McGuireWoods Authors Highlight Limits of AGs’ Jurisdiction in New York Law Journal

May 24, 2023

McGuireWoods attorneys Kevin Frankel, Alex Scandroli and Erin Ashwell and McGuireWoods Consulting senior vice president Mona Mohib wrote a May 12, 2023, article for the New York Law Journal examining how a recent criminal prosecution in New York became a case study on the flaws of referral-based jurisdiction.

The authors noted that statutory restrictions on subject matter jurisdiction often circumscribe the authority of state attorneys general, especially for criminal matters. They cited a deed fraud prosecution in New York as a rare and illustrative example of the limitations of this system.

According to the article, New York’s AG lacks jurisdiction to prosecute most crimes unless the misconduct is referred by the head of another state agency. The deed fraud case was referred by the chief administrative judge of the state’s judicial branch. The defendant challenged his indictment, and the state’s appellate court ruled that the AG lacked jurisdiction, finding that the judiciary isn’t a state agency under the statute, and the chief administrative judge isn’t its head.

“A fascinating aspect of state AG practice is that there is tremendous diversity in the scope of various AG’s authority,” the authors wrote, contrasting New York’s law, which legislators are now moving to amend, with California’s more permissive statute.

“As state AGs’ duties and responsibilities continue to evolve, it is critical for businesses and individuals to understand the scope and limits of their respective state AGs’ statutory and constitutional powers,” the authors concluded. “And for practitioners in the AG space, understanding the unique state-by-state intricacies of AG’s jurisdictional limits is a sound first step for any successful defense.”

Frankel, based in San Francisco, was formerly a prosecutor and New York assistant attorney general. Scandroli is an associate in the Government Investigations & White Collar Litigation Department in downtown Los Angeles. Mohib is a senior vice president in McGuireWoods Consulting’s federal public affairs team in Washington. Ashwell, a Richmond partner, previously served as Virginia’s chief deputy attorney general.