Reports of Hillary Clinton and Barack Obama courting former presidential rival John Edwards for his support abound, with some suggesting that Obama may offer Edwards — who served one term representing North Carolina in the Senate — an appointment as attorney general of the United States.

Edwards, a practicing lawyer of many years, has the legal talents to qualify for this important position, but the possibility an activist plaintiff’s lawyer with close ties to the militant plaintiff’s bar becoming the nation’s top law enforcement officer should raise great concern. Here’s why:

Common sense suggests that Edwards, or any major plaintiff’s lawyer who becomes AG, would naturally be sympathetic to other plaintiff’s lawyers. Indeed, Fred Baron, a former president of the American Association for Justice nee Association of Trial Lawyers of America and a prominent and brilliant plaintiff’s lawyer in his own right, was co-chairman of the North Carolina Democrat’s presidential fundraising.

The only legal barrier standing in the way of a plaintiff’s lawyer as AG awarding his friends hefty contingency fee contracts is an executive order issued by President George W. Bush that bans federal departments from hiring outside lawyers on a contingency fee basis. But that order could be nullified by a new president.

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There is a serious concern that if any president — Republican or Democratic — repealed or otherwise greatly modified the order, the AG could then outsource the official legal business of the United States on a contingency fee basis to friends in the plaintiff’s bar.

To see what could happen at the federal level, look at what already occurred when state attorneys general outsourced work in this manner. State AGs and plaintiff’s bar lawyers first forged links in the successful $236 billion tobacco settlement of the last decade. Many state AGs turned their state’s entire tobacco case work over to personal injury lawyer friends, who in turn received billions of dollars in legal fees.

More recently, some state AGs have extended their financially rewarding contingency fee dance with plaintiff’s bar lawyers to include lawsuits against a multitude of manufacturers and services. Sometimes these arrangements have led to illegal kickbacks. 

For example, former Texas AG Dan Morales went to jail because of kickbacks from wealthy plaintiff’s bar lawyers he appointed. A former Kansas AG retained plaintiff’s bar lawyers on contingency fees, then used their firm as a place to run her re-election campaign. Rhode Island’s AG delegated the entire responsibility for handling lead paint cases to a powerful, nationally known plaintiff’s bar law firm. 

Those lawyers have pushed liability law to change the ancient tort of public nuisance into a tort law-eating machine that would gobble up any defendant whose acts may have arguably resulted in any cost to a state.

Having a high-ranking public official outsource his or her constitutional responsibilities adversely affects the public. The official has sworn to protect the interests of the public, but the plaintiff’s bar lawyer working for tax-paid contingency fees has taken no such oath; his loyalty is to stretch the law toward the plaintiffs.

Existing federal law would be pushed to its ultimate limit. Expanded Racketeer Influenced and Corrupt Organizations suits could be filed at will. Medical secondary-payer suits could be pursued in any situation where the government may have provided funds. False Claims Act suits built on tissue paper allegations could easily be filed.

It is difficult to see how the public could be well-served if this happens, as settlement funds that should flow to the Treasury would instead go to plaintiff’s bar lawyers who would be paid contingency fees of 33 percent or more.

Some states have enacted variations on the Private Attorney Retention Sunshine Act, which require AGs who do hire outside counsel to use open, competitive bidding. Not surprisingly, AGs in the states that have enacted such statutes to ensure a more transparent and accountable process have subsequently declined to hire plaintiff’s bar lawyers.

The presidential election is getting closer. There will be widespread speculation about who will be in the next president’s Cabinet. But it is important now to appreciate that whether it is Senator Edwards or any other personal injury lawyer-friendly United States Attorney General, he or she could, if unchecked, bring about largesse to a few personal injury lawyers in America, support clearly unsound public policy, and adversely effect the American people.  

Sherman Joyce is president and Victor Schwartz is general counsel of the American Tort Reform Association. They can be reached at sjoyce@atra.org and vschwartz@shb.com.