Why is your local DA accountable when your state AG isn't?

Lisa Rickard Oct. 25, 2007, 6:10am

When West Virginia Attorney General Darrell McGraw sued drug maker PurduePharma over misrepresentation of its pain killer OxyContin, he petitioned the court saying, "This action involves the impact of State action against one of the most vulnerable and dependant sections of West Virginia society, the elderly and disabled."

McGraw was able to extract a $10 million settlement, but instead of reimbursing the state Medicaid program for its share of the lawsuit settlement, the Attorney General has been distributing this money to his favorite projects and institutions across the state: a pharmacy school, a day laborer center, a drug rehab facility and dozens of other places.

Meanwhile the state Medicaid program has seen a grand total of: zero dollars.

The federal Department of Health and Human Services, which pays the majority of the state's Medicaid spending, took exception. The agency has notified the state of its intent to withhold $4.1 million from West Virginia's Medicaid allotment next year as its portion of the settlement.

McGraw has been playing by his own rules since he became attorney general, but he's not alone.

Mississippi's AG Hood, Rhode Island's Lynch, and former California AG Lockyer are among those who have hired outside law firms on a contingency basis, with these firms also contributing to their campaigns.

Rhode Island AG Patrick Lynch was sanctioned three times by a judge for violating a gag order when he spoke to the media against the defendant in an ongoing case.

Former New York AG-turned-governor Eliot Spitzer was infamous for threatening criminal prosecution in order to extract a settlement in a civil lawsuit. Jim Hood of Mississippi began a criminal investigation into a defendant at the same time he filed a civil lawsuit against them relating to the same issue.

District attorneys across the country are asked to follow a code of ethics when they become the chief law enforcer of their county. U.S. attorneys must live by a code of conduct with strict guidelines. But there are no common ethics standards for state attorneys general. Shouldn't these officials, some of whom are more powerful than their governor, have to follow a basic code of ethical conduct?

We think so, which is why the U.S. Chamber Institute for Legal Reform is unveiling just that, a recommended State Attorney General Code of Conduct, which would establish a common set of voluntary ethical guidelines for all state AGs. This code would include the following:

* AGs must not initiate unwarranted investigations or litigation and must not use the threat of criminal process to obtain an advantage in a civil matter;
* AGs must give reasonable notice to potential defendants prior to bringing a civil action;
* AGs must refrain from public communications that could prejudice a case;
* AGs must limit involvement in multi-state activities to conduct which significantly impact their own state and must personally monitor and approve such involvement by their office;
* AGs must open the hiring of any outside counsel to public scrutiny and must not enter into contingency-fee arrangements in cases involving the use of the state's police power;
* AGs should not engage in outside activities that create or appear to create a conflict of interest with their official duties;
* When not specifically governed by law or applicable regulation, settlements, fines and awards should be distributed to the affected state agency or injured party. When not possible, they should be deposited in the State General Fund and subjected to appropriation by the legislature;
* AGs should publicly reveal information that won't cause injury to governmental interest, private individuals, or the public;

Too many state AGs have a dangerous combination of prosecutorial power and little accountability as to how they use that power. It is time that we held these elected officials to the same standards as every other prosecutor in America and ask them to conduct their business fairly, ethically and openly.

Why should there be ethical standards for local district attorneys and none for state attorneys general?

Lisa A. Rickard has served as president of the U.S. Chamber Institute for Legal Reform (ILR) since March 2003. She provides strategic leadership to ILR's comprehensive program aimed at changing the legal culture that has resulted in our nation's litigation explosion.

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