The House State Affairs Committee, on a divided voice vote, has backed HB 101, legislation from Reps. John Vander Woude and Bruce Skaug to authorize any state agency to hire outside legal counsel at state expense, rather than use the services of the Idaho Attorney General’s office. The committee’s backing for the bill came despite numerous questions about the cost of the move, which was missing from the bill’s fiscal note, and strong opposition from the Attorney General’s office. You can read my full story here at idahopress.com (subscription required), or pick up Friday's edition of the Idaho Press.
Vander Woude, R-Nampa, told the committee that as far as the cost, “Until you know exactly who and what, it’s almost impossible to figure that one out.”
Skaug said, “This is not intended to hurt our good attorney general’s office in any way, this is to give our agencies the best chance of winning a lawsuit.”
Five former Idaho attorneys general, including four Republicans and one Democrat, came out strongly against the bill in a guest opinion distributed to Idaho newspapers on Feb. 8. "HB 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," wrote the five, David Leroy, Wayne Kidwell, Jim Jones, Al Lance and Tony Park.
Legal representation for state agencies was consolidated under Lance in 1995. That move came after the state's costs for outside lawyers soared from $1.3 million in 1988 to $6 million in 1994, a more than fourfold increase in six years; it reversed a move toward agencies hiring outside counsel that had started in the late 1950s.
Rep. Heather Scott, R-Blanchard, drew a strong response from Deputy Attorney General Brian Kane when she said, “I always kinda think that you get what you pay for.” She said deputy attorneys general “working for 50 or 60 bucks, they obviously can’t make it in the real world as a lawyer.”
“I will put our attorneys up against any attorney in the nation,” Kane responded. “The people who work for our office work so because they have a passion for public service. They believe in the state of Idaho. And they are here to represent the state of Idaho with passion, vigor, intellect, acumen and accuracy. I cannot, I cannot say that you get what you pay for with lawyers. That is an unfair statement. Our lawyers have argued in the United State Supreme Court. Our lawyers teach in law schools. Our lawyers are sought after to present at national organizations and to teach other attorney general’s offices as well as the larger bar. We have litigated toe to toe with lawyers from every single major firm in this nation, every single major law school, and we have more than held our own. We have been incredibly successful.”
“The state of Idaho is blessed to have the bargain and the fortune and the representation that our office provides through our attorneys,” Kane said. “You will not find attorneys of this caliber who are willing to make this sacrifice and serve the state of Idaho for this price.”
Kane noted that a 2015 report from the Legislature’s Office of Performance Evaluations found that nine agencies over four years used outside legal counsel and spent more than $36 million. “Once you open this barn door, understand what the implications are for the budget,” he said. That report recommended that the state evaluate agencies that were using outside attorneys and work to bring more of those in-house.
“This is not a bill that’s being brought by any executive agencies,” Kane told the committee. “It’s not being brought by the governor. … It’s being brought by legislators that have not sat down and talked with our office about what their concerns are. … We should be given an opportunity to discuss the problem and address it.”
Skaug compared the state to the city of Nampa, where he served on the city council; he said they used their city attorney, but also sometimes hired outside lawyers for specialized areas, and he said he wants state agencies to have the same option. Kane said the Attorney General’s office already provides that service for state agencies “whenever they want it.”
“One of the things that I think this legislation discounts is the economies of scale of having an office with 127 attorneys,” Kane said. “We have the ability to reach out across the spectrum of our office. … Even though an agency may go out and say, ‘We need 20 attorneys,’ that doesn’t necessarily mean that our office is going to reduce by 20 attorneys. We operate on a shoestring. … We believe in the efficiency of what our office can do through that economy of scale.”
Rep. Brent Crane, R-Nampa, the committee chair, said he was concerned about a fetal pain bill he supported that drew an unfavorable attorney general’s opinion, then passed anyway and was challenged in court. “How do you defend the law that gets passed, that this body believed in,” he asked Kane, “you’ve got to defend it when you’ve said that that is unconstitutional. How do you wrestle with that internally?”
Kane responded, “Attorneys have to do that all the time. The difference between us and any other attorney is we practice our law 100% publicly. … It’s the difference between being a public attorney and a private attorney. And I think that that provides a great benefit for you as legislators, to be able to look over our shoulder and see what it is that we’re putting out.”
“So does it create difficulty when we deliver an analysis that says, hey, there are constitutional challenges to the defense of this statute? Absolutely.” But, he said, “If we couldn’t present a plausible legal defense of that statute, we wouldn’t go to court on it. So that’s how we thread the needle.”
Two citizens, Casey and Margie Baker of Nampa, also testified against the bill, with Casey Baker suggesting it would create a "buddy system" for hiring lawyers for state agencies, and Margie Baker saying, "If we keep it in the state, I think it's better." No one testified in favor of the bill except the sponsors.
Skaug, in his closing remarks, said, "There is a tried and true free-market truism that competition makes a better result and a lower cost." However, hourly fees for private attorneys in the Boise area can run $400 an hour or more; the Idaho Attorney General's costs are much lower. Kane said the office's hourly rate through the statewide cost-allocation system is $57.88; if it's contracted with outside attorneys, it's $88; and if the Office of Risk Management hires attorneys, it's $150.
HB 101 also would remove the authority of the Office of Attorney General and the state Board of Examiners to screen and pre-qualify attorneys performing contracted legal services for the state.
Skaug said, "There are those issues that are important to our agencies that they need to hire the right attorney for the right job. Give 'em that freedom."
Rep. Chris Mathias, D-Boise, spoke out against the bill. “I feel like we’re trying to swat a mosquito with a sledgehammer here,” he said. “It’s not what we’re adding here, it’s what we’re proposing to remove. … We’ve removed all the checks and balances to make sure that these are qualified, ethically cleared, cost-effective attorneys. … We’re guaranteed to get ourselves into trouble if we take out the ability to pre-approve authorized attorneys to do this work.” Mathias said Casey Baker was right. "This will absolutely create a buddy system," he said.
He also noted that deputy attorneys general assigned to state agencies do specialize in the areas those agencies cover. “You become an expert on your sections of code, what’s happening in your field,” he said.
The bill now moves to the full House.