“You don’t auction professional services,” said Terry O’Rourke, assistant county attorney for Harris County (Houston), Texas, in charge of the opioid litigation, regarding the hefty 35% fee plus expenses the county has contractually agreed to pay to its contingency-fee outside counsel. Meanwhile, Dallas County for its representation in the same litigation “sets the contingent fee at the lesser of 12.5% or a “base fee,” calculated as four times hourly rates ranging from $900 an hour for partners to $200 for paralegals.” Some of the lawyers hired by Harris County have been active political donors: “It’s not uncommon for elected officials to hire their political allies for contingency fee work.”
Harris County’s contract with three outside law firms also requires the county to pay a fee based on its total recovery before expenses, while many municipal clients have negotiated more favorable deals in which the contingency fee is a percentage of the recovery after expenses….
The fact that some counties agreed to pay all of the expenses associated with their cases while others will pay fees net of expenses also shows a lack of sophistication and the potential for gamesmanship, [Cardozo emeritus professor and legal ethicist Lester] Brickman said. Lawyers in asbestos cases and securities litigation have been accused of double-billing and allocating the same expenses to multiple cases, and it can be difficult for individual clients to uncover wrongdoing unless they obtain records showing the overall distribution of expenses and recoveries – something lawyers rarely provide….
“Few of the cities and counties have required that the expenses claimed by the lawyers be detailed, including providing receipts and other supporting documents,” Brickman said. “There’s a possibility that some lawyers will emulate `The Producers’ and charge aggregate expenses that are in excess of actual expenses,” as has happened with asbestos litigation.