Power struggle a question of balance
The idea is so counterintuitive, it’s hard to comprehend. Yet counterintuitive, and counter to history, is what the governor is suggesting: Take the key “counsel” out of Idaho’s chief counsel.
Politically or personally motivated, historically, executives and attorneys general are not new to conflict. Perhaps that’s as it should be; democratic checks and balances, designed to keep power limited, by nature lead to “who’s the boss” debates. While Idaho’s specifics will be addressed elsewhere by The Press, let’s focus on the AG’s potential identity shift. This could mean no more advice to state agencies — radical change to one of its most basic functions since 1885 in Idaho, and in the U.S. since 1789.
The state is a state attorney general’s client. Sounds obvious, but it’s the foundational question of any attorney’s role and duty, whether public or private — defining who is “the client.” Consider the confusion when a corporation hires a lawyer. Sometimes the CEO who signed the fee contract forgets the attorney doesn’t work for him, but rather for the company as a whole. That’s whose broader interests the lawyer is duty-bound, by legal ethics and the license allowing him to practice, to represent, advise, and inform.
An attorney general’s client is a government. “Government” is the sum of its agencies, departments, and officers, all who represent the citizens. So if “agencies” — a key chunk of the collective client “government” — are removed, who is the AG’s client, and how does he represent the whole client without advising and communicating with the whole? That’s like representing someone’s left hand, but not their right, with one of your own tied behind your back.
To put it simply, the basic role of an attorney general is similar to other attorneys: to give legal advice and represent in court. Described by the National Association of (states) Attorneys General, AGs “serve as counselors to their legislatures and state agencies.” Originating in mid-13th century England, the U.S. AG’s office was created by the Judiciary Act of 1789 to advise the whole government through its leaders and agencies. At the federal level, the AG also supervises the Department of Justice, which includes federal law enforcement agencies.
While some AG duties vary beyond the basics from one jurisdiction to the next, Idaho’s is fairly typical. “Typical” includes the authority to issue formal opinions to state agencies; act as public advocates in child enforcement and consumer protections; propose legislation; enforce laws; represent the state and its agencies before state and federal courts; handle criminal appeals and serious statewide criminal prosecutions (occasionally advising county prosecutors); and represent the public’s interests in charitable organizations, such as compliance oversight.
All these listed by the NAAG are enumerated in Idaho law. Idaho’s office of AG was established and defined under Article IV of the Idaho Constitution, and Title 67 of Idaho Code (sections 1401-1409). As in federal and state counterparts, Idaho’s code provisions specifically refer to advising and representing state agencies. Many of the functions listed could not be executed without such direct advice.
Take away the basic role of adviser to state agencies, and it would be pretty difficult to represent them in court, enforce the laws they’re tasked with carrying out, or identify problems and recommend legal fixes. How does one represent a client without advising that client? Or differently put, close the door to half the client you’re obligated to advise?
Talk about obstructing your own lawyer.
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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Contact her at Sholeh@cdapress.com.