CRITES: AG Special Counsel Process Overdue for Serious Reforms

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Columbus – The state’s process for appointing outside (or “special”) counsel in the Ohio Attorney General’s office has long been admonished as a system fraught with allegations of pay-to-play and political favoritism. Although the process has been reconfigured over the years, few significant changes have been implemented. Attorney General candidate Mike Crites today unveiled a sweeping plan for reforming the special counsel system.

“The next Attorney General needs to provide strong leadership and make decisions based on what’s right for Ohio taxpayers, not political favoritism and personal ambition,” Crites said. “The time is ripe to overhaul the system of appointing special counsel, making it more transparent and thus accountable to the public.”

Special counsel are often appointed by the Attorney General to handle cases involving specialized areas of law in which the office lacks specialized expertise (such as patent law, intellectual property, etc.) or at the request of a state agency.

The process of appointing special counsel is often clouded in ambiguity, with contracts that identify for taxpayers only an hourly rate but not a total project cost to the state. It can often be difficult to determine how much any single law firm has been paid without extensive analysis.

Past attorneys general have made certain changes to increase diversity among special counsel, but the overall process has traditionally been totally subjective, internal, political and unbid. Crites’ proposal seeks to create a competitive bid system that is fully documented and available to public scrutiny.

Crites’ proposal also responds to recommendations in the Attorney General Advisory Committee report issued last week that future administrations establish a “fair and transparent” system for selecting outside counsel.

Crites’ proposal creates a true Request for Proposal (RFP) process. Every special counsel contract would be required to go through the RFP process. He will also create an appropriately transparent process for the rare cases that require immediate action and don’t allow time for an RFP process.

If a state agency is requesting outside counsel, that agency may suggest three lawyers or firms to receive the RFP. The Attorney General may add to that list for any number of reasons including encouraging diversity.

Responses to the RFP would then be reviewed and scored by the Attorney General as well as officials from the requesting agency. Responding lawyers or firms must include a price quote in their response.

Once the proposals have been scored, the requesting agency may make a recommendation as to which proposal they want to accept. Then, a committee of senior Attorney General staff and potentially outside individuals such as a member of the Ohio State Bar Association or a retired judge, will meet to review the grades and the agency’s recommendation.

Although some deference can be given to the requesting agency’s recommendation, the final decision rests with the Attorney General. As Attorney General, Crites said he would review the list in particular for firms that are not well-qualified, are too expensive relative to others, or who are getting too much special counsel work overall.

Minutes of these decision-making meetings will be subject to public scrutiny, with the exception of attorney-client privileged information. Crites noted that formalizing the selection process will enhance its transparency by creating a paper trail that is subject to disclosure.

Crites’ proposal would de-emphasize the practice of a standard hourly rate, focusing instead on total project cost by requiring bidding firms to provide a “not to exceed” total cost in their proposal. History shows that a majority of larger firms doing special counsel work request and receive exemption from the standard rate. Also, special contracts are often open-ended, identifying an hourly rate but not a total project cost. Crites’ proposal provides taxpayers will a more realistic estimate of total project cost before the contract is awarded.

Although some special counsel assignments are made out of necessity, many assignments have been made over the years because the requesting agencies either don’t trust the Attorney General’s abilities or because they prefer a “big name” firm to handle the work. Crites’ plan would put a stop to this practice as part of his overall pledge to reduce special counsel work.

“It’s no secret that the ability to dole out special counsel has been used as a political fundraising tool for years,” Crites said. “The truth is, the state can realize substantial savings by bringing real change to the way these appointments are made, and my proposal does just that.”