Ark. Code Ann. § 25-16-702 (2020)
Representation of state agencies and officers generally — Employment of outside counsel
- The Attorney General shall be the attorney for all state officials, departments, institutions, and agencies. Whenever any officer or department, institution, or agency of the state needs the services of an attorney, the matter shall be certified to the Attorney General for attention.
-
- All office work and advice for state officials, departments, institutions, and agencies shall be given by the Attorney General and his or her assistants, and no special counsel shall be employed or additional expense paid for those services.
- If, in the opinion of the Attorney General, it shall at any time be necessary to employ special counsel to prosecute any suit brought on behalf of the state or to defend a suit brought against any official, board, commission, or agency of the state, the Attorney General, with the approval of the Governor, may employ special counsel. The compensation for the special counsel shall be fixed by the court where the litigation is pending, with the written approval of the Governor and the Attorney General. The Attorney General shall not enter into any contract for the employment of outside legal counsel without first seeking prior review by the Legislative Council.
- If any official, department, institution, or agency of the state needs the service of an attorney and the Attorney General fails to render the service when requested in writing, then, upon the establishment of that fact, the Governor may appoint counsel to look after the matter or may authorize the employment of counsel by the officer, department, agency, or institution needing the services of an attorney.
- Any person violating the provisions of this section shall be subject to indictment and upon conviction fined in any sum not less than two hundred dollars ($200) nor more than two thousand dollars ($2,000) and, upon proper proceedings, removed from office.
- The Attorney General shall have authority to initiate civil lawsuits under all state and federal environmental protection statutes.
History. Acts 1933, No. 14, §§ 1, 2, 5-7; Pope's Dig., §§ 5599, 5600, 5602-5604; A.S.A. 1947, §§ 12-701, 12-708 — 12-711; Acts 1989 (1st Ex. Sess.), No. 46, § 16; 1991, No. 609, § 2.
Publisher's Notes. Acts 1991, No. 609, § 1, provided:
“It is the public policy of this state that vigorous efforts be made to protect our fragile environment. Recognizing that duties concerning protection of the environment have been assigned to several agencies of state government, it is found that to enhance efforts to protect the environment, authority for instituting civil suits to protect the environment in the courts of this state and of the United States should be placed in the office of the Attorney General.”
Acts 1991, No. 609, § 3, provided:
“This Act shall not be construed as superseding or impairing any legal authority currently vested with the Arkansas Department of Pollution Control and Ecology, nor shall this Act in any way affect programs delegated by federal agencies to the Arkansas Department of Pollution Control and Ecology.”
Cross References. Consumer Protection Division, § 4-88-105.
Criminal extradition, duties of Attorney General, § 16-94-204.
Duty to defend cities, towns, counties, § 21-9-304.
Suits for recovery of state property and lands, § 22-5-401.
Tax collection duties, §§ 26-26-1614, 26-26-1704, 26-26-1706.
Research References
Ark. L. Rev.
Katherine E. McDonald, Comment: “Pay to Sue” — Contingency-Fee Arrangements When Representing the State: A Review of Section 25-16-702 of the Arkansas Code, 66 Ark. L. Rev. 775 (2013).
Case Notes
Agency Representation.
Attorney general's office did not have an irreconcilable conflict of interest in representing the Arkansas Board of Architects where it also represented the State Board of Registration for Professional Engineers and Land Surveyors in disciplinary proceedings against engineers; the Attorney General was only representing the Board of Architects, not the Board of Engineering, and the latter board was in no way involved in this case. Holloway v. Ark. State Bd. of Architects, 352 Ark. 427, 101 S.W.3d 805 (2003).
Property owners' challenge to the Attorney General's representation was rejected where among those sued by the property owners were state agency employees, members of the licensing board, and the state attorney who advised the agencies. Watkins v. Ark. Dep't of Agric., 2018 Ark. App. 460, 560 S.W.3d 814 (2018).
Intervention.
The Attorney General can intervene in any suit involving any agency or department if his services are “necessary and desirable.” Parker v. Murry, 221 Ark. 554, 254 S.W.2d 468 (1953); Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).
Attorney General was not entitled to intervene in proceeding for the purpose of defending state officer who was being defended by his own attorney in absence of showing that attorney was not efficiently representing officer. Parker v. Murry, 221 Ark. 554, 254 S.W.2d 468 (1953).
Jurisdiction.
The chancery court lacked subject-matter jurisdiction to issue the writ of mandamus to restrain the counsel for the Arkansas Department of Finance and Administration from representing the State of Arkansas before the United States Supreme Court, the effect of which was to thwart the state's certiorari petition from being docketed in the Supreme Court. Barclay v. Farm Credit Servs., 340 Ark. 65, 8 S.W.3d 517 (2000).
Cited: Rodgers v. University of Ark. for Medical Sciences, 275 Ark. 139, 628 S.W.2d 11 (1982); Holloway v. State Bd. of Architects, 79 Ark. App. 200, 86 S.W.3d 391 (2002).