(Reprinted with amendments adopted on May 23, 2023)
THIRD REPRINT S.B. 34
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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 or a political subdivision of the State. Section 1 also authorizes 19
the Attorney General, chief legal officer or other authorized representative to 20
employ special counsel with respect to such actions or proceedings if the Attorney 21
General, chief legal officer or other authorized representative, as applicable, 22
determines that it is impracticable, uneconomical or could constitute a conflict of 23
interest for the legal service to be provided by the Attorney General, chief legal 24
officer or other authorized representative. Section 2 of this bill makes a conforming 25
change to indicate the appropriate placement of section 1 in the Nevada Revised 26
Statutes. 27
Existing law defines the term “state judicial officer” to mean a justice of the 28
Supreme Court, senior justice, judge of a district court or senior judge. (NRS 29
41.03385) Section 3.3 of this bill revises the term to include a judge or senior judge 30
of the Court of Appeals. 31
Existing law requires that certain determinations relating to the employment of 32
special counsel be made by the Attorney General prior to trial. (NRS 41.03435) 33
Section 3.7 of this bill removes the requirement that such determinations be made 34
prior to trial. 35
In general, existing law: (1) provides that the Attorney General and his or her 36
deputies are the legal advisers on all state matters arising in the Executive 37
Department of the State Government; and (2) prohibits persons in the Executive 38
Department from employing other counsel to represent the State or any agency in 39
the Executive Department unless the Attorney General and the deputies of the 40
Attorney General are disqualified to act in the matter. (NRS 228.110) Section 4 of 41
this bill authorizes a person in the Executive Department to employ counsel other 42
than the Attorney General to represent the State or any agency in the Executive 43
Department if the Attorney General determines that it is impracticable, 44
uneconomical or could constitute a conflict of interest for the Attorney General or a 45
deputy of the Attorney General to serve as the legal adviser on the matter. Section 46
4 also requires compensation for such counsel to be paid out of: (1) the Reserve for 47
Statutory Contingency Account; or (2) available federal grants or a permanent fund 48
in the State Treasury other than the State General Fund. 49
Section 4.3 of this bill requires the Office of the Attorney General to submit a 50
report, on or before July 1 of each odd-numbered year, to the Director of the 51
Legislative Counsel Bureau for distribution to the Joint Interim Standing 52
Committee on the Judiciary that includes, without limitation, a list of each contract 53
for outside legal counsel entered into by the Executive Department of State 54
Government during the immediately preceding biennium and, for each such 55
contract, the names of the parties to the contract and the monetary amount of the 56
contract. 57
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
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(a) Within 7 days after the delivery or service of the summons 1
or subpoena, the person submits a written request for 2
representation to the official attorney, and, if the person has an 3
administrative supervisor, his or her administrative supervisor, 4
unless a waiver is granted pursuant to subsection 9; and 5
(b) The official attorney determines that such representation is 6
in the best interest of the State or a political subdivision of the 7
State. 8
2. As soon as reasonably practicable after receiving a request 9
pursuant to subsection 1, the official attorney shall determine 10
whether to represent the person who submitted the request and 11
provide written notice of his or her determination to that person. 12
3. No fact pertaining to the arrangements or circumstances 13
by which the State or a political subdivision or any attorney 14
thereof represents any person or does not represent a person 15
pursuant to this section is admissible in evidence in any action or 16
proceeding, except in connection with an application to withdraw 17
as the attorney of record. 18
4. If the official attorney determines that it is impracticable, 19
uneconomical or could constitute a conflict of interest for the 20
official attorney to provide the legal services associated with 21
representing a person pursuant to this section, the official attorney 22
may employ special counsel to render such legal services. 23
Compensation for special counsel employed by an official attorney 24
pursuant to this subsection must be paid in accordance with the 25
requirements prescribed by NRS 41.03435 or 41.0344, as 26
applicable. 27
5. At any time after a written request is submitted pursuant to 28
subsection 1, the person requesting representation may employ his 29
or her own counsel to represent him or her in the action or 30
proceeding. At that time, the State or political subdivision is 31
excused from any duty to represent that person and is not liable 32
for any expenses associated with the action or proceeding, 33
including, without limitation, court costs and attorney’s fees. 34
6. The official attorney may apply to a court to withdraw from 35
representing a person pursuant to this section at any time after the 36
official attorney has appeared in an action or proceeding to 37
represent the person upon notice to the person. Such notice must 38
include, without limitation, the reason for the requested 39
withdrawal. 40
7. If a court grants a motion to withdraw brought by the 41
official attorney pursuant to subsection 6, the State or any political 42
subdivision has no duty to continue to represent the person who is 43
the subject of the motion to withdraw. 44
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8. The provisions of this section do not abrogate or otherwise 1
alter or affect any immunity from, or protection against, any civil 2
action or civil liability which is provided by law to a local judicial 3
officer, state judicial officer, officer or employee of the State or a 4
political subdivision, immune contractor, State Legislator, member 5
of a state board or commission or member of a local board or 6
commission for any act or omission relating to the person’s public 7
duties or employment. 8
9. The official attorney may waive the requirement for 9
notification prescribed by paragraph (a) of subsection 1 for good 10
cause shown. 11
10. Nothing in this section shall be construed to require an 12
official attorney to represent any present or former local judicial 13
officer, state judicial officer, officer or employee of the State or a 14
political subdivision, immune contractor or State Legislator in any 15
action or proceeding. 16
11. As used in this section, “action or proceeding” means any 17
action, suit, matter, cause, hearing, appeal or proceeding. 18
Sec. 2. NRS 41.03375 is hereby amended to read as follows: 19
41.03375 As used in NRS 41.03375 to 41.03473, inclusive, 20
and section 1 of this act, unless the context otherwise requires, the 21
words and terms defined in NRS 41.03377, 41.0338 and 41.03385 22
have the meanings ascribed to them in those sections. 23
Sec. 3. (Deleted by amendment.) 24
Sec. 3.3. NRS 41.03385 is hereby amended to read as follows: 25
41.03385 “State judicial officer” means a justice or senior 26
justice of the Supreme Court, [senior justice,] judge or senior judge 27
of the Court of Appeals or judge or senior judge of a district court . 28
[or senior judge.] 29
Sec. 3.7. NRS 41.03435 is hereby amended to read as follows: 30
41.03435 The Attorney General may employ special counsel 31
whose compensation must be fixed by the Attorney General, subject 32
to the approval of the State Board of Examiners, if the Attorney 33
General determines [at any time prior to trial] that it is 34
impracticable, uneconomical or could constitute a conflict of interest 35
for the legal service to be rendered by the Attorney General or a 36
deputy attorney general. Compensation for special counsel must be 37
paid out of: 38
1. The Reserve for Statutory Contingency Account; or 39
2. Available federal grants or a permanent fund in the State 40
Treasury other than the State General Fund. 41
Sec. 4. NRS 228.110 is hereby amended to read as follows: 42
228.110 1. Except as otherwise provided in NRS 228.111 to 43
228.1118, inclusive, and 228.112 to 228.1127, inclusive, or by 44
specific statute: 45
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(a) The Attorney General and the duly appointed deputies of the 1
Attorney General shall be the legal advisers on all state matters 2
arising in the Executive Department of the State Government. 3
(b) No officer, commissioner or appointee of the Executive 4
Department of the Government of the State of Nevada shall employ 5
any attorney at law or counselor at law to represent the State of 6
Nevada within the State, or to be compensated by state funds, 7
directly or indirectly, as an attorney acting within the State for the 8
State of Nevada or any agency in the Executive Department thereof 9
unless [the] : 10
(1) The Attorney General and the deputies of the Attorney 11
General are disqualified to act in such matter [.] ; or 12
(2) The Attorney General determines that it is 13
impracticable, uneconomical or could constitute a conflict of 14
interest for the Attorney General or a deputy of the Attorney 15
General to serve as the legal adviser in such matter. 16
2. Compensation for any attorney or counselor at law 17
employed as special counsel by the Attorney General must be paid 18
in accordance with the requirements prescribed by NRS 41.03435. 19
3. All claims for legal services rendered in violation of this 20
section shall be void. 21
Sec. 4.3. On or before July 1 of each odd-numbered year, the 22
Office of the Attorney General shall submit a report to the Director 23
of the Legislative Counsel Bureau for distribution to the Joint 24
Interim Standing Committee on the Judiciary that includes, without 25
limitation: 26
1. A list of each contract entered into pursuant to NRS 27
228.110, as amended by section 4 of this act during the immediately 28
preceding biennium; and 29
2. For each such contract listed in the report, the names of the 30
parties to the contract and the monetary amount of the contract. 31
Sec. 4.7. The provisions of subsection 1 of NRS 218D.380 do 32
not apply to any provision of this act which adds or revises a 33
requirement to submit a report to the Legislature. 34
Sec. 5. 1. This section and sections 3, 3.3 and 3.7 of this act 35
become effective upon passage and approval. 36
2. Sections 1, 2, 4, 4.3 and 4.7 of this act become effective on 37
October 1, 2023. 38
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