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Lawmakers probe issue of state’s ‘closet lawyers’

Were attorneys hired illegally by Utah agencies?

SHARE Lawmakers probe issue of state’s ‘closet lawyers’

Utah legislative leaders are sniffing out 46 "closet attorneys" in state government. They want to know what they are doing there and if they were hired illegally.

Gov. Mike Leavitt's office says nothing sinister is going on and that the lawyers aren't — well, really lawyering. They are just managers who happen to have juris doctorate degrees.

Legislative leaders aren't necessarily buying that, and they want to study the matter further.

State law says only the attorney general and his staff can act as attorneys for any state agency. It also says that no state agency can hire an attorney without the approval of the attorney general.

But 16 state agencies, including Leavitt's office, and three universities have hired 46 lawyers over the years. And the Legislature's Executive Appropriations Committee wants some answers as to to why, and whether they were hired by the Human Resources Department without the approval of Attorney General Mark Shurtleff or his predecessor.

Last week the committee, which is made up of Republican and Democratic leaders in the House and Senate, voted to further investigate the 36 attorneys in state agencies and the eight hired by the University of Utah, one at Weber State University and one at Utah State University.

"Is it possible that (state agencies) didn't follow the law" in hiring the lawyers because the attorney general didn't approve the hire? asked House Majority Leader Kevin Garn, R-Layton.

"Yes," said legislative fiscal analyst Gary Ricks.

But Gary Doxey, legal counsel to Leavitt, said the argument is really one of definition. Doxey, whose position is specifically allowed under state law, said there may be 36 people working in state agencies who have juris doctorate degrees, but they are not writing opinions for their bosses and certainly aren't representing the state in court. Only the attorney general does that, Doxey said.

"They are not really practicing law" in their state jobs, he added. "And there is really no overlap between what they are doing and what the assistant attorneys general (helping state agencies) are doing," Doxey said. But several of the legislators, including a couple who are also attorneys, said they are worried about such "closet attorneys."

"Why does the University of Utah have eight attorneys" on staff? asked Sen. John Valentine, R-Orem, who is a tax attorney.

No immediate answer came forward. But Ricks noted that a separate law passed by the Legislature several years ago allows colleges and universities to hire their own in-house counsel.

House Minority Whip Patrice Arent, D-South Cottonwood, is an attorney who used to work both for the Legislature and for the Attorney General's Office. She said the U. has a medical center and hospital, both of which require a great deal of legal work. Other Utah universities don't have such facilities.

Shurtleff has 195 attorneys in his staff and a budget of $32 million a year to run what has been called the largest law firm in the state. The 36 non-attorney general's attorneys in state agencies are costing $2.2 million a year in salaries alone. Ricks couldn't find a figure on what the 10 attorneys at the universities are costing the state.

But House Minority Whip Patrice Arent said even with that large AG staff, state agencies are complaining "that sometimes they have to sign contracts" without having an assistant attorney general read the document first "because the AG's office is so over-worked."

That supports the need for someone on an agency staff who can help with such legal work, she said. "Many of these closet attorneys may have a J.D. degree but they aren't a member of the bar and really aren't practicing law," Arent said.

Senate President Al Mansell, R-Sandy, said, however, that some state agencies have been hiring away good assistant AGs from Shurtleff's office — people who are clearly members of the bar — paying them $10,000 to $15,000 a year more. "We are defeating ourselves" when a state agency hires away an attorney from Shurtleff, and budgets are just going up, he said.

Sen. Pete Suazo, D-Salt Lake, said legislators had to deal with that pay inequity issue both with the Legislature's own staff attorneys and with the attorney general's staff in the last session — giving extra pay raises to both groups to keep their lawyers from being hired away, sometimes by other state agencies.

"This is a problem we've been concerned about for some time," Garn said. "There is ambiguity about who can give legal advice" to state agency bosses. "I think we're having cases where (agency heads) are not calling up the AG for an opinion but asking someone in-house and going from there."

That speaks to the issue of liability, said House Assistant Majority Whip Greg Curtis, R-Sandy, who is a lawyer working now as Salt Lake County Mayor Nancy Workman's counselor.

If a state agency takes action based on a wrong legal opinion rendered by a closet attorney, the attorney is working outside of his legal job description, and he and the state could be liable, Curtis said.

E-mail: bbjr@desnews.com