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Outside Counsel Can Be Helpful

May 17, 2013
The Intelligencer / Wheeling News-Register

When state government needs help designing a new building, it hires a private architect. When assistance sorting out a complex financial issue is required, private consultants sometimes are retained. So why shouldn't the West Virginia Attorney General's Office be permitted to employ outside counsel?

State Supreme Court justices are about to answer that question.

For years, former Attorney General Darrell McGraw used a sleazy system of hiring private attorneys to assist with "consumer protection" lawsuits. Sometimes they helped the state win lawsuits worth enormous sums, and the outside lawyers - some of them contributors to McGraw's election campaigns, hired without a competitive bidding process - took home millions of dollars in contingency fees.

Now, Attorney General Patrick Morrisey, who beat McGraw in the election last November, plans reforms to the system by which outside counsel will be hired. His plan seems like a good one, certainly much more ethical than McGraw's.

But the bottom line is that Morrisey understands his office on occasion may need expertise and experience not available from his staff.

Several big credit card companies and a health care firm that had been targets of action by McGraw filed lawsuits challenging his use of outside counsel. Their contention is private attorneys working for contingency fees may not have taxpayers' best interests in mind.

Lower courts have ruled against the companies. Now the Supreme Court will weigh in on the question.

Well, of course outside counsel will be looking out first for themselves. That means they will seek the largest settlements or verdicts possible in lawsuits they handle for the attorney general's office. But the larger the settlement or verdict, the larger the state's share, too.

Morrisey and his staff clearly need to have the final say in policy decisions - that is, how much in damages should be sought or even whether lawsuits should include specific complaints.

But in the end, assuming Morrisey proceeds with his plan to clean up the process of hiring outside counsel, there is no difference between that and the Division of Highways contracting with an engineer who has expertise in building a certain kind of bridge.

State Supreme Court justices will see it that way, too, we are confident, and continue to allow the attorney general's office to have the option of using private attorneys.

 
 

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