Will the AG answer condominium-development questions sent on behalf of a private nonprofit?

Plain-English summary

Representative LeAnne Burch forwarded five questions to the AG on behalf of Veterans Village of America, Inc. (V2A), a 501(c)(3) nonprofit. The questions asked whether state condominium law would allow or prevent a particular ownership structure and a particular development process for the nonprofit's proposed project.

The AG declined to answer. Two grounds:

1. Answering would be tantamount to giving private legal advice, which Ark. Code Ann. § 25-16-701 expressly prohibits the Attorney General from doing. The opinion authority under § 25-16-706 is to legislators and state officials on matters of state law, not to walk a private organization through its development plan.

2. The questions were fact-bound. They depended on the specific ownership structure, the specific development sequence, and the specific properties involved. AG opinions cannot make factual determinations of that kind.

The AG redirected V2A to private counsel who could review all the relevant facts and circumstances.

This is a structural opinion: it tells anyone considering an AG opinion request what the office will and will not take on. Anything that asks the AG to lawyer up a private transaction, or that turns on facts only a private actor knows, is going to be declined.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why is the AG forbidden from giving private legal advice?
A: Ark. Code Ann. § 25-16-701 makes the prohibition explicit. The Attorney General is the state's lawyer; resources and authority are dedicated to state and public clients. Giving private legal advice would also create conflicts of interest and divert public resources to private benefit.

Q: What kinds of questions will the AG actually answer for a legislator?
A: Under § 25-16-706, the AG renders opinions to legislators and certain state officials "on certain matters of state law." Pure questions about how a statute or constitutional provision should be interpreted, applied to a class of persons or transactions, or measured against another statute fit that mandate. Walking through a specific private transaction does not.

Q: Could the legislator have re-framed the question to get an answer?
A: Possibly. A general question of the form "Does Arkansas condominium law require X for Y category of nonprofit projects?" might have been answerable. The opinion was declined here because the framing was tied to "this discrete situation."

Q: What about state agencies that ask for guidance on their own transactions?
A: A state agency is a public client, and the AG regularly advises state agencies on transactions and contracts they enter into.

Q: Is the AG's decline a comment on the merits of V2A's project?
A: No. The decline is procedural. It says nothing about whether the nonprofit's plan would or would not pass muster under state condominium law.

Background and statutory framework

The Attorney General's opinion-writing authority comes from Ark. Code Ann. § 25-16-706, which charges the office with rendering opinions to legislators and certain state officials on matters of state law. The boundary is set by Ark. Code Ann. § 25-16-701, which prohibits the Attorney General from engaging in the private practice of law. The AG also cited Op. Att'y Gen. 2018-075 for the additional point that opinions cannot resolve factual questions.

The combination of §§ 25-16-706 and 25-16-701 effectively creates a public-question filter. Questions of statewide legal interpretation get answered. Bespoke advisory work for individual private actors does not, even when channeled through a legislator's request letter.

Citations

• Ark. Code Ann. § 25-16-706 (AG opinion duty)
• Ark. Code Ann. § 25-16-701 (no private practice of law)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2019-074
February 7, 2020

The Honorable LeAnne Burch
State Representative
P. O. Box 222
Monticello, AR 71657-0222

Dear Representative Burch:

This is in response to your request, on behalf of a private nonprofit organization, for "advice and an opinion regarding condominium regulations." Your request pertains specifically to the organization's desire to develop certain properties as condominiums.

RESPONSE

The questions you have posed involve a specific proposed condominium ownership structure and a related proposed process for a condominium development. You ask whether state law imposes any restrictions on or impediments to the ownership structure or condominium development process you describe.

I must respectfully decline to address your inquiries in this regard. This office regularly renders opinions to legislators and other state officials on matters concerning the interpretation and application of state law. However, providing an opinion concerning this matter would verge on my engaging in the private practice of law, which state law expressly prohibits. The organization would need to seek private counsel for advice on how to proceed with the proposed condominium development.

Furthermore, the matter at hand requires factual determinations that I am unable to make within the scope of an official opinion. Private counsel acquainted with all of the pertinent circumstances surrounding the proposed development will be better equipped to address questions of fact such as these.

I regret that I am unable to assist you directly in this matter. Thank you for writing, and please feel free to contact me in the future when this office can be of assistance.

Sincerely,

LESLIE RUTLEDGE
Attorney General