The info=ation on which Bruce bases his threatened claims is known to him solely as a
result of representing MPERS in Satyam. He has no other source for this info=ation, let alone a
public source, so your argument that the info=ation is "generally known" is untenable.
Your letter suggests that Bruce can pursue claims "based upon BLB&G's improper
conduct" without revealing "facts concerning the conduct of [aJ third party." But the crux of
what I understand to be your threatened lawsuit is that Bernstein Litowitz failed to disclose facts
concerning arrangements with Ms. Martin and her work in Satyam. Bruce Imows these facts only
because he was counsel in Satyam.

Walter Sillefs Building - 550 High Street, Suite 1200 - Post Office Box 220 - Jackson, Mississippi
Tel (601) 359-3680 - fax (601) 359-2003

Case 1:14-cv-06867-VEC Document 30-7 Filed 03/18/16 Page 2 of 2

Your reliance on Mississippi House Bill 211 ("HB 211") is misplaced for at least three
reasons. First, information does not lose its confidential character under the ethical rules simply
because someone later contends that it should have been disclosed-otherwise, clients could
never safely seek legal advice on their disclosure obligations. Second, by its terms, HB 211 did
not take effect until July 1, 2012, well after the events in question. Your contention that HB 211
would somehow impact contracts and court proceedings retroactively is not based on any
American legal precedent. Third, there is nothing in HB 211 to support your contention that the
AG lacks authority to instruct Bruce on MPERS' behalf. The provision in 7-5-39(2) for a state
agency to be given advance written notice of a "civil legal action" taken on the agency's behalf
became effective on July 1,2012, and it does not diminish the AG's authority, under 7-5-1, as
"chief legal officer and advisor for the state ... charged with managing all litigation on behalf of
the state, except as otherwise specifically provided by law." See id. (AG "shall have the powers
of the Attorney General at common law"); see also my May 20, 2013 letter to you.
In my May 20, 2013 letter to you, I invited Bruce to contact me directly concerning these
matters, but he has not done so. There is not much more emphasis that I can place on how
disappointed I am in learning from representatives of BLBG that Bruce has attempted to use my
office and me in an employment dispute. He was one of several members of BLBG that I
genuinely liked and looked forward to having time in which to visit.
I see no purpose to be served by further communication with you. Your letter is devoid
of citation to any decision of any court or disciplinary authority holding that former counsel is
free, in pursuit of a lawsuit for personal gain, to dishonor his fonner client's instruction to
maintain the confidentiality of infonnation leamed in the course of representing the former client.
If you and your client disregard the instruction we have given, we will have no other choice but
to hold you both accountable.
Very truly yours,

eo;:;;'Neville
Special Assistant Attorney General

Cc:

Bruce D. Bernstein, Esq.


(via regular mail, 88 Leonard Street, Apt. 1401, New York, NY 10013)
Bernstein Litowitz Berger & Grossmann LLP (via email)

Walter Sillers Building - 550 High Street, Suite J 200 - Post Oflice Box 220 - Jackson, Mississippi
Tel (601) 359-36802Fax (601) 359-2003