Policy Analysis | November 2016
Outside Legal Counsel in SLC Member States
The attorney general is the chief legal officer in each state and serves as counselors to their legislatures and state agencies and also as the "People's Lawyer" for all citizens. Circumstances arise, however, in which the attorney general cannot or will not represent the state. When this occurs, state governments must hire outside legal counsel to represent the state.
In 14 of the 15 states in the SLC region,1 the attorney general is elected. This may lead to situations in which the attorney general is from a different political party than the governor and/or legislature. Sometimes in states with this arrangement, the attorney general may refuse to provide a defense for a law which he or she believes is unconstitutional. This currently is happening in North Carolina, where Attorney General Roy Cooper is refusing to defend multiple laws passed by the General Assembly and, in Mississippi, where Attorney General Jim Hood has refused to defend HB 1523, also known as the Protecting Freedom of Conscience from Government Discrimination Act,” or “has refused to defend HB 1523, the state’s religious freedom law.”
In other cases, the attorney general may decide that outside legal counsel has more expertise in the subject matter of a case and that the state would be better served by outside legal counsel. In some instances, the legal matter may not be central to the capital city and a law firm located in the relevant city may be better equipped to address the matter.
All 15 of the SLC member states allow for the use of outside legal counsel. In the majority of the SLC member states, there are laws or policies enumerating in which situations the use of outside legal counsel is permitted. The following sections details these laws and policies in all 15 SLC member states.
The use of outside legal counsel by the attorney general, in consultation with the governor, is permitted. Contingency fee contracts2 are permitted, if a government attorney(s) maintains supervision and control of the legal matter. A government attorney(s) must decide all settlement matters.
Source: Code of Alabama Section 41-16-72
The use of outside legal counsel by the attorney general, with the approval of the governor, is permitted. Contingency fee contracts are permitted, after a review by the Legislative Council, the supervisory committee of the Bureau of Legislative Research, the legislative branch’s research service agency. A government attorney(s) must maintain supervision and control of the legal matter. A government attorney(s) must decide all settlement matters.
No agency shall contract for outside legal counsel without the prior written approval of the attorney general. An exception is made when the case is time-sensitive.
An agency requesting approval for the use of outside legal counsel shall first offer to contract with the Department of Legal Affairs for attorney services at a mutually agreed cost. The attorney general shall decide on a case-by-case basis to accept or decline to provide attorney services. If the attorney general declines to provide the requested attorney services, the attorney general’s written notice shall include a statement explaining why the services cannot be provided. The attorney general shall not consider political affiliation in making such a decision. Contingency fee contracts are permitted.
The attorney general is authorized to select and employ outside legal counsel. The outside legal counsel must perform a thorough check for conflicts of interest which may arise from representation of the state.
The attorney general, directly or through his or her staff, must retain control of the litigation and retain final decision-making authority over any proposals by outside counsel. Decisions regarding settlement of any case must be made by the attorney general.
In Kentucky, there are no generalized guidelines for the utilization of outside legal counsel. For the legislative branch, there is no governing statute or regulation, and there are no statutes or regulations prohibiting the use of outside legal counsel. Outside counsel can be retained through a contractual bidding process or personal services contract.
Source: Email from David Byerman, Director, Legislative Research Commission
The attorney general of Louisiana employs outside legal counsel in cases requiring specialized knowledge. Statutory authority is required to authorize the use of contingency fee payment for outside legal counsel. Any recovery or award of attorney fees, including settlement funds, remits to the state and is deposited into the Department of Justice Legal Support Fund.
The attorney general's office will retain outside legal counsel when the litigation involves specialized areas of knowledge or practice in which the state would be better served by an attorney with specific expertise. In some cases, outside counsel is retained because a conflict of interest prohibits a case from being handled internally. Contingency fee contracts are permitted. Regardless of the type of contract, the attorney general's office maintains full control over the litigation. The office supervises the work of the private attorneys and decides all litigation strategy matters.
In addition, in Mississippi, in accordance with state law, the attorney general also periodically enters into contracts with private lawyers and law firms. In cases handled by private counsel, the attorney general enters into either a fixed hourly rate or contingency fee contract. You may learn more about the process adopted in Mississippi here.
Unless the attorney general makes a prior written determination, that it is both cost effective and in the public interest, Missouri will not enter into a contingency fee contract with a private attorney. The attorney general’s office must supervise and control the ensuing legal process and must decide all settlement matters.
There are three statutes that are relevant to hiring outside counsel. State agencies must get permission from the attorney general to use outside counsel, but the General Assembly does not need to do so. Central, nonpartisan staff at the North Carolina General Assembly do not make the call as to hiring counsel; most of the decisions concerning outside counsel are likely to be confidential.
North Carolina State University’s Office of General Counsel (OGC) also provides legal services and counseling to all University units and personnel for matters related to the operation of the University. In some instances, either special expertise is necessary or timing dictates that outside legal counsel be engaged. The following steps are provided to assist University units in requesting and managing outside legal counsel. While this entails a public university and not the state per se, I believe you will find the steps outlined useful.
The governor has the power to employ outside legal counsel. An agency or official of the executive branch may obtain legal representation by one or more attorneys by one of the following methods:
- Employing an attorney as authorized by law;
- Contracting with the office of the attorney general; or
- If the attorney general is unable to represent the agency or official due to a conflict of interest or the office of the attorney general is unable or lacks the personnel or expertise to provide the appropriate representation required by such agency or official, contracting with outside legal counsel.
The attorney general must give written approval to all departments and agencies – excluding state colleges and universities and circuit solicitors – seeking outside legal counsel. Contingency fee contracts are permitted. A contract between the state and outside legal counsel must set forth the parameters of employment and terms of payment in order to enter a contingency fee contract.
The attorney general is required to defend the constitutionality and validity of all legislation enacted by the General Assembly, except when the attorney general attests that such legislation is not constitutional. In this instance, the attorney general shall so certify to the speaker of each chamber.
In all cases in which the attorney general has certified to the speaker of each chamber his or her decision not to defend the constitutionality and validity of any law, the speakers, acting jointly, may employ outside legal counsel to defend the constitutionality of said law. Outside legal counsel shall be paid at a rate that the speakers deem appropriate.
If a state agency or department needs outside legal counsel, the agency or department must submit a Request to Retain Outside Counsel form to the office of the attorney general (OAG). Upon receipt of the form, the OAG will determine whether retaining outside legal counsel would be in the best interests of the state.
After selecting the outside legal counsel, the law firm selected must submit a written disclosure statement identifying every matter in which the firm represents or has represented within the past calendar year, any entity or individual in any litigation matter, directly adverse to the state of Texas or any of its boards, agencies, or elected or appointed state agency officials acting in their official roles. The agency or department shall determine whether to continue with its choice of outside legal counsel, given the disclosure statement. If the agency is satisfied in its choice of outside legal counsel, the agency must submit a statement affirming this to the OAG The disclosure statement also must be submitted to the OAG.
Outside legal counsel may be utilized when the governor concludes that the office of the attorney general (OAG) is unable to perform the needed services, dues to time, cost, or lack of needed expertise. Once outside legal counsel is retained, the assigned counsel of the O.A.G. assumes a supervisory role of the litigation, coordinating legal strategy and decisions with the private attorney(s).
The existence of any actual or potential conflicts of interest involving the Commonwealth of Virginia or any of its agencies or departments must be immediately described to the OAG. If a potential conflict of interest between clients arises, outside legal counsel may request that any objection be waived. The OAG is not authorized to waive a conflict of interest without approval from the client agency.
The attorney general may appoint outside legal counsel as necessary to properly perform the duties of the office. All outside legal counsel shall serve at the will and pleasure of the attorney general. When outside legal counsel is retained to represent the state, any contracts for legal services shall be competitively bid. The attorney general, or designated employee(s) involved in the case, must supervise and maintain control over the litigation and make all decisions related to potential settlements.
News Articles and Other Reference Sources
- Representative Stuart J. Bishop criticizes Governor John Bel Edwards for his use of outside legal counsel in this letter to the editor in The Advocate: Contract with lawyers should raise question
- The News & Observer explains how North Carolina Attorney General Roy Cooper has refused to defend the state’s voter ID law: NC will defend voter ID without attorney general
- The News & Observer discusses how North Carolina Attorney General Roy Cooper has refused to defend the state’s HB2 law: NC attorney general refuses to defend state from HB2 legal challenge
- The Houston Chronicle discusses how Texas Attorney General Ken Paxton refused to defend the state in a case regarding the use of audio and video produced by the Legislature in political ads: Saying it cannot rely on AG, ethics commission seeks more money for legal fights
- In 2013, the Wisconsin Legislature enacted the Transparency in Private Attorney Contracting Act, 2013 Wisconsin Act 105. This Act accomplishes a number of things, all intended to promote government transparency and create good practices for the state government’s hiring of outside counsel. Typically, the state relies on the office of the attorney general to represent its interests in legal cases. If the legal question strains the capacity of the attorney general in terms of expense, time commitment, or complexity requiring specialized legal experience, the state will consider hiring attorneys from private practice on a contingency fee basis. Many attorneys in civil litigation work on a contingency fee basis, meaning they are paid a percentage of the award only if their clients win at court. You may learn more about the new law in Wisconsin here.
- This 2014 article spells out details on executive branch officials in a number of states (Pennsylvania, New Jersey, West Virginia) utilizing outside counsel for a range of legal work.
1 In Tennessee, the attorney general is appointed to an eight-year term by the Tennessee Supreme Court.
2 A contingency fee contract is only paid in the event of a favorable result. Some contingency fee contracts require the client, i.e., the state legislature or a state agency or the governor, to pay in advance any costs that the firm anticipates incurring.