Miss. governor signs bill limiting AG's power into law

By Jessica M. Karmasek | May 22, 2012




JACKSON, Miss. (Legal Newsline) - Mississippi Gov. Phil Bryant on Tuesday signed into law a bill aimed at limiting the state attorney general's power.

House Bill 211, brought by the state's Republican lawmakers, intends to curb Attorney General Jim Hood's ability to hire outside, contingency fee lawyers.

"Transparency in government is critical to its integrity," Bryant said. "I have long supported and believed in the need for Mississippi to more clearly define its relationships with outside counsel.

"Our goal with the Sunshine Act is to make these relationships more open and transparent, and House Bill 211 is a strong example of government being held accountable."

In particular, the Sunshine Act allows state officials, agencies, boards, commissions, departments or institutions to hire their own outside attorneys over the state's top lawyer in cases where the attorney general declines to represent them, or where a state agency feels the attorney general cannot adequately represent its legal interests because of a significant disagreement over legal strategy.

HB 211 defines exactly when an outside attorney may be hired on a contingency fee basis.

But before making such an agreement, the attorney general or state official retaining the counsel must provide a written determination that the fee to be paid is both cost-effective and in the public interest.

The measure also requires the attorney general or any other state official make public contracts with outside lawyers. The contracts must be filed with a state board, and any contracts for more than $100,000 must be approved by that board.

Detailed time records for outside counsel also must be kept.

Also under the bill, the share of a verdict that would go to private lawyers hired on contingency will be limited, capped at $50 million.

HB 211 also creates a three-person panel called the Outside Counsel Oversight Commission. The commission includes the governor, lieutenant governor and secretary of state, and will deal with any related disputes.

The measure also requires the attorney general to give an agency seven days' notice before taking any legal action on the agency's behalf, unless delay would cause the state "irreparable injury."

Earlier this month, the state House of Representatives voted for final passage of the bill, 64-55. The Senate also supported the measure in a 34-18 vote.

With Bryant's signature Tuesday afternoon, the Sunshine Act will become effective July 1.

Lt. Gov. Tate Reeves said after the signing that the law was a "long-time coming."

Reeves previously served as state treasurer and was involved in litigation with Hood on several occasions.

"So I had a unique perspective of the issue, having run a state agency for eight years prior to being elected lieutenant governor," he said.

Reeves, who admitted to pushing for the bill, said it was mostly the work of state lawmakers.

In November, Republicans took control of both the state Senate and the House of Representatives. It was the first time the GOP took control of the state's government in 140 years.

"The major thing that occurred in the state to make sure that this attorney general Sunshine bill ultimately became law is that we now have a majority of members elected to the Legislature that believe transparency and accountability are important to state government," Reeves said.

HB 211, or some version of it, had been filed each session for the last eight to 10 years, having never passed the House and the Senate in the same year, he said.

Reeves said the law is good not just for state government, but also taxpayers.

"The regular guys I've talked to are begging for more transparency and accountability in state government," he said. "This will ensure taxpayers have a voice in the process."

Reeves emphasized that contracts are now required to be posted online, and that the maximum fee an outside lawyer can be awarded is $50 million.

"To put that in perspective, look at the tobacco litigation in 1990s," he explained. "The lawyers just in Mississippi's case made $1.4 billion. That's just in attorneys fees.

"If this bill had been law at the time, the lawyers' fees would've been capped and that would've been $1.35 billion more owed to the taxpayers and not the attorneys."

Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform, applauded the new law.

"Through its 'sunshine' law, Mississippi today took a significant step to rein in the troublesome practice of awarding contingency fee contracts to plaintiffs' lawyers who are also major campaign contributors to the state attorney general," she said in a statement.

"Such 'pay-to-play' schemes enrich lawyers at the expense of taxpayers and raise significant concerns about conflicts of interest, favoritism, the use of a public entity for personal gain, and fairness in prosecutions."

She continued, "In this new law, Mississippi joins a vanguard of states like Arizona, Florida and Indiana who have led the effort to open the relationships between state attorneys general and private lawyers hired to work with them to public scrutiny."

Rickard said Bryant, Reeves, House Speaker Philip Gunn, state Sen. Briggs Hopson and state Rep. Mark Baker "are to be commended for their leadership."

The Institute for Legal Reform owns Legal Newsline.

Hood, the only Democrat to hold a statewide elected office, has argued that HB 211 violates the Mississippi Constitution, which gives him the sole authority to speak in court with one voice on behalf of the State.

"If HB 211 becomes law, the more-than 200 men and women of the Attorney General's Office who now help shield our residents from corporate wrongdoers will no longer be able to protect them," he said in a statement earlier this month.

"Not only is it a recipe for disaster legally and ethically, it will cost taxpayers millions of extra dollars each year."

The attorney general did not comment on the bill's signing Tuesday.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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