Attorney Fees

Should States Hire Private Trial Lawyers?


A growing controversy about whether it is appropriate for states to retain high-priced contingency lawyers to pursue mass tort litigation on citizens’ behalf is being argued in courts—and newspapers—throughout the country.

Siding with the U.S. Chamber of Commerce, the Wall Street Journal’s (sub. req.) editorial board says today that it’s not. Retaining a law firm on a contingency-fee basis, the editorial board says, conflicts with a “prosecutorial” role of representing citizens in a neutral manner. “That’s why we don’t pay policemen per arrest, judges a percentage of damages they award, or prosecutors a bounty for each conviction,” the editorial states, arguing that “personal profit” results from government attorneys handing out potentially lucrative contingency cases to private trial lawyers.

Proponents say that certain mass tort cases that benefit citizens probably would not be filed if states had to front the money to pay lawyers an hourly fee to pursue them.

President George W. Bush issued an executive order in May that prohibited federal agencies from retaining private lawyers on a contingency basis, but the issue remains largely unsettled at the state level. In California, court cases ban the practice, the Journal writes. And a federal judge in Oklahoma has been asked to disqualify private law firms retained by the state on a contingency-fee basis to bring environmental suits against corporate poultry farmers that allegedly are polluting the water supply, according to the National Law Journal.

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