Over the last few days the Governor has threatened to file two lawsuits. One would challenge the legality of the federal health care bill and the other would challenge the Legislative Counsel Bureau’s recent decision to refrain fromdrafting bills on behalf of the Governor at an upcoming special session.
This brings to light an interesting legal question. What happens if the Governor asks the Attorney General to file a lawsuit and the Attorney General refuses?
NRS 228.110(1) states that the “Attorney General and his duly appointed deputies shall be the legal advisers on all state matters arising in the Executive Department of the State Government.” NRS 228.170(1) states that “[w]henever the Governor directs or when, in the opinion of the Attorney General, to protect and secure the interest of the State it is necessary that a suit be commenced or defended in any federal or state court, the Attorney General shall commence the action or make the defense.”
However, a situation where the Attorney General cannot represent the Governor is contemplated in NRS 228.110(2). That statute provides that “[n]o officer, commissioner or appointee of the Executive Department of the Government of the State of Nevada shall employ any attorney at law or counselor at law to represent the State of Nevada within the State, or to be compensated by state funds, directly or indirectly, as an attorney acting within the State for the State of Nevada or any agency in the Executive Department thereof unless the Attorney General and his deputies are disqualified to act in such matter or unless an act of the Legislature specifically authorizes the employment of other attorneys or counselors at law.”
Furthermore, NRS 223.085(1) provides that the “Governor may, within the limits of available money, employ such persons as he deems necessary to provide an appropriate staff for the Office of the Governor . . .” Governors have historically utilized this provision to include within their staff a licensed Nevada attorney to act as general counsel.
Should the Governor pursue a lawsuit on either the health care bill or against the Legislative Counsel Bureau, and should the Attorney General be unable to represent the Governor in that lawsuit, the Governor would likely argue that his general counsel may prosecute the case under two theories. First, because his general counsel is employed pursuant to NRS 223.085(1), it is a position specifically authorized by the Legislature and is therefore an exception to the general rule of exclusive representation by the Attorney General. Second, because the Attorney General is unable to represent the Governor, the Attorney General is effectively disqualified under the other exception to the same general rule.
However, this is an issue of first impression in Nevada and if such a lawsuit were filed, it would be interesting to see if the defendant would seek to disqualify the Governor’s general counsel by arguing that the exceptions to NRS 228.110(2) do not apply.