WASHINGTON, D.C. - The American Tort Reform Association says its new survey proves what common sense should have already suggested.
"Too often these attorneys general act on their own in these powerful positions," ATRA spokesman Darren McKinney said Monday. "Frequently enough, their actions are contrary not only to public interest, but to public will."
Specifically, McKinney was speaking of some attorneys' general practice of hiring outside counsel to help with state-powered lawsuits. The ATRA says the results released Monday from a survey conducted in five states, including West Virginia, show that the citizens of those states would like to see more transparency with the way such contracts are awarded.
"The overwhelming majority of people in cities and states, when their tax dollars are at play and at stake in these contracts issued to non-state actors, they want that those contracts be subject to public scrutiny and that legislators are actively overseeing these contracts," McKinney said. "It's gratifying to know that our notion of common sense was held by many Americans."
The poll was conducted in five states, three of which McKinney says are known for what he called "attorney-general activism." Those are West Virginia, California and Alabama.
The other two, Ohio and Wisconsin, were chosen because they have newly elected attorneys general.
"We wanted to get a smattering, a little taste," McKinney said. "We chose not to spend resources on a 50-state survey, though our opponents tend to suggest we have bottomless resources brought by contributions from corporate polluters and executives. The fact of the matter is our resources are a little more finite than that."
The survey asks six questions, with "Should the Attorney General require outside lawyers working on a contingency fee basis to release detailed records of the hours they work and what they do?" garnering the most affirmative responses. In four states, 87 percent of those surveyed answered "yes." In California, the number was 83 percent.
Another goal of the ATRA was backed up in the results from the question, "Would you support the creation of a National Code of Ethics to govern contracts for outside lawyers for state Attorneys General across the country?"
California had the lowest percentage of affirmative responses at 72 percent of those surveyed. West Virginia's 80 percent was the highest.
"By publicizing this consensus, hopefully it will move some state legislators, and for that matter state attorneys general, into doing the right thing, and perhaps a legislature into codifying statutes to make it requisite for not only attorneys general but for all state authorities to undertake the disclosure and transparency we think is so crucial," McKinney said.
Concerning West Virginia, ATRA President Tiger Joyce stated, "Our survey is a first step in ATRA's renewed effort to shine more light on and demand greater accountability from our state attorneys general.
"There is overwhelming public support for much more transparency, and more than three-quarters of our survey respondents in West Virginia go so far as to support a national code of ethics to regulate the relationships between personal injury lawyers and state AGs."
Below are the full questions and results from West Virginia:
-Should the Attorney General publicly disclose all contracts with outside lawyers and make those contracts easily available for public inspection on the Internet? (74% yes, 15% no, 11% don't know);
-Should the Attorney General competitively bid contracts for outside lawyers? (59% yes, 27% no, 14% don't know);
-Should the Attorney General allow the Legislature to review contingency fee contracts with outside lawyers before signing them? (69% yes, 23% no, 9% don't know);
-Should the Attorney General require outside lawyers working on a contingency fee basis to release detailed records of the hours they work and what they do? (87% yes, 9% no, 4% don't know);
-Should the Attorney General allow revenue generated from lawsuit settlements to be treated like all other state revenue and be appropriated by the legislature before it can be spent? (75% yes, 16% no, 10% don't know);
-And would you support the creation of a National Code of Ethics to govern contracts for outside lawyers for state Attorneys General across the country? (80% yes, 14% no, 6% don't know)
West Virginia Attorney General Darrell McGraw has been the subject of controversy during his time in office, particularly for his practice of hiring outside counsel and his appropriation of settlement funds.
McGraw hired lawyers on a contingency fee to sue tobacco companies in 1995 even though he was specifically told by the judge handling the lawsuit that it was illegal. The lawyers ended up being paid $33.5 million
McGraw's $10 million settlement with Purdue Pharma in 2004 has also been a source of headlines. Out of the settlement, $2 million went to attorneys' fees for trial lawyers hired by McGraw, who also doled out much of the settlement himself instead of turning it over to the Legislature.
Chief Deputy Attorney General Fran Hughes recently told the Legislature that McGraw's office would stop spending the money, though in the next month McGraw handed out more $1 million.
"For several years our state leaders have considered legislation to rein in McGraw's giveaway of state money," said Steve Cohen, president of West Virginia's Citizens Against Lawsuit Abuse. "He hasn't stopped this questionable practice. It's time for our leaders to stop this abuse of public funds."
Hughes has maintained that organizations like the ATRA, U.S. Chamber of Commerce (owner of the West Virginia Record) and the Competitive Enterprise Institute, which included McGraw in its report of the 10 worst state attorneys general, have the same anti-McGraw agenda because he has been successful in his litigation against big businesses.
"We believe the West Virginia Attorney General's office has been targeted by the American Tort Reform Association because General McGraw is one of the most successful Attorneys General in the country at holding members of the American Tort Reform Association accountable for violations of the law," Hughes said. "No good deed goes unpunished.
"Any poll paid for or conducted by ATRA, or one of its other co-conspirators is worthless. You can phrase and ask any question to obtain a specific result. ATRA's goal is the political defeat of General McGraw. It is not ATRA's goal to provide the public with unbiased information about what is good for West Virginia consumers, but instead it wants to advance an agenda that is consistent with its own corporate interest."
The ATRA says it commissioned the Tarrance Group to conduct the survey with adults over 18. Interviews were conduct by phone, and all respondents interviewed were part of a fully representative sample based on the latest census figures within the state, the ATRA says.
It adds that the confidence interval associated with this type of sample is that 95 percent of the time, results will be within the stated margins of error of the "true values" where "true values" refer to the results obtained if it were possible to interview every adult in each state.
"Democracies are moved by public will... so it would be a good step to take this poll, and that's what we did," McKinney said. "With respect to states and respective questions and answers, while we certainly didn't expect majorities to favor closed-door, back-room dealings as some of these contracts tend to be brought during, we are pleasantly surprised in the overwhelming majorities."
Those dealings, he said, are epitomized by the Tobacco Master Settlement Agreement of 1998 and Rhode Island's current battle against lead paint manufacturers. Too often, the outside counsel hired ends up on the attorney general's campaign contributions list, he added.
"We'd hardly suggest that's a coincidence," McKinney said. "It's not new. It's as old as politics. Those in power tend to favor their friends, and in politics your friends tend to be the ones who can make contributions to your campaign efforts.
"It's not coincidence that these noncompetitive contracts are lent to political contacts and supporters of state attorneys general."