BILL ANALYSIS
AB 471
Page 1
Date of Hearing: April 28, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 471 (Nava) - As Introduced: February 24, 2009
As Proposed to be Amended
SUBJECT : LEGAL SERVICES: STATE AGENCIES
KEY ISSUE : SHOULD THE AUTHORITY OF STATE AGENCIES AND THE
ATTORNEY GENERAL WITH RESPECT TO THE EMPLOYMENT OF IN-HOUSE AND
OUTSIDE COUNSEL BE CLARIFIED IN ORDER TO AVOID CONFUSION AND
UNCERTAINTY?
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
SYNOPSIS
This bill is sponsored by the Department of Justice to clarify
when and for what purposes the consent of the Attorney General
is required before state agencies and officers may employ in-
house legal counsel or retain outside counsel. The general rule
to be clarified by this bill is that the office of the Attorney
General is the exclusive representative of state agencies and
officers in judicial and other proceedings, absent the consent
of the Attorney General to employ outside counsel. However,
state agencies are authorized under the bill to employ in-house
counsel for the purposes of providing legal advice. The bill
also states factors that are to guide the discretion of the
Attorney General whether to consent to the retention of outside
counsel. In addition, the bill clarifies that when the Attorney
General consents to the engagement of outside counsel she or he
retains any authority there may be to intervene in the
proceedings or to appear as a friend of the court. There is no
known opposition.
SUMMARY : Clarifies existing law regarding legal representation
of state agencies and officers. Specifically, this bill :
1)Provides that a state agency, commissioner, or officer may
employ in-house legal counsel to provide legal advice.
However, only the Attorney General, or one of his assistants
or deputies, shall represent a state agency, commissioner, or
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officer in a judicial or other proceeding in which the agency,
commissioner, or officer is interested, or is a party as a
result of office or official duties, unless express written
consent is given by the Attorney General.
2)Provides that when the Attorney General consents to a state
agency, commissioner, or officer to employ in-house or outside
counsel in a judicial or other proceeding, the Attorney
General shall retain authority to intervene in the proceeding
or appear as amicus curiae to the extent permitted by law.
3)Clarifies that nothing prohibits the Attorney General from
providing a state agency, commissioner, or officer, with legal
advice outside the context of a judicial or other proceeding.
4)Provides that in determining whether to give consent to a
state agency, commissioner, or officer to employ in-house or
outside counsel in a judicial or other proceeding, and the
extent of such consent, the Attorney General may consider
factors such as conflicts of interest, the staffing needs of
the Attorney General's Office, and the availability of subject
matter expertise.
5)Defines "judicial and other proceedings," to mean litigation
in any civil court, administrative adjudicatory proceedings
governed by the California Administrative Procedures Act or by
the United States Administrative Procedures Act, or any
arbitration proceeding.
6)Defines "outside counsel" to mean a licensed attorney engaged
in the private practice of law and "in-house counsel" to mean
a licensed attorney employed in state service by the state
agency, and represented by State Bargaining Unit 2.
EXISTING LAW requires certain state entities to obtain written
consent from the Attorney General before employing legal counsel
in any judicial proceeding. (Government Code sections 11040 et
seq.)
COMMENTS : The author explains the reason for the bill as
follows: "Under existing law, the Attorney General is
presumptively the legal counsel for state agencies, with some
exceptions. However, the code provisions that establish this
authority are not sufficiently clear and there are state
agencies that are asserting authority to retain legal counsel
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without clear authority to do so. This bill would clearly
establish the Attorney General's authority to act as legal
counsel for state agencies in civil litigation before courts and
administrative bodies. The would also establish clear authority
for state agencies to retain in-house legal counsel to provide
advice in non-litigation matters, without first having to obtain
the Attorney General's consent."
The general rule clarified by this bill is that the office of
the Attorney General is the exclusive representative of state
agencies and officers in judicial and other proceedings. As
proposed to be amended, the bill clarifies that the requirement
in existing law to obtain the consent of the Attorney General to
employ counsel applies only to the retention of "outside
counsel" for the purposes of representation in a judicial or
other proceeding - not to "in-house counsel" for the purposes of
providing legal advice (that is, not for the purposes of
representation in a judicial proceeding), which the bill
expressly authorizes state agencies and others to employ. The
bill also states factors that are to guide the discretion of the
Attorney General whether to consent to the retention of outside
counsel. In addition, the bill clarifies that when the Attorney
General consents to the engagement of outside counsel she or he
retains any authority there may be to intervene in the
proceedings or to appear as a friend of the court.
Author's Clarifying Amendments . In order to better express the
intent of the bill, the author properly proposes to substitute
the current language in the bill for the following amendments to
existing law:
11040. (a) This article does not affect the right of any state
agency or employee to employ counsel in any matter of the state,
after first having obtained the written consent of the Attorney
General.
(b) It is the intent of the Legislature that overall
efficiency and economy in state government be enhanced by
employment of the Attorney General as counsel for the
representation of state agencies and employees in judicial and
other proceedings. The Legislature finds that it is in the best
interests of the people of the State of California that the
Attorney General be provided with the resources needed to
develop and maintain the Attorney General's capability to
provide competent legal representation of state agencies and
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employees in any judicial proceeding.
(c) Except with respect to employment by the state officers
and agencies specified by title or name in Section 11041 or when
specifically waived by statute other than Section 11041, the
written consent of the Attorney General is required prior to
employment of outside counsel for representation of any state
agency or employee in any judicial or other proceeding.
11042. No A state agency, commissioner, or officer may shall
employ in-house legal counsel to provide legal advice. However,
only other than the Attorney General, or one of his assistants
or deputies, shall represent a state agency, commissioner, or
officer in a judicial or other proceeding in any matter in which
the agency, commissioner, or officer is interested, or is a
party as a result of office or official duties, unless express
written consent is given by the Attorney General.
11042.1. Nothing in this chapter prohibits the Attorney General
from providing a state agency, commissioner, or officer, with
legal advice outside the context of a judicial or other
proceeding as defined in section 11046.
11042.2. When the Attorney General consents to a state agency,
commissioner, or officer to employ in-house or outside counsel
in a judicial or other proceeding, the Attorney General shall
retain authority to intervene in the proceeding or appear as
amicus curiae to the extent permitted by law.
11042.3. In determining whether to give consent to a state
agency, commissioner, or officer to employ in-house or outside
counsel in a judicial or other proceeding, and the extent of
such consent, the Attorney General may consider factors such as
conflicts of interest, the staffing needs of the Attorney
General's Office, and the availability of subject matter
expertise.
11046. (a) "Judicial and other proceedings," as used in this
chapter, means litigation in any civil court, administrative
adjudicatory proceedings governed by the California
Administrative Procedures Act (Government Code, section 11370
through 11529) or by the United States Administrative Procedures
Act (5 U.S.C. 551, et seq.), or any arbitration proceeding.
(b) "Outside counsel," as used in this chapter, means a licensed
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attorney engaged in the private practice of law.
(c) "In-house counsel," as used in this chapter, means a
licensed attorney employed in state service by the state agency,
and represented by State Bargaining Unit 2.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334