Attorney General Herring undoubtedly views the Fourth Circuit Court of Appeals opinion overturning Virginia's adherence to the traditional definition of marriage as vindication of his decision to refuse to defend Virginia's constitution and challenge it in court. But the 2-1 decision raises questions about the ethics and actions of Virginia's Attorney General. Rule 1.3 of Virginia's Professional Guidelines and Rules of Conduct for attorneys provides that "[a] lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship. ..." Attorney General Herring and his supporters have claimed that his actions were justified and could not possibly prejudice or damage their client (the Commonwealth) because the Marriage Amendment was clearly unconstitutional. In fact, it was so unconstitutional that the Attorney General could not make a good faith argument in support of traditional marriage.
Not being able to make a good faith argument is important because the Bar has expounded on Rule 1.3 and provided that "[a] lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor." In other words, it's not enough for the attorney general to disagree with the policy of traditional marriage. He is ethically obligated to pursue a matter for a client, even if he disagrees with it, as long as there is a good faith argument to be made.
If one of the most senior and respected judges on the Fourth Circuit Court of Appeals can find a good faith argument in support of Virginia's Marriage Amendment, why couldn't Attorney General Herring?
Oh, wait. This was never about the constitutionality of traditional marriage for the attorney general. It is about politics trumping the law and the campaign for the Democratic nomination for governor in 2017.