Behrens is critical of partnerships between state attorneys general and plaintiffs' firms. He notes that such partnerships can create incentives that do not benefit the public, such as if a firm working on contingency seeks a large monetary award to benefit itself despite the availability of more appropriate forms of relief that may better serve the people. "In addition, private lawyers are more likely to push the law into new and uncharted areas, arguing for expansions of liability that may yield a lucrative recovery, but may not serve the broader interests of the state and its citizens," he writes. The involvement of outside firms might also unnecessarily drive up the cost of litigation, he explains, because state attorneys general offices employ experienced staff who can handle complex litigation themselves.
Behrens details state statutes that have addressed the need for improvements in policy-focused litigation involving private attorneys, including laws in Texas and Florida that regulate transparency and litigation control. "More states should adopt [Transparency in Private Attorney Contract] laws to prevent the types of scandals that have been reported in the past and promote public confidence when an attorney general decides to wield the power of the state with outside help in a lawsuit," Behrens concludes.