August 9, 2006

The DuPont Understanding and the Rule of Lawyers

Carroll Andrew Morse

In today’s Projo, Mike Stanton reports on how Attorney General Patrick Lynch used the negotiations he led in the Rhode Island lead-paint lawsuit to compel DuPont to pay for a private law firm’s seat on a medical research executive advisory board. The private law firm is Motley-Rice, the firm retained by the Rhode Island Attorney General's office to try the lead paint case on a contingency basis…

[Motley-Rice] serves on the executive advisory board of the International Mesothelioma Program -- a seat that requires a pledge of $3 million, according to the program's annual report.

Jack McConnell, Motley Rice's lead lawyer in the lead-paint case, says he expects that the $2.5 million will count toward the firm's pledge.

DuPont representatives are saying that they were not aware that the money donated to charity by their company as part of its lead paint “understanding” with the Attorney General was being used to settle a Motley-Rice obligation…
A DuPont spokeswoman said the company was not aware of Motley Rice's ties to the mesothelioma program, but simply agreed to donate the $2.5 million to Brigham and Women's as the charity designated by Lynch.

Yesterday, DuPont released a statement saying that it "has instructed the hospital that its payment should not be credited to any pledge or obligation of Mr. McConnell, his law firm, or any other entity."

Bill Harsch, Republican candidate for Attorney General, is questioning on what basis the Attorney General claims the authority to use his office to unilaterally direct funds to favored entities…
“The law is clear,” Harsch said “state money should be directed to the General Treasury, and it is the responsibility of the General Assembly to appropriate that money. The Attorney General has overstepped his constitutional authority, and I am calling on the General Assembly to conduct full hearings into his actions”....

For Jack McConnell and Patrick Lynch to maintain that a total of $12.5 million will be going to Rhode Island efforts to address lead paint poisoning is patently false. We already know that at least $1.5 million will be going to Boston to fulfill a debt by Motley Rice for asbestos related cancer research. This is state money that has been hijacked for the purposes of private interests, and I think the Attorney General has some serious questions that need to be answered.”

Because of the obvious lack of accountability, hasn’t this matter clearly become a case where the Attorney General has allowed the rule of lawyers to replace the rule of law?

More detail on the network of unusual relationships underlying the Rhode Island lead paint case is available here.

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what a thought-provoking question.

has the "rule of lawyers" replaced the rule of law?

this is an issue that is by no means limited to the state of rhode island. across the country, the use of contingency fee lawyers is something that is hotly contested. personally, i don't believe that outside lawyers should be hired unless there is a predetermined appropriation by the general assembly or if the means to hire those lawyers can be found in the budget of the AG's office.

What i found interesting at the end of the Stanton article is a question that Decof posed: whether this is state money, and if it is, then under what authority did patrick lynch have to appropriate the money in the dupont settlement (let alone to out of state entities)?

Posted by: johnb at August 9, 2006 11:05 AM

Lynch's basic argument is that this would have been a deal breaker for Du Pont - in terms of including attorney fees as part of the settlement - and Lynch was dismayed by how much time these attorneys put into the case. Further, I believe he states in the article that he would not have received the 10 or so million from Du Pont for the state if he did charge attorney fees to Du Pont. Thus, he asked one of the attorneys what his favorite charity was and bingo-presto you have 2.5 million directed towards this Mass-based charity.

Nothing against the charity but it seems as though Lynch felt a need to pay the lawyers in any way shape he could and this was that way. Further, I wonder if he was unwilling to do a deal that didn't pay the lawyers. If he wasn't then he was willing to trade RI taxpayers for lawyers which is not acceptable in my opinion.

Last but not least, is it normal protocol to hire outside lawyers and not use the state funded ones in the attorney general's office for cases such as this one?

Posted by: don roach at August 9, 2006 11:48 AM

>> I wonder if he was unwilling to do a deal that didn't pay the lawyers. >>

Sounds to me like Lynch was being held hostage by the hired lawyers

if it was a "deal breaker" for dupont that no money was going to pay legal fees, then they wouldn't they have given that "extra" 2.5 mil to CHF or Brown? on the other hand, if it was a deal breaker for the state's lawyers that they need to be paid lynch HAD to make the deal and pay his lawyers...which makes this a STATE SETTLEMENT and thus STATE MONEY

Patrick Lynch: You may go directly to jail. Do not pass go. Do not collect campaign contributions from dupont lobbyists.

Posted by: robert at August 9, 2006 12:18 PM

Like Don said, nothing against the charity, but how does Lynch think it's OK to send money resulting from a Lead Case in RI to another state, to help pay for another cause? How is he that out of touch with the needs of his constituents?

Speaking as the working-class owner of a c.1890s duplex where I live in one half & rent the other, and as somebody who is personally freaking out this very moment over an elevated lead level in her only tenants' 1-yr-old baby, facing god-knows-what kind of lead abatement costs on a seemingly-renovated property purchased in good faith only 2 yrs ago, I can say first-hand that despite the reported decline in lead-poison cases this past year (debatable since the "decline" is a direct result of changed test methods), Rhode Island desperately needs this money.

Posted by: henry's mom at August 9, 2006 12:39 PM

I believe that (and it should be easy enough to confirm by Bill Harsch / Laffey / RIGOP):

Motley Rice (I think that it used to be called Ness Motley) – locust like - made it money on arguably unscrupulous class actions involving tobacco and asbestos, and went looking for another industry to shake down;

Decided on the paint industry as its next target, and went looking for a venue with pliable and unscrupulous politicians through which to gain entrée to sue the paint industry;

Motley Rice did not have an office in RI;

Found that in Sheldon Whitehouse - who at the time was an AG planning to run for Governor;

Somewhere around this time Motley Rice opened an office in RI, staffed by none other than RI Democratic Party official Jack McConnell;

Sheldon Whitehouse did not put the litigation out to bid – certainly Edwards & Angell or Adler Pollock & Sheehan had the requisite litigation talent - but instead unilaterally awarded the litigation deal to Motley Rice (which has always been a primarily out-of-state firm);

When good ole’ boy Sheldon ran for Governor, various Motley partners contributed to his campaign;

Heaven only knows what else.

Also, how did Motley Rice (for tax purposes) treat the “income” from not having to write a check for its pledge to Brigham????

Posted by: Tom W at August 9, 2006 3:00 PM

No need for extensive research, Tom W. Everything you say - including Motley Crew looking for another industry to shake down and finding pliable politicians in RI - is widely known.

This settlement throws into focus the fatal weakness of an AG bringing in contingency lawyers to fight the State's cases: it puts justice a distant second to collecting a legal fee, which is Andrew Morse's excellent point.

In this case, P. Lynch inexplicably was desperate for a settlement with a defendant that couldn't use the "s" word (settlement, if the FCC is listening). That in turn has put him at the mercy of his (and Whitehouse's) contingency fee wolves.

Posted by: SusanD at August 9, 2006 9:54 PM