Independent Representation for Constitutional Officers When the Attorney General Has a Conflict: Commentary on In re the Representation of the Iowa Auditor of State

I. Introduction

This commentary analyzes the Iowa Supreme Court’s December 5, 2025 opinion in City of Davenport v. Office of Auditor of State, No. 24‑1160, in which the Court resolved a highly significant institutional question: when the Iowa Attorney General (AG) has a conflict of interest with an independently elected constitutional officer, may that officer be represented in court by his own in‑house counsel without Executive Council approval?

The underlying litigation centers on the Iowa Auditor of State’s authority to subpoena and review documents from the City of Davenport, including materials claimed to be protected by the attorney–client privilege, in a reaudit of controversial harassment settlements totaling roughly $1.9 million. The district court largely sided with the Auditor, holding that Iowa Code chapter 11 authorizes the Auditor to obtain attorney–client privileged material (though not attorney work product) if relevant to the audit. The City took an interlocutory appeal, arguing that the attorney–client privilege bars such access.

The representation dispute arose because the Iowa AG—who, by statute, ordinarily “prosecute[s] and defend[s] all actions and proceedings brought by or against any state officer in the officer's official capacity” (Iowa Code § 13.2(1)(c))—refused to advance the Auditor’s central merits position: that the Auditor can subpoena attorney–client privileged communications under Iowa Code § 11.41. The AG instead proposed a narrow, procedural defense of the district court’s orders (ripeness and the propriety of an evidentiary hearing), expressly declining to argue that the Auditor has the broad subpoena power he claimed and the district court accepted.

The Auditor objected, alleged a conflict of interest, and sought to appear through his own General Counsel as appellate counsel. The Attorney General insisted she must remain counsel of record and that, if she was disqualified, any substitute counsel—even in‑house—must be approved and appointed by the Executive Council under Iowa Code § 13.3.

The Iowa Supreme Court’s opinion, authored by Justice Mansfield and joined by Chief Justice Christensen and Justices Oxley and McDermott, resolves only this threshold representation issue, not the underlying subpoena/privilege question. It holds:

The Attorney General has a conflict of interest under the Iowa Rules of Professional Conduct and cannot control the Auditor’s litigation position in this case.
The Auditor, as an independently elected constitutional officer, may be represented by his own General Counsel on appeal.
Executive Council approval is not required when the Auditor uses in‑house counsel (an employee of his office) rather than hiring outside private counsel.
The Attorney General may still participate as amicus curiae and file an amicus brief.

Justice McDonald, joined by Justice May, concurs that the AG is conflicted and that substitute counsel is proper, but dissents from the majority’s reading of Iowa Code § 13.3. In his view, the statute plainly requires Executive Council approval for all substitute counsel, whether private or in‑house.

This opinion creates an important precedent on the relationship between the Attorney General and independently elected constitutional officers, the scope of the Attorney General’s authority to control litigation positions, and the statutory framework governing substitute counsel when the Attorney General has a conflict.

II. Summary of the Opinion

A. Background and Procedural Posture

Following public controversy over substantial harassment settlements approved by the Davenport City Council, the Auditor initiated a “reaudit” of the City (Iowa Code § 11.6(4)(a)(2)). He subpoenaed records, including minutes and recordings of several closed City Council sessions where litigation strategy was discussed with counsel.

The City partially complied but withheld materials on attorney–client privilege and work-product grounds, and moved in district court to modify the subpoena. The Auditor, initially represented by his General Counsel and then also by the Attorney General, sought enforcement. The district court:

Recognized the Auditor’s “broad authority” under Iowa Code § 11.41(1) to access records;
Held that chapter 11 implicitly extends to records “required by law to be kept confidential” (§ 11.41(3));
Concluded that “attorney work product” is specifically excluded from the Auditor’s access (§ 11.41(4)(a)(4)); but
Ruled that attorney–client privileged communications are not excluded and are therefore within the Auditor’s statutory reach, subject to relevance limits and in camera review.

The City obtained interlocutory review, arguing almost exclusively that the Auditor lacks authority to subpoena attorney–client privileged communications and that the closed-session records are protected.

B. The Representation Conflict

In preparing the appellee’s brief, the Attorney General’s office initially drafted a brief vigorously defending the Auditor’s broad interpretation of § 11.41, including his authority to reach attorney–client privileged communications (except for work product). The Auditor’s General Counsel expressly endorsed that draft.

On the eve of filing, however, the AG’s office reversed course. It informed the Auditor it would:

Delete the argument that the Auditor may subpoena attorney–client privileged materials; and
Limit the brief to narrower arguments: lack of ripeness and the permissibility of an evidentiary hearing and, if needed, in camera review.

The AG explained that:

The Auditor’s broad position on attorney–client privilege was “high risk” and unlikely to succeed;
The Attorney General is responsible for defending the State’s “prerogatives and interests”; and
“The attorney-client privilege is vital to that,” particularly for state agencies whom the AG also represents.

The Auditor protested, stating that:

He did not want the revised brief filed “in our name” because it argued “for restrictions on the Auditor's authority with which we explicitly disagree”;
The AG’s other clients’ interests were in conflict with her duty to “zealously advocate” for the Auditor’s position; and
The AG should withdraw due to a conflict of interest.

When no resolution emerged, two appellee briefs were filed:

One by the Attorney General, focusing on ripeness and the propriety of an evidentiary hearing, but not defending the Auditor’s central statutory reading on attorney–client privilege; and
One by the Auditor’s General Counsel, arguing both ripeness and, at length, that § 11.41 authorizes the Auditor to subpoena attorney–client privileged communications (aside from work product).

The Auditor also formally moved to strike the AG’s brief and to remove the AG as his counsel. The Iowa Supreme Court then bifurcated the case, scheduling briefing and argument solely on the representation issue, postponing the merits.

C. Holdings

The Court’s core holdings are:

The Attorney General has a conflict of interest.
Because the AG refuses, based on her broader duty to protect the State’s interests and the attorney–client privilege, to argue for the Auditor’s preferred (and district‑court‑endorsed) position on the scope of his subpoena authority, her representation is “materially limited” by responsibilities to other clients. Under Iowa R. Prof’l Conduct 32:1.7(a)(2), this constitutes a conflict of interest disqualifying the AG from representing the Auditor in this appeal.
The Auditor may appear through his own General Counsel.
The Auditor is an independently elected constitutional officer with statutory authority to conduct audits and subpoena records. When the Attorney General is conflicted, nothing in Iowa law prevents the Auditor from being represented in court by an attorney employed within his own office. The AG’s role as default counsel does not give her plenary control over the litigation positions of independent constitutional officers.
Executive Council approval is not required for in‑house substitute counsel.
Iowa Code § 13.3(1), read together with § 13.7, is interpreted as requiring Executive Council authorization only when a state officer must hire outside private counsel and incur additional state expense. It does not require Executive Council approval when an in‑house government lawyer, such as the Auditor’s General Counsel, represents the officer at no extra cost.
The Attorney General may participate as an amicus curiae.
Although no longer counsel of record for the Auditor, the AG is permitted and invited to file an amicus brief within thirty days so that her views on the underlying legal issues (especially attorney–client privilege) are available to the Court.

The Court emphasizes the limited scope of its decision: it resolves only the representation and conflict questions, not the ultimate issue of whether the Auditor may subpoena attorney–client privileged communications from the City of Davenport or other entities.

D. The Concurring/Dissenting Opinion (McDonald, J.)

Justice McDonald agrees with the majority that the AG has a conflict and that substitute counsel is appropriate under Iowa Code § 13.3. He dissents, however, from the majority’s reading of § 13.3 and related provisions, contending:

The statutory text plainly requires Executive Council approval for all substitute counsel appointments when the Attorney General is disqualified; and
The majority’s focus on appropriations and outside counsel improperly sidelines the statute’s mandatory appointment and “suitable person” language.

He argues that:

The Executive Council, not the officer, must “authorize the appointment of a suitable person” and must concur in any recommendation by the affected department or officer;
The appropriation clause is contingent (it applies only if the appointed person requires payment), but the appointment approval requirement is universal; and
The state has institutional interests—beyond cost—in ensuring that substitute counsel is “suitable” (qualified, experienced, independent) to represent state interests.

McDonald notes that in this very case, the Executive Council, with the Auditor abstaining, did approve the appointment of the Auditor’s General Counsel for the representation issue. He concludes that the Court improperly transfers the Executive Council’s statutory authority to the Auditor.

III. Precedents and Authorities Cited

A. Iowa Authorities

1. Motor Club of Iowa v. Department of Transportation, 251 N.W.2d 510 (Iowa 1977)

Motor Club is the key Iowa precedent the Court uses to frame the Attorney General’s role when representing a state agency.

Facts in brief: the Department of Transportation (DOT) adopted a rule setting a 65‑foot length limit for trucks, contingent on enactment of certain other legislative conditions. After the rule was invalidated in district court, the DOT initially appealed but then directed that the appeal be dismissed. The Attorney General, believing that the conditions were ultra vires and separable from the length limit, refused to dismiss and sought to continue the appeal.

The Iowa Supreme Court held that:

The Attorney General’s relationship to a state department is that of attorney to client, not master to subordinate.
Under Iowa Code § 13.2(3) (now § 13.2(1)(c)), nothing suggests that the AG may override the department’s litigation decisions or “impose the will of the attorney general on a branch of government.”
The AG “was obligated to submit to the direction of the DOT and dismiss their appeal.”

The Court emphasized a broader principle:

In our society and under our system of law the nature, scope, indeed the very existence of all rights and obligations turn on what would be decreed if those involved went to court. ... Access to the courts gives life to the affairs of governmental departments and agencies. For government to properly function that access must be unimpeded.

In the present case, Motor Club is invoked to support two propositions:

The Attorney General must act as lawyer, not as policymaker, for the client agency or officer; and
The AG may not block or substantially narrow a client’s access to the courts by refusing to advance the client’s core legal position based on the AG’s independent view of the “state interest.”

Although Motor Club involved an order to dismiss an appeal rather than a disagreement over specific arguments, the Court reads its reasoning as equally applicable: where the AG’s position diverges from the client’s on the scope of the client’s legal authority and the client’s desired relief, the AG cannot override that position.

2. Iowa Statutes

Iowa Const. art. IV, § 22; art. V, § 12.
Establish the Auditor of State and the Attorney General as independently elected constitutional officers.
Iowa Code ch. 11 (2024) – Auditor’s powers.
- § 11.2, § 11.6 – authorize audits and reaudit functions;
- § 11.51 – subpoena power, including examination of witnesses and documents;
- § 11.52 – judicial enforcement of subpoenas;
- § 11.41(1), (3), (4) – broad access to records, including confidential records, with a specific carve‑out for “attorney work product” but not expressly for attorney–client communications.
Iowa Code ch. 13 (2024) – Attorney General’s powers and conflicts.
- § 13.2(1)(c) – AG’s default duty to “prosecute and defend all actions and proceedings brought by or against any state officer in the officer’s official capacity,” “except as otherwise provided by law.”
- § 13.3(1) – if the AG is “disqualified,” the Executive Council “shall authorize the appointment of a suitable person,” with an appropriation to pay “reasonable expense for the person appointed.”
- § 13.3(2) – if represented by someone other than the AG, court must review and approve fees as reasonable before reimbursement.
- § 13.7(1) – a department or agency “shall not contract for legal services to be provided by a private attorney” unless authorized by the Executive Council under § 13.3 or § 13.7.
Iowa Code ch. 7D – Executive Council.
The Executive Council is composed of the Governor, Secretary of State, Auditor of State, Treasurer of State, and Secretary of Agriculture (Iowa Code § 7D.1). Its responsibilities are largely financial in character (e.g., certain claims approvals, disaster-related expenditures).

3. Iowa Rules of Professional Conduct

The Court relies centrally on Iowa R. Prof’l Conduct 32:1.7(a)(2):

A lawyer shall not represent a client if ... there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client...

The Court holds that the AG’s refusal to argue the Auditor’s main statutory position, because of her obligations to protect attorney–client privilege for other state agencies, creates precisely such a “material limitation.”

B. Authorities from Other States

The Court situates its reasoning within a broader national context by citing substantial out‑of‑state authority on the Attorney General’s dual role (representative of agencies vs. guardian of the public interest) and conflicts among state officers.

1. Koschkee v. Evers, 913 N.W.2d 878 (Wis. 2018)

The Wisconsin Supreme Court considered a scenario where the Department of Justice (DOJ) argued that the Attorney General controlled the legal positions of other constitutional officers (Governor, Superintendent of Public Instruction) and that those officers could not contradict DOJ’s positions.

The court rejected DOJ’s expansive view, holding that:

Constitutional officers cannot be “foist[ed]” with an attorney taking a position they reject;
Requiring them to accept DOJ positions would give the Attorney General “breathtaking power” and make the AG a gatekeeper for all constitutional officers’ litigation positions; and
Officers are entitled to independent representation where their positions diverge from the AG’s.

The Iowa Supreme Court analogizes this to the present case: the AG cannot force the Auditor to accept a litigation position (narrowing his statutory authority) that he flatly rejects, especially when he is an independently elected constitutional officer.

2. People ex rel. Deukmejian v. Brown, 624 P.2d 1206 (Cal. 1981)

California’s Supreme Court recognized the “dual role” of the Attorney General as representative of a state agency and guardian of the public interest. The legislature there had impliedly recognized possible conflicts by permitting the AG to withdraw and allowing agencies to obtain private counsel.

This supports Iowa’s conclusion that AGs can have genuine conflicts with agencies, and that mechanisms for independent representation (including withdrawal) are both necessary and lawful.

3. Public Utility Commission v. Cofer, 754 S.W.2d 121 (Tex. 1988)

The Texas Supreme Court held that a statute authorizing the Attorney General to represent an agency does not bar the agency from complaining if the AG is not fulfilling the duty of faithful representation. The AG’s statutory right to represent agencies carries a correlative duty to provide “diligent and faithful representation” like any other lawyer.

The Iowa Court echoes this principle in stressing that the AG’s duty is to advocate the client’s lawful position, not to subordinate it to her own conception of the public interest.

4. Goldmark v. McKenna, 259 P.3d 1095 (Wash. 2011)

The Washington Supreme Court rejected the Attorney General’s argument that his own conception of the “public interest” could override his duty to represent state officers. The court emphasized that the statutory duties to represent officers are paramount and that the AG cannot recast substantive policy positions as mere legal strategy.

5. Manchin v. Browning, 296 S.E.2d 909 (W. Va. 1982)

West Virginia’s high court refused to accept the Attorney General’s claim that his duty to represent the state’s interests overrides his duty to represent individual state officers sued in their official capacities. The court held:

The Attorney General is not a free-standing policymaker for the “state interest” in litigation involving officers; and
The AG must “zealously advocate and defend the policy position of the officer or agency in the litigation” unless lawfully relieved.

This is directly parallel to the Iowa Court’s insistence that the AG cannot simply refuse to argue the Auditor’s statutory position to protect broader state interests in attorney–client privilege.

6. State ex rel. Frohmiller v. Hendrix, 124 P.2d 768 (Ariz. 1942)

This case is especially relevant to the Executive Council / in‑house counsel question. The Arizona state auditor brought an action through a deputy auditor who was a licensed attorney. A statute provided that no state agency may employ any attorney other than the AG or his assistants, or expend funds for legal services.

The Arizona Supreme Court interpreted that statute to:

Prohibit duplication of salaries and additional expenditures for outside counsel; but
Not prohibit a department from using its own attorney (employee) to represent it in court when the state incurred no extra expense.

The Iowa Supreme Court uses Frohmiller as persuasive support that statutory limits on hiring outside counsel and spending public money are not properly read to ban in‑house representation by government lawyers. This directly undergirds the majority’s reading of Iowa Code § 13.3 and § 13.7.

7. Other state cases

The Court also cites decisions from Hawaii and Oklahoma (e.g., Haw. Electric Light Co. v. Dep’t of Land & Natural Res., 75 P.3d 160; State ex rel. Howard v. Oklahoma Corp. Comm’n, 614 P.2d 45) acknowledging conflicts and allowing agencies or officers to be represented by in‑house counsel where their positions diverge from the AG’s.

IV. Legal Reasoning

A. Is This Merely a “Strategic” Disagreement?

The Attorney General characterized the dispute as a strategic difference: she and the Auditor both want to prevail, but differ on which arguments are most prudent. The AG argued that pressing the Auditor’s argument about access to attorney–client privileged communications was “high risk and low reward,” and that it was better to win on narrow procedural grounds and defer the privilege question to another day.

The Court rejects this characterization as incomplete. It points out that:

The Auditor seeks to vindicate a core aspect of his statutory authority—the power to subpoena attorney–client privileged materials.
The district court has already agreed with this interpretation twice; on appeal, the City devotes most of its briefing to attacking it.
Despite this, the AG is unwilling to defend that ruling at all, not even as one of multiple arguments within the 13,000‑word limit.

In other words, the AG is not merely suggesting a different ordering or emphasis of arguments; she is refusing to make the principal argument that the client officer insists on, and that defines the scope of his office’s authority. The Court stresses that an “affirmance is not just an affirmance”: affirming on narrow ripeness grounds is materially different from affirming on the substantive ground that the Auditor may subpoena attorney–client privileged communications. The latter has major precedential consequences for all Iowa governments.

This divergence—whether to seek an appellate ruling on the Auditor’s statutory power over privileged communications—goes to the heart of the litigation, not to small tactical choices. The Court therefore sees a true conflict of interest, not a harmless strategic divergence.

B. Applying the Conflict‑of‑Interest Rule (Iowa R. Prof’l Conduct 32:1.7)

Under Rule 32:1.7(a)(2), a concurrent conflict exists when:

there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client...

The Court’s application is straightforward:

The AG represents multiple state clients: the Auditor, executive agencies, boards, and officers who rely heavily on the attorney–client privilege.
She believes that arguing for the Auditor’s position—that § 11.41 allows him to pierce attorney–client privilege—would be “inconsistent with the State's position on attorney–client privilege in litigation that it is involved with on behalf of many similarly protected clients.”
She thus refuses to argue for a position that, in her view, could harm her other clients’ interests, even though that position is central to the Auditor’s case and endorsed by the district court.

The Court concludes this is precisely the kind of “material limitation” the Rule contemplates. The AG’s responsibilities to other clients (state agencies and officers whose privileges might be affected) significantly restrict her ability to “zealously advocate” for the Auditor’s preferred legal position.

The Court also notes that Iowa law contemplates AG disqualification. Iowa Code § 13.3(1) expressly refers to situations where “for any reason, the attorney general is disqualified from appearing” and provides a mechanism for substitute counsel. A conflict under Rule 1.7(a)(2) is one such “reason.”

C. The Attorney General as Counsel vs. Policymaker

Echoing Motor Club and other authorities, the Court reaffirms that the AG’s statutory duty to represent state officers does not give her substantive policymaking power over them. Key points in this reasoning:

The AG’s role when representing a state officer or department is fundamentally that of legal counsel, not that of a superior constitutional officer who can dictate the client’s positions.
Allowing the AG to control litigation positions would make her a “gatekeeper” of legal arguments for constitutional officers, in tension with their independent constitutional status.
Independently elected officers, such as the Auditor, exist precisely because the Constitution anticipates potential tensions and checks within the executive structure.

The Court is particularly sensitive to the danger that, if the AG’s view prevailed, constitutional officers (e.g., Governor, Secretary of State, Auditor, others) could be compelled to accept an unwanted attorney (the AG) arguing against their statutory authority, with no way to have their own position presented to the courts.

Thus, rather than letting the AG’s generalized “state interest” override the specific statutory rights and duties of a constitutional officer, the Court insists that:

Officers must have “unimpeded” access to the courts to vindicate their legal authority; and
The AG cannot veto or fundamentally narrow that access by unilateral decisions about what positions may be taken in their name.

D. Who Chooses Litigation Positions?

The Court draws heavily from Motor Club and the out-of-state cases to settle a broader principle: when the Attorney General serves as agency/officer counsel, the client determines the objectives and core legal positions; the AG, like any lawyer, is bound by that choice unless it is unlawful or frivolous.

In this case:

The district court explicitly held that Iowa Code chapter 11 “does grant the Auditor the right to examine attorney-client privileged communications.”
The City’s brief on appeal challenges that holding at length.
The Auditor wishes to defend that holding and his statutory authority aggressively.
The AG, however, refuses to advance that substantive argument because it may later disadvantage other state clients.”

This situation is qualitatively different from:

A refusal to make an argument judged frivolous or sanctionable (see the discussion of Illinois’s Hoffman v. Madigan, where an AG refused to advance a repeatedly rejected argument); or
A choice not to raise marginal or tangential points with little impact on the client’s core claims.

Here, the Auditor’s argument is not frivolous; it has already persuaded the district court. The AG’s refusal is grounded in conflicts with other clients and policy concerns, not in lack of legal merit. Thus, the Court holds that the AG’s disagreement cannot be chalked up to permissible strategic discretion; it is a conflict of interest requiring withdrawal.

E. Interpreting Iowa Code §§ 13.3 and 13.7: Outside vs. In‑House Counsel

Once the AG is disqualified, the next question is: how may the Auditor obtain substitute counsel?

The AG argues that § 13.3(1) requires any alternate representation to be formally authorized by the Executive Council, whether the substitute is an in‑house government lawyer or private counsel. In her view, the Auditor’s General Counsel cannot represent him absent such approval.

The majority reads §§ 13.3 and 13.7 differently, employing several interpretive tools:

Statutory text read as a whole.
Section 13.3(1) reads:
If, for any reason, the attorney general is disqualified from appearing in any action or proceeding, the executive council shall authorize the appointment of a suitable person for that purpose. There is appropriated from moneys in the general fund not otherwise appropriated an amount necessary to pay the reasonable expense for the person appointed.
The Court emphasizes the second sentence: the legislature explicitly appropriates funds to pay “the reasonable expense for the person appointed.” This strongly suggests that the “person” contemplated in the first sentence is someone whose services do require additional state expenditure.
Harmonization with § 13.7(1).
Section 13.7(1) states:
A department, agency, or other state governmental entity shall not contract for legal services to be provided by a private attorney unless authorized by the executive council under this section or section 13.3.
The Court reads this as the core policy: the Executive Council must pre‑approve contracts for legal services with private attorneys that will cost the State money. It does not mention in‑house government attorneys.
Expressio unius / negative implication.
By expressly restricting contracting with “private attorney[s]” without Council approval, § 13.7(1) implies that employing in‑house counsel (existing government employees) is permitted without such approval. The Court cites Chandler v. Iowa Department of Corrections, 17 N.W.3d 645 (Iowa 2025), which restates the canon that “the express mention of one thing implies the exclusion of others.”
Consistent meaning of terms.
The “person” whose appointment is authorized under § 13.3(1) is presumed to be the same “person” for whom an appropriation is made to pay “reasonable expense” in the same subsection. That is, the statute is addressing outside counsel whose services will require payment, not an internal employee already on salary.
Structural and functional context (Chapter 7D).
The Executive Council’s functions are largely financial (e.g., approving payments, handling certain claims), not professional quality control over attorneys. The Council’s composition—Governor, Secretary of State, Auditor, Treasurer, Secretary of Agriculture—does not suggest a body designed to vet attorneys’ qualifications and independence for litigation representation.
Historical practice.
The Auditor has previously appeared before the Iowa Supreme Court through his General Counsel in Sand v. Doe, 959 N.W.2d 99 (Iowa 2021), without Executive Council approval. The State Public Defender’s office has similarly appeared by in‑house counsel in multiple appeals.
This longstanding practice, unchallenged until this dispute, is consistent with reading §§ 13.3 and 13.7 as governing only outside private lawyers.
Persuasive authority: Frohmiller.
As discussed above, the Arizona Supreme Court in Frohmiller interpreted a comparable statute restricting employment of attorneys other than the Attorney General as being aimed at protecting the treasury, not at forbidding in‑house representation by departmental lawyers.

Putting these strands together, the majority concludes:

Section 13.3(1) is primarily a financial and procurement mechanism: it ensures that when the AG is disqualified, a state officer can obtain paid private counsel, but only with Executive Council oversight and appropriation.
Section 13.7(1) reinforces that departments cannot hire outside “private attorneys” without that authorization.
Neither provision is reasonably read to require Executive Council approval when a state officer uses an existing in‑house attorney, already on the state payroll, who will not charge separate fees.

F. The Concurring/Dissent’s Textual Response

Justice McDonald’s concurring/dissenting opinion offers a sharply different interpretive approach.

He emphasizes the first sentence of § 13.3(1), arguing that the text is clear:

If, for any reason, the attorney general is disqualified from appearing in any action or proceeding, the executive council shall authorize the appointment of a suitable person for that purpose.

Key points of his critique:

The statute assigns appointment power to the Executive Council, not to the state officer. The officer’s only role is to “recommend a suitable person,” and the appointment becomes effective only when “the executive council concurs in the recommendation.”
The majority’s reading effectively rewrites the statute so that the officer appoints, and the Executive Council’s role disappears whenever no fee is charged. This, he argues, ignores the appointment and suitability language and overreads the appropriation clause.
The appropriation sentence is contingent: it becomes relevant only if the appointed person is a private attorney requiring payment. But the appointment requirement itself applies in all cases where the AG is disqualified, regardless of expense.
The state’s interest is not only financial. The statute’s requirement that the appointed attorney be “a suitable person” reflects an institutional interest in ensuring that substitute counsel has sufficient training, experience, independence, and “gravitas” to defend the state’s interests, including in cases that involve substantial potential liability.

McDonald also notes:

The Executive Council itself interprets its mandate as including appointment of both “legal counsel and special counsel.”
In this very case, the Executive Council, with the Auditor abstaining, did pass a resolution appointing the Auditor’s General Counsel to represent him on the representation issue. This demonstrates that both branches have historically understood § 13.3 to apply to all substitute appointments.

In the dissent’s view, when the legislature wishes to authorize a government officer to independently hire counsel without Executive Council involvement, it says so expressly (e.g., Iowa Code §§ 7.3, 7.5, 29A.51, 99B.6). No such express authority exists here, and transferring appointment authority to the Auditor contravenes the statutory scheme.

V. Impact and Significance

A. Immediate Procedural Consequences

In the short term, the ruling has two direct effects on this appeal:

The Auditor’s General Counsel’s brief, advancing the broad interpretation of § 11.41 and defending the district court’s ruling on access to attorney–client privileged communications, is treated as the official appellee’s brief.
The Attorney General may file an amicus brief, presenting an alternative view (likely defending attorney–client privilege more robustly), but not as the Auditor’s representative.

This ensures that:

The Court will receive a full adversarial presentation on the core issue: whether the Auditor may subpoena attorney–client privileged communications;
The Auditor’s own reading of his statutory authority is directly represented, rather than filtered or limited by the AG; and
The AG’s broader concerns about privilege and state interests are also heard, but in an appropriate amicus posture.

B. Structural Implications for State Government in Iowa

The decision has broader institutional implications beyond this case:

Affirmation of independence of constitutional officers.
The Court underscores that independently elected constitutional officers—such as the Auditor—are not subordinate to the Attorney General in litigation. They have their own constitutional identity, statutory duties, and policy prerogatives. When those duties lead to positions that conflict with the AG’s view of the “state interest,” the officers may obtain independent representation.
Limits on the Attorney General’s gatekeeping power.
The opinion constrains the AG’s ability to become a de facto “gatekeeper” controlling what legal theories constitutional officers can present in court. The AG’s broad statewide responsibilities do not permit her to silence or significantly narrow a client officer’s legal arguments when a non‑frivolous conflict emerges with other state clients.
Recognition of AG conflicts as real and justiciable.
By explicitly applying the concurrent‑conflict rule to the Attorney General, the Court confirms that government lawyers are bound by professional ethics in representing multiple clients. Conflicts between the AG’s responsibilities to different state entities (here, the Auditor vs. executive agencies) are not academic; they can require disqualification and alternative representation mechanisms.
Clarification of the Executive Council’s role.
The majority’s reading confines the Executive Council’s role to approving and funding outside private counsel when the AG cannot represent a state officer. It does not extend to vetting or authorizing in‑house counsel. If this reading stands, state entities can respond more quickly and flexibly to AG conflicts by using existing staff attorneys.

C. Future Disputes Involving the Auditor and Other Agencies

This case is part of a broader pattern: the Auditor’s audits can—and often do—implicate other state officers and agencies, including those represented by the AG. The decision thus:

Makes it more likely that the Auditor will use in‑house counsel in litigation where his oversight role conflicts with the interests or preferences of other state actors;
Encourages early identification and resolution of conflicts between the Auditor and the AG, rather than informal compromises that might dilute institutional independence; and
Signals that courts will carefully scrutinize attempts to limit the Auditor’s ability to assert the full scope of his statutory powers.

D. Implications for Attorney–Client Privilege and Government Audits

The Court is careful not to decide the underlying substantive question about attorney–client privilege in this order. Nonetheless, the dispute over representation is inseparable from:

The Auditor’s claim that his subpoena authority extends to attorney–client privileged communications (except privileged work product) when relevant to an audit; and
The AG’s concern that such a ruling would weaken the privilege for state agencies and officers, undermining government’s ability to obtain candid legal advice.

By allowing the Auditor to be fully represented on this point and inviting the AG’s amicus participation, the Court sets up a robust, multi‑sided merits debate in the next phase of the case. Whatever the final ruling on privilege, it will be informed by:

The Auditor’s statutory access arguments;
The City’s and AG’s privilege‑protection arguments; and
The constitutional and policy stakes for transparent auditing vs. confidential legal advice.

E. Potential Spillover to Other Officers and Agencies

Though the Court “sounds notes of caution” and insists it is not deciding other hypothetical configurations, the logic of the opinion could apply beyond the Auditor:

Other independently elected officers (Governor, Secretary of State, Treasurer, Secretary of Agriculture) may invoke this precedent when they disagree with the AG’s litigation positions on matters central to their statutory or constitutional authority.
Boards, commissions, or agencies with statutory independence may argue that, where their positions differ materially from the AG’s and relate to their core functions, they too are entitled to in‑house or other independent counsel.

However, the Court also distinguishes mere strategic disagreements from genuine conflicts. Future disputes will likely turn on:

Whether the divergence concerns a “central issue” in the case or only secondary strategy; and
Whether the AG’s refusal to advance a position is grounded in duties to other clients (conflict), or simply in a reasonable conclusion that the argument is legally frivolous or sanctionable (no conflict).

VI. Clarifying Key Legal Concepts

To make the opinion more accessible, this section briefly explains several important legal concepts that appear in the decision.

A. “Conflict of Interest” for Government Lawyers

A lawyer has a conflict of interest when duties to one client materially limit the ability to represent another. For private practice, this might be, for example, representing two businesses suing each other. For the Attorney General, who represents many state officers and agencies, conflicts can arise when:

Different clients have opposing legal positions in related matters; or
A legal victory for one client would harm another client’s interests.

In this case, the AG must protect attorney–client privilege for many state agencies, but the Auditor seeks to expand his right to review privileged materials, potentially limiting that protection. The AG’s duties to current and future agency clients materially limit her ability to advocate the Auditor’s position; hence, a conflict exists.

B. “Official Capacity” Representation

When a state officer is sued “in his official capacity,” the lawsuit is functionally against the government office, not against the individual personally. Any judgment typically binds the office and may affect its legal powers, duties, and resources, not the official’s private assets.

Iowa Code § 13.2(1)(c) assigns the Attorney General the job of defending suits against state officers in their official capacities. That is why the AG ordinarily represents the Auditor. But this duty is qualified by “except as otherwise provided by law,” which, in this case, includes professional conduct rules and conflict‑of‑interest principles.

C. Amicus Curiae

“Amicus curiae” means “friend of the court.” An amicus is not a party but a non‑party who offers legal views the court may find useful. By shifting the AG from party‑counsel to amicus, the Court:

Ends the attorney–client relationship between the AG and the Auditor for this case; but
Still allows the AG to share her perspective, particularly on the protection of attorney–client privilege and broader state interests.

D. “Interlocutory Appeal”

An interlocutory appeal is an appeal taken before the final judgment in a case, typically to review an important ruling that would significantly affect the proceedings. Here, the City appealed the district court’s discovery and in‑camera review orders before the audit litigation was fully resolved.

E. “In Camera Review”

“In camera” means “in chambers.” An in‑camera review occurs when the judge privately reviews documents (e.g., assertedly privileged materials) outside the presence of other parties to determine whether they are indeed privileged, relevant, or must be disclosed.

F. Attorney–Client Privilege vs. Confidentiality vs. Work Product

Attorney–client privilege protects confidential communications between a lawyer and client made for the purpose of seeking or giving legal advice. It is a rule of evidence and can block compelled disclosure in litigation.
Confidential information is broader: it includes any non‑public information a lawyer learns in representing a client, which the lawyer must not reveal (subject to exceptions), but not all such information is necessarily privileged evidence.
Attorney work product is material prepared in anticipation of litigation (notes, strategies, mental impressions). It receives special protection, often even more robust than privilege.

Iowa Code § 11.41(3) and (4) give the Auditor broad access to records, including some confidential ones, but explicitly exclude “attorney work product.” They do not expressly exclude attorney–client privileged communications, which is why the district court and the Auditor argue that such communications are accessible, subject to relevance limits.

G. The Executive Council

The Executive Council is a five‑member body (Governor, Secretary of State, Auditor, Treasurer, Secretary of Agriculture) responsible primarily for certain financial and administrative approvals. In this context, its role is potentially to:

Authorize appointments of outside counsel when the AG has a conflict; and
Approve expenditures for legal fees.

The majority reads its function narrowly (funding and approval of private counsel); the concurring/dissent views it as the mandatory appointing authority for all substitute counsel.

VII. Conclusion: Key Takeaways

The Iowa Supreme Court’s opinion in City of Davenport v. Office of Auditor of State establishes several important propositions in Iowa public law and government ethics:

The Attorney General can have a genuine conflict of interest with an independently elected constitutional officer.
When the AG’s responsibilities to other state clients materially limit her ability to advocate for an officer’s core statutory position, she must withdraw under Iowa R. Prof’l Conduct 32:1.7(a)(2).
Constitutional officers have a right to independent representation in such conflicts.
The Auditor of State may be represented by his own in‑house General Counsel on appeal when the AG is disqualified. The AG cannot prevent the Auditor from asserting his understanding of his own statutory authority.
Executive Council approval is not required for in‑house substitute counsel.
Interpreting Iowa Code §§ 13.3 and 13.7 in context, the Court holds that Executive Council authorization is required for hiring and paying outside private counsel, not for using existing government attorneys who impose no additional fee liability.
The AG’s role as counsel does not override client autonomy.
Drawing on Motor Club and multiple sister‑state decisions, the Court reaffirms that the Attorney General’s default representation of state officers does not entitle her to dictate their litigation positions, particularly where those positions define the officers’ statutory powers.
The Court preserves a robust adversarial merits process.
By recognizing the AG’s conflict and restructuring representation, the Court ensures that both the Auditor’s expansive view of his audit and subpoena authority and the AG’s concern for protecting attorney–client privilege will be fully aired at the merits phase.

Finally, while the opinion is formally limited to the Auditor’s situation and the representation issue, its reasoning will likely influence future disputes involving constitutional and statutory officers who find their legal positions at odds with the Attorney General’s conception of the state’s interest. The decision thus marks a significant clarification of the balance of power within Iowa’s executive branch and the ethical obligations of its chief legal officer.