Dan Morales wants Texas to reopen its multibillion-dollar tobacco litigation, suggesting the state might be able to claim all or some of the $3.2 billion awarded to outside attorneys in that case.
So far, nobody seems to be listening.
At another time in the former state attorney general’s career, this would be the stuff of packed news conferences, lights, cameras and headlines. He was part of a generation of elected Texas Democrats who once appeared to be on their way to the offices that are instead occupied exclusively by their Republican contemporaries. He was a star, a former legislator elected statewide in 1990, re-elected in 1994 and basking, at his peak, in the sort of attention today’s statewide officials attract.
But Morales fell, and fell hard. He pleaded guilty in 2003 to charges of filing a false tax return and mail fraud, and admitted to altering and forging government records to benefit himself and others. He did prison time, lost his law license and watched his promising political career blow away.
Instead of carrying instant credibility, he has become one of those people who walk into law offices and newsrooms hoping to generate some interest in their boxes of documents and complicated stories about things gone awry.
One problem is that his tale hinges on documents sealed by federal court order. Morales, as attorney general, hired a gang of prominent trial lawyers to sue big tobacco companies, alleging that their products had done billions in damage to the health of Texans who had to be treated, at taxpayer expense, through Medicaid.
To make a long story short, they won. State and local governments here got $17.3 billion. The legal fees amounted to $3.2 billion. The state has a room full of documents from the case, but the lawyers got a federal judge to lock their working papers away, under protective seal.
Part of what got Morales in trouble was his attempt to get his hands on some of that award, both for himself and for another attorney he had retained to work on the case. During the criminal proceedings, he got a look at those now-sealed documents that he believes the state’s attorneys have never seen.
This gets strange. Because those documents are under federal seal, he says he can’t talk about the contents. In fact, he tried to send some of those documents to Attorney General Greg Abbott, who didn’t open the package for fear of violating a federal judge’s order.
Morales is hoping the state’s lawyers will ask the courts to let them have a look. He points to a 1999 Texas Supreme Court decision concerning the duties of lawyers to their clients. In that case, which incidentally involved some of the same lawyers who handled the state’s tobacco settlement, the court ruled unanimously that a lawyer might be required to forfeit all or part of a fee for breaching fiduciary duty to a client — even if the client didn’t suffer financial harm.
There is no evidence that anybody did anything in the tobacco case to hurt the state’s interest — save Morales and the other lawyer who went to prison. But here stands Morales, waving Burrow v. Arce in the air and suggesting noisily that the tobacco case documents sealed by the federal court might be of interest to the state. Wink, wink.
Just because Morales did time in federal prison does not mean he is wrong. And just because he was a two-term Texas attorney general does not mean he is right. It seems pretty safe to call him an unreliable narrator.
Still, it is interesting that he thinks the state might be able to snag a lot of money here. And for a group of Republican politicians who love to nip at the ankles of trial lawyers, the prospect of unraveling a large and historic set of legal fees has to be tempting.
This would be simple to sort out if the documents were available. A reliable snitch could make it more believable.
That second problem, with apologies to Morales, has no easy remedy. But the first one does, if the federal judge will let the lawyers for the state have a peek.
Who knows? Maybe it’s nothing.