BILL ANALYSIS
AB 471
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Date of Hearing: May 20, 2009
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Kevin De Leon, Chair
AB 471 (Nava) - As Amended: May 6, 2009
Policy Committee:
JudiciaryVote:10-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill clarifies existing law regarding legal representation
of state agencies and officers. Specifically, this bill:
1)Provides that, while a state agency, commissioner, or officer
may employ in-house legal counsel to provide legal advice,
only the Attorney General's (AG's) office shall represent any
of these parties in a judicial or other proceeding in which
the agency, commissioner, or officer is an interested party,
or is a party as a result of their office or official duties,
unless express written consent is given by the AG.
2)Provides that when the AG consents to a state agency,
commissioner, or officer employing in-house or outside counsel
in a judicial or other proceeding, the AG retains authority to
intervene in the proceeding or appear as amicus curiae (friend
of the court) to the extent permitted by law.
3)Clarifies that nothing prohibits the AG 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, the AG may
consider factors such as conflicts of interest, the AG's
staffing needs, and the availability of subject matter
expertise.
5)Defines "judicial and other proceedings," to mean litigation
in any civil court, administrative adjudicatory proceedings
AB 471
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governed by the California Administrative Procedures Act or by
the United States Administrative Procedures Act, or any
arbitration proceeding.
FISCAL EFFECT
Negligible fiscal impact, as the bill simply provides clarity
with respect to appropriate legal counsel in judicial
proceedings and other legal matters.
COMMENTS
Purpose . According to the author, "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 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 bill 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 bill clarifies that the requirement in existing law to
obtain the consent of the AG to employ counsel applies only to
the retention of "outside counsel" for the purposes of
representation in a judicial or other proceeding, and 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.
Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081