When I served as attorney general of Nevada, the question of whether states should ever hire outside lawyers to assist with complex litigation came up often. The answer is obvious: They should — especially smaller states going up against corporate giants. The real issue isn’t whether to hire outside counsel but the need to verify that their contracts are written in a way that safeguards the state’s interests.
That part of the debate has been neglected for too long, and with the growing number of ethics-related headlines about outside counsel arrangements that have proliferated in recent years, it can no longer be ignored. This raises an important but rarely asked question: Are states adequately protecting themselves on the ethics front to guard against troubling conflict-of-interest questions that can arise when firms represent both private clients and state governments in overlapping cases?
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