KINDER'S COMMENTARY: DATE SET IN CASE CHALLENGING AG's HIRING OF TOBACCO LAWYERS

Monday, Oct. 5, is the day set for hearing motions on the lawsuit I filed last month to set aside the contract Attorney General Jay Nixon entered into with private attorneys to pursue Missouri's stake in the tobacco litigation. On Aug. 5, I filed suit in Cole County Circuit Court alleging that Nixon's contract to hire private, outside counsel is illegal.

We alleged illegality on several grounds, including that the Missouri Constitution doesn't allow any attorney working for the state to have a "personal stake" in the subject matter of litigation. A personal stake is, of course, exactly what attorneys working on contingency fees and standing to reap tens of millions of dollars are fighting for. As one Texas politician said 20 years ago of that state's effort to litigate the estate of billionaire Howard Hughes, there is "a lot of ham on that bone." Awards of $400 million, $500 million, $600 million or even more at stake for a few dozen attorneys for several months' work. These attorneys are major contributors to the Nixon-Carnahan campaign machine.

Cole County Circuit Judge Tom Brown, a Democrat and a native of Charleston, will hear the case. Interestingly, because the case implicates matters of constitutional importance, no matter how Judge Brown rules, we will immediately head down the street to the Missouri Supreme Court. Not for nothing are attorneys and judges across the state buzzing about this one. It appears that this is what lawyers call "a case of first impression," meaning the exact legal question hasn't previously been litigated in Missouri. One local attorney and friend related to me that on a recent Kansas City visit, his former law school classmates were asking him who was this troublemaker state senator from Cape Girardeau who had filed this terrible lawsuit.

Meanwhile, more and more signals are being sent that Governor Carnahan will run in 2000 for the U.S. Senate seat against Sen. John Ashcroft. Then, expect a full-blown exploration of how Carnahan and the Missouri Democratic Party have become super-dependent on the rivers of campaign cash from the personal-injury lawyers of the trial bar, itself a minority of attorneys in this state. Personally, as one who enjoys a good scrap, that impending confrontation is to relished. On the table for discussion will be the questions, "Do we have government of, by and for the people? Or do we have government of the trial lawyers, by the trial lawyers and for the trial lawyers?"

It was just this summer that the American Bar Association adopted a resolution or canon of ethics recommending that the attorneys general of the states shouldn't accept contributions from lawyers they hire to do outside work for them. Nixon's tobacco litigation contract is, then, as one observer phrased it, "The Second Injury Fund on steroids." Readers will recall that the Second Injury Fund is the matter that got the attention of federal investigators probing former Attorney General William Webster. Although most Missourians probably don't know it, that is emphatically not the subject for which he ended up doing time. The feds never could stick that one on Webster. After a two-year-plus investigation had broken him, he ended up pleading to and doing time for misuse of state resources in his election campaign.

In 1992, Jay Nixon campaigned piously objecting to Second Injury Fund abuses. Now he has his own. Soon we will know more about whether one senator's lawsuit -- a well-aimed torpedo at the biggest rip-off the trial lawyers have ever dreamed up -- can score a direct hit, sinking all aboard.

~Peter Kinder is assistant to the president of Rust Communications and a state senator from Cape Girardeau.