S.B. 34
- *SB34*
SENATE BILL NO. 34–COMMITTEE ON JUDICIARY
(ON BEHALF OF THE ATTORNEY GENERAL)
PREFILED NOVEMBER 16, 2022
____________
Referred to Committee on Judiciary
SUMMARY—Revises provisions relating to legal representation in
certain actions or proceedings. (BDR 3-422)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State: No.
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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.
AN ACT relating to legal services; authorizing the Attorney General
or the chief legal officer or other authorized representative
of a political subdivision of this State to provide legal
representation to certain officers or employees of the State
or a political subdivision thereof in certain actions or
proceedings; revising provisions relating to special
counsel employed by the Attorney General; revising
provisions governing the legal representation of certain
persons by the Attorney General; and providing other
matters properly relating thereto.
Legislative Counsel’s Digest:
Existing law requires the Attorney General or the chief legal officer or other 1
authorized representative of a political subdivision of this State to provide legal 2
counsel to certain officers or employees of the State or a political subdivision of the 3
State who are named as defendants in a civil action and certain other persons who 4
are not officers or employees of the State or a political subdivision. Existing law 5
authorizes the Attorney General, chief legal officer or other authorized 6
representative to employ special counsel with respect to such civil actions if the 7
Attorney General, chief legal officer or other authorized representative, as 8
applicable, determines that it is impracticable, uneconomical or could constitute a 9
conflict of interest for the legal service to be provided by the Attorney General, 10
chief legal officer or other authorized representative. (NRS 41.0339) 11
Section 1 of this bill authorizes the Attorney General or the chief legal officer 12
or other authorized representative of a political subdivision of the State to represent 13
certain officers or employees of the State or a political subdivision thereof who are 14
summoned or subpoenaed to appear in an action or proceeding in which the person 15
is not a named defendant if: (1) the person submits a written request for 16
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representation; and (2) the Attorney General, chief legal officer or other authorized 17
representative, as applicable, determines that such representation is in the best 18
interest of the State. Section 1 also authorizes the Attorney General, chief legal 19
officer or other authorized representative to employ special counsel with respect to 20
such actions or proceedings if the Attorney General, chief legal officer or other 21
authorized representative, as applicable, determines that it is impracticable, 22
uneconomical or could constitute a conflict of interest for the legal service to be 23
provided by the Attorney General, chief legal officer or other authorized 24
representative. Section 2 of this bill makes a conforming change to indicate the 25
appropriate placement of section 1 in the Nevada Revised Statutes. 26
Existing law requires that certain determinations relating to the employment of 27
special counsel be made by the Attorney General prior to trial. (NRS 41.03435) 28
Section 3 of this bill removes the requirement that such determinations be made 29
prior to trial. Under existing law, compensation for special counsel employed by 30
the Attorney General must be paid out of: (1) the Reserve for Statutory 31
Contingency Account; or (2) available federal grants or a permanent fund in the 32
State Treasury other than the State General Fund. (NRS 41.03435) Section 3 33
removes the prohibition against such compensation being paid out of the State 34
General Fund, thereby authorizing the Attorney General to compensate special 35
counsel using money from a permanent fund in the State General Fund. 36
In general, existing law: (1) provides that the Attorney General and his or her 37
deputies are the legal advisers on all state matters arising in the Executive 38
Department of the State Government; and (2) prohibits persons in the Executive 39
Department from employing other counsel to represent the State or any agency in 40
the Executive Department unless the Attorney General and the deputies of the 41
Attorney General are disqualified to act in the matter. (NRS 228.110) Section 4 of 42
this bill authorizes a person in the Executive Department to employ counsel other 43
than the Attorney General to represent the State or any agency in the Executive 44
Department if the Attorney General determines that it is impracticable, 45
uneconomical or could constitute a conflict of interest for the Attorney General or a 46
deputy of the Attorney General to serve as the legal adviser on the matter. 47
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 41 of NRS is hereby amended by adding 1
thereto a new section to read as follows: 2
1. The official attorney may represent any present or former 3
local judicial officer, state judicial officer, officer or employee of 4
the State or a political subdivision, immune contractor or State 5
Legislator summoned or subpoenaed to appear in an action or 6
proceeding in which the person is not a named defendant, if: 7
(a) Within 7 days after the delivery or service of the summons 8
or subpoena, the person submits a written request for 9
representation to the official attorney, and, if the person has an 10
administrative supervisor, his or her administrative supervisor, 11
unless a waiver is granted pursuant to subsection 9; and 12
(b) The official attorney determines that such representation is 13
in the best interest of the State. 14
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2. As soon as reasonably practicable after receiving a request 1
pursuant to subsection 1, the official attorney shall determine 2
whether to represent the person who submitted the request and 3
provide written notice of his or her determination to that person. 4
3. No fact pertaining to the arrangements or circumstances 5
by which the State or a political subdivision or any attorney 6
thereof represents any person or does not represent a person 7
pursuant to this section is admissible in evidence in any action or 8
proceeding, except in connection with an application to withdraw 9
as the attorney of record. 10
4. If the official attorney determines that it is impractical, 11
uneconomical or could constitute a conflict of interest for the 12
official attorney to provide the legal services associated with 13
representing a person pursuant to this section, the official attorney 14
may employ special counsel to render such legal services. 15
Compensation for special counsel employed by an official attorney 16
pursuant to this subsection must be paid in accordance with the 17
requirements prescribed by NRS 41.03435 or 41.0344, as 18
applicable. 19
5. At any time after a written request is submitted pursuant to 20
subsection 1, the person requesting representation may employ his 21
or her own counsel to represent him or her in the action or 22
proceeding. At that time, the State or political subdivision is 23
excused from any duty to represent that person and is not liable 24
for any expenses associated with the action or proceeding, 25
including, without limitation, court costs and attorney’s fees. 26
6. The official attorney may apply to a court to withdraw from 27
representing a person pursuant to this section at any time after the 28
official attorney has appeared in an action or proceeding to 29
represent the person upon notice to the person. Such notice must 30
include, without limitation, the reason for the requested 31
withdrawal. 32
7. If a court grants a motion to withdraw brought by the 33
official attorney pursuant to subsection 6, the State or any political 34
subdivision has no duty to continue to represent the person who is 35
the subject of the motion to withdraw. 36
8. The provisions of this section do not abrogate or otherwise 37
alter or affect any immunity from, or protection against, any civil 38
action or civil liability which is provided by law to a local judicial 39
officer, state judicial officer, officer or employee of the State or a 40
political subdivision, immune contractor, State Legislator, member 41
of a state board or commission or member of a local board or 42
commission for any act or omission relating to the person’s public 43
duties or employment. 44
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9. The official attorney may waive the requirement for 1
notification prescribed by paragraph (a) of subsection 1 for good 2
cause shown. 3
10. Nothing in this section shall be construed to require an 4
official attorney to represent any present or former local judicial 5
officer, state judicial officer, officer or employee of the State or a 6
political subdivision, immune contractor or State Legislator in any 7
action or proceeding. 8
11. As used in this section, “action or proceeding” means any 9
action, suit, matter, cause, hearing, appeal or proceeding. 10
Sec. 2. NRS 41.03375 is hereby amended to read as follows: 11
41.03375 As used in NRS 41.03375 to 41.03473, inclusive, 12
and section 1 of this act, unless the context otherwise requires, the 13
words and terms defined in NRS 41.03377, 41.0338 and 41.03385 14
have the meanings ascribed to them in those sections. 15
Sec. 3. NRS 41.03435 is hereby amended to read as follows: 16
41.03435 The Attorney General may employ special counsel 17
whose compensation must be fixed by the Attorney General, subject 18
to the approval of the State Board of Examiners, if the Attorney 19
General determines [at any time prior to trial] that it is 20
impracticable, uneconomical or could constitute a conflict of interest 21
for the legal service to be rendered by the Attorney General or a 22
deputy attorney general. Compensation for special counsel must be 23
paid out of: 24
1. The Reserve for Statutory Contingency Account; [or] 25
2. Available federal grants ; or [a] 26
3. A permanent fund in the State Treasury . [other than the 27
State General Fund.] 28
Sec. 4. NRS 228.110 is hereby amended to read as follows: 29
228.110 1. Except as otherwise provided in NRS 228.111 to 30
228.1118, inclusive, and 228.112 to 228.1127, inclusive, or by 31
specific statute: 32
(a) The Attorney General and the duly appointed deputies of the 33
Attorney General shall be the legal advisers on all state matters 34
arising in the Executive Department of the State Government. 35
(b) No officer, commissioner or appointee of the Executive 36
Department of the Government of the State of Nevada shall employ 37
any attorney at law or counselor at law to represent the State of 38
Nevada within the State, or to be compensated by state funds, 39
directly or indirectly, as an attorney acting within the State for the 40
State of Nevada or any agency in the Executive Department thereof 41
unless [the] : 42
(1) The Attorney General and the deputies of the Attorney 43
General are disqualified to act in such matter [.] ; or 44
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(2) The Attorney General determines that it is 1
impracticable, uneconomical or could constitute a conflict of 2
interest for the Attorney General or a deputy of the Attorney 3
General to serve as the legal adviser in such matter. 4
2. All claims for legal services rendered in violation of this 5
section shall be void. 6
Sec. 5. 1. This section and section 3 of this act become 7
effective upon passage and approval. 8
2. Sections 1, 2 and 4 of this act become effective on 9
October 1, 2023. 10
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