Want To Know What Opioid Lawyers Are Up To In Texas? It Costs Thousands To Find Out
By: Daniel Fisher
Some Texas counties are demanding tens of thousands of dollars to comply with open-records requests for documents detailing the time and expenses private attorneys have racked up so far representing them in opioid litigation.
The billing records are considered public information under Texas statutes passed in the wake of a scandal over tobacco fees that sent former Attorney General Dan Morales to prison. Most of the contracts examined by Legal Newsline include clauses acknowledging this.
Yet when asked to provide billing records, some counties have said they will only do so if their outside attorneys are paid as much as $750 an hour to review the documents for public release. Dallas County, for example, quoted a price of $24,190 to comply with an open records request for time and expense records from its opioid counsel.
The breakdown included 13 hours at $750 an hour for shareholder-level lawyers, eight hours for associates at $450 an hour, and $4,030 in overhead. Nacogdoches County charged an identical amount, Milam County quoted $19,240 and Burnet County quoted $13,870.
Texas Administrative Code 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.
Dallas County officials didn’t respond to a request for comment. The county is represented by Simon Greenstone Panatier and the law firms of Mark Lanier and the late Johnny Cochran. Jeffrey Simon of Simon Greenstone, which represents numerous other counties quoting thousands of dollars to comply with public records requests, said Dallas County is free to release the billing records “at no charge or at an hourly rate they determine.”
“If however we as lawyers are involved in reviewing the records and are tasked with removing from them that information that is privileged as part of the legal case, then such work is subject to the billing rate that was approved by both the county …and the Texas Comptroller’s office,” Simon said in an emailed statement to Legal Newsline.
Two other counties represented by Simon Greenstone quoted a price of $272, but Simon said that was in error. Webb County, which is represented by The Cicala Law Firm, released its records for November 2017 through July of this year for free.
Texas tightened the rules for private attorneys representing government entities after former AG Morales was caught trying to steer $500 million of the $3.2 billion in fees awarded to lawyers in the state’s tobacco lawsuit to a friend. Texas now requires most government entities to obtain approval from the Comptroller’s office before contracting with outside lawyers. Legal Newsline previously reported that at least a dozen Texas counties have failed to obtain such approval, putting their lawsuits in potential peril.
The Texas Government Code also states that billing and expense records are public documents that can be requested at any time by county or state officials. Some counties have said they have “no responsive documents” and others have refused to comply with open records requests, saying time and expense records are subject to the attorney-client privilege.
Travis County, home of the capitol city of Austin, for example, asserted its billing records “reveal client confidences and the attorneys’ legal advice regarding the legal services provided,” and “weren’t intended to be disclosed to third parties.”
“It is necessary for the attorney to document and communicate in the invoices enough detail for the client to ascertain the nature and scope of the services provided,” Assistant County Attorney Ann-Marie Sheely said in a letter to the Attorney General’s office.
The privilege covers confidential communications between lawyer and client and can be waived only by the client. However, most of the private lawyers representing counties in opioid litigation acknowledge in their contracts their billing records are public information under Section 2254 of the Texas Government Code. Also, both the Restatement (Third) of the Law Governing Lawyers and a number of court decisions have held that billing records themselves are not privileged.
In a 2011 decision, for example, the Court of Appeals for the Federal Circuit ruled against a plaintiff who sought to withhold detailed attorney billing records from the Veterans Administration, saying the privilege applies only to “the content of a communication between the attorney and client” and not general descriptions of how much the attorney charged for specific services.
Indeed, courts often are required to examine attorney billing records closely to determine whether an award of fees is excessive. Texas law designates billing records of private attorneys for the government to be public records in part to provide transparency into the services those lawyers provided taxpayers in exchange for their fees.
Under the state’s two-part method for calculating fees, private lawyers are to be paid the lesser of their contracted-for percentage of the recovery or hours worked, plus expenses and a multiple of up to four times to compensate them for the risk of loss.
It could be important for counties and other municipal clients to compare billing records to make sure plaintiff attorneys aren’t assigning the same costs to multiple clients. Texas law also prohibits law firms who haven’t directly contracted with a county from collecting fees, creating potential complications as much of the work in the opioid litigation is being done by the large national firms like Motley Rice and Hagens Berman that tend to dominate multidistrict litigation.
The judge overseeing federal multidistrict litigation over opioids in Ohio, U.S. District Judge Dan Aaron Polster, has imposed similar bookkeeping requirements and fee limits on lawyers in his cases, noting that mass tort litigation “can be fertile grounds for unnecessary and duplicative work.”
Webb County, the sole county to comply with an open-records request so far, provided 11 pages of billing entries from November 2017 to July of this year. They show a handful of employees at Dripping Springs, Texas-based Cicala Law Firm had spent 1,250 hours so far, primarily on investigation and case management. The work was performed by a variety of law firm personnel from partner-level attorneys to paralegals.