Opinion: Keep an eye on attorney general’s outside hires
Michigan Attorney General Dana Nessel recently issued a broad call for “national expertise” from law firms around the United States in potential cases against manufacturers and distributors of opioid medications and polyfluoroalkyl substances, or PFAS for short.
She is offering to hire them as special assistant attorneys general under a contingency fee structure. While bona fide rationale exists to retain specialized contingency fee counsel in certain circumstances, these high-dollar contracts should be transparent and put the states’ taxpayers first.
When a state contracts with outside legal counsel on a contingency fee basis, that firm agrees to work for a pre-determined percentage of any financial settlement awarded by the court. When done right, these contracts are transparent and accountable to the system. When done wrong, they have limited outside oversight and are rife with political favoritism, allowing private attorneys to collect millions while the residents they are supposedly representing see little.
Michigan should look to voluntarily implement the best practices that have been codified in 22 other states. These states specify that the attorney general should hire outside counsel only when it is in the taxpayers’ best interest and visible to everyone.
These states require the attorney general to show they do not have the time or resources to handle any new case in-house and ensure all bidding law firms are reviewed fairly and equally. Additionally, many of these states require legislative oversight of contingency fee agreements so to prevent profit-driven firms from pursuing the contract.
Nationally, attorneys general are becoming more engaged in large cases surrounding opioids and PFAS. Since this tactic of using outside counsel to pursue these types of claims has seen increased usage and work is crossing over state lines, we must make sure the relationship between the attorney general and outside lawyers is well-defined and the details of any contract are clear. If outside counsel is needed, ideally a Michigan-based firm should represent our state in the courtroom, as they know our people and have a greater likelihood of working toward what’s best for our state.
The Attorney General’s office holds a responsibility to review proposals with a strong eye toward a properly disclosed decision-making process. These potential lawsuits could have a lasting impact on our state’s economy, so it would be wise to follow best practices that have been proven to protect taxpayers. Michigan’s residents — not an outside or out-of-state law firm — should be the primary beneficiaries of this potential legal action.
Wendy Block is vice president of business advocacy at the Michigan Chamber of Commerce.