Much attention has been focused on a draft legal opinion prepared by my office regarding Utah’s special elections process. Some of the related conjecture is true. Some of it merits clarification.
Despite attempts to characterize this as an open records issue, or a choice among political favorites, this has always been solely an issue of legal ethics. The core discussion is whether an attorney general can represent the state without being compelled to harm the very client he or she is bound by the constitution to defend.
Should the Legislature, the press and the public be able to examine the draft opinion? I believe so. When the credible threat of litigation has passed and our ability to defend our client is not compromised, releasing the opinion would be appropriate. To be clear, I would not release our communications or advice to the client without its consent. However, once ethical guidelines permit, we can comply with the original request from the Legislature clarifying its own special election duties.
Let’s rewind to May of this year when Jason Chaffetz announced he would resign from Congress. At that point, the State faced an unprecedented situation. Governor Herbert felt that state law had already given the executive branch control of the nature and timing of a special election to replace the congressman. The governor and his team consulted with my office in making that determination. The Utah Legislature, consistent with advice from its own legal counsel, disagreed, feeling that the new situation required new legislation. Reasonable arguments could be made on either side. The Governor proceeded to set the terms of the election without calling a special legislative session. The Legislature indicated that it may seek legal redress. Other parties hinted at or openly threatened litigation based on the Governor’s chosen course as well.
Around this time, the Legislature requested my office prepare an opinion letter regarding duties of the Legislature in a special election. To comply with the tight timeframe of the request, attorneys in our office prepared a response while our executive team examined the propriety of the request. The request came through a seldom used law, the practice of which has become disfavored by courts and attorneys general around the country over the past decades. In Utah, only a handful of such opinions have been rendered over the past twenty years as they have no binding weight and often cause more confusion than clarity.
In the rare instances when such opinions are rendered, attorney general offices consider a number of practical and ethical factors before issuing one. No attorney general in the nation would issue an opinion where the request relates to current or threatened litigation. Another disqualifying factor, in many cases, is when separate branches of government are in conflict over the subject matter. In this instance, both disqualifiers were present and the prudent ethical course was to withhold the draft opinion despite having prepared one.
In addition, because the Legislature requested information so closely related to privileged advice already provided to the Governor, this created an added layer of concern. In fact, when my office consulted the State Bar Office of Professional Conduct, the director indicated that sending the opinion to the Legislature over the objection of our client, the Governor, could constitute a violation of our own ethical duties as lawyers. Our responsibility to respond to the Legislature could be viewed as directly in conflict with our duty to protect confidences of our client and could impact our ability to defend litigation brought against our client.
In normal situations, information requests from multiple agencies doesn’t create a problem. In this case, with the Legislature at odds with the Governor over a special election in process, the problem was unsolvable. Advising both on the same legal matter creates a conflict of interest, that neither the rules of professional conduct, legal precedent, nor state statutes can safely remedy or avoid. There was no ethical path forward.
The attorney general's decision
My attorneys and I are public servants who have taken an oath to uphold the law and to do so in an ethical manner. Rather than place the office in an untenable ethical position, I made the conscious decision to honor our client’s wishes and do what any other ethical attorney general would do when disqualifying circumstances exist, and withhold the opinion. No one in the Governor’s office has seen the proposed opinion nor has any idea what it contains.
I’m confident my decision is the right one. We have worked diligently, for nearly four years, to restore public trust in this office. In the fog of conflicting standards, I was unwilling to risk an ethical mark on our record. Releasing the draft letter would put our office too close to the line of violating standards we have sworn to uphold.
If we made a mistake, it was in beginning to work on the opinion while the issue was still unresolved. On the other hand, as Attorney General I need to retain independence to exercise my lawful duties and had I deemed it proper, we wanted to have the opinion prepared as requested.
So where to from here? The bottom line is that we need precision in the law and rules regarding Utah’s independent Attorney General’s office. I plan to partner with stakeholders to provide the definitions needed so when this issue rises again, we have clear standards. We can achieve this clarity along four paths.
First, the Utah State Bar can clarify the standards that apply to the attorney general’s office as a unique law practice. This is already in process. My office has submitted the issue to the Bar and eagerly awaits their carefully considered recommendations.
Second, the Legislature can seek a writ of mandamus from the Supreme Court or other action to clarify the duties of an independent Attorney General’s Office. I would welcome this action.
Third, we can work with our partners in the Legislature to address the issues through legislative action.
Fourth, the attorney general can continue to make decisions — as I have here — limited by conflicting rules, statutes and constitutional responsibilities. This is probably the least desirable option.
It’s worth noting that none of the core issues were addressed by the recent records committee decision, nor could they be. This issue is larger than curiosity about a single draft opinion. Someday, that letter will be released. I believe that day should be soon, after reasonable danger of litigation has passed.
In the meantime, let’s begin to resolve the larger issues that led to the impasse.
Sean Reyes is the Utah Attorney General.