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Monday, October 21, 2019

W.Va. AG releases final policy on outside counsel

By Jessica M. Karmasek | Jul 30, 2013

CHARLESTON, W.Va. (Legal Newsline) -- West Virginia Attorney General Patrick Morrisey on Tuesday unveiled his office's final policy for hiring private lawyers to represent the state.

The final policy's release comes after a 45-day public comment period.

"We are very pleased with both the input we received during the public comment period and the experience we gained during the implementation of the draft outside counsel policy," Morrisey said in a statement.

"As a result, we believe that our final policy on outside counsel strikes an appropriate balance between the need for transparency and accountability in outside counsel hires and the desire to provide the state and its agencies with top-notch legal services."

The six-page policy, which was first unveiled in March and went into effect this month, outlined the conditions under which the Attorney General's Office may appoint outside counsel, the competitive bidding process attorneys or firms must participate in and how they will be selected, as well as any legal fees outside counsel may be able to collect.

The policy also ensures that any attorney selected as outside counsel will work under the direct supervision of the Attorney General's Office.

Over the course of the public comment period -- which started April 15 and ended May 30 -- Morrisey's office received six formal comments, as well as numerous informal comments.

The six formal comments provided suggested improvements and/or clarifications to the policy, while the informal comments expressed support for its overall intent.

As a result of the comments, the attorney general said his office made several improvements to the policy, including:

- Expanding the factors to be considered during the competitive bidding process to consider any potential conflicts of interest as well as relevant input from the state entity client, if applicable;

- Revising the pre-bidding process to require both the re-evaluation of the pre-approved attorney list at least every two years and a written determination explaining the reasons for selecting a pre-approved attorney or firm any time the pre-bid list is utilized; and

- Clarifying the policy's disclosure provisions to ensure that any and all written determinations are subject to public posting, except in such limited circumstances the posting could jeopardize the attorney-client privilege or confidential work product.

"This policy sends a strong message that West Virginia will be transparent and accountable with respect to the use of outside counsel," Morrisey said.

"With its implementation, West Virginia joins a number of states pursuing outside counsel reform and sets an example that will garner attention nationwide."

To date, Morrisey's office has handled more than a dozen outside counsel matters pursuant to the draft policy, and already has performed seven requests for proposal.

To see a list of those state agencies that have requested written determinations regarding the need to appoint outside counsel, click here.

From Legal Newsline: Reach Jessica Karmasek by email at

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