Tomblin vetoes AG outside counsel hiring bill

By Chris Dickerson | Feb 18, 2016

CHARLESTON – Gov. Earl Ray Tomblin has vetoed a bill creating bidding and qualification procedures for the Attorney General’s office’s hiring of outside counsel.

While Tomblin praised the goal of House Bill 4007, his veto message said his office believes it is too broad and gives the Attorney General too much power.

The bill “is problematic because it appears to cede state office and agency decision-making authority to the Attorney General,” Tomblin’s veto message said. “My issue with the bill is the extent to which it permits, perhaps inadvertently, the Attorney General to ignore a state office or agency client's authority, decisions and directives in a case, in contravention of the Rules of Professional Conduct governing West Virginia lawyers.”

As written, HB 4007 creates payment rates for outside lawyers – called Special Assistant Attorneys General – hired by the attorney general's office. It starts at 25 percent for the first $10 million in damages recovered, and the percentages lower for larger recoveries.

Tomblin notes that some Special Assistant AGs are appointed to serve other state agencies when the AG’s office has a conflict of interest or when an agency takes a contrary position in a case.

“In such circumstances, the special assistant attorneys general serve at the will and pleasure of their client state offices and agencies, not the attorney general,” Tomblin’s veto message said.

Tomblin also took issue with part of the bill that said the AG has veto power over any decision made by a Special Assistant AG, again noting that these appointed outside counsel sometimes represent other states agencies and not the AG’s office.

“The Rules of Professional Conduct, however, make it clear that 'a lawyer (whether it be the Attorney General, his assistant or outside private counsel) shall abide by a client's decisions concerning the objectives of representation and … shall consult with the client as to the means by which they are to be pursued,'” Tomblin wrote. “In other words, it is the state office or agency client – not the attorney general – who retains control over the course and conduct of the case1” and who “retains veto power over any decision made by any appointed private attorneys.”

The bill passed the state Senate 31-2 and had passed the House 64-33 before being sent to the governor.

Tomblin encouraged lawmakers to revise the bill and resubmit it.

“In sum, I believe … House Bill 4007 contains overly-general language that fails to account for those scenarios where Special Assistant Attorneys General cannot – for practical and ethical reasons – serve at the will and pleasure of the Attorney General,” he wrote. “The bill also infringes on state office and agency client decisions and directives and is at odds with the Rules of Professional Conduct adopted by our Supreme Court of Appeals. Lastly, the bill is flawed technically because it could be read to impair existing contracts. …

“However, I welcome the Legislature to repair the issues I have addressed herein and then return the bill to my desk for signature.”

Morrisey spokesman Curtis Johnson said the AG's office hopes the Legislature will override Tomblin's veto.

"We are disappointed and reviewing the governor’s veto message in more detail, but note that the governor appears to have conflated – intentionally or not – the Attorney General’s duty to his clients and his ability to supervise subordinate attorneys who are assisting him in representing those clients," Johnson said. "It is our hope that the Legislature overrides this veto and enacts these common sense bidding provisions that save taxpayers' money."

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