Bob Bernick’s notebook: Just one guy’s opinion

Never before has a legal opinion by Utah Attorney General Sean Reyes carried more weight on one day, and almost none the next.

Such is GOP politics on Capitol Hill.

“It is just one opinion, it means little,” said Rep. Craig Hall to his House GOP caucus.

“It doesn’t matter,” GOP Gov. Gary Herbert, speaking at his Thursday monthly press conference on KUED Channel 7.

Ahhhh, but apparently it does.

For part of last week – before cooler heads prevailed – it looked like the Legislature was preparing to go to court over this “now-not-important,” yet-to-be-seen, opinion written and signed by Reyes.

And one can only guess that this written document would have been, and still may be, an embarrassment to Herbert.

For it likely will say – and still carrying the weight of an official AG opinion – that Herbert exceeded his authority when he:

1) Declined to call lawmakers into special session earlier this year to codify how a special election in the 3rd U.S. House District will be conducted.

2) Instead, promulgated the election rules himself, along with Lt. Gov. Spencer Cox and Cox’s Utah Election Office.

There are valid legal arguments on both sides.

Herbert says he would be derelict if he hadn’t moved forward, lacking as he was any existing law telling him which route to follow. Given that, he followed regular election law, truncated to get a vote on this November’s ballot.

The legislative leaders – both Republicans and Democrats – say lacking specific election law, Herbert should have called them into special session, and let them perform their constitutional duty of providing “time, place and manner” of election rules.

But here’s the catch:

— After House Speaker Greg Hughes and Senate President Wayne Niederhauser asked Reyes – who under state law is supposed to render legal opinions for all state agencies, the Legislature and local governments – Herbert acted to block the release of that opinion.

Herbert said Thursday it is “patently false” that he or anyone in his office threatened to file ethics charges against the assistant AGs who drafted the unseen opinion, if it was turned over to Hughes and Niederhauser.

No such threats were made, said the governor.

But it is accurate to say that Herbert and his in-house attorneys said Reyes could not give the Legislature this opinion because it would violate Herbert’s attorney/client privilege. And that – separate from what the opinion says – is the real issue here.

Previously, Paul Edwards, Herbert’s spokesperson, told UtahPolicy that attorney/client privilege with the AG will not be sacrificed. Period.

Key here is the general legal ethical rule that if one attorney in a law firm or group is representing one side in an argument, and another attorney in the group is asked to represent the other side – and gives advice – then the whole group or law firm must recuse itself.

UtahPolicy has come into the possession of a Utah State Bar ethical ruling issued in 1994 that addresses this issue: It says while the above is true for private law firms, it is ALLOWED for a large government legal office, like the AG’s, to “wall off” the group of attorneys representing one agency from the attorneys representing another agency, and go forward to represent both agencies.

Or in this case – Herbert on one hand and the Legislature on the other.

Here is that Bar advisory.


If this advisory were followed, the Herbert/Reyes conflict of interest or client/attorney privilege argument would fall apart.

In any case, it is likely that at some point Reyes’ opinion to Hughes and Niederhauser will become public – through media GRAMA requests, or even an official GRAMA request by Hughes and Niederhauser.

Now, after making a big deal of it, GOP legislators and Herbert argue whatever that opinion says is unimportant, since it is only one lawyer’s opinion, not a court ruling.

But it is hard to imagine that the governor wouldn’t be upset, or embarrassed, if the special election process he set up is seen as somehow unfair or illegal by the Utah Attorney General.

I, personally, really like the process Herbert and Cox set up – for it allows for candidates to chose the signature-gathering route to get on the party’s Aug. 15 primary election.

Something I’ve advocated for since the SB54 compromise with Count My Vote in 2014.

It also follows key dates of this year’s municipal elections, saving taxpayers millions of dollars in election costs.

As Herbert put it Thursday, just going the delegate/convention route, as some GOP legislative leaders advocated, would keep 190,000 3rd District Republican voters out of the nomination process.

Reyes’ secret opinion likely addresses this.

But who cares? It is just one guy’s opinion.

Really? We’ll see.