MISSOURIANS ENTITLED TO KNOW LEGAL FEES

Last month, five Republican state senators wrote to Attorney General Jay Nixon, requesting from him the disclosure of any fee request made by private attorneys with whom his office had contracted to pursue Missouri's stake in the litigation against the tobacco companies. They were seeking information on the fees to be paid to Tom Strong, lead assistant attorney general in the tobacco case, and to several dozen attorneys at three other firms Nixon selected.

Readers should know that in other states these fee requests have come in at hundreds of millions, even billions, of dollars. In Wisconsin, three law firms submitted requests for payment of $847.5 million. In Massachusetts, the outside counsel requested payment of $2 billion. An arbitration panel last week awarded them $775 million. If these requests are public information in other states, why not here?

On July 27 Nixon responded to the senators. He told the senators that no such request for payment from the state had been made, nor would any be made in the future, because the private attorneys had contracted separately with the tobacco firms for their compensation, and the state wasn't involved.

About this response several things can be said. First, Nixon's letter assumes as fact what is very much in dispute in a lawsuit filed by one of the senators. One year ago, Sen. Peter Kinder, R-Cape Girardeau, filed suit against Nixon, alleging that this very contract is illegal under Missouri's Constitution and statutes and asking a judge to declare it void and grant an injunction against its enforcement. One of Kinder's arguments, pending a decision by the Western District Court of Appeals in Kansas City, is that any such side agreement payments are proceeds of the state's award that must come to the state treasury, out of which reasonable attorneys fees can be appropriated by the General Assembly and paid to the lawyers.

Second, there is the freedom-of-information issue. Missouri has a statute on the books mandating disclosure of public contracts. The question obviously arises as to whether by means of a side agreement such as this, assistant attorneys general can evade the clear requirements of our freedom-of-information laws. It is evidently Nixon's position that by means of such a dubious artifice, they may do just that.

At least one legal expert disagrees. Kansas City attorney Jean Maneke, legal counsel for the Missouri Press Association, told this newspaper the subject of the senators' request is clearly public information that the law requires must be disclosed. We agree. The senators' next letter should be to Tom Strong of Springfield, Nixon's lead assistant AG for this litigation. If Strong responds in the same stonewalling fashion as did Nixon, then somebody clearly has the basis for a lawsuit seeking to compel release of all information relating to the fee request these attorneys are making. These outside counsel are, after all, state officials clearly subject to the disclosure laws that bind all state government.

Mr. Nixon evidently believes that by means of such a side agreement between his select private law firms and private tobacco companies, he can evade the requirements of Missouri's open-records law for special state officials selected by him. We disagree and hope and believe that Nixon will ultimately be proven wrong.

If Nixon isn't proven wrong, then consider the potential fallout. All future attorneys general will be free to pick their friends and political supporters to represent the state in special litigation, with a side agreement by means of which those favored friends will be paid enormous sums that are forever concealed from the public. Does this well serve Missouri and our citizens? Is this in the spirit of our freedom-of-information statutes? Let it not be so.