A special hattip goes to Respond Mississippi for this one.

In a special index to a report entitled Judicial Hellholes 2008/2009, the American Tort Reform Association writes . . .

As reiterated throughout, this report primarily focuses on judicial decision making and court practices that unfairly tip the scales of justice against civil defendants. But the actions of a handful of state attorneys general also contribute to growing concerns in the business community about the ability of defendants to receive fair trials. This happens when what are essentially private lawsuits are filed, often in a plaintiff-biased local court, with the backing of the state government and a strong incentive to obtain the highest monetary award possible. It’s a system of legal kickbacks known as “pay to play,” wherein lawyers who contribute to the campaigns of the state’s highest ranking attorney can then get a contract for a piece of the action and, in some cases, develop the action themselves and get a go-ahead to pursue it in the state’s name.

The practice began in May 1994 in the Chancery Court in Jackson, Mississippi, when then-Mississippi Attorney General Mike Moore filed a revolutionary lawsuit that would change the relationship
between the offices of attorneys general and the plaintiffs’ bar in virtually every state.355 The lawsuit was brought against the manufacturers and other entities comprising the tobacco industry and sought to recover monies allegedly spent by the state of Mississippi providing health care to residents injured by tobacco use.

But that’s not what was unique about this lawsuit. The lawsuit was filed in Chancery Court. According to the state of Mississippi’s Web site, “Chancery Courts have jurisdiction over disputes in matters involving equity; domestic matters including adoptions, custody disputes and divorces; guardianships; sanity hearings; wills; and challenges to constitutionality of state laws. Land records
are filed in Chancery Court.”356 Chancery courts are not typically the courts where lawsuits potentially worth several hundred million dollars are filed.357

The State of Mississippi also pioneered an important new litigation model for legal representation with this lawsuit; Moore’s office hired outside counsel to represent the state, including his close
friend and campaign contributor, Richard “Dickie” Scruggs (who has since been disbarred and is serving a federal prison sentence for an unrelated conspiracy to bribe a Mississippi judge). Scruggs and others agreed to take the case on a contingency fee basis. In the event that Mississippi settled or won its case, Scruggs would take a percentage. If the state got nothing, he would get nothing.358

Today, the history of that litigation, parallel actions filed in other states, the ensuing Master Settlement Agreement (MSA) and additional state settlements is well known. Less well-known is the application of the model that it pioneered; a model that has created a corrupt and corrosive cronyism between some state attorneys general and outside counsel.

Hired on a contingency fee basis, outside counsel have won many billions of dollars in fees for their litigation work against a variety of industries.359 They also have been generous supporters of
their chief clients’ reelection campaigns; thereby ensuring that the model provides financial benefits to both the elected official doing the hiring and the personal injury lawyers performing the work.
Today several attorneys general are involved in relationships with outside counsel in high-profile litigation that exemplifies the need for comprehensive reform. Here are four examples.

Mississippi

If former Mississippi Attorney General Mike Moore pioneered the model wherein personal injury lawyers are hired by the AG and, in turn, reward his or her campaign with cash, then credit goes to his successor Jim Hood for perfecting it. In a five-year span Hood’s office retained 27 law firms to represent Mississippi in 20 separate lawsuits. Partners in the firms selected by Hood contributed $534,900 to his reelection campaigns over a two-cycle period.360 The list of Hood contributors included Moore’s old friend Richard “Dickie” Scruggs to the tune of $30,000 (see Rogues’ Gallery, p.36), and fellow plaintiffs’ counsel Joey Langston, who, like his former associate Scruggs, has also recently pled guilty of conspiring to bribe a judge. Langston’s firm gave Hood $130,000. And that investment in Hood’s campaign seems to have paid off. In 2005 as part of the state’s $100 million settlement with MCI/WorldCom, Langston’s firm split $14 million in fees.361 Considering his propensity for hiring future felons to perform legal work on behalf of Mississippi citizens, Jim Hood understandably remains a steadfast opponent of laws that would provide for competitive bidding and public scrutiny of the contracts into which his office enters.362