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Should State Attorneys General Be Able To Deputize Plaintiffs’ Lawyers On A Contingent-Fee Basis?

Posted in Class Action Trends

For a variety of reasons, there are situations when plaintiffs’ lawyers are unable to pursue private class actions on their own. As a result, some plaintiffs’ lawyers have come up with a substitute business model: Convince state attorneys general to hire them on a contingent-fee basis to bring claims on behalf of a state—either in the name of the state itself or standing in the shoes of its citizens, through so-called parens patriae actions.

No business likes to be sued by a state attorney general. But what might make such a suit arguably more palatable than a private class action is the fact that public officials are (at least in theory) supposed to act in the public interest and are politically accountable to the public at large. By contrast, this check on prosecutorial power would seem to be eliminated in the civil context when a state AG retains private contingent-fee counsel.

A recent BNA article by Richard Samp, the chief counsel of the Washington Legal Foundation, explores this issue in detail. Samp explains the phenomenon of state AGs’ hiring private lawyers, discusses concerns with the delegation of public prosecutors’ power to contingent-fee counsel, and identifies potential limitations on and challenges to the power of state AGs to retain private lawyers on a contingent basis. The article is well worth a read.