And now back to a topic rudely interrupted by the fact that a provincial government that touts itself as one of the most open and accountable in the country wouldn’t even talk about what has the potential to be a multi-million-dollar provincial contract for a St. John’s law firm originally started by former premier Danny Williams.
The contract in question is to be the legal representative for the province in the provincial government’s lawsuit against tobacco manufacturers.
First, a bit of history. In 2002,
the then-Liberal government announced it planned to sue tobacco manufacturers to recover the health-care costs related to tobacco use. At the time, the province hired a Missouri firm, and said it would do the work for a 30 per cent contingency fee — in other words, for every $100 the province got from a settlement or a verdict, the law firm would get $30.
So, what kind of money are we looking at? The province of British Columbia, suing over tobacco use in that province, wants $10 billion. A 30 per cent commission, should that suit be successful, would be $3 billion.
Ontario wants $50 billion. You can do the math.
Here, the only number that the provincial government has ever bandied about is something in the area of $1 billion. With a 30 per cent contingency fee arrangement, that would be a healthy $300-million legal bill.
At the time, then-justice minister Kelvin Parsons said the law firm — Humphrey, Farrington and McClain of Independence, Missouri — would pick some legal help in this province: “They, of course, will be engaging some local counsel here themselves and that’s within their ambit to decide upon who they want to be their local counsel,” he said.
Fast-forward nine years or so, and things have changed. The old deal is off, and the new law firm on the case — instead of being picked by Humphrey, Farrington and McClain — has been hand-picked by the provincial government. The province didn’t ask if other firms were interested and didn’t issue any kind of proposal call.
The choice this time is St. John’s firm Roebothan McKay Marshall, which will consult with Humphrey, Farrington and McClain.
The province has said it picked the firm for straightforward reasons: “The provincial government required a lead counsel who had the necessary capacity to handle this large, complex file, as well as a firm that had the experience required. Roebothan McKay Marshall was retained because of their size as well as their extensive experience with handling complex medical cases and injury claims. … As well, a number of local firms are conflicted as they represent the tobacco industry.”
The new deal has the province also suing for the cost of its legal fees — but it’s hard to establish what kind of ballpark those fees will be in.
Making their pick
How those in government made the decision — and even when it was made — is something the government simply won’t talk about.
Surprisingly, it wasn’t the provincial cabinet.
At least, not officially.
I asked the Department of Justice for a copy of the minute in council that recorded how the St. John’s firm was selected.
The department’s response?
“There is no Order in Council associated with this file.”
A deal potentially worth hundreds of millions of dollars, and cabinet didn’t make the decision?
Here’s the Department of Justice’s response:
“An Order of Council is not legally required for the retention of legal representation. It is in the purview of the attorney general to appoint legal counsel.”
So I narrowed the question
down even more. A deal can be announced any time; signing it is something else. Was it signed last week or last year? I asked simply for the date when Justice Minister Felix Collins signed the contract with Roebothan McKay Marshall.
“The details surrounding the contract with counsel, including date of retention, will be made public at the conclusion of the action. The department is not disclosing the specifics of the agreement at this time, as it is part of an ongoing legal matter.”
Maybe this time it isn’t a contingency deal. But if it’s a straightforward contract (especially because it’s for work being done in future years and it’s not in this year’s budget documents) the province’s Financial Administration Act would require that fiscal pre-commitment to be tabled at the next sitting of the House of Assembly, not at the “conclusion of the action.”
If it’s another contingency deal, the Department of Justice might be able to make the argument it doesn’t have to release details because the amount of money hasn’t been set or paid out, even though in practical terms, it amounts to a multi-million-dollar precommitment.
But leave all that aside: why on Earth would a provincial justice minister be making such a huge deal all by himself?
And more to the point — what’s so important about the date the contract was signed that it’s some kind of state secret?
It would be interesting to ask the minister, except that Collins has refused The Telegram’s requests for interviews. His office says he has nothing to say. Since then, of course, he has agreed to a seven-minute, sit-down television interview on the subject with Rogers’ Television’s “Out of the Fog.”
Perhaps the reason for such reticence can be found in a court case over the last court case: the province laid out many details of the last deal publicly, and Imperial Tobacco sued under access to information legislation, and won, to get the dirt on the deal.
The judge’s verdict? “Having decided to go down the road of wrapping itself in the twin flags of fiscal responsibility and transparency with a view to convincing the public of the appropriateness of its actions, it is not unreasonable to assume that the government was essentially saying that its financial arrangements with its lawyers were an ‘open book’ and should be used as a basis for public judgment on its decisions. As such, it cannot pick and choose as to how much it will disclose in its ‘defence.’ Otherwise, it would be tantamount to saying ‘you can’t see all the evidence; just trust us.’”
You can’t see the deal.
Not even the date it was signed.
Just trust us.
Russell Wangersky is The Telegram’s editorial page editor. He can be reached by email at email@example.com.