DO you solemnly swear to tell the truth, the whole truth and nothing but the truth, so help you God?
Five personal-injury lawyers hired by the state of Texas are fighting tooth and nail against having to hear those words as they begin testifying under oath how they engineered a deal that paid them a $3.3 billion legal fee in the Texas tobacco litigation. In fact, it required three years, thousands of hours of legal work and a decision by the United States Supreme Court to make these five lawyers explain how they got their $150,000-plus an hour sweetheart deal.
When Big Tobacco settled Texas' lawsuit for more than $17 billion, I would have thought these lawyers would be eager to reveal the details of their "victory." Instead, they simply took the money and ran. Even current Texas Attorney General John Cornyn, the state's top lawyer whose duty and responsibility it is to examine these questions on behalf of his clients -- the people of Texas -- has been unable to get answers in a state court proceeding from the men who were supposed to be working for us, the taxpayers. Cornyn has pursued these matters with determination and diligence, even at his own political peril in the face of a well-financed and sophisticated public relations campaign against him.
Why are they fighting so desperately to avoid answering questions about this deal? Is it because the entire mess reeks of ethical problems and conflicts of interest? For example, one lawyer claimed he was asked to make a $1 million payment in order to join this team of private attorneys working for the state. The spouse of one of these lawyers even swore in a deposition that her then-husband bragged about paying money to get the lawsuit. Or take the issue of the actual contract, which was changed numerous times, while the lawsuit was going on. And how about the $40 million in "legal expenses" that were rung up and reimbursed, even though the case was a near exact duplicate of other state tobacco lawsuits?
But perhaps worst of all is the allegation that the lawyers actually sold out their own clients. A consistent refrain from the lawyers, and even from some in the media, is that the legal fee was paid by Big Tobacco, and did not come from the proceeds of the settlement, so it did not diminish the amount received by Texans. However, this claim, on its face, appears to be false. It was clear that the tobacco companies did not care if their funds went to help children or to pay plaintiff trial lawyers. It is very possible that the lawyers made off with billions of dollars that should have actually gone to Texas hospitals and health-care programs, instead of buying more private jets, mansions and seaside vacation homes for personal-injury lawyers.
In other words, it's not only that they made off with an outrageous and probably unethical legal fee, it was probably our money that they made off with. These are not minor matters -- some of the questions are criminal in nature. Yet these issues have never been adequately investigated, and until recently appeared as though they never would be. Now, if a Harris County court orders it, the oath will be administered and the hard questions will be asked. If these lawyers admit to wrongdoing, then the consequences of their conduct will expose them to huge monetary liability. If they lie, they risk detection and subsequent criminal prosecution for perjury. If they refuse to answer the questions based on the Fifth Amendment right against self-incrimination, a civil jury (as opposed to a criminal jury) may assume that their refusal to answer is evidence of their guilt.
So it's really no surprise that these five plaintiff trial lawyers fought to escape Cornyn's questions all the way to the U.S. Supreme Court. But they lost -- and now it is time for them to answer some very important questions:
Did these trial lawyers pay money to the former attorney general in order to receive their contract to represent the state of Texas in the tobacco litigation?
Did these trial lawyers lie about the amount and type of expenses they incurred in the case?
Did these trial lawyers have conflicts of interest that they failed to disclose to their client, the state of Texas?
Did these trial lawyers breach their fiduciary duties to Texas taxpayers?
If these lawyers have done nothing wrong, it is inexplicable that they would take such extreme measures to avoid answering these types of questions under oath. Yet now the trial lawyers are stalling again, alleging that this is the "political season" and everything should be put on hold until after the November elections. This is a particularly disingenuous argument, since it has been their own stalling tactics that have pushed this issue into the political season. Perhaps they believe their best hope is that a newly elected attorney general would drop the inquiry.
That would be a travesty. These are important questions that may affect our state's ability to fund education for our children, and health care for our disadvantaged. Let's quit stalling. Stop the delaying tactics. Let the depositions begin. Let the truth come out.
Butler, a Houstonian, is chairman of Texans for Reasonable Legal Fees and senior chairman of J.R. Butler and Co., a consulting petroleum engineering firm.