STATE OF UTAH Gary R. HERBERT OFFICE OF THE GovERNOR SPENCER J. Cox Governor SALT LAKE City, UTAH LiguTenanT GoveRNon 4114-2220 March 27, 2018 Honorable Gregory H. Hughes Speaker of the House and Honorable Wayne L. Niederhauser President of the Senate Dear Speaker Hughes and President Niederhauser, Thave vetoed HB 198, Attorney General Responsibility Amendments because it poses a significant threat to the ability of the Executive Branch to receive legal counsel from the Attorney General and because it interferes with the Office of the Attomey General’s (OAG) responsibilities to determine for itself whether legal conflicts of interest exist. Pursuant to the Utah Constitution, the Attorney General is the “legal adviser of the State officers.” Art. VIL, Section 16, The Utah Supreme Court declared in Hansen v. Utah Retirement Board, 652 P.2d 1332 (1982), that “State officers” means only the executive officers mentioned in Article VIT of the Utah Constitution and their respective departments. Notably, the Attorney General has no constitutional duty to provide legal counsel to the Legislature, Instead, the Utah Constitution authorizes the Legislature to appoint its own legal counsel. Art. VI, Section 32(2). Under that authority, the Legislature has established the Office of Legislative Research and General Counsel, which consists of about two dozen attomeys who serve the Legislative Branch—including by preparing legal opinions. The Attorney General’s constitutional mandate to be the legal adviser of the Executive cannot be limited by statute, nor can the attorney-client relationship between the Attorney General and the State officers be limited or defined by statute. HB 198 attempts to do just that by stating “[t]he attorney general may not invoke the potential conflict of interest or attorney-client privilege as grounds to withhold or refuse to provide the legal opinion required in Subsection 67-5-1(7) and this section.”Like all attomeys, the OAG has professional responsibilities to carefully evaluate representation of clients to ensure that conflicts of interest do not exist and that its actions will not harm an existing client. Evaluation of those issues is governed by the Rules of Professional Conduct, Specifically, evaluation of whether the OAG may provide an opinion to the Legislature on a matter affecting the OAG’s relationship with an Executive officer or department is governed by Rule 2.3 of the Rules of Professional Conduct. Under that rule’s guidance, the OAG may do so only if it determines that providing the opinion is compatible with its representation of the Executive officer or department, If the OAG concludes that providing an opinion to the Legislature “is likely to affect the [Executive officer’s] interests materially and adversely, the [AG] shall not provide the [opinion] unless the [Executive officer] gives informed consent.” Rule 2.3(b). The Legislature may not change this requirement by statute. HB 198 inappropriately interferes with the OAG’s ability to analyze under Rules of Professional Conduct whether it can provide an opinion to the Legislature. If the OAG concludes that providing a certain opinion to the Legislature will materially and adversely affect the interests of the Executive, the OAG must decline to issue the opinion unless the Executive consents. By imposing a rule of decision contrary to Rule 2.3, HB 198 provides a second standard, one that differs from that articulated by the Utah Supreme Court which has constitutional authority to govern the practice of law. For these reasons, I have vetoed HB 198. Sincerely, (DL Mebut— erbert Gary Governor