Constitutional Law

Contingency AG Cases Split Courts

Courts are divided on whether state attorneys general may hire contingency-fee lawyers to press their cases.

The Louisiana Supreme Court struck down such an arrangement, while Maryland’s highest court went the other way, Adam Liptak reports in his Sidebar column for the New York Times (sub. req).

Critics advance two legal arguments against such arrangements.

One is that it violates the due process rights of the defendants when lawyers gain by exercising the state’s power. “If you got pulled over by a cop, and the cop made more money if he gave you a ticket and less if he didn’t, no one would think that was fair,” lawyer Jay Jorgensen told the Times. He is defending a poultry company in a suit filed by contingency lawyers hired by the Oklahoma attorney general.

The second argument, Liptak says, is that it violates separation of powers for the attorney general to decide how to pay the lawyers. Then-Alabama Attorney General William Pryor Jr. explained the objection in a speech to the ABA.

“The use of contingent-fee contracts allows governments to avoid the appropriation process and create the illusion that these lawsuits are being pursued at no cost to the taxpayers,” said Pryor, who is now a federal appeals judge.

The Wall Street Journal editorial board took the position in a Thursday editorial that retaining a law firm on a contingency-fee basis conflicts with a “prosecutorial” role of representing citizens in a neutral manner. (See previous post.)

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