W. Va. challenger on board with ATRA code

John O'Brien Jul. 15, 2008, 2:48pm



CHARLESTON, W. Va. (Legal Newsline) - Dan Greear, a Republican candidate for West Virginia Attorney General, agreed Tuesday to abide by a transparency code crafted by the American Tort Reform Association if he is elected.

ATRA's code of conduct values disclosure, oversight and accountability in the process of state attorneys general hiring private practice firms to represent their states.

"The mission of the code is to set a platform state attorneys general to enforce laws free from influence of parties that may have an interest on the outcome of litigation, providing maximum transparency in the process to the taxpayers and the public," said Greear, a Charleston attorney who is challenging incumbent Democrat Darrell McGraw.

"McGraw practices everything but this, and it's simply not right. The days of frivolous state torts and outrageous payments to third-party friends who are lawyers are over."

A six-question survey conducted by the ATRA in five states, including West Virginia, showed West Virginians were looking for more transparency in the outside counsel-bidding process (full results can be found here).

McGraw's Chief Deputy Attorney General, Fran Hughes, has long defended the office's hiring policies and that organizations like the ATRA and the U.S. Chamber of Commerce (the owner of Legal Newsline) focus on McGraw because of his successful track record of litigating against businesses.

"It is the height of hypocrisy for ATRA to ask for transparency they refuse to reveal who donates money to them," Hughes said. "It's a red herring. The group has no legitimacy. It's a propaganda tool and a campaign gimmick."

About Greear's attachment to the ATRA, Hughes said it should raise a few eyebrows.

"I can't say what Mr. McGraw would say about Mr. Greear signing that," Hughes said. "He's giving legitimacy to an organization whose members are the very people he would be charged with regulating.

"To me, that raises concerns. Does he understand what this organization is about?"

Hughes previously criticized the ATRA poll.

"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."

ATRA's contract includes five principles:

-All contracts with outside vendors who perform legal work on behalf of the state would be posted to the Internet for public inspection;

-Contracts for outside counsel should be awarded through competitive bids unless a situation requires the help of someone with specific legal, technical or scientific expertise;

-Contracts should be subject to review by state legislatures;

-Outside counsel working on a contingency fee basis should disclose their hours worked, services performed and fees received from the state unless those disclosures violate attorney-client privilege; and

-If those legal actions allow the state to recover more than $250,000, the money should be placed in the state's treasury unless the settlement stipulates that the funds be allocated in a specific way. Attorneys general should not be permitted to spend those funds at their own discretion.

A couple of outside counsel cases have made headlines recently.

On Aug. 20, attorneys for four firms involved with a settlement between the State and Visa and MasterCard will argue for $3.9 million in fees at a final approval hearing in Ohio County Circuit Court. Members of two of those firms are contributors to McGraw.

The firms representing the State are: Bucci Bailey & Javins in Charleston; Wexler Toriseva Wallace LLP in Wheeling; Hagens Berman Sobol Shapiro LLP in Seattle; and Cuneo Gilbert & LaDuca LLP in Washington, D.C.

Teresa Toriseva donated $844 to McGraw and is the former president of the West Virginia Association for Justice, formerly known as the West Virginia Trial Lawyers Association. Guy Bucci has donated $1,000 to McGraw, running for re-election this year against Charleston attorney Dan Greear.

Much of the settlement -- $11.6 million -- will create three sales tax holidays on appliances that carry the "Energy Star" label and cost $2,500 or less.

The proposed settlement, reached in January, originally called for $12.1 million set aside in a trust account. The lawsuit, filed in Oct. 2003 in Ohio County, alleged the companies violated the state's antitrust and consumer protection laws.

Three of the four attorneys recently appointed as Special Assistant Attorneys General in an investigation into teacher annuities have given the maximum $1,000 contributions to McGraw's re-election campaign.

McGraw appointed Charleston attorneys Jim Lees, Anthony Majestro and James Peterson as well as Jonathan Turak of Moundsville to look into whether the Variable Annuities Life Insurance Co. convinced thousands of teachers and school service personnel to invest in its low interest fixed-rate annuities.

Majestro, Peterson and Turak each have contributed $1,000 to McGraw's campaign. Also, members and family from Peterson's firm gave a total of $5,000 to the McGraw war chest. People at Turak's firm gave a total of $2,000.

Over the years, members of Peterson's firm have given more than $20,000 to McGraw's election efforts. Turak and Majestro's firms have also given to McGraw in the past.

Private attorneys also earned more than $3.3 million of a $10 million settlement with OxyContin-manufacturer Purdue Pharma in 2004. That settlement drew criticism from state lawmakers who were unhappy the State's general fund never received any of the settlement funds.

Instead, McGraw dished out the remaining money to programs and organizations that fight substance abuse.

Hughes has said hiring outside counsel is necessary. McGraw has a staff of nearly 200.

"Think of the terms," she said in 2006. "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.

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

She said McGraw adopting the ATRA's code would be an "exercise in futility."

"Obviously, Mr. Greear doesn't understand that there isn't anything Attorney General's office does that isn't available to the public," Hughes said.

"Documents, pleadings, filings - all that we do is in the public domain."

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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