As a former attorney general, I have been disappointed to see our current Attorney General Henry McMaster so unfairly criticized for accepting campaign contributions from lawyers who serve as "special counsel" to the state.
For reasons I shall summarize in a moment, those contributions are perfectly legal and proper. But more importantly, we as taxpayers ought to be applauding the excellent legal team Henry McMaster has assembled for the enormous fraud and deceptive marketing case against the drug giant Eli Lilly over the antipsychotic drug Zyprexa. After all, those lawyers are working for us. And they are working for free.
That's right. They accepted their appointments as special counsel on a contingent fee basis, meaning that neither the attorney general's office nor the taxpayers of South Carolina will ever pay them a penny, win or lose.
The only way they receive compensation or recover the thousands of dollars they have spent of their own money on investigation, expenses and expert witnesses is if the state wins the case. If we win, Eli Lilly will pay special counsel their costs and fees and pay the state thousands or even millions of dollars in damages.
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These kinds of legal teams are assembled by attorneys general around the nation for good reasons: economics and practicality. It often costs hundreds of thousands of dollars to build a case against a multi-billion-dollar giant such as Eli Lilly - dollars most state budgets simply cannot afford. Also, lawyers who serve as special counsel bring special skills to the particular cases involved.
It is no surprise that some of the attorneys who have served our state as special counsel have, over time, given campaign contributions to Attorney General McMaster. Many other lawyers have done the same, including Eli Lilly's own S.C. attorney. Even as a Democrat, I too have supported Mr. McMaster.
Private attorneys of all stripes contribute to their attorney general. Most of our state's more than 12,000 attorneys apparently thought Attorney General McMaster was doing a good job, because not a single one of them volunteered to run against him in his 2006 re-election campaign.
In the Eli Lilly case, just days before the trial, lawyers for the drug company questioned the ethics of those campaign contributions to the attorney general, in an effort to disqualify his legal team. The judge rejected Eli Lilly's argument, ruling that the contributions were legal.
The judge clearly explained why the law that prohibits government contractors from making campaign donations to an official who awarded the contract does not apply to the attorney general's special counsel.
First, there are no government funds involved. Also, if a defendant's lawyers can contribute to the attorney general, the judge wrote, a plaintiff's lawyers ought to be allowed to do the same. Finally, the ethics rules of the state Supreme Court strictly govern attorneys and what they do, and even Eli Lilly conceded that none of those ethics rules have been broken. (Moreover, the contributions have not affected the Eli Lilly case in any way.)
Our state laws and constitution give our attorney general broad authority in doing the people's business. Attorney General McMaster has done it exceptionally well. In this case he has accused Eli Lilly of violating our laws by secretly promoting and selling the drug Zyprexa for unapproved and unauthorized uses, making more money for Eli Lilly but costing the state's taxpayers millions of dollars through Medicaid and the state insurance health plan and driving up health costs.
I applaud the attorney general for bringing this difficult, complex case. I don't mind a bit if Eli Lilly pays his special counsel their attorneys' fees and costs. I just hope we win the case.