Legal Newsline

Tuesday, January 21, 2020

AG warns against contingency counsel

By Chris Rizo | Aug 28, 2008

Jon Bruning (R)

Dan Greear (R)

LINCOLN, Neb. (Legal Newsline)--The nation's attorneys general are perhaps filing more consumer protection cases than need be, Nebraska Attorney General Jon Bruning told Legal Newsline.

"Personally, I think we engage in too many court battles with companies about issues that would be better resolved if we sat down at the table with the company and talked about how to do things better," Bruning said in an interview.

"My style is to sit down and look across the table at somebody rather than to file the papers to see them in court," the Republican AG added.

In recent months, several attorneys general have filed consumer actions against Countrywide Financial Corp. over the company's lending practices. Also in the crosshairs have been so-called mortgage rescue firms that have promised struggling homebuyers relief but offered little help after charging significant up-front fees.

Among attorneys general routinely criticized by tort reform advocates for running to the courts include: Richard Blumenthal of Connecticut, Andrew Cuomo of New York, Drew Edmondson of Oklahoma, Jay Nixon of Missouri, Lisa Madigan of Illinois, Darrell McGraw of West Virginia and William Sorrell of Vermont.

In his wide ranging interview with Legal Newsline, Bruning also warned against state attorneys general relying on private attorneys to represent their office on a contingency fee basis.

"Attorneys general need to be very, very careful about hiring contingency counsel," Bruning said, stopping short of identifying specific attorneys general and saying he is not criticizing his colleagues who do employ outside attorneys on contingency.

"There are limited places where it can be useful, but I think it is incumbent on the attorney general to manage the fee structure very carefully and to ensure it is not a windfall," he added. "Generally speaking, if something is important enough to us, we'll approach the Legislature and budget for the in-house attorneys."

In his office, Bruning said outside counsel is paid by the hour, as in the case when the Omaha School District sued the state.

"I am not sure I have ever used contingency counsel," Bruning said. "I would consider it under very limited circumstances."

The practice of hiring outside counsel has become a campaign issue in some states. Arguably, the issue has been thrust into the political spotlight most in West Virginia, where Attorney General McGraw faces a challenge from Republican former state lawmaker Dan Greear in November.

"There is certainly the appearance that the attorneys getting the (contingency) work are getting it based on political donation," Greear told LNL. "When you compare the list of the attorneys who get the work with the list of attorneys who have donated to the incumbent attorney general it is remarkably similar."

Like Bruning, Greear said he can see certain cases in which it would be advantageous for the state to hire outside counsel, but said there would have to be transparency in the selection process.

On the overall role of attorneys general, Bruning said it has changed considerably since the multi-state litigation against the nation's largest tobacco companies to recover government costs associated with people who became ill from smoking or tobacco-related illnesses.

"I don't think there is any question the role has changed over the last couple of decades, certainly with the tobacco litigation being the primary example," said Bruning, president-elect of the bipartisan National Association of Attorneys General.

The Master Settlement agreement was reached originally by the nation's four largest tobacco companies: Philip Morris USA, R. J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corp., and Lorillard Tobacco Company. More than 40 other tobacco companies later joined the agreement.

From Legal Newsline: Reach reporter Chris Rizo at

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