Facing complaints of excessive fees, Texas counties release billing records of their opioid lawyers for free

By: Daniel Fisher

Texas counties that demanded tens of thousands of dollars to provide billing records from outside attorneys representing them in opioid lawsuits have mostly agreed to hand them over for free, after complaints were filed with the Texas Attorney General’s Office alleging the cost estimates were excessive and violated the Texas Public Information Act.

A number of counties initially quoted costs of as much as $750 an hour for outside attorneys to review and redact privileged information from billing statements, which are considered public records under Texas law. The cost demands from counties represented by Simon Greenstone Panatier, a Dallas law firm, were remarkably consistent, with Dallas County, population 2.6 million, and Nacogdoches County, population 66,000, each charging $24,190.

The large cost demands appeared to conflict with the Texas Administrative Code, which caps labor charges for locating, compiling and manipulating data for a public information request at $15 an hour. Time spent to “redact, blackout, or otherwise obscure confidential information” is subject to the same hourly fee cap.

After numerous complaints were filed with the Texas attorney general, several of the counties provided billing records for free. Simon Greenstone declined comment for this story, but earlier said its governmental clients were free to release billing records if they wanted, but would be charged if Simon Greenstone attorneys were required to review the records first.

Travis County, home to the state capital Austin, refused to turn over its billing records, saying they were protected by the attorney-client privilege. Texas Attorney General Ken Paxton’s office rejected that claim almost in its entirety in a Sept. 28 letter, however, saying only entries reflecting “the mental impressions, opinions, conclusions or legal theories” of lawyers are subject to the privilege. Travis County has yet to release records in accordance with the AG’s ruling..

Texas passed a law requiring detailed public disclosure of billing records for outside attorneys after a political scandal erupted over the $3 billion collected by private attorneys in the state’s lawsuit against the tobacco industry. Former Attorney General Dan Morales eventually went to prison for trying to steer $500 million of the fees to a friend, and Texas governments were held to a strict set of rules for hiring and paying outside lawyers. Those rules include record keeping requirements and a two-part test for fees including a “lodestar” calculation based on the actual hours worked.

In disclosures so far, the counties show small teams of lawyers and paralegals have racked up limited hours working for individual counties, while larger teams have worked on “common benefit” projects to be shared by all. Lawyers with Simon Greenstone, for example, recorded just two hours at $200 an hour to draft Parker County’s complaint and only $550 worth of work through Oct. 3. Simon Greenstone’s common expenses, for all its Texas opioid clients, totaled almost 115 hours from September 2017 through August of this year, meanwhile, much of it at partner-level rates of $750 an hour.

The common benefit bill, which will be allocated among all of the law firm’s governmental clients, totaled $64,465 through Aug. 3, according to a Sept. 27 invoice produced under a public records request. Some billing entries were blacked out, while most of the others contain generic statements such as “attorney and staff meeting to discuss pleadings, causes of action, legal research issues, and consulting experts.” The names of expert witnesses hired by the plaintiffs have been blacked out.

One law firm, The Cicala Law Firm, released its records for November 2017 through July of this year for free upon a first request. Cicala represents Webb County and the records show the financial risk assumed by law firms that can’t spread the costs of opioid litigation across a large number of counties. Over that eight-month period Cicala reported more than 1,200 hours worked on the case including more than 50 hours on pleadings and motions.

The outside lawyers representing Texas counties are all working under contingency-fee contracts granting them as much as 35% — the statutory maximum – of any judgment or settlement. The billing records will only be used to compare against those contingency fees. Under Texas law, outside plaintiff lawyers are to be paid the lower of the contingency fee or a lodestar amount calculated by adding up hours billed plus a multiplier of up to four to reflect the risk of taking on the case. The counties aren’t liable for any of the billed amounts unless they obtain a financial recovery.