Joint ventures between state attorneys general and contingency-fee private lawyers are an ethical disaster area — and unconstitutional to boot. Peggy Little explains in a new white paper [Competitive Enterprise Institute: paper, press release, related blog post]
- “Big Bucks and Local Lawyers: The Increasing Use of Contingency Fee Lawyers by Local Governments” [Michael Maddigan, U.S. Chamber Institute for Legal Reform]
- Class actions: “The New Rule 23 Is Available for Public Comment,” comment period ends Feb. 15 [Andrew Trask]
- Aircraft Owners and Pilots Association urges Supreme Court to review Third Circuit case approving liability for FAA-approved part design [AOPA, Sikkelee v. Precision Airmotive Corp.]
- “An FCC ban on arbitration of privacy claims would be the anti-consumer-protection approach” [Geoffrey Manne & Kristian Stout, Truth on the Market]
- Montana case could bypass Daimler limits on state-court jurisdiction in cases under the Federal Employers’ Liability Act, Washington Legal Foundation urges certiorari [BNSF v. Tyrrell]
- Insurers brace for new tilt of adverse doctrine as American Law Institute mulls Restatement of the Law of Liability Insurance [Nicholas Malfitano, Legal Newsline/Forbes]
The “Arizona attorney general’s office on Wednesday filed a motion to dismiss more than 1,000 cases focused on business parking lots, brought by a Phoenix lawyer … The lawyer, Peter Strojnik, has filed more than 2,000 disability access cases in less than a year on behalf of Advocates for American Disabled Individuals. The plaintiff reportedly had a standard settlement offer of $7,500” and settled most of its cases for an average of $3,900 a pop, less than the cost of legal defense. The executive director of an organization that “is the federally designated disability protection and advocacy group for Arizona” criticized the AG’s action. [ABA Journal] Meanwhile, the executive director of a disabilities nonprofit represented by attorney Strojnik has resigned. The attorney “is currently under active investigation with the Arizona State Bar Association. Strojnik has been disciplined by the Arizona State Bar Association three times, according to ABC 15 KNXV-TV.” [Phoenix Business Journal, earlier]
The office of now-convicted Pennsylvania Attorney General Kathleen Kane kept the existence of a pile of seized money secret for nearly two years: “Not until the state attorney general’s office filed a forfeiture petition for the money [nearly $1.8 million] in Cumberland County Court on June 16, did its existence become public.” [Allentown Morning Call/Philly.com]
“Pennsylvania Attorney General Kathleen Kane was convicted Monday of perjury, obstruction and other crimes after squandering her once bright political future on an illegal vendetta against an enemy.” Kane has thus far refused calls to resign from office, although her law license has been suspended [Philly.com] We’ve covered her ethical travails for some time, which included this excerpt from a post two years ago:
Pennsylvania attorney general Kathleen Kane dropped a longstanding corruption “sting” probe that had snagged several Philly officials. The Philadelphia Inquirer raised questions about her decision in its reporting, which contributed to a public outcry over the episode. Then Attorney General Kane brought a prominent libel litigator with her to a meeting with the Inquirer editors, and that lawyer announced that Kane was exploring her options of suing the paper and others that had reported on the matter, and that he was going to do the talking for her.
That was extraordinary behavior for a sitting public official — and, as we now know, indicative that underneath the bad appearances were some bad realities.
- It’s against the law to run a puppet show in a window, and other NYC laws that may have outlived their purpose [Dean Balsamini, New York Post]
- L’Etat, c’est Maura Healey: Massachusetts Attorney General unilaterally rewrites state’s laws to ban more guns [Charles Cooke, National Review]
- Appeal to Sen. Grassley: please don’t give up on Flake-Gardner-Lee venue proposal to curtail patent forum shopping [Electronic Frontier Foundation, Elliot Harmon]
- Oil spill claims fraud trial: administrator Ken Feinberg raised eyebrows at news that Mikal Watts “was handling claims from 41,000 fishermen.” [Associated Press, earlier]
- By 70-30 margin, voters in Arizona override court ruling that state constitution forbids reduction in not-yet-earned public-employee pension benefits [Sasha Volokh]
- Google, Mississippi Attorney General Jim Hood appear to have settled their bitter conflict [ArsTechnica, earlier]
Papers obtained by The Hill confirm that the prominent plaintiff’s law firm of Cohen Milstein is in for a 27 percent slice (plus costs) of loot from at least one branch of the ongoing probe over erroneous opinion on climate change, a campaign advanced by a subpoena dragnet from state attorneys general seeking papers and correspondence from dozens of free-market and right-of-center advocacy and scholarship groups. [The Hill]
Although the blithe denials of a couple of sources who spoke to The Hill might suggest otherwise, contingency-fee representation of states and other public bodies in damages claims was deemed ethically improper over most of American history. It’s a story I tell in The Rule of Lawyers, where I talk about Dickie Scruggs’ pioneering venture in the early 1990s in representing the state of Mississippi in claims for removal of asbestos from government property:
The United States [as of this point] had long justified its departure from other countries’ [bans on contingent fees] on the grounds that otherwise [given our lack of “loser-pays”] some poorer clients might be unable to obtain a lawyer at all. But no one was seriously claiming that no lawyer could be found to handle the asbestos case for the state of Mississippi on an hourly fee basis.
Until quite recently the notion of letting lawyers represent government on a contingency-fee basis would have been seen as pernicious, absurd, or both. But as Scruggs was no doubt aware, times were changing fast. Many of America’s legal authorities had begin to regard contingency fees — and the encouragement they gave to speculative litigation — not as a lesser evil that should be limited to the cases where it was necessary, but as something wholesome and beneficial in itself. The first experiments had already been noted by the end of the 1980s, with the state of Massachusetts hiring private lawyers on contingency for asbestos rip-out cases. If contingency fees for public lawyering could pass the ethical smell test in the state that was home to Harvard Law School, why shouldn’t they do so in Mississippi, too?
Since the Great Tobacco Robbery steered billions of dollars in fees to the pockets of politically influential law firms, the practice has been the subject of continued lively controversy, with legislative proposals in many states aiming to curtail or eliminate the opaque or even undisclosed deals by which private law firms get themselves cut themselves in on a share of public moneys by attorneys general dependent on their political support. Earlier on the contingency-fee angle in the climate subpoena affair here and here.
On why Virginia Attorney General Mark Herring is unlikely to move up to higher office soon, despite possible vacancies: “experts say keeping the powerful role of Attorney General in Democratic hands is key to the party’s agenda.” Remember when an attorney general was seen as some sort of neutral legal officer? [Washington Post]
- No, the “government can’t make you use ‘zhir’ or ‘ze’ in place of ‘she’ and ‘he'” [Josh Blackman, Washington Post; earlier on NYC human relations commission guidelines; Hans Bader/CEI on new D.C. rules along similar lines]
- Matt Welch on New York Attorney General Eric Schneiderman and the “casually authoritarian” movement to harass and legally penalize climate deniers [Reason] While styled as fraud probe, AGs’ climate denial investigation is essentially a SLAPP suit meant to silence advocacy [Ronald Bailey; letter from 13 attorneys general critical of probe] As one skirmish ends, expect wider war to continue, as Virgin Islands AG withdraws widely flayed subpoena against our friends at Competitive Enterprise Institute [John Sexton] Massachusetts Attorney General Maura Healey now chasing “right-leaning groups that have never received a penny from Exxon” including local political foe Beacon Hill Institute [Hans Bader/CEI] We’re the ones asking questions around here: AGs dodge public record/FOIA requests on probe [Chris Horner/Fox News]
- “N.Y. Senate passes bill banning funding for university student groups that ‘encourage’ ‘hate speech'” [Eugene Volokh]
- Licensing and other laws often restrict what members of professions and occupations can say, a problem that deserves more and better First Amendment scrutiny than it’s gotten [Timothy Sandefur, Regulation]
- Ninth Circuit will review ruling striking down Idaho ag-gag law [Baylen Linnekin on appellate amicus, Idaho Statesman, NPR last year]
- Ken White on why it’s okay to loathe Gawker and its actions but still see the danger in Thiel/Hogan episode [L.A. Times, related Dan McLaughlin, earlier]
The big Volkswagen settlement dishes out a large pot of money for owners of VW diesels, whether they feel injured or not. “A roster of the country’s biggest class-action firms will get an unspecified but huge amount of fees, likely measured in the billions. And buried in the 42-page proposed settlement are tidbits for other folks, including the professional association for state attorneys general and manufacturers of electric cars. … Some AGs justify such payments as reimbursement for their investigative expenses, but as tax-supported officers it is not clear why their professional association should get the money.” [Daniel Fisher, Forbes]