Ex- FBI agent defends new job as investigator
The FBI agent who directed the ongoing probe of former Attorney General Dan Morales and the five attorneys who obtained the state’s $17 billion tobacco settlement now works for one of the five, John O’Quinn.
Don Clark, former special agent-in-charge of the FBI’s Houston Field Division, retired Feb. 3 to become an investigator for the O’Quinn & Laminack law firm, said FBI spokesman Al Tribble.
O’Quinn and the four lawyers got $3.3 billion in legal fees, to be paid by cigarette makers. His name is among those on a subpoena for documents issued by a federal grand jury in Houston Jan. 28.
Clark supervised the FBI investigation into allegations that Morales solicited $1 million from the attorneys being considered for the tobacco lawsuit.
Tribble said the FBI does not restrict post-government employment and Clark said there is no conflict of interest
“I’m well aware of all of the ethics rules and I have always adhered to them,” Clark said. “I would never breach my ethical responsibilities.”
He said a former FBI agent would be virtually unemployable if he couldn’t work for any company he has come into contact with in his career.
“There were investigations involving a number of entities that I was aware of,” he said. If an agent couldn’t work for any of them, he said, “that would mean no employment anywhere.”
Morales’ successor, Attorney General John Cornyn, began an internal investigation of the five lawyers’ work and the circumstances under which they were retained. He has questioned Morales’ contingency agreement with them.
The FBI has been interviewing potential witnesses for months. A grand jury subpoena for Cornyn’s findings and official records was issued last month and signed by veteran prosecutor Melissa Annis.
Among the matters Cornyn and the grand jury are believed to be investigating are allegations raised almost two years ago by Houston attorney Joe Jamail.
Jamail said Morales solicited $1 million from each of lawyer he considered hiring of the tobacco suit. The money was supposedly to be put into a fund to combat political or public relations attacks the tobacco companies might make on Morales.
Mike Tigar, who represents the five lawyers, has said they have done nothing wrong. Morales has also said he did nothing wrong.
The Jan. 28 subpoena directs Cornyn to surrender all documents and other evidence relating to the investigation of Morales, former first assistant Jorge Vega and the five lawyers “with regard to the Texas tobacco litigation.”
That, it says, includes records or other items “which have any relation to the hiring or attempted hiring of outside counsel by the Texas Attorney General’s Office for the Texas tobacco litigation, and their ensuing relationship both before and during litigation and after settlement”
Bob Schuwerk, a law professor at the University of Houston, said Clark has a conflict of interest, but its importance depends upon the scope of the investigation, O’Quinn’s involvement and Clark’s knowledge of the case.
“If there is some sort of claim that there was wrongdoing on Morales’ part in signing up the lawyers, it’s got to be discomfiting to the prosecutors,” he said.
Schuwerk, who teaches legal ethics, added that he sees no ethical problem on O’Quinn’s part.
The five lawyers are Walter Umphrey and Wayne Reaud of Beaumont, O’Quinn and John Eddie Williams Jr. of Houston and Harold Nix of Daingerfield.
Their lawsuit, which sought damages for public health care costs associated with smoking and attacked the industry for marketing cigarettes to minors, was filed in 1996.
In 1998, the industry agreed to pay the state and county hospital districts $17.3 billion during the next 25 years. The amount, however, will be reduced if cigarette sales fall.
The lawyers were awarded their $3.3 billion in fees by national arbitrators in late 1998, shortly before Morales left office. The cigarette companies have agreed to pay the fees over an undetermined number of years.
U.S. Attorney Mervyn Mosbacher would not comment, but former U.S. Attorney Ron Woods said the situation with Clark is problematic.
“It’s just so inappropriate that the wife and daughter are in the FBI and he is an investigator for a law firm that is so controversial,” said Woods, who is also a former FBI agent.
But St Mary’s. University law school professor Jeff Pokora, acting director of the Center for Legal and Social Justice, said there is another way to look at it
“A reasonable person might think if you knew someone was about to be indicted you wouldn’t go to work for them. There’s no job security in that.”
Heather Browne, spokeswoman for the attorney general, said Cornyn could not comment on Clark’s employment “because (O’Quinn is) involved in the grand jury investigation, it would be in appropriate.”