Case Details


Attorney General Has Common Law Power To Enter Into Fee Arrangement With Retained Counsel

Filing State



Missouri Supreme Court




Kinder v. Nixon, Attorney General No. SC82898 (Mo.Dec. 12. 2000)


Attorney General could enter into fee arrangement where defendants paid outside counsel, under broad common law powers of the office, but General Assembly could enact legislation refusing to consent pursuant to Rules of Professional Responsibility.

Case Description

Two taxpayers (one of whom was a state senator) challenged the validity of a contract for legal services entered into by the Attorney General and a private attorney in connection with the state’s tobacco litigation. The contract appointed the private attorney a special Assistant Attorney General and provided that he would receive a percentage of the recovery if a settlement or judgment favorable to the state was obtained. The parties subsequently entered into an agreement under which, upon final approval of the Master Settlement Agreement, the tobacco defendants agreed to pay all reasonable expenses for services rendered by the Special Assistant Attorney General. Although the payment structure was unusual, the court held, it was not improper. The court next addressed the question of who spoke for the state. The court stated, “In his role as attorney for the State, the attorney general represents the State of Missouri and its citizens for the purposes of this settlement. . . The State of Missouri and its citizens are the attorney general’s clients and, through their duly elected representatives in the General Assembly, they may control the payment arrangement provided in the MSA.” The court noted “requiring the attorney general to seek similar approval from the legislature every time consent from a client is required would by unduly onerous and would ignore the broad common law powers of his position,” and concluded that the attorney general does have the power to enter into this type of fee arrangement. Because the unusual payment arrangement in this case requires consent under the Rules of Professional Responsibility, the General Assembly can withhold its consent as the client by enacting legislation that forbids the attorney general from entering into the fee arrangement or otherwise provide an alternative mechanism for compensating the special assistant attorneys general.