An analysis of the issue concludes that administrative accommodation may best serve the public interestbranches of government."

And Finally Scott reiterated his basic position as follows:

" I do claim the right to conduct the law business of the Slate of Illinois 'both in and out of court' (Fergus v. Russell, 270 111. 304). I do assert the responsibility of the office of Attorney General to perform all basic legal services of the Stale in the same way that a private lawyer performs those services for a private client. The Attorney General has the power, the duty and responsibility to draft legal documents, render legal opinions, appear as an advocate before administrative tribunals, as well as in court, and to otherwise perform those services that have historically been those of the Attorney General." (Emphasis supplied)

Overlooks inescapable question
Scott's disclaimer of the right to hire administrative aides or executive assistants whose primary obligation is in the Held of administration and policy making — and who also happen to be lawyers — ignores the frequently inescapable conjunction of legal services with the function of administration and policy making. Many administrative agencies adopt rules and regulations which have the force and effect of law. This is clearly a "basic legal service of the State" which is frequently performed by "house counsel" who are not employed or directed by the Attorney General. It is not clear where these employees would fit in Scott's description of his constitutional duty to provide "basic legal services" or to "draft legal documents" or "render legal opinions." Such lawyers have been employed by administrative agencies for many years, apparently without objection by the Attorney General.

Scott's reliance upon the Supreme Court's declaration of the Attorney General's right to conduct the law business of the State of Illinois "both in and out of the court" also needs clarification. The meaning of that phrase is not explicit in the Court's opinions. There can be little quarrel with his claim of right to "appear as an advocate before administrative tribunals, as well as in court," but many administrative agencies which exercise quasi-judicial functions employ lawyers who perform investigative functions to determine fact and legal issues of compliance or non-compliance with regulatory laws; make recommendations to the agency heads concerning the filing of complaints which may lead to prosecution before the agency or in the courts; and, perhaps more significantly, serve as hearing officers — administrative judges — whose "decisions" affecting legal rights of individuals or public or private corporations become the basis for final agency action.

Could affect policy making
These functions, particularly the investigative function, are part of the normal administrative routine based upon agency specialization and expertise and agency's administrative and policy making responsibilities. To withdraw these lawyers from agency direction and control and to supplant them with assistant attorney general assigned to the agency could seriously and adversely affect the objectives and policies of a coherent and effective agency administration.

The actual prosecution of such cases before agency or court is indeed in most cases conceded to be within the sphere of the Attorney General. But, in the pre-prosecution phase of agency action, in the policy-legal determination of the agency to prosecute or not to prosecute, and in the quasi-judicial hearing responsibilities of the agency, there has been, with some exceptions, no known disposition by Attorneys General to contest the employment or direction of such "house counsel" by executive officers and agencies.

The Attorney General relies heavily upon a 1915 case, Fergus v. Russell, 270 111. 304, and several later cases which in general terms reassert the exclusive constitutional and common-law right of the Attorney Genreal to conduct all the law business of the State "both in and out of court." Other Supreme Court cases which modify and erode that principle are muted as precedent, casually distinguished, or simply ignored.

The Governor relies upon Board of Education v. Bakalis, 54 111. 2d 448, decided in 1973, and some persuasive 1970 Constitutional Convention debates to sustain his position that the employment of "house counsel" by executive officers to provide legal advice has its own common-law and constitutional historical precedent.

Fergus carries ambiguities
Yet, the Fergus case, as the fountainhead of the Attorney General's conviction, carries its own ambiguities which are sometimes recognized, sometimes not, in the legal commentaries. Thus in one article which analyzes the legislative and constitutional development of the Office of the Attorney General and most of the judicial precedent, with particular emphasis upon Fergus v. Russell, the author concludes that: "

No matter how novel or evolutionary a problem may be, if it involves the State or any of its offices or departments, if it requires any work of a lawyer, is or may be involved in litigation or can be identified in any way as law

Illinois Issues/January 1975/9