Executive Orders and Contingency-Fee Attorneys

By December 17, 2008Briefly Legal

Below we note the issue of state attorneys general hiring private attorneys to take a flyer on product liability lawsuits, allowing trial lawyers to wield the state’s authority in the interest of personal gain. It’s an abuse of due process.

Now imagine if the federal government followed the same practice, handing out the equivalent of letters of legal marque to buccaneering law firms to do the work of the Justice Department. Every so often the trial lawyers would strike it rich, extorting billions from a company and industry, with a certain (not predetermined, merely thanks to like-mindedness) amount of the money returning to favored candidates in the form of campaign contributions. (For a good, quick discussion of how that game is played, see the American Tort Reform Association’s latest “Judicial Hellholes” report, the chapter, “Dangerous Liaisons.”

To his great credit, President Bush specifically prohibited such arrangements by executive branch agencies with his May 16, 2007, Executive Order 14433, “Protecting American Taxpayers From Payment of Contingency Fees.” Excerpt:

Section 1. Policy. To help ensure the integrity and effective supervision of the legal and expert witness services provided to or on behalf of the United States, it is the policy of the United States that organizations or individuals that provide such services to or on behalf of the United States shall be compensated in amounts that are reasonable, not contingent upon the outcome of litigation or other proceedings, and established according to criteria set in advance of performance of the services, except when otherwise required by law.

Sec. 2. Duties of Agency Heads. (a) Heads of agencies shall implement within their respective agencies the policy set forth in section 1, consistent with such instructions as the Attorney General may prescribe.

(b) After the date of this order, no agency shall enter into a contingency fee agreement for legal or expert witness services addressed by section 1 of this order, unless the Attorney General has determined that the agency’s entry into the agreement is required by law.

We now move into the realm of pure political speculation and merely observe the following: The revocation of this executive order by the next President of the United States would be a very revealing signal about his perception of the legal process and the trial lawyer lobby.

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