Kudos to Jim Copland and all our allies at the Manhattan Institute's Center for Legal Policy. Their latest edition of Trial Lawyers Inc. (TLI) appropriately turns up the heat on certain state attorneys general (AGs), whose mutually beneficial relationships with private sector personal injury lawyers raise serious ethical questions and blur the line between self-interest and the public interest.
With increasing regularity, some AGs are hiring personal injury lawyers - often by way of a cozy, no-bid agreement ̶ to prosecute lawsuits on behalf of their states against deep-pocketed defendants. Resulting contingency fees can sometimes be worth hundreds of millions of dollars in state funds. TLI continues the important work of documenting these arrangements, which the Wall Street Journal and others have characterized as "pay to play," wherein outside counsel express their thanks for the lucrative legal work with generous campaign contributions to the AGs who hired them.
My organization, the American Tort Reform Association also seeks to educate policymakers and the taxpaying public about these unsavory AG-outside counsel relationships and the need for standards of public accountability. In 2007, ATRA published its Transparency Code for AGs, comprising the following good-government principles:
DISCLOSURE All contracts with outside counsel to perform legal work in the name of the state should be posted on the Internet for public inspection.
VALUE In every instance, the attorney general should seek to provide the highest quality services at the best value to state citizens when contracting with outside counsel. Unless an extraordinary situation requires assistance from a specific legal expert with technical or scientific experience not generally available, every effort should be made to competitively bid contracts for outside counsel.
OVERSIGHT Given that contingent fee-based contracts are often used when attorneys general are pursuing litigation that potentially has a significant public policy or regulatory impact, such contracts should be subject to review by the Legislature.
REPORTING Outside counsel providing services to the attorney general on behalf of a state's citizens and taxpayers on a contingent fee basis shall be required to disclose detailed information on the hours worked, services performed, and fees received from the state, as long as this reporting does not undermine the attorney-client privilege.
ACCOUNTABILITY All monies recovered by the attorney general in excess of $250,000 as a result of lawsuits won or settled by the state should be deposited in the state treasury for appropriation by the legislature unless a settlement with the attorney general's office stipulates that the funds shall be allocated to a specific entity. At no time, shall an attorney general enter into a settlement that allows the office of the attorney general to disseminate funds at its discretion.
A number of states have already incorporated some or all of these important principles into law, including Arizona, Indiana and Missouri just this year. And with help from the Manhattan Institute, the American Legislative Exchange Council and others, ATRA will continue to urge additional states to do the same.