A recent New York Times story about the relationships between consumer-friendly state attorneys general and plaintiffs' lawyers that serve as outside counsel on enforcement cases that the outside lawyers themselves have recommended is worth a read — and a big caveat.
The article is informative about how state AGs often need to turn to outside counsel for help enforcing consumer protection laws, and the piece rightly notes the potential conflict of interest present when outside counsel who have contributed to officials' campaigns also recommend enforcement actions and stand to benefit financially from being engaged as outside counsel to bring the actions. But the article, ominously entitled "Lawyers Create Big Paydays by Coaxing Attorneys General to Sue" and focusing an unexplained amount of attention on the details of how outside attorneys contact attorneys general (as if these were nefarious secret meetings), insinuates that these arrangements are mainly inside dealing while downplaying the important public purpose served by contingency arrangements with outside counsel to bring enforcement actions on behalf of the state.
Here is how the Times summarizes the practice:
The lawsuits follow a pattern: Private lawyers, who scour the news media and public records looking for potential cases in which a state or its consumers have been harmed, approach attorneys general. The attorneys general hire the private firms to do the necessary work, with the understanding that the firms will front most of the cost of the investigation and the litigation. The firms take a fee, typically 20 percent, and the state takes the rest of any money won from the defendants.
Well, what's wrong with that? Hiring outside counsel to do consumer protection work that many AG offices are understaffed to handle expands the enforcement power of those offices. The state can better enforce its laws, protect its citizens, and potentially reap financial benefits by recovering money it wouldn't have otherwise. And the contingent nature of the fees for the outside counsel ensure that (a) the state is not out any money if the suits are unsuccessful, and (b) the outside counsel have a strong incentive to find and bring meritorious cases, an incentive that decreases the chance that the AGs are lending the state's name to unjustified suits.
To be fair to the Times, the story does note (eventually) that AGs' offices often don't have the capacity to handle these suits. And the conflict-of-interest point is one worth taking into account. But ultimately, the arrangements do not seem to be an example of big money or personal relationships corrupting the system but rather instances of private ambition being put to work for public gain. (More Madison than McCutcheon.)
The real problem, which the article notes briefly at the end (without apparently seeing it as a problem), is that the large corporations are seizing on relationships between attorneys general and plaintiff-side outside counsel and using them as campaign fodder against officials engaging in a practice that seems mostly to benefit the public. The business community has also successfully pushed legislation in a number of states to restrict the practice. This Times article is likely to aid those anti-consumer efforts, unfortunately, by fueling the perception that attorneys general should not be working with the plaintiffs' bar to help expand their capacity to enforce the law.
You can read the article here.
