Texas Attorney General Ken Paxton’s Outsourcing of Legal Cases

In recent years, Texas Attorney General Ken Paxton has increasingly relied on private law firms to argue cases for the state, often choosing firms with personal or political connections. One example is Zina Bash, who previously worked closely with Paxton and defended him in his impeachment trial. Her firm, Keller Postman, received a substantial payout for its role in a major settlement against Meta.

Private Firms and Personal Connections

Paxton has awarded contracts to attorneys like Tony Buzbee, who defended him during his 2023 impeachment trial, and to firms whose senior attorneys have contributed to his campaigns. Records show that Paxton outsources cases more frequently than his counterparts in other large states. He also favors contingent-fee contracts, where firms share in settlements, more often than attorneys general in New York, California, and Pennsylvania. Since 2015, Texas has awarded 13 such contracts, whereas New York and California have awarded none, and Pennsylvania has awarded one.

Paxton’s frequent outsourcing and connections to the hired firms raise ethical concerns.

Legal and Financial Implications

Zina Bash’s involvement in the Meta case exemplifies the financial implications of Paxton’s strategy. Her firm, Keller Postman, was entitled to $97 million from a $1.4 billion settlement. Paxton argues that these firms are necessary to compete against large corporations, claiming his office lacks the resources in-house. State law allows him to award contracts without competitive bidding, limiting oversight from lawmakers.

Experts suggest that this practice could lead to conflicts of interest, especially given the personal and political connections involved. Former Arizona Attorney General Terry Goddard highlights the potential impropriety of awarding contracts to major contributors or former office employees.

State Office Dynamics

Paxton’s outsourcing strategy intensified after internal conflict in his office. In 2020, senior advisers accused him of misconduct, prompting a shakeup. Despite the fallout, Paxton continued outsourcing legal work to private firms, maintaining staff levels in key divisions.

Paxton’s approach contrasts with his predecessors, who minimized the use of private counsel. John Cornyn, a former Texas attorney general, emphasized building strong in-house teams. His successor, Greg Abbott, rarely used private firms, and their contracts were typically hourly or pro bono.

National Comparisons and Criticism

Paxton’s practices invite comparisons to other states. Some, like Florida, require detailed justifications for contingency contracts and competitive bidding. Critics believe such measures could prevent conflicts of interest. Several states have secured significant settlements without heavy reliance on private firms. For instance, California settled with Google for $93 million in 2023.

Chris Toth, former executive director of the National Association of Attorneys General, questions why Texas needs extensive outside help, citing the size and capability of Paxton’s office. The use of contingent-fee arrangements is also scrutinized; they can lead to higher payouts for private firms, influencing settlement priorities.

Market Impacts and Legislative Oversight

Paxton’s critics argue that using competitive bidding for legal contracts could ensure fairness. Current Texas law lacks mechanisms for legislative oversight of these agreements, allowing Paxton to bypass the open market. He defends these decisions as necessary for dealing with powerful corporate adversaries.

However, the history of such practices in Texas is complicated. Former Attorney General Dan Morales faced legal issues for similar tactics in the 1990s, highlighting the risks of cronyism and financial mismanagement in public office.