North Carolina § 147-17 - May employ counsel in cases wherein State is interested.

§ 147-17. May employ counsel in cases wherein State is interested.

No department, officer, agency, institution, commission, bureau or other organized activity of the State which receives support in whole or in part from the State shall employ private counsel, except with the approval of the Governor. The Governor shall give his approval only if the Attorney General has advised him, as provided in subsection (b) of this section, that it is impracticable for the Attorney General to render the legal services. In any case or proceeding, civil or criminal, in or before any court or agency of this State or any other state or the United States, or in any other matter in which the State of North Carolina is interested, the Governor may employ private counsel as he may deem proper or necessary to represent the interest of the State, and may fix the compensation for their services, subject to the provisions of subsection (c1) of this section. The Attorney General shall be counsel for all departments, officers, agencies, institutions, commissions, bureaus or other organized activities of the State which receive support in whole or in part from the State. Whenever the Attorney General shall advise the Governor that it is impracticable for him to render legal services to any State agency, officer, institution, commission, bureau or other organized activity, or to defend a State employee or former employee as authorized by Article 31A of Chapter 143 of the General Statutes, the Governor may authorize the employment of private counsel, as in his judgment, should be employed to render such services, and may fix the compensation for their services. Subject to the provisions of subsection (c1) of this section, the Governor may direct that the compensation fixed under this section for private counsel shall be paid out of appropriations or other funds credited to the appropriate department, agency, institution, commission, bureau, or other organized activity of the State or out of the Contingency and Emergency Fund. Notwithstanding subsection (c) of this section and G.S. 143C-4-4(b), no State funds shall be withdrawn from the State treasury to pay for litigation services provided by private counsel except as expressly authorized by an appropriation of the General Assembly. As used in this subsection, litigation services include legal work conducted in anticipation of, or in preparation for, any suit or action. As used in this section, private counsel includes any licensed attorney retained by, engaged by, or otherwise representing a department, officer, agency, institution, commission, bureau, or other organized activity of the State but does not include a licensed attorney who holds a permanent budgeted position in either the Department of Justice or the applicable department, officer, agency, institution, commission, bureau, or other organized activity of the State. In those instances when a department, officer, agency, institution, commission, bureau, or other organized activity of the State which receives support in whole or in part from the State shall employ private counsel other than the Attorney General as permitted by law, such employed counsel shall allocate authority between counsel and the State client in conformance with Rule 1.2 of the North Carolina Rules of Professional Conduct. In those instances where more than one counsel is providing legal representation, counsel, or service on a legal matter on behalf of a State client, the client shall designate in writing which of its legal counsel possesses final decision-making authority on behalf of the State client, and other co-counsel shall, consistent with the Rules of Professional Conduct, cooperate with such designated lead counsel. History (1868-9, c. 270, s. 6; 1870-1, c. 111; 1873-4, c. 160, s. 2; 1883, c. 71; Code, ss. 3320, 3324; 1901, c. 744; Rev., s. 5332; C.S., s. 7640; 1925, c. 207, s. 3; 1961, c. 1007; 1963, c. 1009; 1967, c. 1092, s. 2; 1985, c. 479, s. 136; 2011-145, s. 22.4; 2017-57, s. 6.7(a).) Cross References. - As to defense of State employees, see G.S. 143-300.2 through G.S. 143-300.5. Editor's Note. - Session Laws 2015-241, s. 27.9, provides: "Of the amount appropriated for the 2015-2016 fiscal year to the Department of Administration, the Department shall allocate the sum of fifty thousand dollars ($50,000) in nonrecurring funds for hiring private counsel for pending litigation to confirm the State's title to certain lands brought pursuant to the Department's authority under G.S. 146-2. In the discretion of the Department, G.S. 114-2.3 and G.S. 147-17(a) through (c) shall not apply to the Department if the Department is engaged in litigation for which funding is provided in this section. The Secretary may retain private counsel to represent the Department to be paid with State funds appropriated in this section. If private counsel is to be so retained to represent the Department, the Secretary shall designate lead counsel who shall possess final decision-making authority with respect to the representation, counsel, or service for the Department. Other counsel for the Department shall, consistent with the Rules of Professional Conduct, cooperate with such designated lead counsel." Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'" Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium." Session Laws 2015-241, s. 33.6, is a severability clause. Session Laws 2017-57, s. 15.18(b), (c), provides: "(b) Notwithstanding G.S. 147-17 and G.S. 114-2.3, the North Carolina Industrial Commission is authorized to use the funds carried forward under subsection (a) of this section to employ and supervise private counsel. "(c) Notwithstanding G.S. 1-521, 147-17, and 114-2.3, of the funds appropriated to the North Carolina Industrial Commission in this act, the sum of three hundred thousand dollars ($300,000) for the 2017-2018 fiscal year may be used for private legal services, litigation-related expenses, and the defense of any member in his or her official capacity arising from S.L. 2016-125. The funds allocated in this section shall not revert." Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'" Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium." Session Laws 2017-57, s. 39.6, is a severability clause. Effect of Amendments. - Session Laws 2011-145, s. 22.4, effective July 1, 2011, added subsection (d). Session Laws 2017-57, s. 6.7(a), effective July 1, 2017, in subsection (a) substituted "private counsel" for "any counsel" in the first sentence, substituted "private counsel" for "such special counsel"; substituted "services, subject to the provisions of subsection (c1) of this section." for "services" in the last sentence; substituted "private counsel" for "such counsel" in subsection (b); in subsection (c), added "Subject to the provisions of subsection (c1) of this section," to the beginning of the first sentence and substituted "private counsel" for "special counsel"; added subsection (c1); and added "private" prior to "counsel" in the first sentence of subsection (d). Legal Periodicals. - For article, "Student Legal Services at the University of North Carolina at Chapel Hill," see 7 N.C. Cent. L.J. 286 (1976). For article, "The Common Law Powers of the Attorney General of North Carolina," see 9 N.C. Cent. L.J. 1 (1977). For survey of 1984 administrative law, "A Declining Role for the Attorney General," see 63 N.C.L. Rev. 1051 (1985).