Last week, Attorney General Hector Balderas announced that his office will implement stricter policies for using private law firms to sue on behalf of the state.
The announcement followed a review of all pending litigation involving outside lawyers contracted with his office that was prompted by an article in The New York Times about a new breed of lawyers who go around the country wooing state attorneys general so they’ll hire them to file lawsuits against large companies in exchange for a percentage of any cash award or settlement.
That article led with an anecdote about then-New Mexico Attorney General Gary King and his dealings with a Washington, D.C., lawyer, who, over a period of two years, convinced him to file a suit against a nursing home company that operates 11 facilities in New Mexico.
But while New Mexico is no stranger to such lawsuits, the attorney general’s current list of contracts with private lawyers is not very long, and a check of campaign finance records showed that only one of the private firms is a significant contributor to attorney general campaigns in this state.
And Balderas’ review of the contracts didn’t stop any of the current cases involving private attorneys.
Among those contracts, there are only three in which the private lawyer is working for a fee that has yet to be determined.
In each of those three contracts, the private firm is allowed to petition the court for “reasonable fees” if the case results in the state being awarded any damages, restitution or penalties. None of them specify any percentage of the money awarded to the state.
Those three cases are:
• The nursing home case in The New York Times story. It was filed in December by the Cohen Milstein & Toll firm of Washington, D.C. The suit claims that staffing levels in the homes run by Preferred Care Partners Management Group, which bought the facilities from Cathedral Rock Corp., are inadequate to provide proper care for the residents. It also claims the facilities overbilled the state and federal government.
A revised complaint filed this week alleged that nurses frequently found residents in soiled diapers and urine-soaked beds because previous shifts couldn’t complete their rounds and that one patient choked to death because he wasn’t fed pureed food as his care plan called for, the Associated Press reported.
State campaign finance records showed only one campaign contribution from lawyers in the case. Linda Singer, the lawyer in the Times story who sold King on the suit, contributed $1,000 to King’s gubernatorial campaign about four months before the suit was filed.
• Conoco Phillips Inc. and Burlington Resources are suing the State Land Office in a dispute over oil and gas leases. The state is countersuing, claiming underpayment of royalties. Albuquerque lawyer Turner Branch is contracted with the state to handle this case. The contract lists several other royalties cases going back to 2007 that already have been litigated.
Branch, who has a long history of contracting with the Attorney General’s Office, has been a big contributor to the campaigns of attorney general candidates. According to campaign finance records, he gave $15,300 to King’s 2014 gubernatorial race and $10,000 to Balderas’ race for attorney general. His wife, Margaret Branch, a partner in his law firm, contributed $15,350 to King and $10,000 to Balderas in the last election. Turner Branch and Margaret Branch each contributed $10,000 to King’s 2010 re-election campaign.
Neither Branch could be reached for comment Friday.
• Three law firms are part of a contract signed in October to represent the state in a suit against Visa and MasterCard over interchange fees set by the companies. Those fees are charged to the banks that issue credit cards and paid by banks that handle credit card transactions for merchants. The three law firms are Zimmerman, Reed of Minnesota; The Miller Law Firm of Michigan; and Long, Komer & Associates of Santa Fe.
There are no records of any of those firms, nor any of the lawyers involved in the credit card case, making contributions to King or Balderas.
Five other firms or individual law firms currently have contracts for set amounts with the Attorney General’s Office.
Two firms are on contract with the Attorney General for two water-rights cases pending in federal court. One case, in which the state of Texas is suing New Mexico over diverting water along the Rio Grande in Southern New Mexico, is before the U.S. Supreme Court. The other case is one in which New Mexico is suing the U.S. Bureau of Reclamation, also over Rio Grande water in the southern part of the state.
The two firms handling these cases are Trout, Raley, Montaño, Witwer & Freeman of Denver — which specializes in natural resources and water law — and the Montgomery & Andrews firm of Santa Fe. The Denver firm is being paid up to $960,000, including gross receipts taxes, for both cases, which are on the same contract. Montgomery Andrews is being paid up to $500,000 for the two cases, also on the same contract. The local firm’s contract excludes gross receipts taxes.
No campaign contributions from the Trout firm to King or Balderas could be found. The Montgomery & Andrews firm has not contributed to Balderas and didn’t give to King in 2010 or 2014. In 2006, however, it gave $1,000 to King during his first campaign for attorney general. And back in 1998, it contributed a total of $1,800 to King’s first campaign for governor.
Scott Fuqua, who until late last year was director of the Litigation Division of the Attorney General’s Office, has a contract worth up to $50,000 to handle several cases he was assigned to when he was on the attorney general’s staff. These include some that were high profile, including the New Mexico Foundation for Open Government’s case seeking release of the full audit of 15 behavioral health providers commissioned by the state Human Services Department; a case, currently under appeal, concerning doctor-assisted suicide for terminally-ill patients; two cases involving Valley Meat Company, whose plans to open a horse-slaughter facility in Roswell have long been delayed; a case in which the American Civil Liberties Union is suing Secretary of State Dianna Duran for allegedly violating open records law by concealing public information regarding alleged voting irregularities; and a public records suit filed against the Attorney General’s Office by self-described animal-rights activist Marcy Britton.
Fuqua has not contributed to any attorney general campaigns.
Lawyer Seth Cohen has a contract good for up to $50,000 to represent the state in a 2010 case in which New Mexico Cost Recovery Management LLC and the Environment Department are suing the Exxon Mobil oil company to try to recover money. In this case, Turner Branch represents New Mexico Cost Recovery Management, a New Jersey-based company involved in environmental lawsuits. Previously, the company won a $5.2 million settlement against Chevron in a dispute over the clean-up of underground storage tanks in New Mexico.
Cohen contributed $100 to King’s campaign for governor last year.
Las Vegas lawyer Jesus Lopez is being paid up to $40,000 for representing the office in a 2011 case in which a rancher named David Stanley is suing several state agencies and two county commissions over disputed land in the White Peak area. There are no records of any campaign contributions to attorney general candidates from Lopez.