Rethinking the Public-Private Distinction in Legal Ethics: The case of "substitute" attorneys general
Michigan State Law Review
David B. Wilkins
“Rethinking the Public-Private Distinction in Legal Ethics: The case of ‘substitute’ attorneys general” is the most current and comprehensive law review article to explore the ethics of hiring outside counsel to assist with government enforcement investigations and litigation. It is also the first law review article to tackle this subject since the California Supreme Court issued its 2010 ruling in County of Santa Clara v. Superior Court, upholding and expanding the right of government agencies to hire contingency fee counsel. The article provides an even-handed review of competing arguments for and against the appropriateness of contingency fee arrangements, particularly in the context of civil enforcement investigations and litigation brought by state attorneys general. The author concludes that it is ethical for government agencies to hire contingency fee counsel, provided certain safeguards are in place. The article highlights the contract between the Nevada Attorney General and the law firm of Cohen Milstein Sellers & Toll PLLC as an example of a contract that provides the necessary safeguards.
The author is Professor David Wilkins of Harvard Law School. Professor Wilkins is the Director of Harvard’s Program on Legal Profession and is the Vice-Dean of Harvard’s Global Initiatives on the Legal Profession. Professor Wilkins has written extensively on the subject of legal ethics. His bio is available here.
The full article can be found here [PDF]