The State's engagement of lawyers and their fees, for which the taxpayer is ultimately liable, have become big news. It appears to many that legal briefs distributed by the State and State-controlled agencies and enterprises have become bonanzas. Such apparent bonanzas did not always exist.
There are specific reasons why this situation has come about. These are the huge growth in public law litigation, the equally significant growth of State participation in the economy and the method of such State participation.
With regard to the method of State participation, I remind readers that successive governments of purportedly different political stripes choose to operate more and more outside the constraints of public service management and through the vehicles of State enterprises and the now notorious sub-set of special purpose companies.
These vehicles of State participation in the economy are under partisan political control. Ten years ago I pointed out the mischief of this set up. See Interfering intravenously published on August 11, 2002. Since then billions more have vanished into partisan pockets. I also went before the Uff Commission in February 2009 on my own initiative to give testimony about the abuse of the state enterprise system.
Recommendations made by Uff for ministerial accountability in this area of troubling politico-commercial life have of course been ignored by both PNM and UNC. It suits our politicians and their self-righteously grasping supporters to have unrestrained hands on the national cash register.
Not only lawyers benefit from the bonanzas available to supporters of the political party in power. For example there are frequent rows about the award of insurance brokerage contracts. Nevertheless, I promised to look at fees on brief so let's press on.
For the reasons given above there is a thriving market in public law work.The biggest disaster for the taxpayer is the loss of the Solicitor General's control of the engagement process of lawyers for civil work and severe attempts at encroachment on the DPP's engagement practices. As far as the DPP is concerned, in a PNM time, there was a robust exchange of correspondence between the respective offices of Attorney General and DPP, which became public and led to significant fallout.
The position with the Solicitor General (SG) has been less ventilated. This is how it used to work: The State or its agencies were usually defendants in public law litigation. When the proceedings were served on the State they would be sent to the SG who would assign junior counsel from within his/her department (we had many distinguished female solicitors general) and the instructing attorney would be an employee of the Chief State Solicitor.
Counsel external to the SG's department were engaged if there was a requirement for senior counsel. Junior counsel and instructing work was rarely ever outsourced. One very important consequence of this practice was that young counsel employed by the State got the opportunity to work with leaders at the Bar. I remember on one occasion a Solicitor General having requested my services by an initial phone call suggested that the junior assigned was able but "a little green" and requested that "I train the junior up please".
The solicitors general were reasonably even-handed in their selection of silk and knew the levels of fees out there as they briefed a variety of counsel. Any attempt to charge excessively would be resisted because there was choice. Solicitors general were not then captives of a politically directed sellers' market.
For more than a decade, practices have changed. Junior counsel employed within the department are frequently left out. Attorneys general or other ministers direct who should be briefed as senior counsel and sometimes pick entirely outsourced teams. Politically captive sellers markets comprising groups of seven or eight favoured lawyers with a little window dressing are thereby created. This has inevitably led to lawyers in private practice being labelled, wrongly in some cases, as PNM lawyers or UNC lawyers.
I must complete this account by acknowledging that the volume of State-related litigation has overwhelmed the Solicitor General's department and that many ministries of government have legal departments doing their own thing, often at cross purposes. A previous government keeping only an acting SG in place also disastrously undermined the SG's department.
The function of the SG acting in consultation with, but not necessarily at the direction of an AG, for the engagement of external counsel should be re-established. We do not know whether all external counsel are made to provide timely estimates of fees and to keep their bargain. A panel of lawyers, whose brief fees and hourly rates have been set out in advance, must be maintained and reviewed periodically, in similar fashion to what obtains in some areas of the private sector.
The more that the traditional checks and balances are overthrown rather than strengthened and reformed, the greater the bills the taxpayers will face for political patronage lavished in all sectors of the economy.