OPINION:
Last month, 30 states across the nation held elections for the office of attorney general. As the current attorney general of Colorado, I offer my congratulations to my colleagues, new and old, on attaining one of the most important positions in state government.
From tobacco control to predatory subprime mortgages to consumer protection, attorneys general are at the forefront of some of the most significant and controversial issues of our time. Addressing these problems is not easy or cheap. At times, attorneys general must litigate against well-financed interests and hire outside counsel - experienced private-sector lawyers with specific expertise - to address highly specialized legal issues.
At the top of the “to-do” list for attorneys general should be setting policies that garner public confidence in the office of the attorney general - particularly in the area of hiring private lawyers to litigate on behalf of the state.
While they can be beneficial, contingency-fee contracts have proven to be a fertile ground for abuse - and major pitfalls for several prior attorneys general. Former Texas Attorney General Dan Morales served time in prison for improprieties in a tobacco settlement. Also, attorneys general in Alabama, Louisiana and West Virginia have been publicly called out for the appearance of pay-to-play contracting arrangements with private lawyers who have also been extremely generous campaign contributors to those attorneys general.
Setting strong policies that ensure contracts are adequately disclosed, fundamentally fair and provide value to taxpayers will help attorneys general avoid these mistakes. My office policy is not to hire outside lawyers on a contingency-fee basis when the state’s police power is being asserted (such as when the state brings an action based on a claim of public nuisance or when bringing a consumer-protection action). In rare circum- stances, such as when a case requires specific legal expertise or specialized knowledge that our office does not have, we will consider hiring outside counsel on a contingency-fee basis. In those circumstances, we seek the highest-quality services at the best value to state citizens. Many of my counterparts in other states have instituted similar policies. In addition, in my state of Colorado, state law limits lawyers working on a contingency-fee basis to a recovery that does not exceed $1,000 per hour for the work received and requires disclosure and reporting to my office on the work done and the hours worked.
The National Association of Attorneys General (NAAG) recently called attention to private lawyer hiring and plans to include the topic in an upcoming orientation session for new attorneys general. I applaud NAAG’s recognition of this important issue and extend the call for transparency to my colleagues in all 50 states. If they have not already done so, I urge each state attorney general to institute good-government office policies on the use of outside counsel. The voters have entrusted us with great responsibility, and it is incumbent upon us to maintain that trust by being open, honest and transparent in how we manage our offices. To that end, I ask my colleagues to be influential advocates and public champions for legislation that would codify these reforms in order to prevent abuses in the future.
John Suthers, a Republican, is attorney general of Colorado.
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