Trial Magazine

Despite the size and complexity of many government legal departments, certain cases require the use of outside counsel—such as the tobacco litigation, the BP oil spill, and most recently, the national opioids litigation. In these types of cases, plaintiff attorneys may have the right expertise and background to represent government entities. But representing public clients—cities, counties, states, federal agencies, and native tribes—presents unique challenges, especially in large or consolidated cases. The challenges begin before even being hired and can last well past settlement.¹

There are several unique aspects to public client practice that you should evaluate before undertaking such representation. Here are some of the basics you need to know and lessons learned from representing public clients in the opioids litigation.

How the Process Unfolds

Procurement laws create unique requirements for the selection and retention of outside counsel.² Getting hired often involves dealing with open solicitations or responding to requests for proposals (RFPs). These notices are public postings, usually found on the offering government entity’s website. In the opioids litigation, for example, it was not uncommon for hundreds of opportunities to be open across the country at the same time, often with overlapping time frames.

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Most RFP processes allow for a question-and-answer period before proposals are due—take the time to review these.

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Responding to the RFP. Responding to these RFPs involves a form of technical writing intended to directly answer the questions and check off as many “scoring” boxes as possible. Like a law school exam, you should offer an answer to each portion of each question to maximize your scoring potential. RFP processes typically allow for a question-and-answer period before proposals are due—it is always a good idea to take the time to review these before submitting a response.

Larger public clients often prepare written guidelines detailing

• the criteria for deciding whether to seek outside legal assistance
• the factors relevant to the choice of attorney or firm
• the procedures for procurement
• appropriate limitations on counsel’s authority
• conflict of interest and other ethical considerations
• billing practices
• procedures for review of fees.

Carefully review any available guidelines before responding to RFPs or entering into a contract.³

These opportunities are highly competitive, and the selection process can last many months. One of the biggest takeaways from the opioids litigation was lawyers’ willingness to build
multi-firm collaborations or consortiums and present a proposal as a team or to join together after the initial submission. Many of the larger public clients ended up being represented by multi-firm teams, including local counsel. This arrangement allowed firms to combine different skill sets or expertise to ultimately better represent the client.

In some situations, an RFP is not necessary. If you have developed a novel case or have a unique skill set, you may be exempt from traditional procurement rules and be able to approach the public client directly rather than responding to an RFP.

For example, if you uncover an environmental contamination situation before it is well known or if you are the only lawyer with knowledge about liability or damages aspects of a case, you may be able bypass the RFP stage and contact the relevant government agency about bringing a potential case. But even if you approach a public client separately, it still may issue an RFP to decide whether to engage outside counsel and to review other firms’ suitability or comply with procurement laws.

What happens next. In an open solicitation or RFP, often only the top two or three respondents will be selected for interviews. Responding firms should be prepared to face questions about things such as bandwidth, conflicts, and personnel. You must distinguish your proposal from the competition. In the opioids litigation, this might mean sharing a particular strategy, damages model, or cause of action.

Once you win the RFP, you still need to enter into a formal agreement. Often, the underlying solicitation embeds the contract terms, meaning a response to the RFP binds you to those terms, so read them carefully before submitting your proposal. Legal services contracts with public clients have provisions you may not typically see in traditional client retainer agreements.

For example, there may be diversity requirements or veteran preferences. There may be provisions prohibiting support of certain political issues, such as anti-Israel boycott clauses. Moreover, the client engagement and communication contemplated may be thoroughly spelled out in the agreement. For example, some offices may require weekly meetings and approvals of even minor legal undertakings.

Once hired, you also may be subject to unique guidelines, including record keeping or public record requirements, tracking and reporting of potential conflicts, and open meeting laws.⁴ Unlike typical clients, many public clients have sophisticated legal departments or general counsel who may demand frequent updates and must be centrally involved in all decision-making. For the uninitiated, the administrative burden of representing public clients can prove quite taxing. Plan on designating a member of your team to serve as a client liaison and act as a single point of contact.

Potential pitfalls. When you decide to respond to a solicitation or RFP, bear in mind that nearly every communication you send, including any related emails, text messages, and voicemails, will become a public record at some point. Defendants seek to obtain your response to an RFP and the resulting contract to attack your engagement, claim conflicts of interest, or examine your strategy.

Open meeting laws often allow others—including defendants, industry lobbyists, and competitors—to attend public meetings in which you make your case for representation or your contract is being discussed.⁵ Closed executive sessions conducted outside of public view are best used for the discussion of the underlying litigation or related settlement. Such executive sessions are quite normal and usually provided for in open meeting laws.

When responding to RFPs or negotiating with public clients, be aware that rules and guidelines regulating political contributions and gift giving are ever-changing and can result in conflicting you or your firm from representing certain entities. When the potential client is an elected official, such as a state attorney general, ask your firm’s partnership whether any personal, firm, or political action committee contributions were made to that person’s campaign. These contributions may not be automatically disqualifying, but you should know about and disclose any in advance. Elected officials may fear hiring outside counsel if it later creates an appearance of impropriety.

Also bear in mind that the more public clients you have, the more communication and administrative support will be required. In the opioids litigation, for example, consortiums of firms represent hundreds of entities across the country. As clients need updates or settlement forms need to be executed, this can prove problematic. You may need to scale up your staffing or collaborate with other firms to handle the workflow.

Ethics Concerns

The principal ethics problem for outside attorneys involves simultaneous representation of a public client and another party whose interests are adverse to the public client. The government may consent to representation of adverse interests by its outside counsel; however, any such consent should be fully informed. The best policy is to be open and candid and to update the client at the time of or before any new engagements.

Attorneys who choose to represent more than one type of public client whose interests overlap with each other may face an ethical dilemma in a limited recovery situation. I refer to this as the “one pot paradox.” For instance, if you represent Smith County and the city of Smithville and the combined claims of those clients exceed the defendants’ available resources, you may be forced to allocate money among your clients.

In the opioids litigation, this issue was partially solved through negotiations between the state attorneys general and counsel representing the local governments. This concern also exists when you seek to represent class claims that are parallel to the public client claims. Consulting an ethics attorney or obtaining a bar opinion is always a good idea in such situations.

Most public clients require outside counsel to disclose fully and in writing all existing or potential conflicts of interest. The disclosure should include all matters that the attorney’s firm has pending before, or reasonably expects to come before, that entity. The client should then decide whether to proceed with the hiring given the information provided. If attorney-client privilege or other rules prevent outside counsel from making full disclosure to the public client, then the outside counsel should not be employed.

Agreements with outside counsel should specifically identify the types of professional employment that cannot be undertaken because of the attorney’s service to the client. For example, if one state hires counsel and expects them to forgo representing any other state, such a condition should appear in the agreement or, at a minimum, be discussed before finalizing the agreement.

Before you take on a government client, understand how it may impact any private sector clients. In some cases, representing a government agency might restrict your ability to represent private plaintiffs before that agency now and in the future. For example, representing a state in an opioids case may preclude you from ever suing that state in unrelated matters such as auto crash or premises liability cases.

Therefore, contracts should identify the client with specificity and address questions related to existing or potential adverse representations. This always depends on the particular rules in your jurisdiction, but early discussion of the potential for issues and how best to handle them is always good practice. In many instances, only the entity that retains the private attorney will have an interest in the subject matter of the engagement, and in those instances that entity should ordinarily be considered the client. So if the School Board of Smith County hires a firm, it may not create a conflict for that firm against Smith County down the road.

Discovery Is Magnified

Representing a public client—particularly when it comes to electronic discovery—can be complicated and expensive. Ensure that you have a client-specific plan and access to sufficient resources. Early discussions with the client should cover which other entities or agencies are included or excluded in the representation, who is sending preservation/collection letters, how involved the client wants to be in discovery review, and what the monthly carrying costs will be.

In the opioids litigation, for example, more than 50 million documents have been produced to date. Hosting, searching, and making use of such a volume of documents is extraordinarily costly and requires a large time commitment.

Most lawyers also underestimate the cost and burden of responding to defense discovery requests for public clients.⁶ For example, in the opioids MDL, the court ordered all public client litigants to prepare fact sheets detailing their alleged harm and provide the names of people who held relevant positions within the government over the relevant time period. Providing this type of information on top of seeking discovery from the defendant can be time-consuming and expensive.

Moreover, public records can play a role as an alternative to formal discovery. If a defendant is unsuccessful in getting its hands on public documents through the normal discovery process—or simply does not want to wait for discovery—it might issue public records requests under freedom of information laws. This adds a time and expense burden for public clients on top of the formal discovery process that can be shifted to outside counsel if you are not careful. An understanding of the law, and what documents your client might have already produced in response to a public records request, is essential to a successful outcome.

Dealing With Media Coverage

In a high-profile public case, expect a lot of media coverage. It’s good practice to develop a global media strategy with your client at the outset. In many cases, particularly with elected officials, the public client will want to run all external communications through its own press shop. Be mindful that reporters might appear at court hearings and review court filings or issue public records requests seeking relevant documents.

Never communicate with the media without the express consent of your client. As with any case, be careful that your client’s external messaging does not conflict with or undermine your legal positions in the case itself. It may be a good idea to engage a public relations firm early on and restrict media outreach to maintain consistency and clarity.

Differing Priorities & Client Changes

Unlike personal injury cases, the public client is a sophisticated and complicated organization. Internal tension, limited schedules, and strict open meetings rules—along with dizzying red-tape mazes of bureaucracy—can create real challenges in reaching a settlement. And the longer the case goes on, the more likely your client will have a change in administration, potentially impacting the political party in control or underlying support for the case.

If your client is an elected official and the person in office changes during your representation, schedule a meeting with the new person to bring him or her up to speed and explain or clarify your remaining litigation or overall strategy. During the opioids litigation, one of our clients, the Commonwealth of Kentucky, had a complete turnover after the Democratic attorney general became governor and the new attorney general was Republican. Clear communication and reaffirming litigation goals with the new administration made the transition as seamless as possible.

If a new client comes into the case and chooses to terminate the agreement, review the contract closely, along with the client’s procurement laws, and prepare to make a quantum meruit claim on any resulting recovery. If the new client terminates the contract and dismisses the matter without recovery, you may be left with no recourse to recoup your costs and expenses.

Keep in mind that public clients might define a legal success differently than you would, including by prioritizing nonmonetary relief. Take the time on the front end, and with each change in administration, to understand the client’s litigation goals and definition of success. When possible, attempt to include provisions to account for nonmonetary relief in your fee agreement.⁷

With government clients, also expect defendants to engage in backdoor outreach or lobbying of your client, even during settlement discussions. It is critical to talk through the various ways the case could unfold, including the impact that lobbying and legislative involvement may play.

While it is challenging and often full of bureaucratic red tape or unpredictable risk, the upside in these cases is tremendous. After all, most of us went to law school to work on important and novel matters and to make a difference. Representing a public client gives you the chance to do both.

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James Young leads the public client practice at Morgan & Morgan in Jacksonville, Fla., and can be reached at jyoung@forthepeople.com.

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Notes

1. AAJ recently formed a Public Client Litigation Group to provide a forum for attorneys who represent or are interested in representing public entities. Learn more at www.justice.org/litigationgroups.
2. Procurement is the process through which governments acquire goods and services—including legal services—from the private sector. See, e.g., Or. Admin. R. 125-247-0295 (2022); N.C. Gen. Stat. §114-9.4 (2020).
3. For cities and counties, state, regional, and national organizations work collaboratively to share information about litigation and help members design RFPs. For example, the National League of Cities (https://www.nlc.org/) and National Association of Counties (https://www.naco.org/) have local organizations in almost every state.
4. See, e.g., N.C. Gen. Stat. §114-9.4; Wis. Stat. §20.9305 (2022); Fla. Stat. §119.01 et seq. (2021).
5. See, e.g., Okla. Stat. tit. 25 §§301–314 (2020); Fla. Stat. §286.011 (2021). 
6. For more on efficient discovery production for government clients, see Staci Olsen, Optimize E-Discovery Production, Trial, Aug. 2021, at 34.
7. This may mean defining a method of valuation for nonmonetary relief, tying a set amount to nonmonetary goals, or simply referring to lodestar estimates of the time attributable to these remedies. Attorney fees may be capped or otherwise limited by federal, state, or local laws, as well as by the competitive bidding process or, as is the case in the opioids litigation, by order of the court overseeing the case. Several states have laws, sometimes referred to as “transparency in private attorney contracting,” that govern attorney fees in public litigation. Always check your jurisdiction’s rules or court orders before engaging in a contract.