We've long been critical of state attorneys general hiring plaintiffs' lawyers on contingency fees. In today's New York Times, Adam Liptak writes a fair-minded investigative piece that implicitly agrees, at least on my reading:
In courts around the nation, in cases involving tobacco, lead paint and guns, state attorneys general have been outsourcing government power to private lawyers. Business groups hate the development, in part because they would rather not litigate against sophisticated plaintiffs’ lawyers on a level legal playing field.
But the business groups make broader points as well.
“When someone who is exercising the state’s power stands to gain from that, it violates due process,” said Jay T. Jorgensen, a lawyer for one of the chicken companies. “If you got pulled over by a cop and the cop made more money if he gave you a ticket and less if he didn’t, no one would think that was fair.”
There is also the question of whether hiring lawyers by promising them a percentage of what they win — on contingency, in the legal jargon — violates the separation of powers.
It is, after all, the legislature’s job to decide how to spend the state’s money. But an attorney general who promises a percentage of a recovery to a law firm is giving away state money without legislative approval.
“These arrangements rob the legislature of its right to control what is in the public interest,” said Paul M. Pohl, who represents defendants in lead paint suits in which governments are represented by lawyers who will be paid a percentage of what they win. “And the last people you want to have to decide what good public policy in your state is are contingency-fee lawyers from out of state. They’re like groups of locusts looking for the next wheat field.”
That perspective seems to be gaining traction.
