ATRA releases results of transparency poll

John O'Brien Apr. 23, 2007, 4:00pm

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. Results released Monday from a survey conducted in five states, the ATRA says, 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 (complete results can be found here) 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.

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 (earlier Legal Newsline coverage can be found here and here). 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."

The ATRA, based in Washington, D.C., is the only national organization dedicated exclusively to tort and liability reform through public education and the enactment of legislation. Its members include nonprofit organizations and small and large companies, as well as trade, business and professional associations from the state and national level.

It is also known for its yearly publication ranking the areas with what it feels are the worst legal climates, or "judicial hellholes." The entire state of West Virginia was ranked No. 1 in its last report.

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