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H.B. 138
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PUBLIC ATTORNEYS ACT AMENDMENTS
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Greg J. Curtis
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AN ACT RELATING TO STATE AFFAIRS; DEFINING THE ATTORNEY-CLIENT
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RELATIONSHIP BETWEEN THE COUNTY OR DISTRICT ATTORNEY AND THE
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ELECTED COUNTY EXECUTIVE OR COUNTY LEGISLATIVE BODY; REVISING THE
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GENERAL DUTIES OF THE ATTORNEY GENERAL; OUTLINING THE RELATIONSHIP
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OF THE PUBLIC CLIENT AND THE ATTORNEY GENERAL; OUTLINING PROVISIONS
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FOR THE GOVERNOR TO APPEAR IN A CIVIL LEGAL ACTION; REPEALING THE
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PUBLIC ATTORNEYS ACT; AND PROVIDING EFFECTIVE DATES.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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67-5-1 (Effective 01/01/01), as last amended by Chapters 371 and 372, Laws of Utah 1999
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67-5-1 (Superseded 01/01/01), as last amended by Chapter 371, Laws of Utah 1999
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ENACTS:
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17-5-301, Utah Code Annotated 1953
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17-18-6, Utah Code Annotated 1953
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67-5-17, Utah Code Annotated 1953
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REPEALS:
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67-23-101 (Effective 01/01/01), as enacted by Chapter 372, Laws of Utah 1999
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67-23-102 (Effective 01/01/01), as enacted by Chapter 372, Laws of Utah 1999
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67-23-103 (Effective 01/01/01), as enacted by Chapter 372, Laws of Utah 1999
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67-23-201 (Effective 01/01/01), as enacted by Chapter 372, Laws of Utah 1999
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67-23-202 (Effective 01/01/01), as enacted by Chapter 372, Laws of Utah 1999
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
17-5-301
is enacted to read:
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17-5-301. Control and direction of litigation.
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(1) (a) For a county that has adopted an optional form of county government that provides
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for an elected county executive, the control of the prosecution and defense of any civil action under
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Subsection
17-18-6
(3) to which the county is a party, or if not a party, where the county has
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assumed the defense and indemnification of county officers, employees, or volunteers, shall vest
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in the elected county executive.
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(b) If a county's form of government does not provide for an elected county executive, the
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control of the prosecution and defense of any civil action under Subsection
17-18-6
(3) to which
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the county is a party, or if not a party, where the county has assumed the defense and
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indemnification of county officers, employees, or volunteers, shall vest in the county legislative
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body.
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(c) The control and direction of the prosecution of any civil action to which any elected
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county officer in his or her official capacity is a party under Subsection
17-18-6
(1) and where the
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county is not also named as a party shall vest in the elected officer or the officer's designee.
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(2) The representation and the relationship between the county or district attorney and the
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client shall be subject to the limitations and requirements of Section
17-18-6
and such other
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limitations and requirements as are imposed by the Rules of Professional Conduct or applicable
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statute.
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(3) The county, upon the request of the county or district attorney or as otherwise
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authorized by law, may employ counsel to assist the county or district attorney in conducting such
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actions and representing the county and its officers, employees, and volunteers.
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Section 2.
Section
17-18-6
is enacted to read:
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17-18-6. Attorney-client relationship.
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(1) As used in this section, "client" means:
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(a) For a county that has adopted an optional form of county government that provides for
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an elected county executive, the client is the elected county executive.
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(b) If a county's form of government does not provide for an elected county executive, the
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client is the county legislative body.
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(2) In action brought by a constituent officer of the county in matters to which the county
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is not a party, the county or district attorney in representing the officer shall:
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(a) keep the officer or the officer's designee reasonably informed about the status of a
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matter and promptly comply with reasonable requests for information;
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(b) explain a matter to the extent reasonably necessary to enable the officer or the officer's
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designee to make informed decisions regarding the representation;
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(c) abide by the officer's or designee's decisions concerning the objectives of the
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representation and consult with the officer or designee as to the means by which they are to be
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pursued; and
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(d) jointly by agreement, establish protocols with the officer to facilitate communications
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and working relationships with the officer or agencies under the officer's supervision.
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(3) When the county or district attorney institutes or maintains a civil enforcement action
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on behalf of the county that is authorized by law and which is not covered under Subsection
68a
h [
(1)
]
(2)
h ,
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the county or district attorney shall:
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(a) fully advise the client, as the officer in whom the executive authority of the county is
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vested, or a designee of the client, before instituting the action, entering into a settlement or
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consent decree, or taking an appeal; and
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(b) keep the client reasonably informed about the status of the matter and promptly comply
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with reasonable requests for information.
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(4) In a civil action not covered in Subsection h [
(1) or (2)
]
(2) OR (3)
h to which the county
75a
is a party, or
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in which the county is not a party but has assumed the defense and indemnification of officers,
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employees, or volunteers of the county, the county or district attorney shall:
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(a) keep the client and the officer, employee, or volunteer reasonably informed about the
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status of the matter and promptly comply with reasonable requests for information;
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(b) explain the matter to the extent reasonably necessary to enable the client to make
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informed decisions regarding the representation and the officer, employee, or volunteer to
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participate in the representation; and
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(c) abide by the client's decisions concerning the objectives of the representation and
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consult with the client as to the means by which they are to be pursued.
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(5) Nothing in this section supercedes, modifies, or limits any independent legal authority
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granted specifically by statute to the county or district attorney.
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Section 3.
Section
67-5-1 (Effective 01/01/01)
is amended to read:
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67-5-1 (Effective 01/01/01). General duties.
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The attorney general shall[, subject to Title 67, Chapter 23, Public Attorneys Act]:
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(1) perform all duties in a manner consistent with the attorney-client relationship under
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Section
67-5-17
;
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[(1)] (2) except as provided in Sections
10-3-928
and
17-18-1
, attend the Supreme Court
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and the Court of Appeals of this state, and all courts of the United States, and[, as attorney,]
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prosecute or defend all causes to which the state, or any officer, board, or commission of the state
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in an official capacity is a party; and h
TAKE CHARGE
h , as attorney h [
, represent the state in
]
OF
h
95a
all civil legal matters in
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which the state is interested;
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[(2) with approval of the client:]
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[(a) initiate legal proceedings in a court of competent jurisdiction on behalf of the state,
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or any officer, board, commission, agency, or instrumentality of the state for the purpose of
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opposing or challenging federal laws, regulations, or court orders and their impact on or
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applicability to the state; and]
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[(b) as the budget permits, retain outside legal counsel with appropriate expertise to
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represent the state in the legal proceedings;]
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(3) after judgment on any cause referred to in Subsection (1), direct[, with approval of the
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client,] the issuance of process as necessary to execute the judgment;
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(4) account for, and pay over to the proper officer, all moneys that come into the attorney
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general's possession that belong to the state;
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(5) keep a file of all cases in which the attorney general is required to appear, including
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any documents and papers showing the court in which the cases have been instituted and tried, and
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whether they are civil or criminal, and:
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(a) if civil, the nature of the demand, the stage of proceedings, and when prosecuted to
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judgment, a memorandum of the judgment and of any process issued whether satisfied, and if not
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satisfied, the return of the sheriff;
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(b) if criminal, the nature of the crime, the mode of prosecution, the stage of proceedings,
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and when prosecuted to sentence, a memorandum of the sentence and of the execution, if the
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sentence has been executed, if not executed, of the reason of the delay or prevention; and
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(c) deliver this information to the attorney general's successor in office;
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(6) exercise supervisory powers over the district and county attorneys of the state in all
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matters pertaining to the duties of their offices, and from time to time require of them reports of
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the condition of public business entrusted to their charge;
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(7) give the attorney general's opinion in writing and without fee to the Legislature or
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either house, and to any state officer, board, or commission, and to any county attorney or district
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attorney, when required, upon any question of law relating to their respective offices;
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(8) when required by the public service or directed by the governor, assist any district or
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county attorney in the discharge of his duties;
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(9) purchase in the name of the state, under the direction of the state Board of Examiners,
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any property offered for sale under execution issued upon judgments in favor of or for the use of
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the state, and enter satisfaction in whole or in part of the judgments as the consideration of the
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purchases;
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(10) when the property of a judgment debtor in any judgment mentioned in Subsection (9)
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has been sold under a prior judgment, or is subject to any judgment, lien, or encumbrance taking
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precedence of the judgment in favor of the state, redeem the property, under the direction of the
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state Board of Examiners, from the prior judgment, lien, or encumbrance, and pay all money
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necessary for the redemption, upon the order of the state Board of Examiners, out of any money
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appropriated for these purposes;
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(11) when in his opinion it is necessary for the collection or enforcement of any judgment,
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institute and prosecute on behalf of the state any action or proceeding necessary to set aside and
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annul all conveyances fraudulently made by the judgment debtors, and pay the cost necessary to
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the prosecution, when allowed by the state Board of Examiners, out of any money not otherwise
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appropriated;
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(12) discharge the duties of a member of all official boards of which the attorney general
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is or may be made a member by the Utah Constitution or by the laws of the state, and other duties
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prescribed by law;
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(13) institute and prosecute proper proceedings in any court of the state or of the United
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States, to restrain and enjoin corporations organized under the laws of this or any other state or
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territory from acting illegally or in excess of their corporate powers or contrary to public policy,
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and in proper cases forfeit their corporate franchises, dissolve the corporations, and wind up their
148
affairs;
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(14) institute investigations for the recovery of all real or personal property that may have
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escheated or should escheat to the state, and for that purpose, subpoena any persons before any of
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the district courts to answer inquiries and render accounts concerning any property, examine all
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books and papers of any corporations, and when any real or personal property is discovered that
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should escheat to the state, institute suit in the district court of the county where the property is
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situated for its recovery, and escheat that property to the state;
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(15) administer the Children's Justice Center as a program to be implemented in various
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counties pursuant to Sections
67-5b-101
through
67-5b-107
; and
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(16) assist the Constitutional Defense Council as provided in Title 63C, Chapter 4,
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Constitutional Defense Council.
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Section 4.
Section
67-5-1 (Superseded 01/01/01)
is amended to read:
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67-5-1 (Superseded 01/01/01). General duties.
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The attorney general shall:
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(1) perform all duties in a manner consistent with the attorney-client relationship under
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Section
67-5-17
;
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[(1)] (2) except as provided in Sections
10-3-928
and
17-18-1
, attend the Supreme Court
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and the Court of Appeals of this state, and all courts of the United States, and prosecute or defend
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all causes to which the state, or any officer, board, or commission of the state in an official
167
capacity is a party; and take charge, as attorney, of all civil legal matters in which the state is
168
interested;
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[(2) when jointly agreed by the governor and the attorney general:]
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[(a) initiate legal proceedings in a court of competent jurisdiction on behalf of the state,
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or any officer, board, commission, agency, or instrumentality of the state for the purpose of
172
opposing or challenging federal laws, regulations, or court orders and their impact on or
173
applicability to the state; and]
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[(b) as the budget permits, retain outside legal counsel with appropriate expertise to
175
represent the state in the legal proceedings;]
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(3) after judgment on any cause referred to in Subsection (1), direct the issuance of process
177
as necessary to execute the judgment;
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(4) account for, and pay over to the proper officer, all moneys [which] that come into [his]
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the attorney general's possession[,] that belong to the state;
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(5) keep a file of all cases in which [he] the attorney general is required to appear,
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including any documents and papers showing the court in which the cases have been instituted and
182
tried, and whether they are civil or criminal, and:
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(a) if civil, the nature of the demand, the stage of proceedings, and when prosecuted to
184
judgment, a memorandum of the judgment and of any process issued whether satisfied, and if not
185
satisfied, the return of the sheriff;
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(b) if criminal, the nature of the crime, the mode of prosecution, the stage of proceedings,
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and when prosecuted to sentence, a memorandum of the sentence and of the execution, if the
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sentence has been executed, if not executed, of the reason of the delay or prevention; and
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(c) deliver this information to [his] the attorney general's successor in office;
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(6) exercise supervisory powers over the district and county attorneys of the state in all
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matters pertaining to the duties of their offices, and from time to time require of them reports of
192
the condition of public business entrusted to their charge;
193
(7) give [his] the attorney general's opinion in writing and without fee to the Legislature
194
or either house, and to any state officer, board, or commission, and to any county attorney or
195
district attorney, when required, upon any question of law relating to their respective offices;
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(8) when required by the public service or directed by the governor, assist any district or
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county attorney in the discharge of his duties;
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(9) purchase in the name of the state, under the direction of the state Board of Examiners,
199
any property offered for sale under execution issued upon judgments in favor of or for the use of
200
the state, and enter satisfaction in whole or in part of the judgments as the consideration of the
201
purchases;
202
(10) when the property of a judgment debtor in any judgment mentioned in Subsection (9)
203
has been sold under a prior judgment, or is subject to any judgment, lien, or encumbrance taking
204
precedence of the judgment in favor of the state, redeem the property, under the direction of the
205
state Board of Examiners, from the prior judgment, lien, or encumbrance, and pay all money
206
necessary for the redemption, upon the order of the state Board of Examiners, out of any money
207
appropriated for these purposes;
208
(11) when in his opinion it is necessary for the collection or enforcement of any judgment,
209
institute and prosecute on behalf of the state any action or proceeding necessary to set aside and
210
annul all conveyances fraudulently made by the judgment debtors, and pay the cost necessary to
211
the prosecution, when allowed by the state Board of Examiners, out of any money not otherwise
212
appropriated;
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(12) discharge the duties of a member of all official boards of which [he] the attorney
214
general is or may be made a member by the Utah Constitution or by the laws of the state, and other
215
duties prescribed by law;
216
(13) institute and prosecute proper proceedings in any court of the state or of the United
217
States, to restrain and enjoin corporations organized under the laws of this or any other state or
218
territory from acting illegally or in excess of their corporate powers or contrary to public policy,
219
and in proper cases forfeit their corporate franchises, dissolve the corporations, and wind up their
220
affairs;
221
(14) institute investigations for the recovery of all real or personal property that may have
222
escheated or should escheat to the state, and for that purpose [he may cite], subpoena any persons
223
before any of the district courts to answer inquiries and render accounts concerning any property,
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[may] examine all books and papers of any corporations, and when any real or personal property
225
is discovered that should escheat to the state, [the attorney general shall] institute suit in the district
226
court of the county where the property is situated for its recovery, and escheat that property to the
227
state;
228
(15) administer the Children's Justice Center as a program to be implemented in various
229
counties pursuant to Sections
67-5b-101
through
67-5b-107
; and
230
(16) assist the Constitutional Defense Council as provided in Title 63C, Chapter 4,
231
Constitutional Defense Council.
232
Section 5.
Section
67-5-17
is enacted to read:
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67-5-17. Attorney-client relationship.
234
(1) When representing the governor, lieutenant governor, auditor, or treasurer or when
235
representing an agency under the supervision of any of those officers, the attorney general shall:
236
(a) keep the officer or the officer's designee reasonably informed about the status of a
237
matter and promptly comply with reasonable requests for information;
238
(b) explain a matter to the extent reasonably necessary to enable the officer or the officer's
239
designee to make informed decisions regarding the representation;
240
(c) abide by the officer's or designee's decisions concerning the objectives of the
241
representation and consult with the officer or designee as to the means by which they are to be
242
pursued; and
243
(d) jointly by agreement, establish protocols with the officer to facilitate communications
244
and working relationships with the officer or agencies under the officer's supervision.
245
(2) Nothing in Subsection (1) modifies or supercedes any independent legal authority
246
granted specifically by statute to the attorney general.
247
(3) When the attorney general institutes or maintains a civil enforcement action on behalf
248
of the state of Utah that is not covered under Subsection (1), the attorney general shall:
249
(a) fully advise the governor, as the officer in whom the executive authority of the state
250
is vested, before instituting the action, entering into a settlement or consent decree, or taking an
251
appeal; and
252
(b) keep the governor reasonably informed about the status of the matter and promptly
253
comply with reasonable requests for information.
254
(4) In a civil action not covered under Subsection (1) or (3), the attorney general shall:
255
(a) keep the governor reasonably informed about the status of the matter and promptly
256
comply with reasonable requests for information;
257
(b) explain the matter to the extent reasonably necessary to enable the governor to make
258
informed decisions regarding the representation; and
259
(c) abide by the governor's decisions concerning the objectives of the representation and
260
consult with the governor as to the means by which they are to be pursued.
261
(5) The governor may appear in any civil legal action involving the state and appoint legal
262
counsel to advise or appear on behalf of the governor. The court shall allow the governor's
263
appearance.
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Section 6. Repealer.
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This act repeals:
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Section 67-23-101 (Effective 01/01/01), Title.
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Section 67-23-102 (Effective 01/01/01), Definitions.
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Section 67-23-103 (Effective 01/01/01), Scope of chapter.
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Section 67-23-201 (Effective 01/01/01), Public attorneys -- Clients -- Responsibilities
270
to clients.
271
Section 67-23-202 (Effective 01/01/01), Public attorneys -- Responsibilities under Rules
272
of Professional Conduct.
273
Section 7. Effective date.
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(1) Sections
17-5-301
and
17-18-6
; Section 4, Section
67-5-1
(Superseded 01/01/01); and
275
Section
67-5-17
take effect on May 1, 2000.
276
(2) Section 3, Section
67-5-1
(Effective 01/01/01) takes effect January 1, 2001.
277
(3) The repeal of Sections
67-23-101
,
67-23-102
,
67-23-103
,
67-23-201
, and
67-23-202
278
take effect on January 1, 2001.
Legislative Review Note
as of 2-7-00 12:17 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.