Private Attorneys Hired by State Should Not Reap a Windfall at Taxpayers’ Expense

Private Attorneys Hired by State Should Not Reap a Windfall at Taxpayers’ Expense

In The News | August 20, 2023

This is an opportunity to reassess the practices and regulations surrounding private-attorney contracting and to enact reforms that promote fairness, transparency and value for taxpayer dollars.

This op-ed was originally published by the Miami Herald.

It was recently revealed that private lawyers will pocket up to $120 million in Florida’s opioid case, raising concerns about transparency and accountability in private attorney contracting.

Florida’s been on the frontlines battling the devastating opioid crisis plaguing our nation, and attorneys’ efforts are commendable. However, the substantial amount awarded to private lawyers under the oversight of Florida Attorney General Ashley Moody demands closer scrutiny.

Florida state law establishes clear guidelines regarding payment to outside law firms involved in state litigation. The payments to private trial lawyers who helped handle the state’s opioid litigation, however, far exceed what is allowed by law.

Moody has injected legal uncertainty into an area of state law intended to stop abuse and corruption. If not remedied, the situation could undermine her actions as the state’s top prosecutor. She must be fully transparent in these legal proceedings to ensure her legal pursuits don’t result in windfalls for lawyers her office hires to represent the state.

State law explicitly limits contingency fees to an aggregate of $50 million in any litigation, regardless of the number of cases or lawyers involved.

Florida’s fee cap law, the Transparency in Private Attorney Contracting (TIPAC) statute, was enacted in 2010 to address concerns that plaintiff lawyers, often with political ties to the hiring attorney general, routinely received inflated contingency-fee payouts.

My organization, the American Tort Reform Association (ATRA), has produced numerous reports highlighting the growing problem of contingency-fee lawyers partnering with state and local governments to cash in on novel lawsuits against business and even entire industries. For example, in 2018, former Florida Attorney General Pam Bondi signed a contract with private law firms to sue opioid and distributors. The agreement acknowledged Florida’s $50 million fee cap, but also stated that the private lawyers would first seek to have their fees paid by the defendants in the case.

A judge awarded one firm $73.5 million in fees, an amount that surpassed the statutory limit. When asked about the trial lawyers’ excessive fees, Moody’s spokesperson argued that the fee cap did not apply because the money came directly from the companies, not the state’s share of the settlement.

This explanation contradicts Florida precedent and the consensus interpretation of the law. Moody’s argument fails to recognize that any fee dependent on the outcome of the case is considered a contingency fee.

Experts further emphasize that the fees obtained by the law firms through settlements and fee-shifting statutes remain contingent fees, despite the agreement that the firms could seek payment from the defendants.

While it’s unclear whether anyone has standing to challenge the attorney general’s broad interpretation of the law, the erosion of public trust in the credibility and transparency of these legal proceedings is cause for concern.

To maintain public trust and confidence, it is imperative that state officials conduct a comprehensive review of the fees charged, the services rendered, and the justification for the substantial compensation received. The public deserves to know why these fee arrangements with outside lawyers went beyond the law.

I urge lawmakers, officials and the public to demand more significant transparency requirements and stricter guidelines on contingency fees to help prevent corruption scandals and ensure the integrity of future cases. This is an opportunity to reassess the practices and regulations surrounding private-attorney contracting and to enact reforms that promote fairness, transparency and value for taxpayer dollars.

We can seize this moment to strengthen our legal system and ensure that justice is served in a manner that respects the principles of fairness and upholds the public’s trust.

Tiger Joyce is president of the American Tort Reform Association.

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