How many people would retain a lawyer who took millions of dollars from their litigation opponents? The Texas Attorney General–who takes millions of dollars in political contributions from lawyers and litigants to win office–operates with such conflicts every day.
Leading Texas Attorney General candidates Greg Abbott and Kirk Watson collectively are expected to raise at least $20 million for the November election–twice what their predecessors raised in 1998. As in the last race, most of this campaign money is expected to come from attorneys and other special interests that face actual or potential litigation with the attorney general’s office. The biggest sources of the more than $10 million that current Attorney General (and U.S. Senate candidate) John Cornyn raised in his AG campaigns, for example, were the energy industry ($2 million) and lawyers and lobbyists ($1.7 million). Similarly, the top donors to Cornyn’s 1998 opponent, Democrat Jim Mattox, were lawyers and lobbyists ($908,934), real estate and insurance interests ($201,025), and the energy industry ($90,200).
Given this torrent of special-interest money, conflicts are inevitable. Austin trial lawyer Joe Crews, who headed former Attorney General Dan Morales’s Consumer Protection Division, recalls that businesses and lawyers regularly sought to influence the Office of the Attorney General and “conflicts arose every five minutes every day.” Former Texas Bar President Wayne Fisher alleged in a deposition this spring that when his firm sought to become part of the state’s tobacco litigation team, Morales asked for $1 million in campaign contributions in return. And After receiving $193,000 from Enron’s PAC and executives, Attorney General John Cornyn recused himself this year from his office’s investigation of the Enron accounting and energy manipulation scandals. Yet recusal from high stakes cases rarely occurs.
While contribution conflicts dog every branch of Texas government, the Attorney General is unique. As the public’s attorney, he or she owes the public a professional duty of undivided loyalty. The Texas Rules of Professional Conduct bar a lawyer from matters in which they have a conflict with their client unless the attorney:
Reasonably believes that the conflict will not materially affect his or her performance;
Fully discloses the conflict; and
Obtains the client’s consent.
Whether motivated by personal scruples or fear of legal malpractice lawsuits, good attorneys studiously avoid such conflicts altogether.
Unless they happen to be the state’s top lawyer. If the attorney general were to comply even minimally with the Texas Rules of Professional Conduct, then he or she would have to disclose contributions from any opposing party or lawyer before getting involved in litigation. The attorney general would then need to obtain the consent of the public or the state agency that he or she is representing. Yet Texas attorneys general have never disclosed these conflicts in this way.
One solution to this conundrum is public financing of attorney general campaigns. Such elections would resemble those of Arizona and Maine, which publicly finance all statewide and legislative races. To qualify for public financing, attorney general candidates would have to collect signatures and modest contributions from a significant number of registered voters. They also would have to agree to forswear other contributions and to abide by voluntary campaign-spending limits.
It is bizarre that Texas’ top lawyer does not abide by the Code of Professional Conduct that every other attorney in the state is expected to follow. Texas’ current attorney general campaigns are incompatible with this code. Public financing would eliminate this contradiction and ensure that the state’s top lawyer works for the public, not the powerful.
Fred Lewis practiced civil litigation for the Office of the Texas Attorney General (1989-1994) and in private practice before founding Campaigns for People, a non-partisan, non-profit that works on state campaign and ethics reform.