When a Maine House Speaker sued the Governor in his individual and official capacity, what authorization did the Governor need to retain private counsel at state expense?

Plain-English summary

Maine House Speaker Mark W. Eves filed a federal civil rights lawsuit against Governor Paul LePage in 2015 (Eves v. LePage, 15-cv-300, D. Me.) in his individual capacity, alleging that LePage interfered with Eves's job offer at a charter school by threatening to withhold state funding. The complaint named LePage in his individual and official capacities. Governor's Chief Legal Counsel Cynthia Montgomery asked the AG to authorize outside counsel for LePage's defense.

Deputy AG Susan P. Herman approved the request under 5 M.R.S. § 191 (AG authorizes engagement of outside counsel for state actors). Herman noted that her office did not necessarily agree a conflict existed for the AG to represent LePage, but the unique posture of a sitting House Speaker suing the sitting Governor in personal and official capacities supported the use of private counsel. Representation in the official-capacity portion of the case was supported by 14 M.R.S. § 8112, which provides for state defense of officers sued for acts in scope of their duties.

The authorization carried specific conditions:

• Outside counsel was Patrick Strawbridge of Consovoy McCarthy Park PLLC.
• Hourly rate of $380 per hour, applicable to other firm attorneys called in.
• Total cap of $400,000 (including potential damages, attorney's fees, and other defense costs), per the State's self-insurance limit per occurrence.
• No coverage for appellate work without further written authorization.
• Term ran through December 31, 2016.
• Strawbridge had to provide a certificate of good standing from the Maine Board of Bar Overseers and proof of professional liability insurance.
• Monthly billing reviewed by Montgomery and the Director of Risk Management for reasonableness.
• Conflict screening: Strawbridge could not represent clients with claims against the State, and other firm attorneys could not advise the Governor while representing clients adverse to the State if such representation would violate the Maine Rules of Professional Conduct.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The State's self-insurance cap and outside counsel authorization framework have continued to be administered under 5 M.R.S. § 191 and 14 M.R.S. § 8112 with periodic adjustments. Eves v. LePage itself was litigated to dismissal at the district court level, though the underlying litigation continued in state court for a period.

Historical summary

For state general counsels (at the time): The opinion documents the standard architecture of an outside-counsel engagement for a state officer: AG authorization under § 191, statutory representation hook in § 8112, hourly cap, total dollar cap tied to self-insurance, term limit, no-appeal carve-out, and conflict screening.

For outside counsel firms (at the time): The opinion is a useful template of the conditions Maine imposes when retaining private firms for state defense. The screening rule against representing clients adverse to the State is broader than the firm's own Rules of Professional Conduct duties.

For risk management researchers: The $400,000 cap including attorney's fees is a reminder that the State self-insurance program treats the litigation as a single-occurrence loss, not as a fees-only or damages-only line item.

Citations and references

Statutes:
- 5 M.R.S. § 191 (AG authorization for outside counsel)
- 14 M.R.S. § 8112 (state representation and defense of officers)

Cases:
- Mark W. Eves v. Paul R. LePage, 15-cv-300 (D. Me. 2015)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2015/ag_20150814.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006
JANET T. MILLS, ATTORNEY GENERAL

August 14, 2015

Cynthia L. Montgomery
Chief Legal Counsel
Office of the Governor
1 State House Station
Augusta ME 04333-0001

Re: Authorization to Engage Outside Counsel

Dear Ms. Montgomery:

The Attorney General has authorized me to respond to your request on behalf of Governor Paul R. LePage to retain outside counsel in the matter of Mark W. Eves v. Paul R. LePage, 15-cv-300 (JZS) (D. Me). The purpose of this letter is to provide authorization pursuant to 5 MRSA §191 for the retention of outside counsel subject to the terms and conditions set forth below.

It is our understanding that you have requested authorization to retain outside counsel because you believe that it would be a conflict for the Office of the Attorney General to represent the Governor in this matter. We do not necessarily agree that a conflict exists. However, the request for retention of outside counsel is approved due to the unique circumstances presented by the Speaker of the House making a claim in his individual capacity against the Governor in his official and personal capacities.

This authorization allows the Governor to retain Patrick Strawbridge, Esquire of the law firm of Consovoy McCarthy Park PLLC to provide necessary legal representation in the matter of Mark W. Eves v. Paul R. LePage in which the Governor is a named defendant in his individual and official capacities. Such representation is provided for pursuant to 14 MRS § 8112. I understand the hourly rate is $380 per hour for attorney Strawbridge. Reasonable and necessary mileage shall be paid at the current state rate. This authorization extends to other attorneys in the firm who may be called upon from time to time to assist in a case and their billing rate may not exceed $380 per hour.

As will be described in more detail in a separate letter relating to representation, the State's self-insurance arrangement provides up to $400,000 for any and all claims for any one occurrence. This cap includes any potential damages as well as attorney's fees and other defense costs. Payments beyond this cap are not authorized under the State self-insurance program. This authorization does not extend to any form of appellate action. If the scope of the engagement, term of the agreement, or hourly rate require amendment, further written authorization will be required.

You have advised that flat rate fees for specified legal services may also be available. A flat fee arrangement is acceptable provided such an arrangement is reviewed for reasonableness by you and the Director of Risk Management and is within the overall $400,000 cap outlined above.

Mr. Strawbridge must provide proof of his good standing with the Maine Board of Bar Overseers by sending the certificate of good standing to my attention. Proof of adequate professional liability insurance coverage has been provided. A record of billing by the firm should be invoiced monthly and reviewed for reasonableness by you and the Director of Risk Management.

Mr. Strawbridge may not represent clients with claims against the State, its officers or employees while this matter is pending. Other attorneys in the firm may not provide legal advice to the Governor if they represent clients adverse to the State and such representation constitutes a conflict under the Maine Rules of Professional Conduct.

Finally, this authorization terminates December 31, 2016.

Should you have any questions, please feel free to contact me.

Sincerely,

SUSAN P. HERMAN
Deputy Attorney General

SPH/ah
cc: Patrick Strawbridge, Esq.
David Fitts, Director, Risk Management
Holly E. Lusk, Esq.