Case Details


Attorney General Control Of Litigation, Contingency Fee Contracts

Filing State



South Carolina Court of Common Pleas




State v. Eli Lilly, 2007-CP-42-1855 (S.C. Ct. Comm. Pleas 7th Jud. Dist. 2009)


Attorney General could hire contingency fee counsel. Their hiring did not give them an inappropriate financial interest in the case, nor did it violate the separation of powers doctrine.

Case Description

The Attorney General of South Carolina retained private attorneys to pursue a claim against Eli Lilly in connection with its marketing of the drug Zyprexa. The attorneys were hired on a contingency fee basis, and the Attorney General retained supervisory authority over the private attorneys. Eli Lilly challenged the state’s retention of counsel on a contingency fee basis on the grounds 1) that it violated the separation of powers in the South Carolina constitution because the legislature did not appropriate funds to pay the private attorneys who were representing the state; and 2) that it violated the due process clause of the U.S. and South Carolina constitutions because it gave the state’s counsel a personal financial interest in the outcome of the case. The court first addressed the due process claim, and rejected the notion that attorneys representing the government must be neutral, “even in the context of litigation against an alleged wrongdoer.” After examining many cases from other states, the court concluded “[I]f the practice of hiring private lawyers in special cases by States’ Attorneys General was actually unconstitutionally improper, one would have expected that some authoritative court would have definitively ruled that way by now.” Turning to the separation of powers argument, the court noted that the South Carolina statute specifically authorizes payment of “the costs of litigation” out of litigation proceeds. The court noted the Attorney General’s broad constitutional and common law powers to retain attorneys to represent the state.