In Wisconsin, taxpayers are paying twice for the same lawyer. Once to fund the state’s Department of Justice, and again when lawmakers turn around and hire private firms to do overlapping work. Now, Wisconsin citizens have brought a lawsuit to determine whether that’s necessary oversight or just a big old waste of their taxpayer dollars.
How Wisconsin Got Here
If you follow Wisconsin politics, you may have felt a shift over the last decade. The state’s legal work used to run mainly through one office: the Wisconsin Department of Justice. Under former Republican Attorney General Brad Schimel, that was the norm. The Legislature relied on the DOJ when it needed lawyers, rather than building its own in‑house litigation machine.
In 2015, lawmakers and Schimel tried to make that setup even more efficient. They created a Solicitor General’s Office inside the DOJ. The idea was simple and appealing: instead of constantly hiring pricey private firms, the state would develop appellate and complex‑litigation expertise in-house. That office was supposed to save taxpayers money on outside counsel and give the state a stronger bench in big, high‑stakes cases.
But that experiment didn’t last long. During the 2018 lame duck session, the Legislature abolished the Solicitor General’s Office, and soon after, the pattern flipped. Starting in 2019, legislative leaders increasingly turned to private law firms to represent them in court. One prominent example is Troutman Pepper, where former Wisconsin Solicitor General Misha Tseytlin is now a partner. The same lawyers who once did this work as public employees now bill taxpayers from the private side.
The ‘Lame Duck’ Laws
To understand the current lawsuit, you have to start with that 2018 lame duck session. In November of that year, Wisconsin voters elected Democrat Tony Evers as governor and Democrat Josh Kaul as attorney general. Republicans still controlled the state legislature but had just lost those two statewide offices. Before Evers and Kaul were sworn in, the outgoing Republican governor and Legislature called an extraordinary session.
In that session, lawmakers passed a series of laws that reshaped the state’s power map. These laws curbed certain executive powers and expanded legislative control over litigation and administration. One key change let the Legislature hire its own private lawyers rather than rely on the DOJ. Another allowed legislative leaders to step directly into lawsuits involving state laws, even when the DOJ was already in court for the state.
Critics saw this as a power grab designed for a new partisan reality. The same institutions that trusted the DOJ under a Republican attorney general now wanted their own legal teams once a Democrat won the office. Supporters framed it as necessary oversight and a way to defend legislative prerogatives. Either way, the effect was clear: the Legislature was no longer content to leave representation of “the state” to the executive branch.
The Duplicative Representation Problem
That brings us to what’s often referred to as “duplicative representation.” Under the lame duck changes, legislative leaders can intervene in cases where state laws are challenged and bring in outside counsel — even if the DOJ is already defending the statute on behalf of a state agency or official.
Critics argue that this setup creates two parallel state teams doing overlapping work: one is the DOJ, already funded by taxpayers to represent state interests; the other is a set of private firms hired on top of that, also paid with public money. In many instances, there is no genuine need for two sets of lawyers in the same case, so this can be seen as wasteful, partisan duplication that drains public funds while adding little legal value.
A prime example is the Michael Gableman election probe. Hired by Speaker Robin Vos to investigate the 2020 results, Gableman started with a $680,000 budget but racked up about $2.3 million in costs, including staff, rent, travel, outside lawyers, and fines. That sprawling, partisan project shows how the Legislature’s new authority can bankroll political ventures rather than neutral legal work for the state.
Precedent Looms Large
Some of the 2018 lame-duck measures have run into trouble before at the Wisconsin Supreme Court. One important provision gave the Legislature the final say over any civil settlement involving the state. That meant the attorney general could negotiate, but not close, a deal without legislative sign‑off.
The court struck that settlement‑approval scheme down because it ruled that decisions about whether and how to settle litigation were core executive functions. In other words, there are limits to how far lawmakers can insert themselves into litigation strategy without crossing separation‑of‑powers lines.
This earlier decision now hangs over the new lawsuit like a warning flare, and Wisconsin courts are already wary of legislative efforts to micromanage executive branch lawyering.
The Lawsuit
Against that backdrop, three Wisconsin taxpayers have recently taken the matter to court. Among the targets of their lawsuit is the Wisconsin Legislature as a whole, key leaders on the Joint Committee on Legislative Organization, and the head of the Department of Administration (which signs off on payments to private law firms).
The plaintiffs’ core legal theory has two big pillars. First, they say the Legislature’s spending on private lawyers violates the state constitution’s public purpose doctrine, which requires state money to serve legitimate public ends–not narrow partisan projects. Second, they argue that the scheme violates separation of powers by allowing the Legislature to take over an inherently executive function: representing the state in court.
These taxpayers do not claim every legislative use of outside counsel is unconstitutional. Instead, they target specific categories: situations where the DOJ is already providing adequate representation, and cases where counsel is hired to advance partisan or political goals rather than genuine institutional interests.
The plaintiffs are asking for a permanent injunction that would stop the Legislature from spending taxpayer money on these types of private‑counsel arrangements. They also want the court to dismantle the statutory system that lets leaders bypass the DOJ and to bar the Department of Administration from cutting checks under that scheme.
A Waiting Game
So far, the Legislature has not offered a detailed public defense of its outside‑counsel practices. Lawmakers and their lawyers will have a chance to answer in court and argue that the spending serves legitimate public purposes. Until then, Wisconsin taxpayers are left watching a familiar clash play out again.
Related Resources:
- New Ethics Guidance on When Judges Can (and Can’t) Publicly Defend the Rule of Law (FindLaw’s Practice of Law)
- The FCC’s Equal Time Rule Is An Old One, Kind Of (FindLaw’s Courtside)
- The Fight Against D.C.’s Bus System That Leaves Disabled Students Behind (FindLaw’s Courtside)
