This vote was on an amendment by John Cornyn, R-Texas, that would have prohibited state attorneys general from paying private lawyers contingency fees as part of federal consumer product safety cases. A lawyer who works on a case with a contingency fee means that, in essence, the lawyer has agreed to take a portion of any judgment as payment for his services. The amendment was offered to a bill that would fund most domestic agencies in fiscal 2009.
Cornyn said contingency fees make sense when a person cannot otherwise afford a lawyer, but that governments have no reason to use them and therefore should not be able to. Cornyn said this is to ensure transparency and prevent abuse.
"Contingency fee contracts offer three hazards in this context that are not presented with more traditional fee arrangements. First, there is a serious risk of overcompensating the lawyer at a loss to taxpayers. Second, the proposed prospect of contingency fees actually creates an incentive for trial lawyers to encourage litigation that State would not otherwise bring. Third, contingency fee agreements have been proven to be a temptation for corruption," Cornyn said.
Mark Pryor, D-Ark., said Cornyn's amendment is problematic on several counts.
"First, the Federal Trade Commission does not have the resources to pursue all bad actors in the lending markets under their jurisdiction. The States need the ability to enforce what the FTC is doing in their State. Occasionally State governments do not have adequate resources or the expertise on these very complicated matters. Sometimes they need outside counsel. And in order to get outside counsel, they need to put that in a contingency fee in many cases. Also, I have great concern that this amendment may be unconstitutional. I am not sure that the Congress can limit the States’ ability to bring an action or to structure a contract for outside counsel," Pryor said.
By a vote of 32-64, the amendment was rejected. Of Republicans present, 32 voted for the amendment and 8 voted against it. Every Democrat present voted against the amendment. The end result is that the measure went forward without language that would have prohibited state attorneys general from paying private lawyers contingency fees as part of federal consumer product safety cases.