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WV AG Morrisey outlines policy for outside counsel

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There are new policies in store for hiring outside counsel in West Virginia Attorney General Patrick Morrisey's office.

Morrisey announced March 21 the office will hire outside counsel through a competitive bidding process. The new policy also outlines contingency fees for outside counsel and the information that will be posted on the office's web site.

Morrisey's office plans to begin implementation of this policy on April 15, providing a 45-day period for public comment. After this public comment period, the final policy goes into effect July 16.

"This policy helps to bring much-needed order and transparency to an important process," Morrisey said in his office's news release. "While I believe the team of talented lawyers who already work in the attorney general's office will be able to handle most issues that arise, there are cases in which the use of outside counsel may be required. In those instances, we will use a competitive bidding process to make sure we get high-quality services at reasonable prices."

In this policy, it states that the attorney general will not enter into a contingency fee agreement or contract with a private attorney unless he makes a written determination beforehand that this representation is cost-effective and in the public's best interest.

If he does decide to hire a private attorney, he will request proposals from these attorneys to represent on a contingency fee or other basis unless he decides that the situation requires time-sensitive legal services that cannot be provided internally.

If there isn't enough time to complete this competitive bidding process, the policy continues, and appointment is necessary to avoid disruption in pending legal legal services will be handled by pre-approved attorneys who completed the bidding process.

When looking at hiring private attorneys, Morrisey also will consider matters including attorneys' skill and if that matches up to the litigation at hand, counsel's staff to support the litigation, whether attorneys have been reprimanded, attorneys' peer rating and estimated fees.

The policy also states that Morrisey's office and designated employees will retain control over the duration  and conduct of the case, will have supervisory authority, be personally involved in overseeing the litigation and will have veto power over any decision made by outside counsel.

The policy also notes that the attorney general and designated employees will exclusively have discretion over the settlement of the case.

The policy states that the aggregate contingency fee for any legal matter will not exceed $50 million, "exclusive of reasonable costs and expenses irrespective of the number of lawsuits filed or the number of private attorneys retained to achieve the recovery."

These contingency fees also will not be based on penalties or fines awarded.

Morrisey's decision to enter a contingency fee contract or any other legal contract with private attorneys will be posted on the office's web site, the policy further states.

Payment of these fees also will be posted within 30 days after the payment of fees.

"It is not the intent of the AG's office —  in establishing new policies and procedures for the appointment of outside counsel —  to put at risk any element of the attorney-client privilege or jeopardize confidential work product that allows attorneys to perform sensitive legal services on behalf of the state and the office's clients," the policy states.

Therefore, Morrisey will have the right to temporarily waive disclosure requirements if he makes the determination that it's necessary to protect attorney-client or other privileged information that would compromise an investigation.

 "We hope to obtain input from attorneys and citizens about the proposed policy," Morrisey additionally said in the release. "While I believe this policy will help provide accountability and transparency to the hiring of outside counsel, I also am interested in any other ideas to improve the quality of lawyering performed for our clients, protect consumers and save taxpayers' monies."