CHARLESTON, W.Va. -- The state Supreme Court soon will decide whether the Attorney General's Office is allowed to hire outside attorneys to help litigate cases.
The decision follows a lengthy legal battle stemming from consumer protection disputes between private companies and former Attorney General Darrell McGraw.
Representatives from both sides presented oral arguments in two different cases Tuesday before the Supreme Court.
The Attorney General's Office regularly hires private attorneys to help with consumer protection cases. Several defendants in those cases — namely credit card companies and health care giant GlaxoSmithKline — say those attorneys have a financial interest to prevail in the case that goes against the public roles they assume.
"The special assistants must advise the (Attorney General) unclouded by the possibility of private financial gain when assessing such issues as whether conduct violates the law, or the best balance between different forms of relief in protecting the public interest," states a petition from credit card companies who disagree with a lower court's ruling in the case.
"The engagement here on a contingent-fee basis makes it impossible for the special assistants to make these judgments in a neutral manner, which renders the contingent-fee engagements illegal under the Ethics Rules," it continues.
The companies also believe the arrangements are illegal and usurp the power of the Legislature.
Mason County Circuit Judge David Nibert rejected the companies' complaint in August 2012. He ruled that the companies failed to provide sufficient proof of their claims and said other courts on many different occasions also have upheld the attorney general's authority to hire outside attorneys.
"Defendants have made no showing that any counsel to appear in these cases on behalf of the state has breached the Code of Professionalism, has any limiting responsibilities to another client or third person, or labors under any impairment of loyalty," Nibert states in his ruling.
"As opposed to demonstrating any relevant facts, defendants argue that the fee agreements standing alone create a conflict of interest. To the contrary, the agreements state the counsel will receive a reasonable fee approved by this court," Nibert continues.
The companies alleging improper action by the Attorney General's Office state Nibert's ruling contains several legal errors and exceeded its power, requiring clarification from the Supreme Court.