West Virginia Record

Saturday, July 20, 2019

McGraw has banked on outside counsel in recent years

By Chris Dickerson | Aug 25, 2006


CHARLESTON – Attorney General Darrell McGraw's office has appointed outside counsel as special assistant attorneys general more than 25 times in the last three years.

In the cases involving special assistants, there have been three settlements for a total of nearly $4 million, according to information provided by McGraw's office to The West Virginia Record through a Freedom of Information Act request.

Coincidentally, the Charleston law firm of DiTrapano, Barrett & DiPiero have been on the receiving end of all three court-approved settlements in cases involving special assistant AGs. The firm received $300,000 in a settlement with Abbott Laboratories and Geneva Pharmaceuticals in a case involving Hytrin, $250,000 in an Albuterol case from Dey Inc. and $833,331.24 in the $10 million Purdue Pharma settlement.

And one Charleston attorney, Troy Giatras, has been appointed as a special assistant AG four times in the last two years. Others, including DiTrapano, Barrett & DiPiero, have been appointed three times.

McGraw's office has been criticized of late for his use of outside counsel.

But Chief Deputy Attorney General Fran Hughes defends the practice, saying the office does so "because otherwise the office would be unable to hold huge corporations accountable for violations of the law."

"Litigation is always a last resort, and when the defendant is a multinational company, it is expensive to try a case against them," Hughes said. "Ask any individual who has lost their pension or been unlawfully harmed by their conduct."

Last month, two drug companies -- Janssen and Johnson & Johnson – petitioned the state Supreme Court about whether McGraw's office has the authority to use outside counsel in a case against them in Brooke County.

But before that, McGraw drew criticism over the practice. Others have complained that these attorneys he's appointed to serve as Special Assistant AGs have made significant contributions to his political campaigns.

In this year's legislative session, a House of Delegates bill that would have tightened the belt on the state Attorney General office's contracts with outside attorneys died on third reading on the Rules Committee table.

In April, McGraw's office terminated the January appointments of Weirton attorneys M. Eric Frankovitch and Michael Simon as special assistant AGs in a case they already were working as private attorneys.

Hughes says the state Legislature is unwilling to provide the office with money necessary to try significant cases.

"Our operating budget is $350,000," she said. "One case against a huge company costs more than our entire early operating budget. A typical case can run $400,000 to $500,000. Attorneys are willing to risk their capital. They receive a return on their capital just like any other businessperson."

Hughes also says the state wouldn't have received the $1.6 billion from the tobacco litigation if not for the use of outside counsel.

"We did not have the money to try the case," she said. "A misconception is that if the attorneys in the tobacco litigation had not received compensation, the state would have earned more money. This is absolutely untrue, and is propaganda spewed by big tobacco.

"If the attorneys had worked for free, the state would not have received a dime more money."

Hughes cited more examples of how the use of outside counsels by the AG's office has benefited the state.

"Thanks to the attorney general's office and the attorneys that were willing to take a risk, the state was able to work on the malpractice crisis by using $24 million of the tobacco money to establish the physician's mutual fund, which many doctors are unaware of our office's contribution to this effort," she said. "This seems helpful to businesses, not harmful."

Another criticism about McGraw's use of outside counsel is the fact that the jobs aren't put up for bid. Some of that criticism was from former Virginia AG Jerry Kilgore in a recent article for Legal Times.

Hughes dismisses that notion as well, calling the process "not tenable."

"Think of the terms," she said. "We don't know how long we want you to work, or how much it will cost you, or how much you'll be paid. The attorneys selected are highly skilled, and have the capital and the infrastructure to try large cases."

She also dismissed the claim about the office appointing special assistant AGs on the basis of campaign contributions.

"Any judicial officer receives contributions from the bar, but Attorney General McGraw does not appoint special assistant attorneys general based on campaign contributions," Hughes said. "Not many attorneys have the expertise to engage in anti-trust litigation."

Hughes also added that the AG's office closely manages their deputized appointees, and that the office is "completely involved in every stage of the case."

"Not one pleading is filed without input and review from the attorney general's office," she said. "If it ever happened, the attorney doing so would have their appointment terminated.

"The attorney general's office participates and has final say in all negotiations and strategy. If the case goes to trial, our office is front and center. The bottom line is that Darrell McGraw, as the constitutionally elected chief legal officer whose responsibility is to set legal policy for the state, has found a way to protect consumers (and) hold lawbreakers accountable without additional cost to the taxpayers."

Hughes says the companies McGraw's office has sued, namely "big tobacco and big pharma," are the ones complaining.

"The very newspaper in which you are reading this article is owned by the National Chamber of Commerce with big tobacco and pharma as its members," Hughes said. "They're complaining because we have been effective."

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