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West Virginia AG's New Rules for Outside Counsel
Starting next month, outside counsel who want legal work from the West Virginia Attorney Generals Office will have to play by a new set of rules.
Attorney General Patrick Morrisey, who took office this year after defeating incumbent Darrell McGraw in November, emphasized transparency in introducing a new policy [PDF] that will include a competitive bidding process and caps on contingency fees for outside attorneys.
This policy helps to bring much-needed order and transparency to an important process, Morrisey said in a statement announcing the changes. While I believe the team of talented lawyers who already work in the Attorney Generals Office will be able to handle most issues that arise, there are cases in which the use of outside counsel may be required. In those instances, we will use a competitive bidding process to make sure we get high-quality services at reasonable prices.
Morrisey campaigned on reforming his predecessors process for selecting outside counsel, according to the West Virginia Record. Some contingency fee contracts given by McGraw were not subject to a bidding process and went to lawyers who contributed to his campaign fund, the legal journal reported.
Legal reform advocates have had harsh words for outside counsel selection under McGraw. In a 2010 report, the Competitive Enterprise Institute named McGraw to its list of The Nations Worst State Attorneys General [PDF], citing cronyism and the diversion of money recovered by the state from legal settlements to friends and allies.
The U.S. Chamber Institute for Legal Reform commended Morrisey for clamping down on pay-to-play schemes: By adopting this policy, West Virginia will take a significant step to curb the troublesome practice of awarding contingency fee contracts to plaintiffs lawyers who are also major campaign contributors to the state attorney general, a reform needed for decades, the institutes president Lisa Rickard said in a statement.
The WV AGs office will begin to implement the draft policy April 15, and will accept public comments on the draft until May 30. The final policy will go into effect July 16.
Under the new requirements, the AG will make a written determination before entering into a contract with outside counsel. Those determinations will be posted to the attorney generals website once a contract for legal work commences. Contingency fees will be limited on a sliding scale, ranging from 25 percent of the first $10 million recovered to five percent of any portion of the recovery exceeding $25 million, according to the policy document.
Flexibility on billing will also count in the bidding process. Among the factors the AGs office said it will consider in any bid is the willingness of the private attorneys to enter into alternative fee arrangements.