The role that private plaintiffs lawyers play in state litigation has increased exponentially in recent years.
This trend is not unique to Louisiana. As state attorneys general across the nation have become more active in civil litigation, they have become significantly more reliant on outside legal counsel. Generally, as payment for their services, these attorneys receive a contingency fee, which is a percentage of the award that’s recovered on behalf of the state.
In Louisiana, the attorney general contends he has found a way to “work around” a long-standing decision from the state Supreme Court that specifically prohibits these types of arrangements. Under this “work around,” private attorneys working on behalf of the state are allowed to negotiate their own fees, which are then awarded by the court. Regardless of what you call them, these arrangements create the illusion that lawsuits can be pursued at no expense to the taxpayer, when in fact they come at a tremendous cost to the public interest.
Legal experts have long argued that these arrangements improperly combine the extraordinary prosecutorial power of the state with the eagerness of profit-motivated lawyers, creating a perverse incentive that can influence the outcome of state litigation. Essentially, members of the plaintiffs’ bar are hired as government subcontractors to pursue lawsuits on behalf of the state, but they have a huge financial interest in the outcome of the case. That’s the equivalent of allowing state troopers to be paid for every speeding ticket they give out. Can you imagine? The potential for corruption is so great that the public would never accept it. And yet, in Louisiana today many private lawyers have been hired by the attorney general to enforce pubic laws under contract arrangements that put personal financial interests ahead of the administration of justice. To make matters worse, these million dollar legal deals are often cut behind closed doors with no public scrutiny or legislative oversight. This shady process has raised serious questions about cronyism, as some of the attorney general’s top campaign contributors have received highly lucrative no-bid legal contracts. That’s unacceptable.
Transparency is the foundation of good government, and there’s no doubt we need more of it when it comes to the handling of state legal contracts in Louisiana. That’s why I sponsored HB 799. This important legislation, which has cleared the House and is now awaiting a hearing before the Senate Judiciary A Committee, codifies the longstanding Louisiana Supreme Court opinion prohibiting the use of contingency fee contracts. HB 799 also requires that private lawyers working on behalf of the state must keep detailed time records so they can be paid on an hourly basis. To prevent law firms from charging exorbitant rates, the rate is capped at $500/hour. And before outside legal counsel can be retained on an hourly-basis, HB 799 requires the attorney general and other state offices to produce a written finding that the office does not have the resources to handle a legal matter in-house.
These safeguards on the hiring, oversight and payment of private attorneys by state offices will help to eliminate any appearance of impropriety and help foster public confidence in our legal system.
With the enactment of these much-needed reforms, Louisiana could join a growing list of states that have taken action to shine the public spotlight on state legal contracts, including: Alabama, Arizona, Colorado, Connecticut, Florida, Georgia, Indiana, Iowa, Kansas, Minnesota, Mississippi, Missouri, North Dakota, Texas, Utah, Virginia and Wisconsin.
I applaud my colleagues in the House for their support of HB 799. I hope my colleagues in the Senate will quickly follow suit. Anytime the attorney general engages outside legal counsel on behalf of the state, he owes it to the taxpayers to be clear and transparent about why he’s doing it and how much it is likely to cost.
Representative Stuart Bishop (R-Lafayette) is a first term legislator representing Acadiana in the Louisiana House.