Case Details


Common Law Powers

Filing State



West Virginia Supreme Court of Appeals




State ex rel. Discover Financial Services v. Nibert, No. 13-0086 (W.Va. June 4, 2013).


Attorney General has common law powers (overturning earlier decision) and can hire outside counsel on contingency fee basis.

Case Description

The attorney general hired outside counsel on a contingency fee basis in two cases alleging consumer protection violations. Defendants alleged the attorney general did not have authority to hire outside counsel. The supreme court held that outside counsel were not subject to the state’s Ethics Act because the attorney general did not pay them, nor did taxpayers–they were paid from the proceeds of the suit. The court also held that outside counsel did not have interests different from the state, even if this were a quasi-criminal proceeding, because the attorney general chose the penalties to be sought, and the court awarded the attorneys fees. Finally, the court explicitly overruled Manchin v. Browning,and held the attorney general “retains inherent common law powers, when not expressly restricted or limited by statute.”