SID SALTER: Hood’s position on outside counsel takes heavy blows

By Sid Salter

STARKVILLE – The impact on John Q. Public from the passage of the so-called “sunshine law” regarding the implementation of restrictions and oversight of hiring outside counsel attorneys by the Mississippi attorney general’s office has been vastly overstated by Attorney General Jim Hood and, to a degree, by Hood’s Republican political antagonists who passed the law over his objections.
“If this bill passes, then agency heads with agendas and interests of their own will be allowed to pursue those interests on the taxpayers’ dime over the state’s interest as a whole with no oversight,” Hood said back in February when the handwriting was on the wall that this legislation was on the fast track to passage.
The truth is that the sky won’t fall in Mississippi merely because there is oversight of what has been a highly politicized process of hiring expert attorney to handle cases that were either too complex, too time-consuming or too resource intensive for the staff of the attorney general’s staff to handle.
The state Legislature fast-tracked the legislation during the 2012 regular session and the measure got universal support from the new GOP leadership with Gov. Phil Bryant, Lt. Gov. Tate Reeves, and House Speaker Philip Gunn singing from the same political hymnal on its passage. Bryant signed it into law – and shortly thereafter the state Supreme Court removed any doubt as to where the majority stood on the question.
In a ruling on an ancillary case, the state’s high court ruled against Hood in separate outside counsel fees cases involving MCI and Microsoft. In both cases, the court found that state law requires that any outside counsel Hood hires must be paid from funds the Legislature appropriates to his office.
The court ruled that the contingent fees are public funds and that outside counsel lawyers cannot be paid from fees awarded until the state first receives the funds and then the Legislature appropriates the legal fees. In response, Hood said: “We will implement and follow the law created by the court. In this ruling, the court does not call into question the ‘validity of the retention agreement’ …. It simply says that the lawyers in these cases could not be paid directly from the defendants, and that money must flow through a state account first. In fact, the court reiterated the attorney general’s ability to hire good lawyers to bring important suits on behalf of Mississippi, such as with these cases.”
Two key points:
* Hood’s reaction spins a huge loss for his office in an unbelievably positive light;
* The Supreme Court indeed didn’t “create” new law. The code section in question has been on the books longer than the MCI or Microsoft disputes.
Back in the days before mass tort litigation and before multi-million jury awards, the most politically sensitive question involving politicians and lawyers in the state was which law firms would get the lucrative bond business. Only in the 1980s and 1990s after Richard Scruggs parlayed his friendship with former Attorney General Mike Moore first into successful asbestos litigation and historic tobacco litigation, did anyone pay much attention to the obscure outside counsel statutes or the interrelationship between those contracts and political contributions.
The combination of the new legislation and the recent court ruling has left Hood with little left to do on the question of outside counsel because the “old” outside counsel system has taken a withering if not fatal political and legal blow.
Sid Salter is a syndicated columnist. Contact him at 601-507-8004 or sidsalter@sidsalter.com.