Module 2: The Prosecutor as Legal Advisor to the County

The Civil Duty in the Statute

Idaho elects a prosecuting attorney in every organized county for a four-year term. The Constitution adds one instruction: the prosecutor "shall perform such duties as may be prescribed by law."¹ So the civil job is whatever the Legislature wrote down, and most of it was written in 1897.

Chapter 26 of Title 31 treats "county attorney" and "prosecuting attorney" as the same office. Section 31-2606 uses both terms in one sentence.² The property tax statutes say "county attorney" too.³ When a statute you are reading says county attorney, it means the elected prosecutor.

The adviser statute is short:

"The prosecuting attorney is the legal adviser of the board of commissioners; he must attend their meetings when required, and must attend and oppose all claims and accounts against the county when he deems them unjust or illegal."

Idaho Code § 31-2607

That sentence does more than name an adviser. It puts the prosecutor in the meeting when the board requires it, and it gives him a job most boards forget: opposing claims he thinks are unjust or illegal. The board still decides, because 31-810 gives the board the power "to examine, settle and allow all accounts legally chargeable against the county."⁴ The prosecutor objects. The board votes.

Section 31-2604 fills in the rest. Subsection 1 sends the prosecutor to district court to "prosecute or defend all actions, applications or motions, civil or criminal" in which "the people, or the state, or the county, are interested, or are a party." Subsection 2 repeats the duty for "all civil actions in which the county or state is interested." Subsection 3 covers advice:

"To give advice to the board of county commissioners, and other public officers of his county, when requested in all public matters arising in the conduct of the public business entrusted to the care of such officers."

Idaho Code § 31-2604(3)

"When requested" makes advice a response to a question, not an audit. "Public matters" limits the duty to the county's business. A commissioner's private land deal is outside it. A county road contract is inside it.⁵

Other statutes hand the prosecutor narrower tasks. A county may destroy records only by board resolution "after regular audit and upon the advice of the prosecuting attorney," and records the code does not classify get sorted by the board "upon the advice of the office of the prosecuting attorney."⁶

Most prosecutors take the civil side seriously, and many carry it with thin staff. The statutes still leave one gap a citizen can see. Neither 31-2604(3) nor 31-2607 says advice must be written, logged or noted in the minutes.

Who the Client Is

The Idaho Rules of Professional Conduct start with a rule for organizations. Rule 1.13(a) reads: "A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents."⁷ For a prosecutor advising a board, the organization is the county. The commissioners act for it as a board. A single commissioner is a constituent, and so is an elected assessor, treasurer or sheriff. Comment [2] says constituents are not the lawyer's clients just because they talk to the lawyer in their official roles.

The comments admit the difficulty. Comment [9] says defining "the identity of the client" for a government lawyer "may be more difficult in the government context" and is "a matter beyond the scope of these Rules." It adds that the client may be "a specific agency," "a branch of government," or "the government as a whole."⁷ So the rules hand the question to statute, and the statutes point two ways. Section 31-2607 makes the prosecutor adviser to "the board." Section 31-2604(3) extends advice to "other public officers" on public business.

The safest reading is that the county is the client and each officer is a constituent getting advice about county business. That reading has consequences. Advice to the treasurer about a statutory duty belongs to the county. The privilege belongs to the county too: Idaho Rule of Evidence 502(a)(1) defines a client as "a person, public officer, or corporation, association, or other organization or entity, either public or private," so the rule reaches a county as readily as a company.⁸ No Idaho decision settling the point was verified for this module, so treat this as a reading and not a holding.⁹

Trouble starts when a constituent's interests split from the county's. Rule 1.13(f) requires the lawyer to "explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing."⁷ Rule 1.7 then asks whether the lawyer can serve both. A concurrent conflict exists if one representation is "directly adverse" to another or if there is "a significant risk" that duties to one client will materially limit the work for another. The lawyer may go ahead only if he reasonably believes he can represent each client competently and diligently, the law permits it, no claim between the two is asserted in the same proceeding, and each client gives "informed consent, confirmed in writing."¹⁰

Idaho's Supreme Court met this split in Clayton v. Barnes, 52 Idaho 418, 16 P.2d 1056 (1932). The Bonneville County assessor had hired his own lawyer to push the commissioners for money to pay his clerks. He then billed the county $250 for that lawyer. The Court reversed the judgment that had allowed the bill. Article XVIII, section 6, it said, "in providing that the county commissioners may employ counsel when necessary, is a limitation upon the authority of the county commissioners to employ counsel and a denial of the authority of all other county officials to do so." The Court also observed that "the county attorney was not in a position to represent respondent as he would be required to represent the board in such a proceeding," and it named the route the assessor should have taken: apply to the board for counsel, then seek review if the board refused.¹¹

Liability law shows the same split. A county "shall provide a defense to its employee," and the Tort Claims Act defines "employee" to include "elected or appointed officials." But the county may refuse the defense if the act fell outside the course and scope of employment or "included malice or criminal intent."¹² The statute names the governmental entity as the provider. It does not name the prosecutor. When the county might later disavow the official, the county's lawyer is poorly placed to be the official's lawyer too. That is the situation Rule 1.7 was written for, and it is one place where outside counsel may be needed.

Conflicts and Outside Counsel

Two provisions let a board bring in a lawyer other than the prosecutor, and they do not say the same thing. The Constitution is brief:

"The county commissioners may employ counsel when necessary."

Idaho Constitution, art. XVIII, § 6

The statute goes further:

"To direct and control the prosecution and defense of all suits to which the county is a party in interest, and employ counsel to conduct the same, with or without the prosecuting attorney, as they may direct."

Idaho Code § 31-813

Read alone, 31-813 lets a board hire anyone "with or without the prosecuting attorney." The Constitution says "when necessary." The Attorney General sorted this out in Opinion 93-8, issued July 20, 1993 to the Bonneville and Kootenai County prosecutors, who had asked whether commissioners may keep civil counsel outside the prosecutor's office on a long-term basis.¹³

The answer was no, "unless they comply with Idaho's constitutionally mandated standard of 'necessity.'" Before hiring outside counsel the board "must conduct a case-by-case analysis and state the facts which create the necessity of hiring such counsel." It must "make these reasons a matter of record," and the record is "reviewable by the courts of this state." The Opinion adds a sentence boards should memorize: "Mere comfort level or convenience does not rise to the level of 'necessary' in this context." It also held that the prosecutor's duty under 31-2604 "supersedes" the board's power under 31-813, because the prosecutor statute traces to 1891 and the commissioner statute to 1887, and the later enactment controls.

Meller v. Board of Commissioners of Logan County, 4 Idaho 44, 35 P. 712 (1894), came first. The Logan County board had named a lawyer as its legal adviser for two years under a contract that set his duties and pay. The Court held that this created a county office, which the Constitution forbids, and that boards have "no authority to devolve upon an appointee of their own the duties and functions which the law has already affixed to another office." Before a board employs counsel, the necessity "must be apparent," and the board's action "is reviewable by the courts."¹⁴

Hampton v. Commissioners of Logan County, 4 Idaho 646, 43 P. 324 (1896), followed. The same lawyer billed the county for work done under the void contract. The Court refused payment on a quantum meruit theory and wrote that the facts creating the necessity "must be made a matter of record by the board."¹⁵

The exception works in Ravenscraft v. Board of Commissioners of Blaine County, 5 Idaho 178, 47 P. 942 (1897). The validity of the act creating Blaine County was itself in litigation, and the Court held the board could use "a reasonable discretion" to employ private counsel to assist the attorney general.¹⁶ Barnard v. Young, 43 Idaho 382, 251 P. 1054 (1926), upheld a 20 percent contingent fee for lawyers hired to recover county money from bondsmen after bank closures, where the board's minutes and the contract showed the necessity.¹⁷ And Conger v. Commissioners of Latah County, 5 Idaho 347, 48 P. 1064 (1897), held that commissioners could not hire counsel for a criminal case and added that where the commissioner statute and the prosecutor statute conflict, "the latest expression of the legislative will must control."¹⁸

The cases give a pattern. A single high-stakes matter, a stated reason, a recorded finding, a defined scope. They reject the standing retainer. Whether workload alone makes outside help "necessary" is not settled by anything read for this module.

Conflicts are the cleaner path. Section 31-2606 bars the prosecutor from taking a fee "for or on behalf of any prosecutor or other individual" for work that is his official duty. It also bars him from acting as counsel for anyone other than the state, the people or the county "in any civil action depending upon the same state of facts" as a pending criminal prosecution.¹⁹

Section 31-2603 lets the district court appoint "some suitable person" to perform the prosecutor's duties on petition of "the prosecuting attorney or board of county commissioners" when, among other grounds, the prosecutor "has a business connection or kinship with the complainant or defendant" or "is unable to attend to his duties." The text is written around criminal charges. It is also the statute the Open Meeting Law points to when commissioners themselves may have broken that law: "the prosecuting attorney or board of county commissioners shall seek to have a special prosecutor appointed."²⁰

Attorney-Client Privilege and the Public Records Act

Start with what the Act calls a public record: "any writing containing information relating to the conduct or administration of the public's business prepared, owned, used or retained by" a state or local agency, "regardless of physical form or characteristics." A county is a local agency.²² Then comes the presumption: "there is a presumption that all public records in Idaho are open at all reasonable times for inspection except as otherwise expressly provided by statute."²³ A memo from the prosecutor to the board about a county contract is a writing about the public's business, and the county retains it. It starts out open.

Closing it again takes an exemption. Section 74-104(1)(a) exempts "any public record exempt from disclosure by federal or state law or federal regulations to the extent specifically provided for by such law or regulation."²⁴ None of the exemption sections, 74-104 through 74-111, contains a general attorney-client exemption for county records. The privilege comes in through that cross-reference.

The Attorney General's July 2026 Public Records Law Manual takes the same route. It says Idaho Code 3-201(5) "codifies the attorney client privilege" and that 74-104(1) "expressly exempts records recognized by other state laws such as this one."²⁵ Section 3-201(5) is a duty on lawyers: "To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his clients."²⁶ The working definition of the privilege sits in Idaho Rule of Evidence 502, a Supreme Court rule. Whether a court rule counts as "state law" under 74-104(1)(a) is not addressed in the Act, and no Idaho decision on that question was verified for this module.

Under Rule 502(b), a client "has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client." A communication is "confidential" only "if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services." The rule has a crime-fraud exception.²⁷

The rule protects communications. A fact does not become secret because a lawyer also knows it, and a vote the board takes in public does not become secret because a lawyer advised it.²⁸

The client holds the privilege. Rule 502(c) lets the client claim it, "or for the client through the client's lawyer." Here the client is the county. Rule 510 says a holder "waives the privilege if the person ... voluntarily discloses or consents to disclosure of any significant part of the matter or communication."²⁹ A board that reads the prosecutor's conclusion aloud to justify a vote, or hands the memo to an applicant, has put the privilege at risk. Whether one commissioner's disclosure waives the privilege for the whole county is not answered in the sources read.

The Legislature itself assumes the privilege exists for public agencies. Section 74-107(11) exempts risk retention and self-insurance program records "prepared in anticipation of litigation or for analysis of or settlement of potential or actual money damage claims," and adds that "nothing in this subsection is intended to limit the attorney-client privilege or attorney work product privilege otherwise available to any public agency." When a claim closes, "only statistical data and actual amounts paid in settlement" are public. That covers risk program records, not a county's own settlement file.³⁰

So are the prosecutor's written opinions public? There is no one-line answer. Neither 31-2604 nor 31-2607 requires them, and no section read says they are public or secret as a class. A written opinion is presumptively open. It is exempt if it is a confidential communication between the county's lawyer and the county's decision makers made to get legal advice. A memo laying out the lawyer's analysis for the board fits that description. A summary of what a statute says, a form letter to a vendor, or a memo copied to a developer may not. The word "privileged" at the top of a page decides nothing. Content and circulation decide.

When a county withholds, the Act sets the rules. A resident gets a grant or a denial within three working days, and if staff need more time the agency must say so in writing and deliver within ten working days. A nonresident gets twenty-one days, with a thirty-five day outer limit. Silence counts as denial. A written denial must "indicate the statutory authority for the denial," explain the right to appeal and the time periods, and state either that the agency's attorney reviewed the request or that the agency had the chance to consult one and chose not to.³¹ The remedy is a petition to the district court within 180 calendar days of the mailing of the denial notice, and hearings are set no later than 28 days after filing.³² The court "may examine the record in camera." Costs and fees go to the prevailing party only if the request or the refusal "was frivolously pursued," and an official who "deliberately and in bad faith" refuses a legitimate request faces a civil penalty up to $1,000.³³

Executive Sessions on Legal Matters

The Open Meeting Law gives a board one door for talking to its lawyer behind closed doors:

"To communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated. The mere presence of legal counsel at an executive session does not satisfy this requirement."

Idaho Code § 74-206(1)(f)

The door is narrow on purpose. The talk is with the agency's own lawyer. The subject is the "legal ramifications of and legal options for" a lawsuit that is pending or "imminently likely." The last sentence closes the loophole boards like best: a lawyer in the room does not turn a business discussion into a legal one. The Attorney General's July 2026 Open Meeting Law Manual says an executive session under this subsection "is solely for the purpose of communicating with legal counsel on pending or probable litigation."³⁴ A negotiation with a developer, with the prosecutor sitting at the end of the table, does not qualify unless a real controversy is on the way.

Two neighbors of paragraph (f) are (i), talks with the risk manager or insurer about a pending claim, and (d), records that are themselves exempt.³⁵ The mechanics are in 74-206(1). The motion must "identify the specific subsections of this section that authorize the executive session." A roll call vote follows and goes into the minutes, and two-thirds of the governing body must approve. A meeting called only for an executive session needs 24 hours' notice that "shall state the reason and the specific provision of law authorizing the executive session."³⁶ Subsection (2) tells readers to construe the exceptions "narrowly" and makes it a violation "to change the subject within the executive session to one not identified within the motion." Subsection (3) matters most for settlements: "No executive session may be held for the purpose of taking any final action or making any final decision."

The statute defines a "decision" as "any determination, action, vote or final disposition" on a matter that needs a vote of the governing body.³⁷ A fair reading is that a board may hear the lawyer's options in executive session and must make the choice in open session, on a motion, with a recorded vote.³⁸

If a session, or the action that follows, breaks the Act, 74-208(1) says the action "shall be null and void." Members face civil penalties that rise to $2,500 for a repeat knowing violation. A person affected can sue in the magistrate division of the district court. A suit to void an action must begin within 30 days of the decision, and any other suit within 180 days. The agency can cure: after written notice it has 14 days to respond publicly and, if it admits the violation, another 14 days to cure by declaring the actions void.³⁹

Representing the County in Civil Matters

The board decides what the county does in a lawsuit. Section 31-813 gives it the power to "direct and control" the prosecution and defense of suits to which the county is a party. The professional rules agree. Comment [3] to Rule 1.13 says that when constituents make decisions for an organization, "the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful," and that "decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer's province."⁴⁰ The lawyer's lever is advice before the vote.

Claims against the county arrive through the Tort Claims Act. Claims against a political subdivision or its employee must be filed with the clerk or secretary "within one hundred eighty (180) days from the date the claim arose or reasonably should have been discovered, whichever is later."⁴¹ A filed claim is a writing the county retains, and it sits under the 74-102(1) presumption of openness unless an exemption applies.

Legal fees reach the public the way every county expense does: a claim, an allowance by the board under 31-810, a warrant. Under 31-871 claims and contracts are "semipermanent records," kept at least five years "after date of issuance or completion of the matter contained within the record."⁴² The monthly statement the board must publish under 31-819 gives only "a brief financial summary indicating the total amount spent from each county fund."⁴³ An individual invoice will not appear there. A reporter has to ask.

Civil Enforcement: Nuisance, Land Use and Property Tax

Nuisance law starts in Title 52. A nuisance is "anything which is injurious to health or morals, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property." A public nuisance is one that "affects at the same time an entire community or neighborhood, or any considerable number of persons." In an action over a nuisance other than a moral one, the plaintiff may be "any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance," and the judgment can enjoin or abate it and award damages.⁴⁴ None of the sections read in Title 52 names the prosecutor. A county acts through two other tools: its ordinance power, with fines up to $1,000 or up to six months in jail or both under 31-714, and the prosecutor's general duty under 31-2604.⁴⁵

Land use enforcement is the board's decision. Section 67-6527 says a governing board "may institute a civil action in the district court" when it appears that someone has violated, or is about to violate, the planning chapter or a local ordinance under it, and the board "shall not be required to furnish bond." The same section lets an ordinance declare a violation a misdemeanor or an infraction.⁴⁶ The statute puts the decision to sue in the hands of the board. The prosecutor handles the case for the board under 31-2604.

The prosecutor's best work in land use comes earlier. Section 67-6535 requires that every approval or denial be in writing and "accompanied by a reasoned statement that explains the criteria and standards considered relevant, states the relevant contested facts relied upon, and explains the rationale for the decision." Failure to explain compliance or noncompliance is "grounds for invalidation." A person seeking review of those findings must first ask for reconsideration within 14 days, and judicial review must be sought within 28 days after remedies are exhausted.⁴⁷ A board that has its lawyer check the findings before the vote closes off a common ground for invalidation.

Property tax matters touch the prosecutor in a few places, and the chapters that run the process mostly leave him out. The tax deed process in chapter 10 of Title 63 is run by the county tax collector: notice by certified mail no more than five months and no less than two months before the deed issues, publication if the mail comes back, an affidavit of compliance.⁴⁸ The sections of that chapter name the tax collector and, in places, the sheriff. None names the prosecutor.

Where the code does name him, it assigns real work. Under 63-206(4), when someone removes improvements or standing timber from land with unpaid taxes and the tax collector's demand goes unpaid, "it shall be the duty of the county attorney to commence an action for the collection of such taxes." Under 63-809 the State Tax Commission must notify the county commissioners of approved levies by the fourth Monday of October, which falls on October 26 in 2026. If a levy appears to exceed the legal limit, the Commission notifies the attorney general for a county levy, and the board, the treasurer and "county attorney" for a city or district levy. The one notified "shall immediately bring suit" to set the levy aside, and "any necessary expenses" fall on the county.⁴⁹ So a county attorney may be required by statute to sue a city or a taxing district in the same county, and the county pays.

Tax deed sales raise a different question. Under 31-808, when the board sells property it took by tax deed, the proceeds after taxes, late charges, interest and costs go first to parties in interest and then to the owner of record when the deed issued. The board must notify parties in interest within 30 days of the sale and the amount of excess proceeds, and claimants have 60 days to respond.⁵⁰ In Tyler v. Hennepin County, No. 22-166 (U.S. May 25, 2023), a unanimous Supreme Court held that a homeowner plausibly alleged a Takings Clause violation when a county sold her home for $40,000 to cover about $15,000 in taxes and kept the $25,000 difference, because the county "could not use the toehold of the tax debt to confiscate more property than was due."⁵¹ Idaho's statute, on its face, sends the excess back. No Idaho decision applying Tyler to 31-808 was verified for this module. The board's lawyer has good reason to check that the board follows the 30-day and 60-day steps and accounts for every dollar.

Indigent Defense: A Separate Lane

Until recently counties paid for indigent defense. The State Public Defender Act, passed in 2023, moved that burden. Section 19-6008(1) releases all counties "from any further financial or legal obligation to provide indigent public defense" and says the state "assumes the full financial and legal obligation." Subsection (2) spells out what that includes: no requirement for counties to employ or contract with defending attorneys or to pay the other expenses of defense services "on and after October 1, 2024."⁵²

Under the Act the county prosecutor has no stated role in choosing, paying or supervising defense counsel. The Act keeps the lanes apart in at least one place. No person employed as a criminal prosecutor may sit on the district magistrates commission that hires the district public defender.⁵³ Among the principles the state public defender is to use in setting defense standards is "reasonable parity between defending attorneys and prosecuting attorneys with respect to resources, staff, and facilities."⁵⁴ Nothing read for this module says that principle binds a county's prosecutor budget in either direction.

Two county links remain. Counties that provided office space to a public defender office as of January 1, 2023, must keep making similar space available until July 1, 2029 unless the state office releases them sooner, and every county must keep providing interview facilities in the jail. And where the state office needs to recover money from someone who got legal help they were not entitled to, or who can pay and refuses, "the attorney general or the appropriate county prosecutor may, on behalf of the state," bring the suit, within five years or three years depending on the subsection, with recoveries going to the state public defense fund.⁵⁵ The prosecutor's remaining civil tie to indigent defense is that collection suit, and it runs for the state.

What the Attorney General Has Said

Opinion 93-8 is the central source and is covered above. Other Attorney General material read for this module is smaller and older. Opinion 86-16, written to a sheriff in 1986, explains: "Usually, we refer legal questions from sheriffs back to the county prosecuting attorney since it is the prosecutor's duty to advise county officials," and cites section 31-2604.⁵⁶ The two 2026 manuals, on open meetings and public records, are the most current guidance and are cited where they apply.

Opinions guide a county. They do not bind a court. Where this module says the Attorney General reads a statute a certain way, it means that and nothing more.

On case law, the module cites only Idaho decisions on the necessity rule and one federal decision on tax sales, each checked for citation, year and holding. It cites no Idaho decision on the privilege and public records question, none on written opinions to a board, and none applying Tyler in Idaho, because none was verified.⁵⁷

Reporting Angles

Records to request

A public records request has to say what it is. Section 74-103(1) requires that it "clearly indicate that it is a public records request," and 74-102(4) allows an agency to require a writing that describes the records and gives a date range, your name, mailing address, email, telephone number and a declaration of whether you are a resident.⁵⁸ Start with these.

• Engagement letters and contracts with any outside law firm since January 1, plus the board minutes and resolution where the necessity was recorded.
• Every claim, invoice and warrant for legal services over the same period. Under 74-102(10), a resident gets the first two hours of labor and the first 100 pages free, attorney redaction is billed at no more than the lowest-paid attorney in the agency, and fee statements must be itemized.
• Executive session notices, motions and minutes that cite 74-206(1)(f) or (i), and the roll call votes.
• Settlement agreements and payment records, and for risk program matters the "actual amounts paid in settlement" that 74-107(11) makes public when a claim closes.
• Any special prosecutor appointment order under 31-2603, and the 31-2602 salary resolution for civil deputies.
• Records destruction resolutions under 31-871(2)(g), which require "the advice of the prosecuting attorney."

Ask for written opinions to the board too. If the county withholds, the denial has to cite statutory authority and say whether an attorney reviewed the request, and you can ask for a description of each document withheld.

Meetings and documents to watch

Watch for a legal engagement tucked into a consent agenda. Read each executive session notice: 74-204(3) requires it to state the reason and the specific provision. Watch the budget hearings for the civil deputy line and for any legal services line. The State Tax Commission's late October levy notices under 63-809 matter if a district in the county appears to have overlevied. After a tax deed sale, look for the 30-day notice to parties in interest under 31-808(2)(c).

Numbers worth comparing

Compare what the county pays outside counsel in a year against the board-set salary of a deputy prosecutor under 31-2602. Compare hours billed to one matter across fiscal years. Count executive sessions that cite 74-206(1)(f) and count the pending or threatened suits that could justify them. Compare how long the county took to answer a request against the three working days in 74-103(2).

Questions to ask the officeholder

• Did the board state the facts creating the necessity on the record before hiring outside counsel, and where are they in the minutes?
• Was the prosecutor asked first under 31-2604(3), and did the prosecutor decline or report a conflict?
• Is the engagement for one matter with a defined scope, or for general services?
• Who voted to approve each settlement, and where in the open minutes does that vote appear?
• Who decided that a given memo was privileged, and has the memo ever been quoted or handed to someone outside the county?
• Who at the county holds the authority to waive the privilege, and has anyone used it?

Sources & Further Reading

Primary Sources

• Idaho Const. art. V, § 18 (prosecuting attorney)
• Idaho Const. art. XVIII, §§ 6-7 (county officers, employment of counsel)
• Idaho Code title 31, chapter 26 (prosecuting attorneys), including §§ 31-2603, 31-2604, 31-2607
• Idaho Code § 31-813 (board and legal counsel)
• Idaho Code title 74, chapter 1 (Public Records Act), including §§ 74-104, 74-107, 74-115
• Idaho Code title 74, chapter 2 (Open Meeting Law), including §§ 74-206 and 74-208
• Idaho Code title 6, chapter 9 (Idaho Tort Claims Act)
• Idaho Code title 52, chapter 1 (nuisance)
• Idaho Code § 63-809 (suits over unauthorized levies)
• Idaho Code title 19, chapter 60 (indigent public defense), including § 19-6008
• Idaho Rules of Professional Conduct 1.6, 1.7, 1.11 and 1.13 (Idaho State Bar)
• Idaho Rule of Evidence 502 (lawyer-client privilege)
• Hampton v. Commissioners of Logan County, 4 Idaho 646 (1896)
• Clayton v. Barnes, 52 Idaho 418 (1932)

Agency Guidance

• Idaho Attorney General Opinion No. 93-8 (July 20, 1993), employment of outside counsel by a board of county commissioners
• Idaho Attorney General, Open Meeting Law Manual (July 2026)
• Idaho Attorney General, Public Records Law Manual (July 2026)

Related Training Modules

• Prosecuting Attorneys, Module 1: The Role of the County Prosecutor
• Commissioners: Authority of the Board
• Commissioners: Open Meeting Law
• Commissioners: Ethics, Conduct & Conflicts of Interest
• Issues course: Idaho Open Meetings
• Issues course: Local Government
• Issues course: Idaho Property Taxes

Footnotes

1. Idaho Const. art. V, § 18 (prosecuting attorney elected in each organized county; four-year term since the 1984 general election; practicing attorney, resident and elector of the county). https://legislature.idaho.gov/statutesrules/idconst/ArtV/Sect18/. The prosecutor appears in art. V, not in the list of county offices in art. XVIII, § 6.
2. Idaho Code § 31-2606 refers to "any county attorney" and "said prosecuting attorney" in one sentence. Title 31, chapter 26 runs from § 31-2601 (qualifications) to § 31-2614 (contingent fund): https://legislature.idaho.gov/statutesrules/idstat/Title31/T31CH26/. Section 31-2603 is the special prosecutor statute. The adviser provision is § 31-2607.
3. Idaho Code §§ 63-809(2)-(3) and 63-206(4) use "county attorney." Reading that term as the elected prosecuting attorney follows from the usage in § 31-2606. No statute read for this page defines the term.
4. Idaho Code § 31-810 (board to "examine, settle and allow all accounts legally chargeable against the county, and order warrants to be drawn on the county treasurer"). Section 31-2607 shows enactment in 1897 and reenactment in 1899 in its history line, with no later amendment listed. https://legislature.idaho.gov/statutesrules/idstat/Title31/T31CH26/SECT31-2607/.
5. Idaho Code § 31-2604(1)-(3); history line shows the last amendment in 1989, ch. 292. https://legislature.idaho.gov/statutesrules/idstat/Title31/T31CH26/SECT31-2604/. Subsection 2 also covers misdemeanors, preliminary examinations and city contracts, none of which is discussed here. The Legislature's site updates the statutes each July 1 after the session.
6. Idaho Code § 31-871(1)(e) and (2)(g). Section 31-871 sorts county records into permanent, semipermanent and temporary classes with minimum retention of ten years, five years and two years. https://legislature.idaho.gov/statutesrules/idstat/Title31/T31CH8/SECT31-871/.
7. Idaho Rules of Professional Conduct 1.13(a), (f) and cmts. [2], [9], quoted from the Idaho State Bar's accessible edition of the Rules (PDF dated March 2026): https://isb.idaho.gov/wp-content/uploads/IRPC-acc.pdf. Comment [9] also says a government lawyer "may have authority under applicable law to question such conduct more extensively than that of a lawyer for a private organization," and that "a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful act is prevented or rectified, for public business is involved."
8. Idaho R. Evid. 502(a)(1)-(2), adopted March 26, 2018, effective July 1, 2018: https://isc.idaho.gov/rules-procedure/print/ire/502. A "representative of the client" includes "one having authority to obtain professional legal services, or an employee of the client who is authorized to communicate information obtained in the course of employment to the attorney of the client."
9. The reading that the county is the client rests on Rule 1.13(a), comment [9], and the text of §§ 31-2604(3) and 31-2607. No Idaho appellate decision defining the prosecutor's client was verified for this page. Comment [9] itself calls the question "a matter beyond the scope of these Rules."
10. Idaho Rules of Professional Conduct 1.7(a)-(b), same PDF as above. Comment [16] adds that "decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict of interest." No Idaho decision on that point was verified.
11. Clayton v. Barnes, 52 Idaho 418, 16 P.2d 1056 (Nov. 28, 1932), opinion of Budge, J. Text: https://static.case.law/idaho/52/html/0418-01.html. The assessor sued for $250 in attorney fees tied to a proceeding to make the board treat his clerks' claims as emergency expenditures. The Court reversed, noting it was conceded the assessor "made no application to or submitted the necessity for the employment of an attorney to the board." It added that "proceedings are available to require the board to employ counsel in matters over which it has jurisdiction and control."
12. Idaho Code § 6-902(4) (defining "employee" to include "elected or appointed officials"); § 6-903(2), (3), (5) (rebuttable presumption that acts at the time and place of employment are within course and scope). Section 6-903 was last amended in 2011, ch. 197. https://legislature.idaho.gov/statutesrules/idstat/Title6/T6CH9/SECT6-903/.
13. Idaho Attorney General Opinion No. 93-8 (July 20, 1993), to the Bonneville County and Kootenai County prosecuting attorneys: https://www.ag.idaho.gov/content/uploads/2018/04/OP93-08.pdf. In a footnote the Opinion says a board would face "a more exacting 'necessity' standard" than in 1889 because there are now forty-four county prosecutors. It also calls incorrect an earlier conclusion in Opinion 76-42 that administrative boards created by commissioners may hire their own counsel. No later opinion or decision changing its conclusion was located in the sources checked.
14. Meller v. Board of Commissioners of Logan County, 4 Idaho 44, 35 P. 712 (Feb. 5, 1894). Text: https://static.case.law/idaho/4/html/0044-01.html. Quotations are from the Court's syllabus. The opinion also says the Court was "unwilling to believe that it was the purpose of the framers of our constitution to 'pluck the muzzle of restraint' from the boards of county commissioners."
15. Hampton v. Commissioners of Logan County, 4 Idaho 646, 43 P. 324 (Jan. 16, 1896). Text: https://static.case.law/idaho/4/html/0646-01.html. The syllabus states the payment holding: "Services rendered under a void contract with a board of county commissioners cannot be recovered for in an action upon quantum meruit." The quoted sentence appears at page 652 of the Idaho Reports.
16. Ravenscraft v. Board of Commissioners of Blaine County, 5 Idaho 178, 47 P. 942 (Feb. 1, 1897). Text: https://static.case.law/idaho/5/html/0178-01.html. The quoted phrase is from the syllabus. See also Anderson v. Shoshone County, 6 Idaho 76, 53 P. 105 (May 6, 1898) (text), where, on review of a board's employment of counsel for county litigation, no abuse of discretion appeared and the action was not disturbed (syllabus).
17. Barnard v. Young, 43 Idaho 382, 251 P. 1054 (Dec. 21, 1926). Text: https://static.case.law/idaho/43/html/0382-01.html. The Court found that "[t]he minutes of the board of county commissioners and the contract sufficiently show the necessity for the employment of special counsel," and rejected an argument that the contract improperly gave the lawyers control of the suits.
18. Conger v. Commissioners of Latah County, 5 Idaho 347, 48 P. 1064 (May 28, 1897). Text: https://static.case.law/idaho/5/html/0347-01.html. The Court was construing the predecessor of § 31-813 (Rev. Stat. § 1759) and the predecessor of § 31-2604. The Attorney General's list of authorities in Opinion 93-8 gives 1896 for this case and its text gives 1897. The reporter header shows May 28, 1897.
19. Idaho Code § 31-2606 also says "no law partner of any county attorney must be engaged in the defense of any suit, action or proceeding, in which said prosecuting attorney appears on behalf of the people, state or county." https://legislature.idaho.gov/statutesrules/idstat/Title31/T31CH26/SECT31-2606/.
20. Idaho Code § 31-2603(a) (appointment on petition of the prosecutor or the board; last amended 1988, ch. 295) and § 74-208(5). Subsection (b) separately lets the prosecutor seek a special assistant attorney general in a criminal case. Whether subsection (a) reaches civil advising beyond the Open Meeting Law cross-reference is not stated in its text. https://legislature.idaho.gov/statutesrules/idstat/Title31/T31CH26/SECT31-2603/.
21. Idaho Code § 74-204(4) (last amended 2025, ch. 19): consent agenda items are removed on any member's request before the vote, and a consent agenda may not include ordinances, fee resolutions or items requiring more than a simple majority. No statute read addresses whether a legal engagement belongs on a consent agenda. https://legislature.idaho.gov/statutesrules/idstat/Title74/T74CH2/SECT74-204/.
22. Idaho Code § 74-101(8) ("local agency" includes a county), (13) ("public record"), (18) ("writing"). Section last amended 2025, ch. 298. Personal notes a public official creates "solely for his own use" and does not share are outside the definition. https://legislature.idaho.gov/statutesrules/idstat/Title74/T74CH1/SECT74-101/.
23. Idaho Code § 74-102(1) (last amended 2025, ch. 298). https://legislature.idaho.gov/statutesrules/idstat/Title74/T74CH1/SECT74-102/.
24. Idaho Code § 74-104(1)(a) (last amended 2024, ch. 16). https://legislature.idaho.gov/statutesrules/idstat/Title74/T74CH1/SECT74-104/. Sections 74-104 through 74-111 were read. Other privilege references in the Act are § 74-105(18) (records of the office of the state public defender that are attorney work product or privileged) and § 74-107(11).
25. Idaho Attorney General, Idaho Public Records Law Manual (July 2026), Question 18: https://www.ag.idaho.gov/content/uploads/2026/07/PublicRecordsLaw.pdf. The manual also says that on a denial, "the only legitimate reason for the agency not to consult with an attorney is that the exemption from disclosure is clear."
26. Idaho Code § 3-201(5) (duties of attorneys; history ends with a 1929 amendment). https://legislature.idaho.gov/statutesrules/idstat/Title3/T3CH2/SECT3-201/.
27. Idaho R. Evid. 502(a)(5), (b), (d)(1). https://isc.idaho.gov/rules-procedure/print/ire/502. Rule 502(d) lists other exceptions, including joint clients and breach of duty between lawyer and client, that are not discussed here.
28. This is a reading of the text of Rule 502(b), which speaks of "confidential communications." No Idaho decision applying that reading to county records was verified for this page.
29. Idaho R. Evid. 510 (adopted March 26, 2018, effective July 1, 2018): https://isc.idaho.gov/rules-procedure/print/ire/510. Under Rule 502(c) the privilege "may be claimed by the client or for the client through the client's lawyer."
30. Idaho Code § 74-107(11). https://legislature.idaho.gov/statutesrules/idstat/Title74/T74CH1/SECT74-107/. Subsections (3) and (4) separately exempt pre-acquisition appraisals of real property and public project cost estimates until bids open or the contract is awarded, which can matter when a board takes advice on a land purchase or construction contract.
31. Idaho Code § 74-103(1)-(5) (last amended 2025, ch. 298). Residents: three working days to grant or deny, with a written extension to ten working days. Nonresidents: twenty-one days, extendable to thirty-five days. https://legislature.idaho.gov/statutesrules/idstat/Title74/T74CH1/SECT74-103/.
32. Idaho Code § 74-115(1)-(2). The petition is the "sole remedy," and the agency must keep the disputed records until the appeal period ends or the case is decided. https://legislature.idaho.gov/statutesrules/idstat/Title74/T74CH1/SECT74-115/.
33. Idaho Code §§ 74-116(1)-(2) and 74-117 (civil penalty paid into the general fund; last amended 2022, ch. 111).
34. Idaho Attorney General, Idaho Open Meeting Law Manual (July 2026), Questions 30 and 31: https://www.ag.idaho.gov/content/uploads/2026/07/OpenMeeting.pdf. The Manual states that the 44 elected county prosecuting attorneys have the same duty for local government that the Attorney General has for state agencies.
35. Idaho Code § 74-206(1)(d), (f), (i) (last amended 2019, ch. 114). https://legislature.idaho.gov/statutesrules/idstat/Title74/T74CH2/SECT74-206/.
36. Idaho Code § 74-204(3).
37. Idaho Code § 74-202(1), (6) (definitions added 2018, ch. 142).
38. That a settlement vote belongs in open session is a reading of §§ 74-202(1), 74-203(1) (no decision "by secret ballot") and 74-206(3). No court decision or Attorney General opinion directly on settlement votes was verified for this page.
39. Idaho Code § 74-208(1)-(7) (last amended 2015, ch. 345). https://legislature.idaho.gov/statutesrules/idstat/Title74/T74CH2/SECT74-208/.
40. Idaho Rules of Professional Conduct 1.13(b) and cmts. [3]-[5]. Comment [4] says "[o]rdinarily, referral to a higher authority would be necessary," and comment [5] says the highest authority "ordinarily will be the board of directors or similar governing body."
41. Idaho Code § 6-906 (last amended 1985, ch. 136). https://legislature.idaho.gov/statutesrules/idstat/Title6/T6CH9/SECT6-906/.
42. Idaho Code § 31-871(1)(c), (2)(b).
43. Idaho Code § 31-819. The section also requires an annual full financial report "available for public inspection." https://legislature.idaho.gov/statutesrules/idstat/Title31/T31CH8/SECT31-819/.
44. Idaho Code §§ 52-101, 52-102, 52-107, 52-111 (added 1976, ch. 82). Sections 52-101 through 52-111 were read, and none names the prosecuting attorney. https://legislature.idaho.gov/statutesrules/idstat/Title52/T52CH1/.
45. Idaho Code § 31-714 (last amended 2005, ch. 359). https://legislature.idaho.gov/statutesrules/idstat/Title31/T31CH7/SECT31-714/.
46. Idaho Code § 67-6527 (last amended 1999, ch. 396). https://legislature.idaho.gov/statutesrules/idstat/Title67/T67CH65/SECT67-6527/.
47. Idaho Code § 67-6535(2)(a)-(b), (3). https://legislature.idaho.gov/statutesrules/idstat/Title67/T67CH65/SECT67-6535/.
48. Idaho Code §§ 63-1005(1)-(2), 63-1006, 63-1012 (warrant of distraint directed to the sheriff). Sections 63-1001 through 63-1015 were read, and none mentions the prosecuting attorney or county attorney. https://legislature.idaho.gov/statutesrules/idstat/Title63/T63CH10/.
49. Idaho Code § 63-809(1)-(4) (added 1996, ch. 98; amended 2000, ch. 433) and § 63-206(4). The fourth Monday of October 2026 is October 26 by calendar count. The statute says only "the fourth Monday in October." https://legislature.idaho.gov/statutesrules/idstat/Title63/T63CH8/SECT63-809/.
50. Idaho Code § 31-808(2)(b)-(d) (last amended 2024, ch. 22). With the state treasurer's consent, unclaimed excess may be transferred to the treasurer and distributed under chapter 5, title 14. https://legislature.idaho.gov/statutesrules/idstat/Title31/T31CH8/SECT31-808/.
51. Tyler v. Hennepin County, No. 22-166 (U.S. May 25, 2023), argued April 26, 2023, opinion of Roberts, C.J., reversing 26 F.4th 789. Syllabus and opinion: https://www.law.cornell.edu/supremecourt/text/22-166. The U.S. Reports page citation was not confirmed.
52. Idaho Code § 19-6008(1)-(3) (State Public Defender Act, added 2023, ch. 220). Subsection (1) refers to "such date" without stating it. Subsection (2) gives October 1, 2024. https://legislature.idaho.gov/statutesrules/idstat/Title19/T19CH60/SECT19-6008/.
53. Idaho Code § 19-6007(2)(c).
54. Idaho Code § 19-6005(4)(g).
55. Idaho Code § 19-6015(1)-(3); § 19-6008(3); § 19-6019(2) (in counties without a public defender office on January 1, 2023, the state office continues primary contract providers through July 1, 2029 unless the board, at the state office's request, votes to allow a change, with six months' notice).
56. Idaho Attorney General Opinion No. 86-16 to a county sheriff: https://ag.idaho.gov/content/uploads/2018/04/OP86-16.pdf. The opinion's subject, when a person is convicted of a felony, is outside this page. Only its opening comment is used. The scanned copy garbles the subsection cite after § 31-2604.
57. Idaho decisions on attorney-client privilege and county public records, on whether a prosecutor's written opinion to a board is public, and on Tyler in Idaho were not located or could not be verified. None is cited.
58. Idaho Code §§ 74-103(1), 74-102(4), (10)(a), (e), (h). https://legislature.idaho.gov/statutesrules/idstat/Title74/T74CH1/SECT74-102/.