[co-author: Stephanie Kozol]*
What Happened
California Attorney General (AG) Rob Bonta faces a legal challenge from a union representing state-employed attorneys over his decision to hire an outside law firm for a high-profile climate lawsuit against major oil companies. The California Attorneys, Administrative Law Judges, and Hearing Officers in State Employment (CASE) argue that this decision violates Article VII of the California Constitution, which implicitly mandates that state work traditionally performed by civil service employees should not be outsourced to private entities.
The Details
In a complex legal battle, the California AG’s office, led by Rob Bonta, is embroiled in a dispute over its decision to hire the law firm Lieff Cabraser Heimann & Bernstein for a high-profile climate lawsuit against major oil companies. CASE argues that outsourcing legal work violates state law and undermines the civil service mandate.
The controversy began on September 15, 2023, when the California Department of Justice (DOJ) filed a 135-page complaint against several major oil companies. The lawsuit alleges multiple causes of action, including public nuisance and misleading advertising, aiming to hold these companies accountable for climate-related damages in California.
Despite the DOJ’s internal team of deputy AGs handling the initial filing, Lieff Cabraser was brought on board almost immediately, raising concerns about the necessity and legality of such a move. The DOJ justified the contract under Government Code Section 19130, citing the need for specialized expertise and the inability of its current staff to manage the lawsuit’s complexity and scale. The DOJ argued that Lieff Cabraser provides specialized knowledge and resources critical for effectively litigating the Climate Deception Lawsuit, which are not available within the civil service. The firm’s ability to handle litigation surges, providing a dedicated team of professionals with expertise in complex litigation, was deemed essential for the case’s success. The DOJ also contends that Lieff Cabraser’s external perspective on novel factual and legal issues warrants enlistment of outside counsel.
In California, as in some other states, the government is prohibited from entering into personal services contracts with private entities for services that can be executed by state personnel unless an exception applies.
California Government Code Section 19130 outlines specific exceptions under which personal services contracts with private entities are permissible. CASE contends that the AG’s office failed to demonstrate that any exceptions apply. Specifically, they argue that the services provided by Lieff Cabraser do not fall under the “highly specialized or technical nature” exception, as the necessary expertise and capabilities are available within the state’s existing legal workforce. CASE emphasizes that the state’s deputy AGs are fully equipped to handle complex litigation, citing their experience with high-stakes cases such as death penalty appeals. They argue that the decision to hire external counsel undermines the civil service system by depriving state attorneys of valuable career opportunities and setting a precedent that could lead to further outsourcing of legal work.
The lawsuit filed by CASE seeks judicial review of the State Personnel Board’s (SPB) decision to approve the contract, arguing that it was made in error and that the contract should be disapproved. The SPB, in its response, maintains that it acted within its discretion as an impartial quasi-judicial body, asserting that its decision was supported by substantial evidence and law.
Oral argument on CASE’s petition for a writ of administrative mandate was heard on June 27, the court has not yet made a decision.
Why It Matters
State AGs are increasingly enlisting outside counsel to help them pursue large-scale, complex litigation involving novel legal theories. In many states, statutory, procedural, ethical, and legal hurdles exist for doing so. States may argue that enlisting outside counsel allows access to specialized litigators. However, as CASE argues in its dispute with Bonta, state civil service corps include many accomplished and highly qualified attorneys capable of litigating complex, novel matters. As state AGs begin to look outward — rather than solely inward — for their litigation strategies, defendants should be prepared to challenge the state’s engagement of outside counsel.
*Senior Government Relations Manager
