Third Party Lacks Standing To Challenge State’s Contingent Fee Arrangement

The New Hampshire Supreme Court reversed and remanded a matter

The relevant facts follow. In June 2015, the Office of the Attorney General (OAG) retained the law firm of Cohen Milstein Sellers & Toll PLLC (Cohen Milstein) on a contingency fee basis “to represent [the OAG] in an investigation and litigation of potential claims regarding fraudulent marketing of opioid drugs.” (Emphasis added.) In September, the OAG and Cohen Milstein entered into a second retainer agreement that “supersedes the initial retainer agreement, executed June 15, 2015, and is effective as of that date.” The September retainer agreement states that Cohen Milstein is retained “to assist [the OAG] in an investigation and litigation of potential claims regarding fraudulent marketing of opioid drugs.” (Emphasis added.)

The trial court refused to enforce an administrative subpoena issued and granted a protective order

We conclude that the defendants have failed to demonstrate standing with respect to their claims that the contingency fee agreement between the OAG and Cohen Milstein is ultra vires under RSA 7:12, I, and :6-f. Thus, we hold that the trial court’s contrary determination is erroneous.,,

The defendants also argue that “the contingency-fee agreement violates longstanding New Hampshire common law and ethics . . . rules.” (Capitalization and bolding omitted.) They assert that “[w]hen a private lawyer represents the State in a matter in which the lawyer has a personal interest, that interest compromises the ‘impartiality’ required of all government lawyers and creates at least the appearance of impropriety.” The trial court found that “Cohen Milstein is not a public attorney under common law or the Rules of Professional Conduct” and rejected the defendants’ claims to the contrary because they are “based on the premise that Cohen Milstein is vested with a governmental function and in a position of public trust where its financial stake will create a conflict of interest that will negatively impact the public trust and the fair administration of the law.”

The court noted that the OAG retains control of the case. (Mike Frisch)