President Bush signed an oddly worded Executive Order today that outlawed contingency fees for "legal and expert witness services provided to or on behalf of the United States."

This, of course, makes little sense. On the one hand, private counsel hired by the government to bring a civil matter runs an inherent conflict: Private counsel has an obligation of "zealous advocacy" while government counsel must be impartial. So an argument could be made for banning private attorneys. But by banning only those that work on contingency, this objective was not met since government can still hire private counsel on an hourly basis. By going half way, the administration failed to eliminate the conflict.

If you look at the title of the order, it says "Protecting American Taxpayers From Payment of Contingency Fees." So where is the protection from hourly attorneys who profit by making litigation more complex and drawn out and running the meter on the taxpayer's back?

Second, the Executive Order bans contingency payments to experts. Except that experts are already banned, so far as I know, from working on contingency. An expert can't exactly be impartial if they are only paid if they win. Thus, it appears that the administration banned a practice that already wasn't allowed.

The order can be found here. (Hat tip to Overlawyered) See also Beck/Herrmann on why hiring outside counsel represents a conflict.

Addendum 5/18/07 - Mulling this over some more, I see the order as even more bizarre for additional reasons: Any government contract is subject to potential problems, a subject often seen with military and construction contracts. At least with contingency fees the taxpayers won't have to lay out any money, and recovery will only come if the suit is successful. This will cost the taxpayers in the long run, with higher expenses and lower recoveries. This was, pure and simple, just another attack on trial attorneys since most tend to vote Democratic. It was politics superceding policy.

Labels: Odds and Ends