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sboos@mbssllp.com
MEMORANDUM

TO: Willie Grayeyes

FROM: Steven C. Boos

RE: Stahrs of San Juan County Attomey; direction by County Commission

DATE: November 29, 201 8

One of the concems regarding the transition to a new San Juan County Commissron has
been the legal authority of the Commission over other elected officials in the County, and the
County Attomey in particular. This concem has been highlighted by language contained in a
recent email message from the County Attorney, Kendall Laws. Laws referred to County elected
officials, rncluding himself, as "pseudo independent elected officials." This language suggests
that the County Attomey, and perhaps other County elected officials, are thinking about taking a
position that they are not subject to direction from the Commission. It is therefore important to
understand the lines ofauthority between the Commission and these officials.

L The County Attorney has an attorney-client relationship with the County and is
obligated to follow the Commission's instructions when it acts as an entity on behalf of the
County,

The attomey-client relationship between a County Commission and a County Attomey


are stated in chaptcr l8(a) of Title 17 ofthe utah code. This chapter is entitled "Powers and
Duties of County and District Attomey."

Section l7-18a-802 states that when a County Attorney is acting as civil counsel, he
reprcsents the County as an entity pursuant to Utah Rule ofProfessional Conduct 1.13. This
seition also states that the County Attorney receives direction from the county through its elected
officers, which means the counfy commission acting as a body. ucA section 17-53-l0l(l)(a). It
is important to understand that the direction must come from the Commission in the form of an
official action, such as a resolution, of the Commission as an entity; individual Commissioners
do not to direct the actions of the County Attorney. Salt Lake Cottnty Commission v Salt Lake
County Attorney, 985 P.2d 899,905 (1999).

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Novernber 29, 2018
Page 2

The Counry Attomey must follow the direction of the County Commission on legal
matters as expressed in an official action, even if the County Attorney disagrees with the
wisdom of the direction.I As explained by the Utah Supreme Court in the Salt Lake Countv
decision,

"nothing in Rule 1.l3 gives an elected attorney representing an entity the right to
question the entity's choice of legal options. Furthermore . . . Rule 1.2 of the
Rules of the Rules of Professional Conduct, to which the County Attomey is
bound to adhere, instructs that '[a] lawyer shall abide by a client's decisions
conceming the objectives of representation . . . and shall consult with the client as
to the means by which they are to be pursued.' [citation omitted] Section l7-5-
219 [cunently codified as 17-53-315] of the [Utah] Code reiterates this rule,
stating that the Commission has the right to 'control and direct the prosecution
and defense of all actions to which the county is a party."

Consequently, the County Attomey must follow the direction of the Counry Commission on
legal matters where that direction is contained in a duly adopted official action of the county
Commission.

IL Remedies if the County Attorney refuses to follow the direction of the County
Commission.

It is clear that the County Attorney is required to follow the direction of the County
Commission on legal matters when the Commission places that direction in an official action,
such as a resolution. What remedies does the Commission have if the County Aftorney, after
receiving a resolution, refuses to follow the direction of the County Commission?

This scenario was discussed at length in the Salt Lake Coun,t decision The Utah
Supreme Court stated that a County Commission was not at liberty to hire outside counsel as a
substitute for the County Attomey until it is clear that the Counfy Attorney is unable or unwilling
to perform his duties, includrng following the lawful direction of his client. The simplest way to
determine whether the County Attomey is unwilling to follow the lawful direction of the County
Commissron would be to pass a resolution containing a direction and request a written response
from the County Attomey regarding whether he will follow that direction. However, the
Supreme Court recognized that there may be situations where "the County Attorney will never
admit he is unable or unwilling to perform his duties, thereby paralyzing county govemment."
SaLt Lake County at908.

The Utah Supreme court identified three avenues to resolve such a conflict with a
County Attomey. First, it suggests that the parties consult the Utah Rules ofProfessional
Conduct and attempt to settle the matter among themselves. A solution to the conflict might take

I The Comments to Rule 1 .l3 state "when constituents of the organization make decisions for it,
the decisions ordinarily must be accepted by the lawyer even iftheir utility or prudence is
doubtful."
November 29, 2018
Page 3

the form of the county Attorney agreeing to withdraw his appearance in a given case and then
allowing the County Commission to retain outside counsel to take his place and implement the
direction of the Commission.2

Second, the county commission can appeal to the Utah Attorney General ',to intervene
where the proper role ofa county aftorney is at issue.",salr Lake couny at 90g. The precise form
of the intervention is unclear The decision refers only to a written opinion from the Attomey
General and does not clarify whether such an opinion can force the county Attomey to take
direction from the County Commission or whether it would merely serve as evidence that the
county Attomey is, in fact, unwilling to do his job, thus freeing the commission to hire outside
counsel.

Finally, the Supreme court notes that the commission could file a declaratory iudgment
action in the District court. The exact goal ofsuch litigation is not clarified, although the
Supreme Court does note that such an action would be cumbersome, divisive and slow.

III. Conclusion and Recommendations

The County Aftorney is not a "pseudo independent elected official." Rather, he is the
county's attorney and must accept direction from his client, in much the sarne manner as any
attomey must accept direction from his client. The County issues such direction through official
actions, that is, through resolutions of the County commission. The county Attomey cannot
ignore the direction he receives in such resolutions. If he does decline to take such direction, he
risks being found in violation ofthe Utah Rules of Professional Conduct and may be sanctioned.
It is also possible that he could be displaced by the Utah Attomey General or the state Distdct
Court.

To ensure the County Aftomey complies with the direction of the Commission on
particular issues, the following steps should be taken:

L A resolution should be adopted by the Commission that identifies the case with
specificiry (that is, with the case name and case number); states with specificity the action to be
taken in the case (for example, filing a motion to dismiss); and specifies a precise date by which
time the County Attorney must take the specified action.

2. The resolution must be placed on an agenda of the Commission and approved by


a majoriry of the Commissioners.

3. The resolution must be delivered to the County Attomey. It should be


accompanied by a cover memorandum asking the county Attomey to confirm in writing whether
he is willing to comply with the direction contained in the resolution.

2 Although not stated by the Supreme Court in the Salt Lake County dectsion, this could also
involve filing a professional ethics complaint against the County Attomey for a violation of the
Rules if he refuses to cooperate on any level and follow the lawful direction ofthe County
Commission, although this can be a time-consumrnq Drocess.