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Commentary: Herbert should veto bill that mandates AG opinions

While an AG opinion may be useful, a judicial decision will sometimes be the only way to resolve a dispute when the law is unclear.

Utah Gov. Gary Herbert speaks during an interview at the Utah state Capitol, Thursday, March 8, 2018, in Salt Lake City. (AP Photo/Rick Bowmer)

Last year, the Utah Office of the Attorney General provided advice to the governor regarding the special election to replace Rep. Jason Chaffetz. The Legislature asked the AG to provide an opinion regarding the special election. The governor objected, and the AG did not provide the opinion. (Subsequently the governor consented to the release of a draft opinion, and it has been made public.)

Now the Legislature has passed HB198, which requires the AG to issue an opinion when the Legislature requests it. It provides for screening walls so one division can issue an opinion for the Legislature while a different division is representing conflicting interests. Unfortunately, the provisions of this bill appear to be based on a misunderstanding of the attorney general’s role and will be constitutionally and ethically unworkable in many cases.

The Utah Constitution provides that the AG is “the legal adviser of the state officers.” The Utah Supreme Court has interpreted this to mean the AG is the “legal advisor to the constitutional executive officers referred to in Article VII, i.e. Governor, Lt. Governor, Auditor, Treasurer...” from Hansen v. Utah Retirement Board, 1982.

As noted in that case, the AG is not the legal adviser for the Legislature due to the separation of powers doctrine. The Legislature has the constitutional right to appoint its own legal counsel. No law the Legislature passes can undo this constitutional structure.

While Utah Code 67-5-1 requires the AG to “give the attorney general’s opinion in writing and without fee ... to the Legislature,” it also says the AG “shall (1) perform all duties in a manner consistent with the attorney-client relationship under Section 67-5-17.’’ Utah Code 67-5-17 identifies “the governor, the lieutenant governor, auditor, or treasurer” as the constitutional executive officers with whom the AG possesses an “attorney-client relationship.” Thus, the AG cannot provide an opinion if it is not “consistent with” his relationship with the executive officers.

HB198 purports to require that the AG make provisions so that one division of the AG Office can provide advice to executive officers of the state while a different division of the office can issue an opinion for the Legislature. This is constitutionally and ethically unworkable.

The provisions for the AG to issue opinions are not the same activity as the AG providing advice to the executive branch. Rather, an AG opinion is a “quasi-judicial” act. When the AG issues an opinion it is a public document and establishes the law for the executive branch. It will not be possible for one division of the OAG to issue an opinion — that will be binding on the executive branch — while a different division of the OAG is telling the executive officers that the law is different or is taking a contrary position about the law in court.

The Utah Rules of Professional Conduct address the problem of “issue conflicts” — one attorney or law firm simultaneously taking different public positions. They prohibit even private firms from taking conflicting positions in high-profile cases, even on behalf of different clients.The ethics rules also address the situation of an attorney providing an “evaluation of a matter ... for the use of someone other than the client.”

This is an appropriate legal framework to consider the AG issuing an opinion for the Legislature. Rule 2.3 provides that such an evaluation is appropriate only if this is compatible with the attorney-client relationship.

“When ... the evaluation is likely to affect the client’s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.”

Thus, the ethics rules will permit the AG to provide an opinion for the Legislature only if doing so is compatible with the representation of the executive branch and, in cases such as the special election, if the executive officer who is consulting the AG gives informed consent.

The AG’s ability to issue an opinion at the behest of the Legislature must sometimes take a back seat to the central, constitutionally required role of the AG to represent the executive officers of the state. While an AG opinion may be useful, a judicial decision will sometimes be the only way to resolve a dispute when the law is unclear.

Because House Bill 198 seeks to mandate something that is neither constitutionally nor ethically possible, it would be wise governance for Gov. Gary Herbert to veto this bill.


Linda F. Smith is the James T. Jensen professor of law and the clinical program director at the S.J. Quinney College of Law at the University of Utah.