A recent Thomson Reuters story, “Judge: Kentucky AG Can Use Contingency Fee Lawyers in Case vs Merck,” reports that U.S. District Judge Danny Reeves ruled, in a 33-page opinion (pdf), that Kentucky Attorney General Jack Conway can use contingency fee lawyers in a case related to Merck’s marketing of the pain reliever Vioxx.  Reeves rejected arguments from Merck’s counsel Skadden Arps that contingency fee lawyers, Garmer & Prather, should not be permitted to represent the AG. 

The tort reform lobby has sought to limit the use of outside contingency fee lawyers state by state.  Their lobby is pushing hard to enact laws placing limits on what attorneys can earn, regulating the attorney-client relationship, and limiting the right to contract with a lawyer.  Law professor Amy Widman of Northern Illinois University, who specializes in AGs enforcement of consumer protection laws, has testified before Congress that state lawyers need to be able to tap the resources of the private bar or else consumer law will go unenforced by resource-strapped AGs.

“As long as the AG’s office is reviewing the contingency-fee counsel’s work before adopting or approving it – and Merck has cited no evidence in the record to convince the court that it is not – the AG has retained and exercised his decisional authority,” Reeve wrote.  “The court will not second-guess the AG’s decision to grant a certain amount of ‘room for the outside attorneys to…exercise their professional skills in putting a lot of (the litigation) together.’”

“The tort reform lobby doesn’t like our contingency fee system and they certainly don’t like winning contingency fee lawyers,” said Terry Jesse, executive director of NALFA.  “The tort reform lobby wants to end mass tort litigation by eliminating the economic incentive to undertake the litigation.”  At NALFA, we oppose these legislative efforts.  By removing the incentive to pursue important public interest litigation, the state has undermined the consumers of their state and emboldened corporate wrongdoers,” Jesse concluded.

NALFA also reported on this case in “NALFA: State AGs Should Be Allowed to Hire Contingency Fee Lawyers”