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Monday, February 3, 2014

Friends of the court: No 'gift' to legislators to join suit over law, McDaniel says

Posted By on Mon, Feb 3, 2014 at 2:59 PM

click to enlarge MCDANIEL: No 'gift' in legal representation.
  • MCDANIEL: No 'gift' in legal representation.
Followup to a note over the weekend about an amicus brief joined by a bipartisan list of 65 legislators opposing the appeal of a $1.1 billion Medicaid  fraud judgment against Johnson & Johnson  for improper use of an anti-psychotic drug.

Forces fighting the verdict have raised a somewhat interesting question — is legal service provided for public officials a "gift" reportable on annual financial disclosure forms? It's a novel question. I have already noted that the practice of public officials signing names to public interest lawsuits is a fairly routine practice. Former Lt. Gov. Mark Darr did so famously in fighting Obamacare. It typically is an action without direct personal benefit to the legislator. The only "gift" benefit to the legislator in this or similar cases is the political value of associating with one side of a cause. The fact that a question has been raised in this case illustrates that choosing sides is a double-edged political sword.

I was interested not only for the novelty of the question but because of evidence of something more — vigorous use of the ethics enforcement process by not only partisan players but also issue-oriented players. It promises to make politics even uglier than they are already. If it produces a highly circumspect legislature (good luck with that), it might have something to recommend it.

As to the specific Medicaid fraud  case, Attorney General Dustin McDaniel, who is leading the state in the huge lawsuit, responded:

Elected officials derive no individual, personal benefit from signing a document in their official capacity, whether it’s a letter to a member of Congress or an amicus curiae brief in a pending court case. So, clearly, the brief does not constitute a gift to the individual members of the Legislature who supported the State’s position in this important case. I find it disconcerting that the out-of-state interests fighting to overturn the decision of an Arkansas jury would try to make this an issue about the bipartisan coalition of 65 Arkansas lawmakers who signed the brief.

The law firm representing the legislators is working in concert with the Houston law firm that the attorney general contracted with as lead counsel in this legal action, which has been replicated all over the country. It's contingency fee work. Until the case is decided and a fee is awarded, no lawyers get paid anything.

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