Phil Strach, attorney for the legislative defendants in a racial gerrymandering case, carries a box of files out of the federal courthouse in Greensboro in 2018. (Photo by Melissa Boughton/NC Newsline)
State elections director Sam Hayes hired one of North Carolina Republicans’ go-to lawyers to defend the state Board of Elections in a lawsuit this year, even though that lawyer was representing clients with active lawsuits against the board in four other cases in state and federal court.
Phil Strach represents Republican legislators, the Republican National Committee and the state Republican party in redistricting and election cases.
As Hayes sought to hire Strach, Strach asked Hayes to sign a waiver acknowledging that his firm was representing board adversaries in other cases.
“Your consent signifies a waiver of any and all conflicts on behalf of other Firm clients which may exist in present unrelated matters or could arise in future unrelated matters due to this representation,” Strach’s January 30 letter said. “You agree to not use our representation in the New Engagement as a ground for seeking our disqualification in such matters,” Strach’s letter said.
Strach did not return a phone call Monday seeking comment.
In an email Friday, the board’s director of external affairs, Jason Tyson, said there aren’t many lawyers in the state “who know election law to the extent required to handle these cases. We knew Mr. Strach would provide us the representation needed for this case.”
The News & Observer first reported on the waiver letter.
The state board in January denied requests to open early voting sites for the primary at UNC-Greensboro, NC A&T State University, and Western Carolina University.
Hayes hired Strach to represent the state board as college Democrats’ groups and students sued. A federal judge declined to force the campuses to open early voting sites.
Democrats on the state elections board said they did not know in advance about the waiver and sought Monday to try to keep another from being signed without their input.
North Carolina college students lose court battle to open early voting sites on campus
The state board agreed Monday to an Anson Board of Elections’ request for legal assistance in a dispute with the Anson County Board of Commissioners. The state Attorney General’s office advised the board to use someone other than state lawyers, state Board Secretary Stacy “Four” Eggers IV, said.
Board member Siobhan Millen, a Democrat, tried to add a stipulation that each board member would need to sign the conflict of interest waiver if the lawyer Hayes chooses is representing other clients in cases against the board
“I think that’s a personal right,” she said. “No one else can waive that for me.”
The board rejected that request along party lines. Eggers said lawyers representing board members do so in their official capacity, not as individuals.
The board approved hiring a lawyer for the Anson elections board with a 4-1 vote, with Democrat Jeff Carmon opposed.
In an interview after the meeting, Carmon said he didn’t think Strach should have represented the board at the same time he was suing it.
“We can sign that waiver, knowing there’s a conflict,” Carmon said in an interview. “We’d like an opportunity to address that conflict rather than have it be arbitrarily waived.”
The North Carolina Bar Association conflict of interest rule says that lawyers must have written consent if they are defending clients in one case while opposing them in a different case. Lawyers must also believe they “will be able to provide competent and diligent representation to each affected client.”
In the four lawsuits Strach mentioned in his waiver letter, he was representing the Republican National Committee, the NC GOP, individual voters, or members of the Justice For All Party.
The Justice for All Party sued the state board in 2024 when its then-Democratic majority voted against certifying it as a political party. The board reversed itself after a loss in federal court. That case was recently closed.
Two other cases over a requirement that voters supply government identification numbers with their registration have been settled. One was in federal court and the other in state court. In the state court case, Strach represented the Republican National Committee, the state Republican Party, the Wake County Republican Party and individual voters. In the federal court case, he represented the RNC and the state Republican Party.
A case concerning overseas and military voters who may have never lived in the state is still pending in Wake County Superior Court. Strach is representing the RNC, the state Republican Party and individual voters.
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