Bill Text: CA AB471 | 2009-2010 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Legal services.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Vetoed) 2010-09-25 - Vetoed by Governor. [AB471 Detail]

Download: California-2009-AB471-Introduced.html

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BILL NUMBER: AB 471	INTRODUCED
	BILL TEXT


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.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 471, as introduced, 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.
   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) 
    11040.    (a)    It is the intent of
the Legislature that overall efficiency and economy in state
government  be   is  enhanced by  the
 employment of the Attorney General as  the legal 
counsel for  the  representation of  every 
state  agencies and employees   agency  in
 judicial and other proceedings   civil
litigation  . 
   The 
    (b)     The  Legislature finds that it
is in the best interests of the  people of the State of
California that the Attorney General be provided   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 
agencies and employees in any judicial proceeding  
agency  . 
   (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
counsel for representation of any state agency or employee in any
judicial proceeding. 
  SEC. 2.  Section 11041 of the Government Code is amended to read:
   11041.  (a)  Sections 11042 and 11043 do  
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. 
   (b) 
    (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. 

   11042.  No state agency, commissioner, or officer shall employ any
legal counsel other than the Attorney General, or one of his
assistants or deputies, in any matter in which the agency,
commissioner, or officer is interested, or is a party as a result of
office or official duties. 
  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. 

   11043.  Except as to the State agencies and laws specified in
Section 11041, whenever any law authorizes any State agency to employ
legal counsel other than the Attorney General, it shall be construed
to refer to the Attorney General. The Attorney General may assign to
the State agency assistants or deputies from his staff, under such
terms as he deems necessary to conduct the legal business of or
render legal counsel to the agency. 
  SEC. 6.  Section 11045 of the Government Code is amended to read:
   11045.  (a) (1) Whenever a state agency requests the 
consent   authorization  of the Attorney General to
employ outside counsel  ,  as required by 
subdivision (b) of  Section  11040   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)  All  A  state  agencies
  agency  , other than the office of the Attorney
General, that  are   is  not required to
obtain the  consent required by   authorization
for employi   ng outside legal counsel as required by 
subdivision  (c)   (b)  of Section 
11040   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  consents  
authorization  granted to every state agency pursuant to 
subdivision (b) of  Section  11040   11041
 .
   (c) Notwithstanding  the above notice requirements
  subdivisions (a) and (b)  , whenever  any
  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) "State agency," as used in this section, means every state
office, department, division, bureau, board, or commission, including
the Board of Directors of the State Compensation Insurance Fund, but
does not include the Regents of the University of California, the
Trustees of the California State University, the Legislature, the
courts, or any agency in the judicial branch of government. 

   (f) 
    (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. 
   (g) 
    (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.