The long held practice of the West Virginia Attorney General hiring outside help on some lawsuits is now before the state Supreme Court for a decision.
A pair of plaintiffs representing large corporations argued Tuesday the practice is against state law and unethical.
Attorney Robert Trenchard told the Court the outside attorneys are more concerned about making money for themselves in contingency fees than representing the interests of the state.
“These incentives will infect the entire process,” Trenchard said. “The lawyers are expecting to make money by virtue of success at the end. The entire process of how they conduct this case is affected by that objective.”
But Attorney General Chief Counsel Dan Greear argued not only does the AG have the power to appoint outside counsel but he also maintains ultimate control of any action taken in the case. Greear says the plaintiffs’ argument is weak.
“They assume that the Attorney General is not going to perform his duty. They assume that the special assistant attorney generals, as officers of the court and bound by these ethical obligations, aren’t going to pursue their duties and they’re going to throw away all their obligations and decide this on some improper financial motivation,” Greear said.
Supreme Court Chief Justice Brent Benjamin questioned the motivation of the decision by the plaintiffs to bring the question to court when they could have filed a complaint with the state Ethics Commission.
“I have to say that it rings hollow when you claim there’s an ethics issue here and then you say, ‘We’re doing our duty by reporting it to the court,’” Benjamin said.
Trenchard also argued the Attorney General has no legislative authority to appoint special counsel because it skirts around the legislature’s power to appropriate the agency’s budget.
Several justices pointed out the legislature has had opportunity but chosen not to take any action to change the current practice.
Former state Attorney General Darrell McGraw was often criticized for hiring outside counsel on cases and the money the attorneys ultimately received. New state Attorney General Patrick Morrisey has said he will continue to use outside counsel in some cases but will do so through a bidding process.
“If we can’t do it and there are individuals on the outside that can provide very good competent counsel for the state, then we want to invite those individuals in to participate in a bidding process,” Morrisey said back in February shortly after being sworn-in to office.
The state Supreme Court will hand down a written opinion on Tuesday’s arguments later this year.