Bill Text: CA AB471 | 2009-2010 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Legal services.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Vetoed) 2010-09-25 - Vetoed by Governor. [AB471 Detail]
Download: California-2009-AB471-Amended.html
Bill Title: Legal services.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Vetoed) 2010-09-25 - Vetoed by Governor. [AB471 Detail]
Download: California-2009-AB471-Amended.html
BILL NUMBER: AB 471 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 6, 2009
INTRODUCED BY Assembly Member Nava
FEBRUARY 24, 2009
An act to amend Sections 11040, 11041, and 11045 of, to
add Section 11046 to, to repeal Section 11043 of, and to repeal and
add Section 11042 of, the Government Code, relating to legal
services. An act to amend Sections 11040 and 11042 of,
and to add Sections 11042.1, 11042.2, 11042.3, and 11046 to, the
Government Code, relating to legal services.
LEGISLATIVE COUNSEL'S DIGEST
AB 471, as amended, Nava. Legal services.
Existing law requires certain state entities to obtain written
consent from the Attorney General before employing legal counsel in
any judicial proceeding.
This bill would recast these provisions and specifically
authorize a state agency, as defined, to use in-house legal counsel
in a noncivil litigation matter , define terms for
their purposes, and state several factors the Attorney General may
consider when considering consenting to a state agency, commissioner,
or officer employing in-house counsel or outside counsel, as defined
.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11040 of the
Government Code is amended to read:
11040. (a) This article does not affect the right of any state
agency or employee to employ counsel in any matter of the state,
after first having obtained the written consent of the Attorney
General.
(b) It is the intent of the Legislature that overall efficiency
and economy in state government be enhanced by employment of the
Attorney General as counsel for the representation of state agencies
and employees in judicial and other proceedings.
The Legislature finds that it is in the best interests of the
people of the State of California that the Attorney General be
provided with the resources needed to develop and maintain the
Attorney General's capability to provide competent legal
representation of state agencies and employees in any judicial
proceeding.
(c) Except with respect to employment by the state officers and
agencies specified by title or name in Section 11041 or when
specifically waived by statute other than Section 11041, the written
consent of the Attorney General is required prior to employment of
outside counsel for representation of any state agency or
employee in any judicial or other proceeding.
SEC. 2. Section 11042 of the Government
Code is amended to read:
11042. No A state agency,
commissioner, or officer shall may
employ any in-house legal counsel
other than to provide legal advice. However,
only the Attorney General, or one of his or her
assistants or deputies, in any matter shall
represent a state agency, commissioner, or officer in a judicial or
other proceeding in which the agency, commissioner, or officer
is interested, or is a party as a result of office or official duties
, unless express written consent is given by the Attorney
General .
SEC. 3. Section 11042.1 is added to the
Government Code , to read:
11042.1. Nothing in this article prohibits the Attorney General
from providing a state agency, commissioner, or officer, with legal
advice outside the context of a judicial or other proceeding, as
defined in Section 11046.
SEC. 4. Section 11042.2 is added to the
Government Code , to read:
11042.2. When the Attorney General consents to a state agency,
commissioner, or officer employing in-house counsel or outside
counsel in a judicial or other proceeding, the Attorney General shall
retain authority to intervene in the proceeding or appear as amicus
curiae to the extent permitted by law.
SEC. 5. Section 11042.3 is added to the
Government Code , to read:
11042.3. In determining whether to give consent to a state
agency, commissioner, or officer to employ in-house counsel or
outside counsel in a judicial or other proceeding, and the extent of
such consent, the Attorney General may consider the factors of
conflicts of interest, the staffing needs of the Office of the
Attorney General, and the availability of subject matter expertise.
SEC. 6. Section 11046 is added to the
Government Code , to read:
11046. For purposes of this article and unless otherwise
specifically stated, the following definitions shall apply:
(a) "In-house counsel" means a licensed attorney employed in state
service by a state agency and represented by State Bargaining Unit
2.
(b) "Judicial and other proceedings" means litigation in a civil
court, an administrative adjudicatory proceeding governed by the
Administrative Procedure Act (Chapter 4 (commencing with Section
11370)) or by the United States Administrative Procedure Act (5
U.S.C. 551, et seq.), or an arbitration proceeding.
(c) "Outside counsel" means an attorney licensed to practice law
that does not otherwise meet the definition of subdivision (a).
SECTION 1. Section 11040 of the Government Code
is amended to read:
11040. (a) It is the intent of the Legislature that overall
efficiency and economy in state government is enhanced by the
employment of the Attorney General as the legal counsel for
representation of every state agency in civil litigation.
(b) The Legislature finds that it is in the best interests of the
state to provide the Attorney General with the resources needed to
develop and maintain the Attorney General's capability to provide
competent legal representation of every state agency.
SEC. 2. Section 11041 of the Government Code is
amended to read:
11041. (a) Only the Attorney General, or an assistant or deputy
of the Attorney General, shall act as the legal counsel to a state
agency in civil litigation, unless the employment of outside counsel
is expressly authorized under this section or another provision of
law.
(b) (1) The Attorney General, in his or her discretion, may
authorize a state agency to employ outside legal counsel to act on
behalf of the state agency in civil litigation. The Attorney General'
s authorization under this paragraph shall only be effective if it is
express and in writing.
(2) The Attorney General may withdraw authorization granted under
paragraph (1) at any time and in any manner.
(c) This section shall not apply to the Regents of the University
of California, the Trustees of the California State University, Legal
Division of the Department of Transportation, Division of Labor
Standards Enforcement of the Department of Industrial Relations,
Workers' Compensation Appeals Board, Public Utilities Commission,
State Compensation Insurance Fund, Legislative Counsel Bureau,
Inheritance Tax Department, Secretary of State, State Lands
Commission, Alcoholic Beverage Control Appeals Board (except when the
board affirms the decision of the Department of Alcoholic Beverage
Control), State Department of Education, and Treasurer with respect
to bonds, nor to any other state agency which, by law enacted after
Chapter 213 of the Statutes of 1933, is authorized to employ legal
counsel.
(d) The Trustees of the California State University shall pay the
cost of employing legal counsel from their existing resources.
SEC. 3. Section 11042 of the Government Code is
repealed.
SEC. 4. Section 11042 is added to the
Government Code, to read:
11042. (a) A state agency may employ in-house legal counsel in a
noncivil litigation matter in which the state agency is interested or
is a party as a result of the official duties of the state agency.
(b) The Attorney General may act as legal counsel to a state
agency in any matter, as he or she deems appropriate.
SEC. 5. Section 11043 of the Government Code is
repealed.
SEC. 6. Section 11045 of the Government Code is
amended to read:
11045. (a) (1) Whenever a state agency requests the authorization
of the Attorney General to employ outside counsel as required by
subdivision (b) of Section 11041, the state agency shall, within five
business days of the date the request is transmitted to the Attorney
General, provide the designated representative of State Employees
Bargaining Unit 2 with written notification of the request. The
notice shall include the items enumerated in subdivision (d).
(2) A state agency, other than the office of the Attorney General,
that is not required to obtain the authorization for employing
outside legal counsel as required by subdivision (b) of Section
11041, shall provide written notice of any proposed contract for
outside legal counsel to the designated representative of State
Employees Bargaining Unit 2 five business days prior to execution of
the contract by the state agency. The notice shall include the items
required by subdivision (d). In the event of an emergency that
requires the immediate employment of outside legal counsel, the state
agency shall provide the written notice no later than five business
days after the contract with outside legal counsel is signed.
(3) Whenever the Attorney General determines the need to employ
outside legal counsel pursuant to subdivision (b) of Section 12520,
the Attorney General shall give written notice to the designated
representative of State Employees Bargaining Unit 2 within 10 days of
that determination. The notice shall include the items enumerated in
subdivision (d).
(b) The Attorney General shall provide the designated
representative of State Employees Bargaining Unit 2 with a written
report, at least monthly, of all authorization granted to every state
agency pursuant to subdivision (b) of Section 11041.
(c) Notwithstanding subdivisions (a) and (b), whenever a state
agency submits a proposed contract for outside legal counsel to the
Department of General Services pursuant to Section 10335 of the
Public Contract Code, the state agency shall provide a copy of the
contract to the designated representative of State Employees
Bargaining Unit 2.
(d) "Written notice" within the meaning of this section shall
include, but not be limited to, all of the following:
(1) A copy of the complaint or other pleadings, if any, that gave
rise to the litigation or matter for which a contract is being
sought, or other identifying information.
(2) The justification for the contract, pursuant to subdivision
(b) of Section 19130.
(3) The nature of the legal services to be performed.
(4) The estimated hourly wage to be paid under the contract.
(5) The estimated length of the contract.
(6) The identity of the person or entity that is entering into the
contract with the state.
(e) (1) The notice requirements of this section do not apply to
contracts for expert witnesses or consultations in connection with a
confidential investigation or to any confidential component of a
pending or active legal action.
(2) The exemption authorized in paragraph (1) shall only apply as
long as necessary to protect the confidentiality of the investigation
or the confidential component of a pending or active legal action.
(3) Disclosures made pursuant to this section are deemed to be
privileged communications for purposes of subdivision (c) of Section
912 of the Evidence Code, and shall not be construed to be a waiver
of any privilege or exemption provided by law, including, but not
limited to, the lawyer-client privilege, as described in Section 952
of the Evidence Code, or attorney work product, as described in
Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of
the Code of Civil Procedure.
(f) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding or other written
agreement reached pursuant to Section 3517 or 3517.5, the memorandum
of understanding or agreement shall be controlling without further
legislative action, except that if any provision of the memorandum of
understanding or other agreement requires the expenditure of funds,
the provisions may not become effective unless approved by the
Legislature.
SEC. 7. Section 11046 is added to the
Government Code, to read:
11046. For purposes of this article and unless otherwise
specifically stated, the following definitions shall apply:
(a) "Civil litigation" means any adjudicatory proceeding before an
administrative or judicial body in which a state agency is
interested or is a party as a result of the duties of the state
agency.
(b) "Outside legal counsel" means an attorney who is authorized to
practice law in this state and works in the private sector.
(c) "State agency" means every state office, department, division,
bureau, board, commission, and every officer and employee thereof.
"State agency" does not mean the Regents of the University of
California, the Trustees of the California State University, the
Legislature, or the courts or any other entity within the judicial
branch of state government.
