15 Supplemental Reading: Retention of Private Counsel by attorneys general 15 Supplemental Reading: Retention of Private Counsel by attorneys general
All attorneys general utilize private counsel to represent the state's interest. In most cases it is because the matter is highly routinized (collecting bills for the state), highly specialized (bond counsel) or non repeating specialites (copyright or state owned patents). They are also used to provide legal services to remote geographic areas (rural state institutions) far from the State Capitol and for deep conflicts where outside retention is the only ethical answer.
The manner of selection of these outside counsel varies with the issue and the state. Quite often an assistant attorney general from the civil division will be allowed to keep his or her agency “client” for a period of time upon leaving the office. In other instances law firms have such deep relations with the agency who is “paying” for the services that the attorney general accedes to the agency request to utilize the firm.
CONTINGENT COUNSEL
This Chapter primarily deals with retention of private counsel an attorney general in a very different setting, e.g. contingent counsel on national cases. This practice broke into the national legal scene in the 1990's in the Tobacco Cases. These cases generated an enormous settlement and legal fees of over $1 Billion. The controversial practice has continued with some states never using contingent counsel and some using them as a matter of course.
The ability of attorneys general to retain and control contingent counsel has been the subject of significant litigation and controversy as indicated in the readings of this Chapter. There have been litigation efforts and legislative initiatives by impacted industries designed to eliminate or limit the ability of attorneys general to retain contingent counsel. While these efforts have been generally unnsucessful they did generate a number of applellate decisions, state laws and academic articles that have limited the unfettered authority of attorneys general regarding the retention and supervision of contingent counsel with a clear increase in the transparency of the practice.
15.1. After Whistleblowers Left Texas AGO, AG Paxton Hired Costly Outside Counsel for Google Suit, Texas Tribune, January 5, 2021
15.2. "SC Gov MacMaster Objects to Plutonium Settlement and $75 million legal fees," Charlotte Observer, August 31, 2020 | H2O
15.3. Attorney general [Hector Balderas] unveils changes on hiring private lawyers, KOB Eyewitness News 4, March 30, 2015
Attorney general unveils changes on hiring private lawyers
Posted at: 03/30/2015 8:07 AM Updated at: 03/30/2015 9:13 PM
By: Ryan Luby, KOB Eyewitness News 4
New Mexico Attorney General Hector Balderas wants to curtail questions of influence involving private lawyers who want to benefit from a private-public partnership.
Balderas announced new reforms on hiring private lawyers to file lawsuits on behalf of the Attorney General's Office.
Under Balderas's new process, which resulted from an internal office-wide review, he'll decide on the merits of a possible case involving outside counsel himself. If he chooses to pursue it, his office will determine if it's cost-effective. Then, his office would require attorneys to competitively bid to get involved.
"I only want to pursue cases that protect taxpayers, where we're able to secure adequate recovery for the state of New Mexico," he said.
The move comes after a New York Times story in December that showed how more attorney generals were hiring private law firms to file lawsuits. The story, which featured former New Mexico Attorney General Gary King, reported that private lawyers search public records for potential cases then approach attorneys general.
State officials hire the firms to do the necessary legwork, and in return, the firms get a percentage of any money won in court cases.
"If there's not a strong process of internal controls and a competitive bidding process that's transparent, any elected official then could be subject to undue influence," Balderas said.
According to staff, the New Mexico Attorney General's office has eight contracts with outside counsel at the moment.
The Associated Press contributed to this report.
Ryan Luby, Attorney general [Hector Balderas] unveils changes on hiring private lawyers, KOB Eyewitness News 4, March 30, 2015 (Links to an external site.)
15.4. NC Attorney General brings in national law firm for PFAS investigation, X, Chemours, Posted August 12, 2020 (Supplemental Reading)
15.5. State of New Jersey, Outside Counsel Guidelines (Supplemental Readings)
15.6. American Legislative Exchange Council, Private Attorney General Retention Sunshine Act
The American Legislative Exchange Council (ALEC) is a national conserviative think tank that engages in advocacy in state legislatures. ALEX has proposed model legislation that limits the unfettered ability of attorneys general to retain contingent counsel.
American Legislative Exchange Council, Private Attorney General Retention Sunshine Act(Links to an external site.)