There has been a movement over several decades to privatize core government functions.
Private prisons come to mind.
Less known is the same trend in attorney generals’ offices across the country. “Outsourcing” public cases to private lawyers is increasingly the norm.
As a result, the New Mexico AG’s Office is losing its unique and institutional ability to protect and promote the interests of New Mexicans. The AG has, for many reasons, seen an erosion of in-house expertise it needs to prosecute or oversee cases on behalf of the public.
Let’s look at three areas: 1) Consumer litigation, 2) Water rights adjudication and 3) Medicaid fraud.
With respect to consumer litigation, the AG’s office is aggressively moving to hire outside counsel instead of developing in-house expertise. This creates several problems, not the least of which is the outside attorneys have a purpose beyond representing the state: getting paid.
The outside law firm is put in a position of weighing its financial interests against the protection of New Mexicans.
If the AG’s office handled most of these cases in-house, as it has done in the past, the sole focus would be New Mexicans’ welfare.
The effect of exporting legal expertise was dramatically evidenced in the Vivint case, where the AG declared victory after the outside lawyers were paid, documents were removed from public review, the Consumer Settlement Fund received money and yet no money went to the affected consumers. They are now on their own to try to get justice.
The AG’s office has argued it is hiring outside firms to go after the “big fish.” It does not help New Mexico consumers to go after big fish when the focus is not on getting recovery to the consumer. And it encourages the public’s perception that some of these outside lawyers have ties with the AG’s office.
On water litigation, for July 1, 2019, to June 30, 2020, the AG’s office sought $1.1 million for a no-bid contract for one outside law firm. The AG told the Legislative Finance Committee those lawyers were the only ones in the country capable of handling the litigation — which turned out to be manifestly untrue.
The lack of regard for institutional knowledge has manifested itself in other ways.
In 2017-19, our AG’s Medicaid Fraud Control Unit has had the fewest total criminal indictments, fraud convictions or recoveries of all similarly sized units in the country.
The reviewing agency found the reason for the poor performance lack of institutional expertise.
The office had 27 staff departures and 27 hires, with only six staff remaining consistent over the three years.
I am an attorney and a legislator. I do not handle the type of consumer litigation that comes before the AG’s office.
But with each passing year, this problem seems to become worse.
For that reason, I plan to introduce a constitutional amendment that will set up a Department of Consumer Affairs within our executive branch to ensure the interests of the public will be paramount and restrict this outsourcing of core public functions.
(New Mexico Rep. Daymon Ely is a Democrat representing House District 23, which includes parts of Rio Rancho, Corrales and Albuquerque.)