Retention of Private Counsel by attorneys general: March 7, 2022

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 (see Chapter on 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.