The Utah State Records Committee voted in favor of public disclosure when it ruled last week, unanimously, that the Utah Attorney General’s Office should release a legal opinion it prepared regarding the special election int the 3rd Congressional District.
In May, after the state Elections Office set a timeline for the special election, the Legislature complained that the executive branch was making law. It asked the AG’s office for an opinion regarding whether the executive branch was overstepping its authority.
After preparing the letter, the AG’s office refused to release it due to ethical concerns about a conflict of interest between its clients.
Which raises the question, who is the AG’s client? The AG isn’t appointed by the governor and doesn’t work for the governor. He doesn’t work for the Legislature. Both the governor and the Legislature have dedicated counsel of their own. The AG is elected by the people to represent the state of Utah. We are his client.
So an opinion prepared at the behest of the Legislature but then shielded by the governor is of great public interest. What, or who, is the governor trying to protect? One can only conclude that the opinion states that the Elections Office overstepped its authority when it created the special election timeline.
Otherwise, there would be no conflict with the Legislature big enough to justify the governor not simply waiving privilege. As he should.
Of course the attorney-client privilege is sacrosanct in the law. The privilege is meant to protect a client’s secrets, and fosters the ability to give lawyers complete information when asking for legal advice. But there are no secrets in the opinion at issue, except for the opinion itself. The factual scenario surrounding the special election timeline is known to all parties and the public. The question is, was it legal?
Even more, the rules of professional conduct allow an attorney to reveal a client’s information “to comply with other law.” Utah Code states that the AG’s office “shall … give the attorney general’s opinion in writing and without fee to the Legislature or either house … upon any question of law relating to their respective offices.” The Legislature had a right to an opinion about whether the executive branch was encroaching on a legislative function.
The AG’s office claims its refusal to disclose the opinion has nothing to do with its content and everything to do with the privilege at risk. But by refusing to give the Legislature an opinion required by state law, the AG’s office has made a mountain out of a molehill.
The AG’s office is not an innocent party stuck in a tight spot. It’s an office too weak to stand up to bullies.