Citation Numbers: 73 Op. Att'y Gen. 8
Judges: BRONSON C. La FOLLETTE, Attorney General
Filed Date: 1/5/1984
Status: Precedential
Modified Date: 7/6/2016
WILLIAM A.J. DRENGLER, Corporation Counsel Marathon County
You request advice to clarify language in unpublished opinions of this office, OAG 31-83, dated August 11, 1983, and OAG 38-82, dated May 20, 1982. The latter opinion was addressed to you and stated in part:
You request my opinion whether the Human Services Board of Langlade, Lincoln and Marathon counties, which was organized by the county boards of the three respective counties pursuant to secs.
51.42 (3)(a) and51.437 (4), (7)(b), Stats., to carry out sec.51.42 , Stats., responsibilities for Langlade, Lincoln and Marathon counties, and sec.51.437 , Stats., responsibilities for Langlade and Marathon counties, can retain private legal counsel to advise and act for the Human Services Board in administrative hearings and court proceedings.It is my opinion that it does not have such authority. These legal duties are the responsibilities of the district attorneys or corporation counsel of the respective counties. It is my opinion, however, that the counties could jointly employ a county corporation counsel or assistant county corporation counsel to furnish certain legal service to the Human Services Board. See secs. 59.025(3),
59.07 (44), 66.30, Stats. and 60 Op. Att'y Gen. 313, 314 (1971). The combined board does have authority to purchase limited legal services for certain clients pursuant to secs.46.03 (17),46.036 and 55.04(1)(a)8., Stats. However, in furnishing legal services to clients, a private attorney would be without authority to appear in *Page 9 court as an attorney for the board. Further, there must be no interference with the powers of the district attorney of each county with respect to prosecution of criminal actions in the courts of such county and no interference with the duties of each respective district attorney or county corporation counsel with respect to the prosecution and defense of civil actions in which either the state or respective county is interested.In 63 Op. Att'y Gen. 468 (1974), it was stated that a sec.
51.42 board probably did not have authority to contract with private legal counsel to furnish legal services to the board. I am of the opinion that certain sections of the statutes, not referred to in that opinion, appear to support limited contracts for the purchase of legal services for clients.
The opinion concluded:
I suggest that you, members of the Human Services Board and members of the respective county boards of supervisors review the resolutions, ordinances and contractual agreements involved.
You have not furnished me with copies of the multi-county plan and contractual agreement approved by the respective county boards and Secretary of the Department of Health and Social Services pursuant to section
You state that the Human Services Board of Langlade, Lincoln and Marathon counties continues to retain outside counsel independent of supervision by the district attorneys or corporation counsel of the counties involved. Subsequent to the issuance of OAG 38-82, section 1106 of
*Page 10Enter into contracts to render services to or secure services from other agencies or resources including out-of-state agencies or resources. Notwithstanding ss.
59.07 (44), 59.456 and59.47 , a multicounty board organized under sub. (3) (a) or s.51.437 (7) (b) may contract for professional legal services that are necessary to carry out the duties of the board if the corporation counsel of each county of the multicounty board has notified the board that he or she is unable to provide such services in a timely manner . . . .
Similar amendatory language was made in section
51.437 (9)(c).
You inquire:
1. To what extent does the referenced statutory change modify your opinion contained in OAG 38-82 regarding multicounty
51.437 or51.42 Boards' abilities to hire independent outside counsel not supervised by a district attorney or corporation counsel?
In my opinion the change in the statute grants a multicounty board power to contract for professional legal services with private counsel on an independent contractor basis if sufficient funds are available only "if the corporation counsel of each
county [or district attorney of each county not having a corporation counsel] of the multicounty board has notified the board that he or she is unable to provide such services in a timely manner." The amendment evidently was passed in recognition of the opinion referred to and of the restrictive interpretation of then applicable statutes contained therein. The Legislature could have granted broader power to the board to retain private counsel, but chose to place a strict rein upon its use. The statute mentions only corporation counsel without reference to district attorneys even though powers under section
*Page 11a) If the new statute allows for such hiring, in what manner should a corporation counsel "notif[y] the board that he or she is unable to provide such services in a timely manner?"
No notification is called for unless the board requests the respective corporation counsel or district attorney to provide specific legal services. Notification of inability to provide "such services" could be made by letter to the board citing reasons. Any declination should be fully considered in light of the needs of the board, the staff of the corporation counsel or district attorney, and budget and time limitations.
b) If several member counties of such a service providing board rely on a district attorney because no corporation counsel is employed by those counties, is it presumed said district attorneys must so notify that board as well?
For reasons set forth above, the answer is yes. The multicounty plan and contractual agreement approved by the respective county boards and Secretary of the Department of Health and Social Services under section
c) If a county employs both a corporation counsel and a district attorney and the duties for a
51.42 or51.437 legal services have not been assigned by the County Board to the Corporation Counsel, should the District Attorney or Corporation Counsel or both provide such notification?
In my opinion each officer should notify the board of his or her inability to timely furnish the legal services requested. The letter of notification should in such case note that the county board resolution or ordinance establishing the office of corporation counsel does not authorize the corporation counsel to perform such services. It is conceivable that a multicounty contract could provide that a district attorney of a county not having a corporation counsel furnish legal advice and representation to the multicounty board.
d) If either counsel is unable or unwilling to so "notify the board," is the multi-county51.42 or51.437 Board without power to retain outside counsel?
If any county corporation counsel or district attorney of a county not having a corporation counsel declines to notify the
Your second question relates to language contained in OAG 31-83 which is captioned:
Although a county board in a county with a population of under 500,000 has no permanent or continuing authority to retain special counsel, it may obtain special counsel with the approval of the circuit court under section59.44 on a case-by-case basis in those situations where the district attorney or corporation counsel is unable to continue to perform his or her duties without potentially violating the rules of professional conduct established by the Wisconsin Supreme Court. Unless otherwise provided by statute, in those situations where legal services are required in civil matters and the provisions of section59.44 cannot be utilized, the district attorney or corporation counsel has the exclusive authority to perform or supervise the provision of those services.
At page four of the typewritten opinion it is stated:
A labor negotiator need not necessarily be an attorney. As long as no legal services within the meaning of section59.47 (1) and (3) are performed, the employment of such a person falls within the general authority of the board to manage its business and concerns under section59.07 (5). There is no special statute authorizing a county board to retain independent counsel to engage in labor litigation. Unless a conflict of interest situation has arisen, counsel who performs labor litigation must therefore be an assistant district attorney or an assistant corporation counsel, or be supervised by the district attorney or corporation counsel under section59.44 (3).
You inquire:
2. Regarding OAG 31-83, page 4, how is "labor litigation" defined? That is, at what point is a labor negotiator or advisor hired under general59.07 (5) powers practicing law? If such a person is an attorney, though he or she need not be as noted by your opinion, and negotiation strategies are used or recommended with an awareness of the law, is there some point short of the actual filing of a lawsuit where independent *Page 13 counsel may not be retained without offending your opinion on the provision or supervision of legal services being "vested exclusively in the District Attorney or Corporation Counsel?"
I construe "labor litigation" as used in that opinion and "civil litigation" as used in section
Section
Your third set of questions follows:*Page 14
3. If the County Board determines that certain legal services, such as labor counsel or51.42 /51.437 counsel, are most efficiently provided by a private attorney specialist on an ongoing day-to-day basis, may this be done?a) If this is done, may such counsel be hired as an assistant district attorney or assistant corporation counsel?
b) If this is done, must a district attorney or corporation counsel directly supervise such legal services? If so, to what recommended extent?
c) If such private counsel is unwilling to be supervised by a district attorney or a corporation counsel, would such unwillingness to be supervised change your opinion?
d) If a multi-county
51.42 /51.437 Board chooses to continue to retain independent counsel, what responsibilities do the respective county boards have in this regard?
The answer to your first question is no if you mean that a "private attorney specialist" would be retained as private counsel on an independent contract basis. See OAG 31-83 and discussion under question one. In view of this answer, subquestions (a), (b) and (c) need not be answered. However, it is noted that where attorneys are appointed under section
A multicounty
In submitting future requests, please conform to the requirements to be observed by district attorneys and county corporation counsels set forth in 62 Op. Att'y Gen. Preface (1973). We have not had the benefit of your preliminary research or opinion with respect to your numerous questions.
BCL: RJV *Page 16
State v. Davis , 63 Wis. 2d 75 ( 1974 )
Bablitch & Bablitch v. Lincoln County , 82 Wis. 2d 574 ( 1978 )
Bearns v. Department of Industry, Labor & Human Relations , 102 Wis. 2d 70 ( 1981 )
(1971) , 60 Op. Att'y Gen. 313 ( 1971 )
Pugnier v. Ramharter , 275 Wis. 70 ( 1957 )