With the benefit of 20 years of scholarship and ensuing appellate case law, it has become inescapable to conclude that contingency fee contracting by state attorneys general violates the structure of the Constitution and its guarantees of due process, as well as state fiscal laws and professional codes of ethics. Further, these arrangements result in the privatization of law enforcement, and thus transfer power into the hands of influential private counsel who have cashed in for billions of dollars in fees—in open defiance of constitutional and legal prohibitions put into place by our nation’s Founders to prevent such corruption.
At least three core constitutional principles are laid waste by attorneys general who retain private counsel to regulate industries by litigation.
1. Contingency fee financing is an attempt to do an end run around the appropriations process, and is constitutionally prohibited. That means that even statutes permitting such arrangements violate constitutional controls over the flow of money expressly put into place to prevent government corruption.
2. No private party or law firm should ever finance any government operation. Both state and federal constitutions require that all receipts of money or services must be legislatively authorized and subject to legislative control and accountability.
3. No private party or law firm should ever play any role in a government investigation or prosecution, especially when that party has a direct financial stake in the outcome. State and federal due process clauses prohibit such compromised prosecutions, as recognized by the United States Supreme Court, along with state and federal appellate courts and governmental Codes of Ethics.