In October, the Oregon Department of Justice took an unusual step: It told a prominent lawyer he could not represent the state’s largest hospital systems in three interlocking cases at the heart of the state’s dysfunctional mental health system.
The lawyer, Misha Isaak, a partner at Perkins Coie LLP, has carved out a prominent practice since stepping down as Gov. Kate Brown’s general counsel in 2020.
The unusual flap over Isaak’s role shows the high stakes of the three overlapping lawsuits regarding overcrowding at the Oregon State Hospital. That overcrowding has led to the emergency release of patients. The cases will determine who gets OSH beds and could force the state to add more capacity.
In a frosty Oct. 20 letter, a senior DOJ lawyer withdrew earlier consent for Isaak to work on the cases.
“We ask that you withdraw as counsel in these matters, due to the conflicts that are raised by your representation,” wrote Sheila Potter, DOJ’s deputy chief trial counsel.
Isaak says his role in the litigation is insignificant.
“Litigation should be about the litigants and the issues, not the lawyers,” Isaak says. “That’s especially true for a case as important as this one. What’s at stake is the state’s role in providing appropriate mental and behavioral health care for civil commitment patients.”
WHO’S THE LAWYER?
Isaak gained prominence in 2014, when he successfully argued the case for same-sex marriage. Earlier this year, he represented Nicholas Kristof in his unsuccessful bid to determine he met Oregon’s residency requirements to run for governor and, later, the University of Oregon in a high-profile lawsuit brought by a former football player who said excessive workouts permanently damaged his health (that case was settled).
In late September, Isaak filed suit in U.S. District Court against the Oregon Health Authority on behalf of Legacy Health, Providence Health & Services, and PeaceHealth, as WW first reported Sept. 28.
WHAT’S AT ISSUE?
The hospitals want the court to force OHA to take responsibility for patients who have been civilly committed, rather than dumping them on private hospitals.
At the heart of the lawsuit: the allocation of scarce beds at the Oregon State Hospital. Two pending federal cases also relate to OSH capacity: Oregon Advocacy Center v. Mink and Bowman v. Matteucci, which concern, respectively, patients unable to aid and assist in their own criminal defense (Mink) and those guilty except for insanity (Bowman).
In the spring, documents show, Legacy asked Isaak for advice on how to deal with its patient crunch.
Isaak asked Gov. Brown’s office to waive any potential conflict of interest regarding OHA. Isaak wanted Brown to consider whether he might have acquired knowledge while working for the state that could be used against it.
Brown granted the waiver. Isaak then sued the state in September on the hospitals’ behalf. The hospitals also sought to intervene in the Mink and Bowman cases.
Having previously granted him a waiver, the state now objected.
“The governor’s office has decided to revoke the April 2022 conflict waiver,” Potter wrote Oct. 20, saying Isaak’s earlier request for a waiver “did not adequately specify the litigation” Isaak might bring against the state.
Isaak pushed back in a letter to Potter, noting he’d fully discussed the rationale for the waiver with Brown’s current counsel.
“My work with respect to matters involving the OSH capacity issues was very limited,” Isaak added in his Nov. 2 letter.
But his explanation fell on deaf ears.
Michael Kron, special counsel to Attorney General Ellen Rosenblum, says it’s “pretty uncommon” for an ex-state lawyer to seek a waiver to sue his former employer.
And for the state to withdraw the waiver? “That’s even more uncommon,” Kron says.
The Legacy case is now proceeding without Isaak, and a federal judge will soon rule whether to consolidate it with the other two OSH cases.