AG's office has no paper trail on assistant appointments

By Chris Dickerson | Sep 15, 2006


CHARLESTON – Other than appointment letters, Attorney General Darrell McGraw's office has no other documentation about the use of special assistant attorneys general.

According to a response to a Freedom of Information Act Request from The West Virginia Record, Chief Deputy Attorney General Fran Hughes says other than the appointment letters sent to outside counsel when they are deputized to represent the state in civil matters, "it is my belief that no other documents, e-mails or letters exist."

"Any discussion with potential Special Assistant Attorney Generals would be done in person. However, if such documents existed, we would view those as privileged under the attorney-client relationship."

The Record had requested all communications McGraw's office had with these special assistants relating to their appointments before and after they were deputized.

Tuesday, Hughes explained that she simply prefers meeting with potential special assistants in person.

"That's how I generally operate," she said. "People are too much into this e-mailing. We have a lot of face-to-face meetings."

In the last three years, McGraw's office has appointed outside counsel as special assistant attorneys general more than 25 times, according to information provided by McGraw's office to The West Virginia Record through a previous Freedom of Information Act request

In the cases involving special assistants, there have been three settlements for a total of nearly $4 million, according to those records. 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.

McGraw's office has been a target of criticism for his use of outside counsel.

In the past, Hughes repeatedly has defended 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 told The Record last month. "Ask any individual who has lost their pension or been unlawfully harmed by their conduct."

Two drug companies -- Janssen and Johnson & Johnson – recently 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.

On Tuesday, Hughes said the AG's office was not aware that Frankovitch and Simon already were working on that case as private attorneys.

"We didn't know that," she said. "When we learned that, we took action immediately."

Last month, 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 then. "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."

On Tuesday, Hughes said reiterated that point.

"There are only a few firms in the state with anti-trust experience or consumer law," she said. "Plus, we're not going to pick someone who is going to pop up in a case against us later. That's why you have a lot of repeaters on the list. If we find someone who is good and who does a good job for us, we tend to use them again."

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."

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