By Al Benshoff

Lawyers employed by the state of North Carolina should be aware of the new report to the Joint Legislative Program Evaluation Oversight Committee by the Program Evaluation Division, Legislative Services Office, General Assembly (called “PED” in this post).  The report makes no recommendations about the use of lawyers in State government or staffing levels.  It does provide the legislature with baseline information about the use of in-house counsel, outside counsel and the allocation of lawyers to departments.  The report is called “The System of Attorney Allocation in North Carolina State Government is Decentralized Final Report to the Joint Legislative Program Evaluation Oversight Committee” and is available here.

The report is not a census of all 3,363 employees/lawyers working for the state.  The PED focused on “traditional, state level attorney positions”, excluding all judges (520), district attorneys (1,643), public defenders (771), temporary lawyers (717) and “legal support positions” (966) leaving a universe of 719 “attorney positions reviewed”[1].  Out of the universe of 719, 46 positions were in the judiciary and 51 in the legislature, leaving 622 positions in the Executive Branch[2].  “Of the 719 attorneys across state government, 304 are under the control of the Dept. of Justice”.[3]

The report also provided some information on the use or private attorneys.  PED collected data from 34 state organizations on their spending on outside counsel in FY 2-16-17.  “[T]he most expensive uses were litigation, real estate transactions, and intellectual property matters”.  [4]  “Organizations spending the most on private attorneys were the university system, General Assembly, DOT, State Treasurer and Office of the Governor”. [5] Appendix I lists the uses of private attorneys by firm and purpose.

While this report makes no recommendations, it does conclude that that the State’s system of attorney allocation is decentralized “[b]ecause only 42% of the 719 positions examined by PED are under the control of DOJ”.[6]  The DOJ questioned this conclusion, pointing out that state government litigation is “highly centralized”.  “Of the 316 litigating positions referenced in this report, 96% are in DOJ.”[7]

The report is analogous to an audit, instead of a trend analysis.  It examines data for only FY 2016-17. It gives a one-year snapshot of some legal staffing and funding in state government, but not how state government got there.

This report also does not tell us what may happen, if anything.  It does show what the legislature and the legislature’s Program Evaluation Oversight Committee may look at as it crafts legislation.  In addition, the report provides an interesting snapshot of where lawyers are in our state government, what they do and how much it all costs, for one recent year.

[1] The total number of lawyers working for state agencies may be under-reported because private lawyers hired by boards and commissions do not appear in state payroll records. “In addition to state agencies, there are approximately 400 boards and commissions that operate as part of North Carolina state government.” The System of Attorney Allocation in North Carolina State Government is Decentralized, PED, N.C. Gen’l Assembly, 4/9/2018 at page 7

[2] State government employees who are lawyers, but do not work as lawyers are not included.  Id.  See footnote page 5.

[3] Id at page 11.

[4] Id at page 13.

[5] Id at page 14

[6] Id at page 1.

[7] Id at page 51. Letter from A. M. Peters, Chief Deputy AG to J. Turcotte, PED.