The Tort Bar’s Legal Double Dipping

In June Mr. Raoul’s office issued subpoenas seeking two decades of information from the companies about pharmacy-benefit managers (PBMs) and directing them to provide the documents to Special Assistant Attorney General

Joanne Cicala,

at the Cicala Law Firm.

One problem: Ms. Cicala and her partners have filed dozens of opioid and insulin-related private lawsuits against PBMs in other states. Lawyers from the other firms working for Illinois are also engaged with outside suits on matters related to the Illinois investigation, including representing Mississippi and Arkansas in insulin-pricing suits.

This was reason enough for Optum, et al., to refuse to respond to the subpoenas. Instead they filed a scorching memo with the court asking to disqualify the conflicted counsel and laying out the conflict of interest that exists when lawyers use the power of the state to collect information relevant to private lawsuits.

The memo says the double representation lets private lawyers “wield government power without abiding by ethical rules that apply to government lawyers.” The trial lawyers can take advantage of the state’s vast subpoena authority and the legal deference granted to AGs. After filing suit on Dec. 2, Mr. Raoul moved to withdraw his petition to enforce the investigative subpoenas. He won’t need them anymore, now that discovery will proceed within the context of the lawsuit.

Trial lawyers love these schemes because they exploit the difference between discovery in a state investigation and stricter rules in civil litigation. Before a state files suit, the AG’s office has broad powers of investigation. It can send subpoenas that companies must answer, and it has broad authority to request interviews from people of interest. In a private dispute, a plaintiff must sue before discovery is allowed.

Tort lawyers know they can get more documents as acting AGs while leveraging the public investigation to raise the profile of their private cases. State cases draw headlines and the appearance of public interest while the private cases bag huge settlements. State power becomes a tool of private enrichment. The lawyers are also active political donors who provide most of their money to Democrats.

Some states have begun adding safeguards to state contracting to prevent conflicts. In Arizona, the Attorney General’s consumer-protection contracts with law firms note that lawyers may be terminated if outside counsel “serves as class counsel or is seeking to serve as class counsel in a class action” related to the same issues they handle for the state.

The Illinois Rules of Professional Conduct say a lawyer who gets confidential information while working as a public officer “may not represent a private client whose interests are adverse to that person.” That would seem to apply directly to Mr. Raoul’s lawyers-for-hire, and this should be a subject for the state bar.