By Lizzy McLellan and Max Mitchell, from The Legal Intelligencer

Now that Pennsylvania Attorney General Kathleen Kane’s law license has been suspended, politicos and court watchers seem to agree that she should not be serving as the state’s top law enforcement officer, whether that means resignation or removal.

The state Supreme Court on Monday issued an order temporarily suspending Kane’s law license, but stopped short of removing her from office. Since then, questions have swirled regarding what duties the state’s top law enforcement officer can perform without a law license.

Article IV, Section 5 of the Pennsylvania Constitution says the attorney general must be a member of the bar of the Pennsylvania Supreme Court. According to OAG spokesman Chuck Ardo, Kane was notified Tuesday that her suspension would not go into effect for another 30 days.

“The senior lawyers in the Attorney General’s Office are reviewing exactly what capacity she will be able to serve in which activities … which of her duties will she be barred from doing,” Ardo said.

Court watchers and legal professors who spoke with The Legal have said that, while she may be able to continue functioning as the head of the office—leaving the legal decisions to her top deputies—the loss of her license supports claims that she should step aside while the criminal case against her unfolds, and will also give more fodder for those in the legislature seeking her impeachment.

“I don’t see how you can stay in office,” said former state Supreme Court Justice Sandra Schultz Newman, adding she felt that Kane should step down, at least temporarily, as a result of the suspension.

A statement from Gov. Tom Wolf also pointed to the license suspension as an indication that Kane should step down.

Monday’s “action taken by the Supreme Court is further proof that Attorney General Kane can no longer perform the duties of her office, and as the governor has said, she should step down,” said Jeffrey Sheridan, a spokesman for Wolf’s office, in an emailed statement.

SUPREME COURT ACTION

William H. Lamb, chairman at Lamb McErlane and a former Supreme Court justice, agreed that the Supreme Court’s order is another indication that Kane’s situation is impeding her ability to serve.

“It is unique, but I think the court has adopted a philosophy now of acting very promptly and erring on the side of caution and being very conscious of the public issue that this involves,” Lamb said. “The public can’t have confidence in somebody with that kind of cloud hanging over their heads.”

The justices made clear in Monday’s per curiam order that the suspension should not be construed as a removal from elected office.

“The court was very careful in its order not to disbar her, but to suspend her for the reason that she’s been indicted on these charges. But they’re not making a decision on ultimately her guilt or innocence,” Lamb said.

Noting that Kane faces serious charges and that the suspension is not permanent, Newman said that she felt the high court acted properly.

“It had to have been done as far as I’m concerned,” she said. “I was expecting that decision.”

Former Chief Justice Ronald D. Castille said the next major question is how the suspension will affect Kane’s role in the Office of Attorney General. Discipline could reach the level of disbarment, he said, and he expects an “all or nothing” approach.

“They’re going to suspend her license and then rule that she cannot be attorney general,” Castille said, adding that Kane will have an opportunity to defend herself in arguments before that happens.

“They’ll definitely grant her a hearing because they’re waiting to hear what she has to say and what the [Office of Disciplinary Counsel] has to say,” Castille said.

But Lamb said he expects the justices to wait for a resolution to the criminal case.

“Prior practice of the disciplinary board leads me to believe that they will now defer to the prosecution in Montgomery County,” Lamb said. “The legislature is a different story.”

GOVERNOR AND Lawmakers

Members of the House introduced a resolution seeking to impeach Kane before she was even charged criminally. The constitution also says any elected civil officer, other than the governor, lieutenant governor, General Assembly members and judges, can be removed by the governor for reasonable cause with approval from two-thirds of the Senate.

When asked if the governor was considering initiating any removal procedures, Sheridan said, “In the event the attorney general does not resign, it is premature to comment on other actions.”

Drew Crompton, general counsel to the Republican Senate majority caucus, said he doesn’t know of any immediate plans to initiate a removal process, but he and others have been researching the constitutional parameters for removing an elected official prior to a conviction.

“Because of the fact that we have yet found any information that this provision has been invoked to date, there’s a fair amount of legal and constitutional research required,” Crompton said.

Based on that research and input from other constitutional lawyers, Crompton said it appears the Senate is able to initiate the removal procedure, but it’s unclear whether that is the only way it can begin. But the preliminary research also involves explanation of terms like “incompetent,” and how they relate to the situation at hand.

“At some point the senators will want to know a detailed explanation of … what [Kane] is capable of doing and what she specifically is incapable of doing,” Crompton said. “It’s going to take some time to work through it. There’s no impetus to act rashly.”

Rep. Daryl Metcalfe, R-Butler, the lead sponsor of the resolution to impeach Kane, said the “swift” option would be removal by the governor with Senate approval rather than impeachment. But he has gained support for impeachment, he said, including members of the Democratic caucus.

“If somebody does not have a license to practice law then they can’t practice law,” Metcalfe said. “We certainly can’t have the chief law enforcement officer of Pennsylvania in a position where she can’t practice law.”

COURT CHALLENGES

Aside from removal or disciplinary proceedings, another avenue exists for Kane’s status as a lawyer to affect her position and office. Defendants are going to use the circumstances surrounding Kane to attack cases brought by her office, Castille said.

“There’s going to be collateral attacks too [on cases brought by her office],” Castille said. “If her office hands out an indictment with her name on it, it’s going to be questioned.”

When asked about the possibility of legal challenges in criminal proceedings over Kane’s suspension, Ardo said, “I think that the office is prepared to deal with any eventuality resulting from yesterday’s court order.”

When asked about the use of state time and resources to review Kane’s capacity to serve, Ardo said “lawyers are constantly trying to determine legal issues. This is simply another issue with which they need to deal.”

IMAGE: Pennsylvania Attorney General Kathleen Kane speaks during a news conference Aug. 12 at the State Capitol in Harrisburg. AP photo by Matt Rourke

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