LAWYERS MAY HAVE TOO MUCH POWER IN TALKS [05/22]

Today's New York Times suggests that a few private lawyers may have a disproportionate amount of influence over the current settlement talks, and that their desire for enrichment may adversely affect the outcome.

Here are excerpts from the article:

IN TOBACCO TALKS, LAWYERS HOLD KEY

By striking a deal with [lawyer] Angelos, Maryland joined in a rapidly expanding alliance between state governments and private lawyers. Strapped for money, manpower or expertise, states have periodically hired private lawyers to pursue claims on the public's behalf, but never have the stakes, in money or public policy, been so great as 29 states seeking tens of billions of dollars in Medicaid reimbursement.

In the fight against the tobacco industry, private lawyers have assumed a role of extraordinary influence. With a small group of negotiators meeting in New York City over the last 10 days to settle those claims and others, the lawyers now sit in important positions at the bargaining table where the nation's policies on cigarette smoking may be decided for decades to come.

But critics, including legal experts and public health advocates, are worried about potential conflicts. Lawyers may be looking for a return on their investment, they say, while the states should be single-minded in safeguarding public health.

"Going to trial is a risk for any lawyer working on a contingency fee, because they put up a lot of money and could end up with zero," said Susan Koniak, a professor of law at Boston University. "But in a settlement, lawyers are guaranteed to get their money back and more, even though that settlement might not be in the public's interest."

The lawyers reject such suggestions. But others fear that some attorneys general will cede too much control of their cases to the hired lawyers. "For a deal to work, the public is going to have to be the winner here, not the lawyers, not the tobacco companies," said David A. Kessler, the former Commissioner of Food and Drugs.

There are other potential conflicts, too. Some private lawyers involved in talks with the tobacco industry represent not only states, but also individuals. Any financial accommodation with the industry will have to be split between the states and the smokers who have sued or might bring claims in the future.

"These lawyers have interests that may be different from those of the attorneys general," said Geoffrey Hazard, a professor of law at the University of Pennsylvania who specializes in ethics. "They have a lot of money invested in these cases. They represent people who are privately suing the companies, and so they could face conflicts when it comes to dividing up any settlement funds."

Although dozens of law firms are involved in state Medicaid cases, just two firms -- those headed by Richard F. Scruggs of Pascagoula, Miss., and Ron Motley of Charleston, S.C. -- represent some 20 states in the tobacco talks, putting them in a crucial position to influence public health decisions. Mr. Scruggs, Mr. Motley and Joe Rice, a lawyer for Mr. Motley's firm, have been part of a small group of negotiators meeting in New York City with industry representatives to try to resolve legal and regulatory issues.

Some people wonder whether Mr. Scruggs and Mr. Motley wield too much influence in settlement negotiations with the tobacco industry.

"Plaintiffs' lawyers have been instrumental in initiating these cases," said Mr. Ciresi, the lawyer for Minnesota who maintains that other states and their outside legal advisers are pressing too eagerly for a settlement before major issues are adequately addressed. "However, clearly it raises public policy implications when one firm represents a dozen or more states."

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