Charlie Ross, the state senator from Brandon, introduced an important bill in the Legislature January 12.
The Mississippi Open Lawyer Fees Act is designed to bring added openness, oversight and accountability to the Attorney General’s Office, specifically when outside lawyers are hired to work on behalf of the state. The bill is endorsed by Mississippians for Economic Progress (MFEP).
During a press conference at the Capitol in Jackson supporting the bill, MFEP chairman Lex Taylor said, “The time is now for real openness and accountability when lawyers are hired by the Attorney General to work for Mississippi taxpayers. This process should not be done behind closed doors.”
The Mississippi chapter of the National Federation of Independent Business, of which the Mississippi Business Journal is a long-time member, also favors the bill.
Now, having disclosed the MBJ’s affiliation with NFIB, let’s see if the bill merits consideration.
What are we talking about?
From a big picture standpoint, it provides that legal work outsourced to private attorneys should be subject to competitive bidding and public disclosure.
Before addressing ourselves to the issues raised by Senator Ross’ bill, let’s look at the work being discussed. The Attorney General’s Office asserts that staff attorneys are fully occupied with routine legal work and unable to handle the lawsuits Mississippi files against firms that either violate our statutes or operate in some way that entitles the state to compensation. By far, the tobacco lawsuit is the best known of these undertakings.
In the tobacco lawsuit, private attorneys represented the state in exchange for a slice of the pie. They initiated and successfully prosecuted the tobacco industry resulting in Mississippi obtaining a judgment for some billions of dollars. The trial lawyers received tens, if not hundreds, of millions of dollars for their efforts. If the suit had been unsuccessful, the private attorneys would have received nothing.
Assuming that the tobacco lawsuit was legitimate, and that the state was truly entitled to billions of dollars to compensate for the damage caused by smoking, then all that money belonged to the state. In order to successfully pursue the tobacco industry, Mississippi made a deal with the trial lawyers, which stipulated their compensation in the event that the lawsuit was successful. The details of those arrangements were not widely publicized, but one of the outcomes was the creation of a whole new class of super-rich trial lawyers.
Issue number one
Should the Attorney General be allowed to contract with private law firms to handle cases that would otherwise not be pursued? In my judgment, he should be allowed to do so.
Assuming that all of the AG’s staff attorneys are fully occupied with conducting the state’s recurring business, these cases would not be tried otherwise. Better to use private attorneys occasionally than to increase the cost of operating the AG’s office by budgeting more salaried attorneys, many of which would idle on standby pending a need for their services.
Issue number two
Should contingency fee arrangements be allowed to encourage private attorneys to pursue risky cases with profit to themselves if they win and no cost to the state if they lose?
Again, in my judgment, the contingency fee arrangement should be allowed. There is nothing inherently wrong with contingent fees, and using this mode of compensation will prevent the state from pursuing dubious cases just so private attorneys can collect an hourly fee.
Issue number three
Should the terms of these contingency arrangements be disclosed and subject to competitive bidding? This is where the rubber meets the road.
Since the state belongs to its citizens, I can easily make the argument that the citizens are entitled to know everything there is to know about state government.
I can’t believe there’s a substantial argument against full disclosure.
If the state’s business is being conducted behind closed doors, citizens have a right to be dubious. And dubious, we are.
Heart of the matter
Politically-active lawyers who are the beneficiaries of the status quo, and who are lining up in opposition to this bill, are free to financially support their candidates within the limits of federal and state guidelines. So, let’s toss the political aspects of this legislation and subsequent debate.
This situation — and Charlie Ross’ legislation — is about good public policy. When we’re considering outsourcing government services, competitive bidding is the perfect starting place. After all, competition for state contracts means that dollars saved from efficient outsourcing go to the state treasury — to the benefit of each and every taxpayer.
Arguments against scrutiny and competitive bidding? Other than politics — especially election-year politics — can an argument against accountability and disclosure from public servants and agencies be made?
Let me — and your legislators — know what you think.
Thought for the Moment
People often overestimate what will happen in the next two years and underestimate what will happen in 10.
— Microsoft founder Bill Gates
Joe D. Jones, CPA (retired), is publisher of the Mississippi Business Journal. Contact him at email@example.com.