Outsourcing the attorney general's job undermines justice

State attorneys general across the U.S. are outsourcing their public duties on behalf of taxpayers to private law firms, diminishing the recovery of damages owed to victims and driving up the costs of our legal system. It is an abuse of the justice system by those sworn to uphold it. It must stop.

This abuse is no longer limited to lawsuits for monetary damages. Recently, in my home state of Colorado, Attorney General Phil Weiser — a career stranger to the courtroom — recently bypassed the army of taxpayer-funded attorneys in his office to handle a high-profile case involving allegations of manslaughter by police and paramedics.

Despite being appointed by name by Gov. Jared Polis, he instead appointed two partners from civil law firms in Chicago and Los Angeles to handle the prosecution, despite the fact that neither of the civil lawyers was licensed in Colorado, nor had either of them ever been state prosecutors. After weeks of an inexplicably expensive prosecution case and no defense offered by the officers, the jury did not convict on any of the hand-picked lead charges.

Mr. Weiser has yet to explain why experienced Colorado attorneys already employed by Colorado taxpayers were unfit to handle the prosecution of Colorado police officers in front of Coloradans in Colorado courts for allegedly violating Colorado laws. How does outsourcing to well-intentioned but lightly experienced attorneys advance justice?

Unfortunately, such arrangements have become increasingly common — not just in Colorado, but all over the country. Some local and state governments, as well as attorneys general, have enlisted private, contingency-fee lawyers to represent their states in court. This creates two fundamental problems.

First, in these instances, the prosecutorial power of the state risks being appropriated for political motives. Second, it reduces the legal system to a “pay for results” scheme, in which the outcome is driven more by the attorneys’ profit motive than by the pursuit of justice.

The most prominent example is the rash of climate lawsuits cropping up around the country. Law firms operating on a contingency basis — the same pay basis employed by personal injury lawyers — have enlisted nearly two dozen local governments — including the city of Boulder and counties of San Miguel and Boulder in Colorado — to sue energy producers on public nuisance grounds for their purported contribution to climate change.

These lawsuits are not designed to provide real solutions or remedies to any potential impacts of climate change. They are money-generating efforts that harm local economies and raise the cost of energy for Americans. The big winners in such lawsuits are the private attorneys who serve as law mercenaries, motivated by the promise of treasure, not the advancement of the public good.

Beyond the risk of increased costs and abuse from frivolous lawsuits promoted by this practice, it also leads to bad public policy. For instance, private litigation firms have persuaded some localities to opt out of global opioid settlements, jeopardizing or delaying the receipt of critical funds. Why? The promise of millions of dollars in contingency fees — which would have otherwise gone to local communities, public health entities and law enforcement agencies to battle the fentanyl epidemic — drives these firms.

The state of Washington’s attorney general, Bob Ferguson, outsourced the responsibility for negotiating a settlement with three opioid distributors to private litigation firms after opting out of a $26 billion opioid settlement agreed to by nearly every other state in the country. Of the $479 million owed to the state's taxpayers from the 2022 settlement reached by outside counsel, fully $20 million went to a single law firm, Motley Rice.

Before that, Oklahoma’s attorney general did the same thing. Of the $270 million Oklahomans were due from that opioid settlement, $50 million went to just two of the many private firms that pushed the state to pursue this strategy.

The use of public authority for private gain is anathema to a court system predicated on justice and the rule of law. We would not tolerate district attorneys outsourcing prosecution of criminal cases to private firms where pay is premised on the level of conviction, the severity of the sentence, the volume of cases resolved, or any metric other than the achievement of justice, and should not tolerate a similar model of justice in civil courts.

Easily enacted, commonsense reforms would end this abuse of government power. The law should prohibit local and state governments and attorneys general from outsourcing their responsibilities to any private entity. If some civil lawyers possess unicornlike expertise in some relevant area of law that could assist the state in a righteous lawsuit, hire them at the state pay scale instead of sacrificing millions of dollars in a pay scheme befitting slip-and-fall cases. The only tolerable motivation for state litigation is the public good, not private profit.

In the meantime, increasing penalties for filing frivolous lawsuits and placing a cap on the contingency fees law mercenaries can claim would go a long way toward minimizing the incentive for abuse.

This is not a partisan or ideological matter. It is about reforms needed to end a modern abuse of governmental power and to maintain the integrity of our justice system.

• George Brauchler is former district attorney for Colorado’s 18th Judicial District, the state’s most populous. He was the Republican candidate for Colorado attorney general in 2018.