WHERE ARE GUARDIANS OF MISSOURI'S LEGAL ETHICS?

It is "the biggest scam ever perpetrated in the history of the United States or the world." -- Lester Brickman, distinguished professor at Yeshiva University's Benjamin Cardozo School of Law, speaking of the $250 billion global tobacco settlement and the billions of legal fees it will generate.

Thursday before last, we had oral argument in our state's highest court in the tobacco-lawyer case, Kinder vs. Nixon, filed by this writer in August 1998. Twenty-five months and two defeats in the lower courts later, we finally had our shot at a reconstituted Missouri Supreme Court. To recall, I filed suit against Attorney General Jay Nixon, alleging the contract he signed with his campaign trial-lawyer contributors to pursue Missouri's stake in the tobacco litigation violates our Constitution and statutes. Courts at the trial and appellate levels have since ruled against me, saying that this scandal, which is far larger than the Second-Injury Fund that sent people to the penitentiary, can proceed.

My case has already made history: It produced the largest mass recusal of judges in living memory, probably ever in history. No senior attorney anywhere in the state can recall an instance when as many as five sitting Supreme Court judges took themselves out of a case, as happened in Kinder vs. Nixon. The reason: All five appointees of former Gov. John Ashcroft John Holstein, Ann Covington, Steve Limbaugh, Ray Price and Duane Benton removed themselves, presumably due to their having served on the high court with former Judge Edward "Chip" Robertson. Chip is the lone Republican attorney providing a patina of bipartisanship to what would otherwise be an entirely Democratic deal. Nice work if you can get it.

How nice? Well, consider. In the first place, as has been asserted here for more than two years, Professor Brickman, whose pungent commentary is excerpted above, says "This action was a simple 'me too' tag-along suit." That is to say, the tough initial spadework was already done in other states. Missouri's infamous tobacco lawyers, close to pulling off the biggest rip-off in 180 years of statehood, courtesy of Jay Nixon, didn't have to do much other than put their names on top of pleadings generated by other lawyers and fiddle around with some depositions.

But again, as to the payoff: How nice? Well, Terry Ganey of the St. Louis Post-Dispatch originally reported in August 1998 that fees to the four dozen Nixon-favored contributors could reach as high as $400 million to 500 million, or an average of $10 million per favored lawyer-contributor, for a few months' work. Reporter Ganey's latest effort was published Sept. 10. In it, the Post reports that even after two years of my trying to awaken Missourians as to what is going down, these fees still could reach as high as $100 million.

Among legal insiders across Missouri, lawyers and judges will take you aside and level with you: This is indeed a scandal of epic proportions. Many are alarmed. Almost none will say so publicly.

Where, one wonders, are the guardians of legal ethics? Where the retired judges, concerned with the integrity of the judiciary? Where the distinguished practitioners of the law, concerned with whatever remains of legal ethics? Where, above all, the news media outrage?

Like the president of his party, Jay Nixon knows the political virtues of audacity. Will he get away with this?

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