Representatives Bruce Skaug and John Vander Woude have proposed legislation that would compromise the ability of State agencies to get sound, cost-effective legal advice and representation. House Bill 101 would take the State’s legal structure back to pre-1995 times, when Idaho’s system for managing state-paid lawyers was wasteful and disjointed.

When Idaho’s Constitution was being fashioned in 1889, the delegates clearly understood and agreed that the Attorney General would be the sole source of legal services for the State. One delegate, A.E. Mayhew, observed that the Attorney General “has to be the adviser of all state officers.”

And so it was until the early 1960s, when some State agencies began hiring their own legal counsel. We all served as Idaho Attorney General during those times and saw the numerous disadvantages of having fragmented legal services. It was not uncommon to find instances where agency heads were being told what they wanted to hear, instead of what the law required. The situation was somewhat along the lines of the old German proverb: “Whose bread I eat, His song I sing.”

Nor was it out of the ordinary to have State agencies crossing swords in court, since many agencies had their own legal empire. A survey conducted during 1985 found that Idaho had almost twice the number of state-paid lawyers per capita than other nearby states where all state-paid lawyers were part of the Attorney General’s office (Oregon, Utah and Colorado).

Al Lance was able to accomplish something all of us agree is the best way to conduct the State’s legal business. That is to consolidate the office so that there can be uniform policies, assurance of across-the-board quality control of work product, and work sharing across agency lines. In those bad old days, it was not unusual for one agency to be periodically starved for legal help, while others had an overabundance. Without a uniform pay scale among agencies, it was difficult to prevent inter-agency pirating of legal talent.

Lawyers who are employed by the Attorney General cannot be used as non-attorney management, which occurred in those old days. Deputy Attorneys General serve at the pleasure of the Attorney General and are subject to dismissal for poor performance, while attorneys contracted by department heads may negotiate contracts providing assured job security, regardless of performance.

The five of us have been on the job in the type of system that House Bill 101 seeks to create and we can attest that it will be a dysfunctional system compared to the consolidated system implemented by Al Lance, which Lawrence Wasden operates in an efficient and cost-effective manner. The current system provides governmental agencies sound legal representation and independent legal judgment so that they can avoid costly mistakes. It ain’t broke and don’t need fixin’.

Passage of this legislation would be violative of the Idaho Constitution and would assuredly invite a court challenge, which we would support. If the bill is motivated by the view that Attorney General Wasden deserves punishment for giving sound legal advice, rather than telling legislators what they want to hear, it won’t work. There is no way to divest the Attorney General of his constitutional authority to speak the truth on important legal issues that are presented to him for his legal opinion.

Submitted by five past Attorneys General of Idaho: Tony Park (1971-1975), Wayne Kidwell (1975-1979), Dave Leroy (1979-1983), Jim Jones (1983-1991), Al Lance (1995-2003).

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