Enquiring minds need to know: Who are the undisclosed consultants in Oklahoma’s opioid litigation?
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Published: 16-Aug-2018


OKLAHOMA CITY –  As pointed out in an earlier commentary (included with this post, below), the state of Oklahoma, through its attorney general,  is seeking a massive judgment against the American companies who produce opioids.
I described in that commentary a concern that not all participating lawyers have been disclosed to the public. I sketched for readers a process in which I posed questions to the attorney general’s office, and asked for documents and replies to questions. 
I did this through the A.G.’s communications staff. 

Without casting stones, I do not believe I had garnered all the information requested – as summarized in that essay (and restated below,  https://capitolbeatok.worldsecuresystems.com/reports/for-oklahoma-an-enquiring-mind-wants-to-know-who-has-been-granted-conflict-waivers-in-the-opioid-lit).
I pressed last week in emails and renewed in my essay the need for names of all lawyers who could benefit from a legal judgment or judgments against the opioid manufacturers.
The replies did not seem evasive, yet were not comforting, so I asked again – with fresh and I hope clearer wording, if perhaps repetitive. 
A reply came last week saying the issue had been sent to others in the agency for their examination.

As of this writing (early morning on August 16), I have not received further reply. I have grown concerned after reading all of the relevant documents I actually have in hand. I am sharing below the wording of an addendum to agreements signed on behalf of the state of Oklahoma with outside counsel. 
This now concerns me, deeply. Upon reflection and re-reading, I fear the use of “sole responsibility” implies that some beneficiaries of any judgment might be withheld (by the A.G.’s office) from the intention and general understanding of existing statutes, and codes of professional responsibility. 
The language I have been restudying is this: 

“The fees or other compensation to be paid experts, consultants and other assistance retained by Counsel shall be the sole responsibility of Counsel and it shall not be reimbursed for those costs unless and until collection of a judgment or settlement, or pursuant to the terms of paragraph 15 in this Contract.”

Taxpayers need to know the names of all “outside” non-government attorneys or other key players involved in this important and perhaps historic litigation. Disclosure should include the names of any former state government officials who might, if the litigation is successful, benefit.
Any other outcome would violate the spirit of laws, codes and practices that are generally believed – including by this reporter – to require transparency in our government.  

Note: Posted is the text of McGuigan’s earlier story, posted on Tuesday (August 14), with the title “For Oklahoma, an Enquiring Mind wants to know: Who has been granted conflict waivers in the opioid litigation?”  

OKLAHOMA CITY – Oklahoma litigation seeking to shift lots of money from manufacturers of Opioids to various public entities has the potential to significantly boost government revenue. Tribal governments have joined the litigious “fun,” seeking a share of what could be the nearest thing to the tobacco litigation of some decades ago, which still provides a steady stream of revenues to governments at all levels.

Reading state legal provisions and professional standards for lawyers leads me to believe that the state Attorney General -- who has hired outside counsel to assist the government with the lawsuit -- must not only disclose the name of every attorney involved. He must also assure that there are no conflicts of interest between the private interests of said lawyers and the interests of taxpayers. Further, potential conflicts must be addressed in a formal manner so that citizens know what is going on.

With the same lawyers working for both the state government and certain tribal interests, it is not yet clear to me that required waivers are in place.  In recent exchanges with the attorney general’s staff, I sought information to help me (and readers) know with certainty to whom waivers have been granted for purposes of the litigation.

I asked, in an open records request, for all information about legal contracts. The attorney general’s staff has been responsive in part, even noting the involvement of lawyers for the Chickasaw and Choctaw tribal governments. Still, the fact said attorneys are working for more than one client in the matter is troubling. To be clear, as I believe I was in my most recent communication to the agency, I am interested not only in those attorneys, but in the names of all involved in the case who might make money from it.

The state government, through the attorney general’s office, says it will make “reasonable efforts” to assure, through the court(s) that if the anti-opioid litigation succeeds, the cost for lawyers, “including non-labor, experts, consultants and other reasonable costs,” will paid by the defendants – that is, by the opioid industry. 
And, “Should an award of Counsel’s costs not be ordered, Counsel shall be reimbursed from the recovery obtained by the state.” 
I have asked for but had not received (as of early morning on Tuesday, August 14) copies of “all expert & consultant sub-contracts which meet this definition, including but not limited to former state officials.” I asked for “the same information for consultants’ lawyers who have or may have the same conflict.” 

There is no intention to harass or to malign. I do not yet have a complete picture on who has received waivers. Waivers seem clearly required, and citizens (including journalists) should be provided that information. I do not not know with certainty what consultants have secured waivers. 
The goal is transparency in the public interest. While attorneys general often insist on comprehensive disclosure of matters (even those deemed sensitive) on the part of others in government, there is a long-standing tradition of exempting the A.G.’s office from such disclosure. 
Perhaps a complete reply is in process, and it will arrive soon. If not, I will ask the questions again.
I will report on  this matter again, as needed.

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