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Attorney general can hire outside lawyers, high court rules

CHARLESTON, W.Va. -- The state Supreme Court ruled Tuesday that the Attorney General's Office is allowed to hire outside lawyers.

"The attorney general has common law authority to appoint special assistant attorneys general," the decision states.

Several private companies facing consumer-protection lawsuits filed complaints with the Supreme Court after judges in Mason and Wayne counties denied their request to disqualify the attorneys.

The companies claimed the private lawyers should be disqualified because of the way they're paid. The fee arrangements violate West Virginia ethics and professional conduct rules, the companies claimed.

The companies that complained include GlaxoSmithKline, which was sued in Wayne County over its marketing of the drug Avandi, and several financial firms, sued over their credit card service plans in Mason County.

The attorney general often hires attorneys to help with consumer protection cases.

The unanimous decision by the Supreme Court found that only an employee who receives a salary or wage is subject to the state Ethics Act, according to the order. An outside attorney is not an employee, the court found.

"In fact, the evidence shows the special assistant attorneys general may not receive any compensation for their legal services," the opinion states.

"The lawyers took the chance to spend their money to prosecute this action on behalf of West Virginia when they were not promised any hourly fee or the reimbursements of their expenses and costs. If they lost this case, the West Virginia taxpayers would not have to pay any money -- but the lawyers would have lost a substantial amount of money," the Supreme Court order stated, citing the Mason County decision.

The court ruled the losing opponent, with approval from the trial court, can pay outside counsel.

The court also found that rules of professional conduct weren't violated. Companies claimed that outside counsels' interest in obtaining a fee would limit their responsibilities to the state.

The court disagreed, and said for, among other reasons, "the issue of the amount of attorney's fees is purely discretionary with the trial court. Success by the special assistant attorneys general does not result in any predetermined amount of attorney's fees."

The opinion written by Justice Robin Davis also notes that the private attorney is still subject to supervision by the attorney general.

"The most glaring deficiency in the arguments made by the Petitioners is that there was not one allegation that the special assistant attorneys general have actually engaged in any improper conduct that has caused an injury," Davis wrote.

"We have not and will not interfere with or disqualify a party's counsel merely because of allegations of improper conduct that has not occurred. To allow a mere possibility of improper injurious conduct to be the standard for disqualification would result in parties constantly seeking to disqualify opposing counsel because of phantom injuries. The law of disqualification cannot rest on the imagination of opposing counsel."

Attorney General Patrick Morrisey released a statement saying he was pleased with Tuesday's decision.

"As part of today's 5-0 decision, the ruling ensures the Office will continue to have the ability to prosecute consumer protection cases in an effective and efficient manner. A long time ago, I said we would fight to protect consumer protection, and this ruling gives us the ability to do just that," he said in the written statement.

"In short, this was a major victory for this office and our pursuit of making it the best law firm in the state."

Reach Kate White at kate.white@wvgazette.com or 304-348-1723.


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