When the Division of Highways within West Virginia’s Department of Transportation prepares to undertake a road-building or maintenance project, it seeks bids on the work from qualified contractors in a process that is transparent to the public and subject to legislative oversight. Similarly, the state’s School Building Authority works with counties in openly seeking bids to construct and renovate education facilities.
Such good-government transparency helps ensure that Mountain State taxpayers get the best value for their money. But time and again, former Attorney General Darrell McGraw refused to share details of the various arrangements he’d made over the years with private sector personal injury lawyers he’d hired to conduct lawsuits on behalf of the state, any number of whom had contributed to his political campaigns.
McGraw’s well-documented, behind-closed-doors-with-the-shades-drawn deals always smelled bad and added to the state’s reputation as a “judicial hellhole.” And it was one of several factors that finally prompted West Virginia voters to retire the long-serving attorney general last Election Day.
Refreshingly, the new attorney general, Patrick Morrisey, is moving quickly to let the sun shine in. He’s proposed new policies that will govern any future contracts that his office may enter with outside counsel when in-house staff lacks specialized experience or may otherwise be unavailable to prosecute timely litigation in the public interest.
The American Tort Reform Association has long been critical of various state attorneys general and other officials across the country for keeping voters and taxpayers in the dark about the hiring of, and their relations to, outside counsel. Too often these relationships have had at least the appearance of self-serving, pay-to-play corruption, so Morrisey’s proposed transparency policies are most welcomed.
As the State Journal has reported in greater detail, those policies include, first and foremost, a long overdue competitive bidding process for the selection of outside counsel that is comparable to those for road- or school-building contracts. Another important provision calls for the attorney general to provide written explanations as to why, precisely, office staff needs help from outside lawyers for particular lawsuits.
In addition to specifying that the attorney general’s office will always remain in control of the litigation for which outside counsel is hired, Morrisey’s proposal also sets critical limits on just how much of the taxpayers’ money outside counsel can siphon off in contingency fees. All of these provisions are significant steps in the right direction.
But in proposing his new transparency policies last month, Morrisey acknowledged that others may have still better ideas in inviting public comments during a 45-day period to begin April 15. ATRA will likely offer formal comments to the attorney general and his staff, and in the meantime hopes further thought will be given to at least two issues.
Anticipating circumstances in which specialized litigation may need to be undertaken in an emergency, Morrisey’s proposal calls for a “pre-bidding process” wherein a list of “pre-approved attorneys” is developed and maintained. Though that list will be posted publicly on the attorney general’s website, and though ATRA has no reason to question the new attorney general’s integrity or intent, it does have concerns that such pre-approvals could lead to future problems.
And looking briefly to the past, it’s been reported that Morrisey’s lame-duck predecessor hurried to enter a number of lawsuit arrangements with outside counsel before his term expired. Will the new attorney general assert ultimate control over those lawsuits, and will he otherwise apply his new transparency policies to those earlier arrangements? Here’s hoping he does.
In any case, Attorney General Morrisey deserves considerable credit for his encouraging early efforts to bring the hiring of outside counsel into the light. And West Virginia voters deserve credit for choosing good-government reform over more of the same old shady dealings that had damaged their state’s reputation. Digging out of a judicial hellhole isn’t necessarily easy, but it can be done when both citizens and policymakers grab shovels and work together.
— Tiger Joyce is president of the American Tort Reform Association in Washington, D.C.