When government lawyers outsource enforcement to external trial lawyers, issues of ethics and potential conflicts of interest can emerge. A recent Ohio federal opioid case involving law firm Motley Rice and the City of Chicago has prompted such concerns. The lawyers of this law firm have been found to simultaneously represent various state attorneys general, city prosecutors such with the City of Chicago, and various private clients- all in interrelated opioid litigation.
Consequently, OptumRx, one of the defendants in the high-profile opioid case, filed a motion seeking to disqualify Motley Rice from the case. This was based on alleged misuse of confidential information obtained in connection with various government subpoenas. The claim suggests that the law firm weaponized this knowledge against the same companies in separate private litigation which they were also representing, motivated by their own financial gain. This alleged conduct potentially breaches the American Bar Association’s Rules of Professional Conduct, and specifically Ohio’s Rule of Professional Conduct 1.11(c).
In response to such issues, the Arizona Attorney General’s Office has implemented some measures to protect against such conflicts of interest. Restructuring the standard outside counsel contract for consumer contingency cases, they have imposed clear limitations on dual representations. This means that potential outside counsel are required to notify the office of any existing representations in private class actions, with the chance of termination for violation of this clause. According to O.H. Skinner, who served as Arizona Solicitor General nd had firsthand experience of these issues, the measures could be taken further, including making dual representation an automatic clause for termination and expanding potential conflicts to cover representation of local governments.
Implementing such measures should be a priority for more governments, as they are an effective way to avoid the problems exemplified by Motley Rice case. Such procedures honor the responsibility government lawyers have to the people they represent, which necessitates this type of safeguarding. Furthermore, it is crucial that ethical considerations and potential conflicts of interest are paid more attention to when governments hire outside lawyers on contingency contracts. There are clear and realistic solutions, as the Arizona case exhibits, and should therefore be adopted by others.
The case in question is In re National Prescription Opiate Litigation, No. MDL 2804, N.D. Ohio Jan. 31, 2022.
Former Solicitor General of Arizona, O.H. Skinner, shares these insights based on his experiences from 2019-2020 when he represented the state in significant consumer protection cases in addition to overseeing outside counsel.