In a letter to the House Committee on Oversight and Government Reform, several expert legal groups allege D.C. Attorney General Brian Schwalb issued “lucrative contracts” to allies and former employees, apparently to advance his political interests.
Given that AG Schwalb has previously retained left-leaning San Francisco law firm Sher Edling – which is behind the majority of climate cases and is under congressional investigation – since 2019 to litigate a climate lawsuit against energy producers, the letter raises serious questions about whether the District is advancing a legal case or merely a politically motivated campaign.
“Lucrative Contracts”…with Allies
According to the letter, sent earlier this week by the American Tort Reform Association, The Foundation for American Innovation, and the Manhattan Institute for Policy Research, the D.C. Attorney General’s office enters into contingency fee agreements with private law firms to litigate cases on behalf of the district with political-point-scoring in mind.
This model has received significant criticism from legal experts including Andrew Grossman, an attorney and adjunct scholar at the Cato Institute.
“It is unusual enough that the government is looking to hire outside attorneys to target a particular private party for law enforcement, on a contingency-fee basis. That gives a whole new meaning to ‘policing for profit.’” [Emphasis Added]
The letter elaborated on this very phenomenon, pointing out that Schwalb has made a habit of hiring outside firms to pursue a political agenda:
“Attorney General Schwalb has established a troubling pattern of awarding lucrative contracts to outside contingency fee counsel who are both political allies and former employees of his office. This practice raises serious questions about the independence and integrity of the district’s legal system.”
Sherman Joyce, President of the American Tort Reform Association also signed onto the letter, and stated that D.C.’s lack of transparency around who gets these contracts, and why, is what motivated her to do so:
“It becomes a situation where the enforcement badge, with a profit motive, is provided to these law firms…They aren’t representing themselves or individual clients. They’re representing, in this case, the district. Other states do this, but we would say that Washington, D.C. does it with no appropriate checks and balances, transparency or appropriate restrictions on the involvement of these outside counsel.” [Emphasis added]
Schwalb’s Engagement With Sher Edling May is Illustrative Of Experts’ Concerns
One particularly troubling example of the D.C. AG’s office advancing its political agenda through selective partnerships is its lawsuit against the American energy industry, brought in coordination with Sher Edling, a firm known for its partisan climate litigation.
Sher Edling’s employees have donated tens of thousands of dollars to Democrats running for office, including to Sen. Sheldon Whitehouse who spearheaded a Congressional investigation into oil companies with the express purpose of supporting climate lawsuits.
Concerns about an unethical relationship began to arise even before the lawsuit was filed. In fact, when Sher Edling entered into an outside counsel agreement with former D.C. AG Karl Racine in 2019, the city council fast-tracked approval of the contract on an “emergency basis,” citing the section of DC code that defines an emergency to include “any situation that requires immediate action to prevent serious bodily injury or loss of life.”
After Sher Edling’s rapid appointment, the case has languished in D.C. courts for nearly five years. The “emergency” appointment would be laughable if it did not suggest a clear end-run around transparency and process.
Things didn’t improve from there. When Sher Edling and the D.C. AG’s office finally filed their lawsuit against American energy producers on June 25, 2020, sections of their complaint were copied nearly verbatim from a similar complaint in Minnesota that was filed less than 24 hours prior.
Potential plagiarism issues aside – which are rampant in climate cases – if D.C. was planning to copy another state’s complaint all along, why was expensive outside counsel even necessary?
Buying Attorneys for Free
In addition to providing lucrative contingency fee contracts for insider firms, the D.C. Attorney General’s office has also hired a Special Assistant Attorney General (SAAG) from the New York University Law School’s Bloomberg-funded State Energy and Environmental Impact Center.
NYU SAAGs often pursue ideologically-driven environmental litigation, like climate lawsuits, with the authority of the AG office but without the accountability. The use of SAAGs in state AG offices has come under fire in Michigan, Minnesota, New York, and most recently in Wisconsin where a coalition of dairy industry groups sued the WI AG for employing a Bloomberg-funded SAAG.
Attorneys General from across the country have spoken out about the ethical problems associated with SAAGs, pointing out doubts about these attorneys being able to represent the state in an unbiased manner. Former Indiana Attorney General Curtis Hill, for example, stated:
“What’s problematic is the arrangement through which a private organization or individual can promote an overtly political agenda by paying the salaries of government employees.”
Bottom line: D.C.’s climate lawsuit isn’t just legally unsound – it’s emblematic of a broader trend where public offices are weaponized for partisan gain. By outsourcing public work to political allies and donor-connected firms like Sher Edling, and by leveraging privately funded attorneys to advance ideological goals, the D.C. AG’s office has blurred the line between public service and partisan lawfare.
