The practice of government entities hiring outside counsel on a contingency basis is a practice fraught with opportunities for abuse.
It can be used to substitute cronyism for competitive bidding, to obviate the need for legislative authorization and funding, or to solicit campaign donations from trial attorneys eager to secure a profitable concession.
Contingency arrangements also threaten a targeted defendant's right of due process. After all, government officials and their delegates are supposed to be impartial, with no financial interest in the outcome of litigation. Such arrangements also raise separation-of-powers issues and serious concerns about justice and public trust.
Contingency arrangements can distort the judgment of government officials and their proxies, promote fiscal recklessness, and encourage the pursuit of litigation as a revenue stream.
The many dangers inherent in this practice have not dissuaded some imprudent attorneys general from resorting to it. In fact, the dangers themselves may be the main attraction.
Our own attorney general, Greg Abbott, has resisted this siren call. Texas state legislators set guidelines for the hiring of outside counsel ten years ago. They and Abbott have maintained the public trust and avoided even the appearance of impropriety.
In a recent opinion provided to our Board of Education, Abbott reinforced the strictures, affirming that state law prohibits the board from hiring private attorneys "without a legislative appropriation" and that any contract it lets "would be subject to Chapter 2254, Subchapter C of the Government Code, which applies to all contracts by a state governmental entity for legal services providing for a contingency fee."
We ought never to underestimate the value of good government.
The prospect of pursuing litigation with no out-of-pocket expense may seem to have great appeal, but Abbott and our state legislators know that nothing is really free – and that the things that seem to come at no cost now are often the things we pay most dearly for in the end.