State Attorneys General and Contingency Fee Arrangements: An Affront to the Neutrality Doctrine?
Godesky, Leah, Columbia Journal of Law and Social Problems
Around the nation, a lack of government resources and / or expertise has forced state attorneys general to resort to outsourcing of prosecutorial efforts in order to ensure that the needs of the state and its citizens are adequately represented. Such arrangements have often been challenged on the grounds that they violate either state constitution separation of powers provisions, or the demands the neutrality doctrine places on government officials. As the relevant case law indicates, the neutrality doctrine in particular raises valid concerns about the propriety of contingency fee arrangements; concerns that have yet to be adequately addressed by any of the reforms proposed to date. This Note presents a novel set of best practices for state attorneys general who choose to utilize contingency fee agreements. The best practices in this Note are intended to do what other reform suggestions have failed to achieve. They constitute innovative ways of honoring the principles of the neutrality doctrine through a reimagining of contingency fee arrangements to prioritize government control and authority.
The American legal system has traditionally permitted individuals to hire attorneys on a contingency fee basis.1 The contingency fee arrangement has long been regarded as the means by which individuals who lack the economic resources to hire private attorneys may be granted access to the legal system and a legal advocate.2 Under such an arrangement, the attorney is not paid unless his client "wins"; if the client does not prevail, the attorney charges no fee.3 If the client wins, the attorney collects a percentage of the amount awarded.4
The use of contingency fee arrangements has spread to government, with state attorneys general hiring private counsel on a contingency fee basis to manage and try certain cases on behalf of the state.5 State attorneys general justify their use of private attorneys on the grounds that they are able to bring suits on behalf of the citizens of their states that would otherwise be impossible due to a lack of personnel resources, expertise, and money.6 Proponents of the system also point out that while some attorneys general employ contingency fee arrangements in a wide array of cases and contexts, most of the attorneys general who use them do so sparingly.7
The use of private attorneys on a contingency fee basis by state attorneys general is often associated with the tobacco litigation of the 1990s. Following the Master Settlement Agreement ("MSA") of 1998, trial attorneys across the nation received $14 billion in attorney fees under the $246 billion tobacco settlement.8 In the years following the MSA, private attorneys have continued to represent government interests through contingency fee contracts.9 In Rhode Island, for example, Attorney General Patrick C. Lynch and former Attorney General Sheldon Whitehouse used private attorneys to represent the state in a fight against lead paint manufacturers from 2003-2008.10 In 2007, Oklahoma Attorney General W.A. Drew Edmondson retained three plaintiffs' attorney firms to take on poultry companies he claimed had polluted the state's waterways with chicken manure.11 In California, several counties have hired private attorneys on a contingency fee basis to file a class action lawsuit based on a public nuisance claim against former lead paint and pigment manufacturers.12
The practice is not without opposition. Many contingency fee arrangements are criticized on the basis of the personal and political connections between state attorneys general and the private firms retained to represent the state.13 The arrangements are also lamented by some critics for enabling "regulation by legislation."14 Most common, however, are two particular allegations: 1) that the contingency fee agreements violate state separation of powers doctrines; and 2) that the standard of neutrality required of government attorneys is violated when private attorneys, with their own agendas, strategies, and goals, represent state interests. …