Week 6
Retention of Private Counsel by attorneys general
Syllabus: The Role of the State Attorney 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 contraversial 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.
Note: Links to the readings below open in this window/tab in H20 Casebook. Use your browser’s “back” button to return to the syllabus.
- State v. Lead Industries Ass'n 951 A.2d 428 2008-07-01
- American Legislative Exchange Council, Private Attorney General Retention Sunshine Act
- Attorney general [Hector Balderas] unveils changes on hiring private lawyers, KOB Eyewitness News 4, March 30, 2015
- "SC Gov McMaster Objects to Plutonium Settlement and $75 million legal fees," August 31, 2020
- NC Attorney General brings in national law firm for PFAS investigation, X, Chemours, Posted August 12, 2020 (Supplemental Reading)
- After Whistleblowers Left Texas AGO, AG Paxton Hired Costly Outside Counsel for Google Suit, Texas Tribune, January 5, 2021
- State of New Jersey, Outside Counsel Guidelines (Supplemental Readings)
- Multistate Advocacy - Role Playing Hypothetical and Related Articles
- "It's the 90's, Counselor: 'Superfluous' Fees Denied" David Margolick, New York Times, Aug. 14, 1992 (Supplemental Readings)
- Eric Lipton, Energy Firms in Secretive Alliance with Attorneys General, New York Times (Dec. 6, 2014)
- Eric Lipton, Lobbyists, Bearing Gifts, Pursue Attorneys General, New York Times (Oct. 28, 2014)
- Multistate Case Hypothethical, Prof. Peter Brann