Louisiana Attorney General Jeff Landry is refusing to approve a contract Gov. John Bel Edwards signed with his chief fundraiser to lead a team of attorneys representing the state in lawsuits against the oil and gas industry over coastal land loss.
In a letter to Edwards’ executive counsel Tuesday, Landry’s top aide said the Attorney General’s Office found the contract between the Governor’s Office and Taylor Townsend, who runs Edwards' super PAC and was a leading fundraiser for his 2015 campaign, "unacceptable on multiple grounds.”
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Landry’s gambit is the latest flareup in an increasingly bitter dispute between the two statewide officials — Edwards, a Democrat, and Landry, a Republican who many see as a potential challenger to Edwards in 2019.
It may also signal a widening gulf between the two men over how to hold oil and gas companies accountable for contributing to the destruction of Louisiana's coast. Several dozen lawsuits filed by four coastal parishes claim that canals and pipelines dug by the industry are at least partially responsible for the loss of land.
The Attorney General’s Office intervened in the suits in March, a couple of months after Landry was sworn in. The governor, through the Department of Natural Resources, intervened a few weeks later, and initially, at least, Edwards and Landry appeared to be on the same page. But the harmony didn’t last.
The Advocate and WWL-TV reported last week on the contract Edwards signed Aug. 5 with Townsend, a lawyer from Natchitoches who once served as a state representative. Townsend, a personal injury and criminal defense lawyer, hired six other lawyers as subcontractors, some of whom have experience in coastal litigation.
The story noted that the seven lawyers had been enrolled in one of the several dozen pending coastal lawsuits, but that the governor had agreed to remove them from the cases because the attorney general had not yet agreed to their appointment. State law gives the attorney general the authority to approve the appointment of all lawyers who represent the state.
Matthew Block, Edwards’ executive counsel, made clear in an interview at the time that he regarded the removal of the lawyers as a procedural hiccup and that he expected to have them enrolled in all of the coastal suits in the near future.
Block said the lawyers were enrolled in a hurry after a judge threw out the first case, which had been brought by Jefferson Parish.
The judge ruled that the plaintiffs — including the state Department of Natural Resources — hadn’t exhausted all other available legal remedies. Landry’s office issued a news release saying the attorney general agreed with the judge. The governor wanted to challenge the ruling, with the help of the team of lawyers led by Townsend.
Now, it’s not clear where things are headed.
Among other issues, Tuesday’s letter from Chief Deputy Attorney General Wilbur Stiles III to Block said the contract’s scope is “entirely too vague and overly broad” because it does not seem to limit Townsend’s representation to the matter at hand.
The letter also said the method of paying the lawyers laid out in the contract appears to be “in direct violation of statutory law,” which the letter said requires that lawyers be paid hourly rather than based on some sort of contingency or percentage basis.
State law prohibits private lawyers from being paid on a contingency-fee basis unless expressly approved by the Legislature.
Former Attorney General Buddy Caldwell got around that prohibition by paying outside attorneys using so-called “fee-shifting” provisions in specific statutes, allowing those lawyers to collect legal fees from the defendants after a settlement or judgment, above and beyond what the state recovered.
However, in a series of reports by WWL-TV in 2013 and 2014, Loyola University law professor Dane Ciolino argued that arrangement violated the state ethics code, which does not allow third parties to pay for work done on behalf of the state.
Landry has adopted that position, calling the payment proposed in the Townsend contract “unconstitutional.”
The attorney general's letter also suggests that some of the lawyers involved may have conflicts of interest because they already are contracted to represent “local governmental bodies” in coastal lawsuits. It says they cannot represent the state at the same time.
In an interview last week, Block expressed annoyance at what he viewed as the attorney general’s intransigence with regard to appointment of lawyers by the governor, calling it “a tremendous waste of time and resources.”
Louisiana law is vague on how deeply involved the attorney general should be in vetting the governor’s selections of legal counsel. But Block said the AG’s role should be minimal.
Once “minimum qualifications” are met, “it’s not for the attorney general to decide who represents the Department of Natural Resources or any other board or commission,” Block said. He added that Landry “is not doing what has been done by previous attorneys general.”
Timmy Teepell, who was chief of staff for Gov. Bobby Jindal, said his practice was always to consult with the attorney general before making legal appointments to make sure the AG was on board.
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"From our eight years there, and the conversations I had with people in the (Mike) Foster administration, it was, 'Hey, make sure you work out your business with the attorney general beforehand or you’re gonna get sideways with them,' " Teepell said. "We always had those conversations ahead of time."
But author John Barry, who was formerly a member of the Southeast Louisiana Flood Protection Authority-East and helped orchestrate that board's sweeping lawsuit against scores of oil and gas companies, agreed with Block's view that the AG's role in selection of outside counsel by other agencies is meant to be "ministerial," not substantive.
"That was certainly the view of (former Attorney General) Caldwell, who could hardly have been called a supporter of our lawsuit," Barry said. "If you look at the letter that accompanied the approval of the hiring of the attorneys (by the Flood Protection Authority), he made it absolutely crystal-clear that he was in no way in support of the suit ... just that he had no recourse — that the attorneys were qualified, and he had to do it."
Block said last week that he believes litigation may eventually be necessary to clarify the scope of the attorney general’s role in appointing counsel.
“If it comes to that, we’re going to have to have somebody pursue some sort of action to have a decision as to what role the attorney general should have or should not have in the appointment of counsel,” Block said.
Late Tuesday, Block sent a statement saying that "we stand by our previous comments: The attorney general simply does not have the authority to pick who represents the state or to decide whether to approve a contract for legal services. Instead, the attorney general should follow his own rules which establish the qualifications for the appointment of legal counsel. We are reviewing our options at this time and will respond shortly."
Editor's note: This story was changed Sept. 6 to include Matthew Block's response and to correct the date of the next gubernatorial election.
