Three Courts Weigh in on AGs Authority to Retain Outside Counsel

Vol. 37 No. 1

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Carolyn Anderson is a partner and June Hoidal is an associate at Zimmerman Reed in Minneapolis, Minnesota, where they represent government and other public-sector clients in securities, antitrust, and consumer protection matters.

State Attorneys General (AGs) and other government officials frequently hire outside counsel to assist them in handling major litigation on a contingency-fee basis. Faced with budget cuts and staff reductions, AGs turn to outside counsel to leverage public resources, handle complex matters that require specialized expertise, and level the playing field against well-resourced adversaries.1 But the practice of hiring contingency-fee counsel has its critics. Targets of AG enforcement actions cite ethical concerns and challenge the AGs’ power to retain counsel.

This past summer brought three major developments relating to AGs hiring private counsel. These developments are important for AGs and defense counsel alike, and this article examines them in detail.

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