CHARLESTON – It’s time for state lawmakers to enact a good-government outside counsel rule requiring transparency and competitive bidding for the appointment of private attorneys to represent the state and its agencies in legal proceedings.
In some instances, the attorney general may need to engage in litigation that is very complex, time consuming and expensive. In order to ensure that West Virginians have the best representation in these complex cases, it may be necessary for an attorney general to retain the services of outside attorneys.
Hiring outside counsel is not unusual and can help ensure that West Virginia has the best legal expertise and representation available.
However, it wasn’t too long ago that West Virginians repeatedly saw excesses in former Attorney General Darrell McGraw’s administration with backroom deals made to hire politically connected outside counsel. McGraw faced substantial criticism due to routine, no-bid hiring of outside attorneys on a contingency-fee basis through informal agreements.
In 2013, Attorney General Patrick Morrisey led the way in implementing an outside counsel policy requiring transparency and competitive bidding for the appointment of private attorneys to represent the state. Morrisey’s outside counsel policy is estimated to have saved the state over four million dollars since it was implemented.
Using a competitive bidding process when hiring outside attorneys to represent the state will help ensure that they are engaged based on their qualifications and value, not political or personal connections. Attorneys general have a tremendous responsibility to adhere to the highest ethical standards of transparency and accountability in this process.
In a recently reported case in which Attorney General Morrisey obtained a settlement, a circuit court judge disregarded the outside counsel policy that had been agreed upon, despite opposition from Attorney General Morrisey’s office. The judge awarded outside counsel representing the state more than they should have been permitted based on the tiered attorneys’ fees set forth in the outside counsel policy.
Until Attorney General Morrisey’s outside counsel policy is put into law, we may see other activist judges disregard this good government policy and award outside attorneys fees beyond what they have agreed to or are entitled.
Lawmakers should support transparency and move swiftly to put Attorney General Morrisey’s outside counsel policy into law to ensure that West Virginians get the best representation, when needed, through an open process. We applaud Attorney General Morrisey for his leadership on this good-government approach and encourage the legislature to follow suit.
Stauffer is Executive Director of West Virginia Citizens Against Lawsuit Abuse.