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First Substitute H.B. 138
Representative Greg J. Curtis proposes to substitute the following bill:
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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; REVISING THE GENERAL DUTIES OF THE
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ATTORNEY GENERAL; OUTLINING THE RELATIONSHIP OF THE PUBLIC CLIENT AND
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THE ATTORNEY GENERAL; OUTLINING PROVISIONS FOR THE GOVERNOR TO
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APPEAR IN A CIVIL LEGAL ACTION; REPEALING THE PUBLIC ATTORNEYS ACT; AND
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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67-5-1 (Superseded 01/01/01), as last amended by Chapter 371, Laws of Utah 1999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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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
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 take charge, as attorney, [represent the state in] of all civil
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legal matters in 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
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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 2.
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
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capacity is a party; and take charge, as attorney, of all civil legal matters in which the state is
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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
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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 the issuance of process
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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
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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
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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 [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
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the condition of public business entrusted to their charge;
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(7) give [his] the attorney general's opinion in writing and without fee to the Legislature
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or either house, and to any state officer, board, or commission, and to any county attorney or
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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,
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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 [he] the attorney
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general is or may be made a member by the Utah Constitution or by the laws of the state, and other
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duties 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
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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 [he may cite], subpoena any persons
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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
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is discovered that should escheat to the state, [the attorney general shall] institute suit in the district
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court of the county where the property is situated for its recovery, and escheat that property to the
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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 3.
Section
67-5-17
is enacted to read:
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67-5-17. Attorney-client relationship.
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(1) When representing the governor, lieutenant governor, auditor, or treasurer or when
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representing an agency under the supervision of any of those officers, the attorney general 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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(2) Nothing in Subsection (1) modifies or supercedes any independent legal authority
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granted specifically by statute to the attorney general.
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(3) When the attorney general institutes or maintains a civil enforcement action on behalf
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of the state of Utah that is not covered under Subsection (1), the attorney general shall:
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(a) fully advise the governor, as the officer in whom the executive authority of the state
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is vested, before instituting the action, entering into a settlement or consent decree, or taking an
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appeal; and
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(b) keep the governor reasonably informed about the status of the matter and promptly
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comply with reasonable requests for information.
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(4) In a civil action not covered under Subsection (1) or (3), the attorney general shall:
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(a) keep the governor reasonably informed about the status of the matter and promptly
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comply with reasonable requests for information;
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(b) explain the matter to the extent reasonably necessary to enable the governor to make
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informed decisions regarding the representation; and
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(c) abide by the governor's decisions concerning the objectives of the representation and
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consult with the governor as to the means by which they are to be pursued.
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(5) The governor may appear in any civil legal action involving the state and appoint legal
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counsel to advise or appear on behalf of the governor. The court shall allow the governor's
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appearance.
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Section 4. 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
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to clients.
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Section 67-23-202 (Effective 01/01/01), Public attorneys -- Responsibilities under Rules
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of Professional Conduct.
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Section 5. Effective date.
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(1) Section 2, Section
67-5-1
(Superseded 01/01/01); and Section
67-5-17
take effect on
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May 1, 2000.
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(2) Section 1, Section
67-5-1
(Effective 01/01/01) takes effect January 1, 2001.
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(3) The repeal of Sections
67-23-101
,
67-23-102
,
67-23-103
,
67-23-201
, and
67-23-202
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takes effect on January 1, 2001.
Legislative Review Note
as of 2-9-00 5:58 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.