Private Lawyers on Contract to Represent States: Is That Fair?


What do a medical malpractice victim and the Kentucky Attorney General have in common? The same lawyer representing them.

A fact little known to the public is that a growing number of state government enforcement actions are not being litigated by state-employed attorneys but rather by private lawyers working for the state on contingency fee bases. While the stakes may not seem as high as in a criminal matter, an attorney with the color of state authority, and with a direct financial interest in the outcome of a case, can be daunting. Though challenged by some private parties, this reality is likely to continue.

The arrangement has been well-received by many states, including Oklahoma, Louisiana, Maryland, Mississippi, West Virginia, Rhode Island, South Carolina and Kentucky, to name just a few. But is it a good arrangement? Is it fair?

A state attorney is charged with enforcing laws and protecting the public safety. The same is not true for a private attorney wearing the hat of a public enforcer. That person’s motivation is making money. There is a strong incentive not to stand down, even if it ultimately appears that the defendant company did nothing wrong. If government attorneys were litigating the matter, there is a greater likelihood that a showing of paltry or no evidence of wrongdoing would lead to a voluntary dismissal. After all, the government’s role is to punish wrongdoers, not to dive into deep pockets for the sake of its own livelihood. (Of course, we may have that last part completely wrong.)

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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