State Attorneys General Fact Sheet

Background

State attorneys general (“AGs”) play a unique role in our legal and political system.  AGs routinely must balance effective state law enforcement and, as the highest ranking legal officers of their states, represent the ideals and best interests of their respective states.  Thus, in performing their duties, AGs must hold themselves to ethical standards commensurate with the important obligations and responsibilities of their public position

The U.S. Chamber of Commerce (“Chamber”) has been raising questions about a number of issues relating to the actions of attorneys general.  Hiring plaintiff’s counsel on a contingent basis to enforce the laws of individual states. 

Over the last decade and with increasing frequency, state attorneys general have been retaining private plaintiffs’ counsel to bring enforcement actions on their behalf.  Such arrangements raise questions of conflict of interest, call into question the legitimacy of the actions brought, and undermine respect for the rule of law.  Further, the fees paid to these private attorneys often are not publicly disclosed, and such agreements frequently are made with attorneys who have connections to the office of the attorneys general. 

Such arrangements conflict with the obligation of government attorneys to seek justice and act impartially in bringing cases, because the state’s responsibility to act in the public interest may very well be at odds with the interests of contingency fee counsel, i.e., to maximize profits.  The public interest may not be served best by maximizing fees and penalties – but rather through some other remedy or settlement. 

The National Chamber Litigation Center filed an amicus brief in Rhode Island v. Lead Indus. Ass’n.  The Chamber questioned whether the state’s law enforcement power may be exercised by lawyers who have a personal financial interest in using the state’s police power to seize a defendant’s money because they will personally receive a share of the amount seized.  

Chamber counsel called for the end to such arrangements in the performance of enforcement duties and noted that any other contingency fee arrangement for actions to protect the state’s proprietary interests should be subject to competitive bidding, public disclosure, and fee monitoring by the state attorney general.

Addressing AGs’ Public Statements

• We are concerned about AGs making public statements about ongoing investigations prior to trial.  It is clear that this serves to taint a potential jury pool, unduly prejudices a defendant, and can cause harm to a public company or the reputation of an individual.

• We propose that AGs follow the same standards that apply to federal prosecutors and other law enforcements officials.  (See, e.g., ABA Model Codes of  Professional Conduct, various State Codes of Conduct, the U.S. Attorney’s Manual, National District Attorneys’ Association’s National Prosecution Standards, among others.)  Thus, we recommend that AGs take care to balance the public’s right to know with a defendant’s right to a fair trial.

• In criminal cases, the release of information prior to indictment or charging generally should be limited to circumstances in which the public needs reassurance that the matter is being handled by authorities, the public needs to be warned of an imminent threat to its safety, or the public’s assistance is vital to law enforcement efforts.  Further, we believe that post-indictment, generally only information contained in public documents should be released.  (See US Attorney’s Manual 1-7.401.)

• We also recommend that AGs limit their comments concerning the existence or status of ongoing investigations, again with the goal of avoiding prejudice to a subsequent legal proceeding, while ensuring that essential information is made available to the public.  (See USAM 1-7.530)  

• By way of example, we believe that AGs should refrain from making derogatory observations about a defendant’s character or, in the case of a business, its corporate culture.  We also believe that AGs should adhere to the standards followed by other prosecutors and refrain from making statements about the evidence of a case, the possibility of a plea, or opinions concerning guilt or innocence.  (See USAM 1-7.550; National District Attorneys Association, National Prosecution Standards § 34.2 (prosecutors should only release such information when necessary to fulfill other obligations).

• The Chamber is also concerned about the possibility that some AGs have threatened criminal prosecution while trying to settle a civil matter.  In many circumstances, this may violate legal or ethical standards.  Many states have ethics rules that prevent AGs from threatening criminal prosecution to obtain an advantage in a civil matter.

• Federal authorities and district attorneys must follow guidelines in this regard, yet some AGs appear not to be bound by similar guidelines.  (See ABA Criminal Justice Standards and the National District Attorneys Association National Prosecution Standards.)  For example, in the federal context, civil and criminal prosecutions are usually handled by separate attorneys, prosecutors are generally required to consider whether to file a civil or criminal charge, and certain factors for making this decision are outlined in the procedures.