TESTIMONY OF THE HONORABLE CHRISTOPHER COX
 
SUBCOMMITTEE ON COURTS AND INTELLECTUAL PROPERTY
 
HEARING ON PROPOSED LEGISLATION TO LIMIT LAWYERS FEES
RESULTING FROM CONGRESSIONALLY ENACTED TOBACCO SETTLEMENT
 
DECEMBER 10, 1997

Overview:


Introduction

  1. Thank you, Mr. Chairman. I would particularly like to thank you for holding these hearings on what we all agree is a very important issue - how to insure that billions of dollars from the tentative tobacco settlement are not diverted away from public health into windfall lawyers' fees.

  2. There are important considerations in resolving this question. The lawyers who have worked on these cases are fully entitled to a fair fee. But we must also understand that their multi-billion dollar fee demands represent funds that would otherwise be available for taxpayers and public-health purposes.

  3. And we must carefully consider the precedent Congress sets in dealing with this aspect of the tobacco settlement. Almost all of the proposed fee agreements between the states and their private counsel involve a novel and dangerous merger of two incompatible concepts: the all-or-nothing contingent fee, which gives lawyers a personal financial stake in the outcome of a lawsuit in return for giving the poor access to the courts, and the nearly unlimited power and resources of the state, the use of which should never be prejudiced by lawyers' financial self-interest.

  4. Congress should expressly address this aspect of the settlement through legislation. The states that have made contingency fee arrangements are now seeking to repudiate them; the lead attorneys that entered into them are now reportedly willing to see them replaced by arbitration; and the courts that have reviewed them have found them unconscionable. The states and the contingency-fee lawyers freely concede that the settlement cannot go forward without federal legislation, making Congress itself a party to the settlement. Yet the contingency-fee lawyers would invoke Congress' jurisdiction and authority over all major aspects of the settlement except their billion-dollar fee demands.

  5. The quantum meruit fee allowance provided for in the McInnis-Cox-McHale bill is a far more reasonable approach that will direct as much as possible of the potential settlement fund to taxpayers and public health.

    Our Long-Standing Legal Tradition Abhors Lawyers' Financial Interest in Litigation

  6. One of the oldest traditions in Western law is the prohibition on lawyers' having a financial interest in the outcome of litigation. This prohibition has its roots in Greek and Roman law, which under the offenses of "sykophanteia" and "calumnia" barred the same abuses that later became known to the common law as maintenance, champerty, and barratry. [1] These common-law torts, which in the case of maintenance and champerty were also crimes until as recently as 1967 in England [2], all originally involved instigation of vexatious suits by non-parties - in the case of champertors, by persons acting for pecuniary gain. [3]

  7. Because a financial stake in the outcome of a lawsuit creates an inherent conflict of interest with the lawyer's role as an officer of the Court, contingency fees were originally prohibited in Anglo-American law as champertous, along with all other arrangements that would give a lawyer a financial interest in the outcome of his case. These prohibitions are based on the fear that a contingent fee structure can interfere with the lawyer's exercise of independent judgment on the client's behalf, as well as create a divergence or conflict of interests between the contingent-fee attorney and his or her client. These conflicts of interest can take the form of unfair fee contracts based on the attorney's superior legal sophistication; unfair or premature settlements, in which plaintiffs' attorneys settle a case for less than its fair value in order to avoid incurring litigation expenses; or even collusive settlements, in which defendants settle cases on terms that enrich plaintiff's counsel but do little or nothing for their clients. In addition, the traditional bar on contingency fees is at least in part rooted in the concern that an all-or-nothing financial stake in the outcome will lead lawyers to engage in unethical behavior, to the detriment of their clients or society as a whole.

  8. As a result of these concerns, contingency fees were traditionally deemed unethical, and they remain unlawful in the United Kingdom and most of the rest of the world to this day. [4]

  9. In the United States, however, the contingent-fee device gradually became accepted as a narrow exception to this ancient canon of ethics, for one simple reason: to give the poor access to the courts. It was permitted as a "necessary evil," designed to "enabl[e] the poor man with a meritorious cause of action to obtain competent counsel." [5] As such, Ethical Consideration 2-20 of the American Bar Association's Code of Professional Responsibility stated that "a lawyer generally should decline to accept employment on a contingent-fee basis by one who is able to pay a reasonable fixed fee," although such arrangements were "not necessarily improper where justified by the particular circumstances of a case" and after full disclosure of all relevant factors. The ABA's subsequent Model Rules of Professional Conduct maintain the broad common-law prohibition against acquiring an interest in the client's cause of action or the subject matter of litigation, and permit contingency fee arrangements only as a narrow exception to the general rule: the Comment and Rule in Model Rule 1.5(c) of the ABA's Model Rules permit contingency fees, but require the sort of full disclosure and other consumer protections that make it clear that this device is still primarily justified as a means of assisting those with limited resources to gain access to courts. [6] Even as so limited, contingent fees continue to be proscribed in a variety of cases, including domestic relations, criminal defense and legislative representations. And the disfavored status of contingency fees is demonstrated by the fact that courts subject contingency fee arrangements to "stricter scrutiny than other types of contracts, including fee contracts based on other methods of computing and paying the fee." [7]

    States Do Not Need Contingent-Fee Lawyers

  10. It is not surprising that states have seldom been contingent-fee litigants. Sovereigns are of course not the type of indigent plaintiffs for whom the contingent-fee device was designed: both the federal government and all the states maintain permanent staffs of attorneys to prosecute and defend their interests in court. Indeed, four of the state plaintiffs - California, Colorado, New Hampshire, and Missouri - are pursuing their claims with their own in-house attorneys. Nor do states need to spread the risk of defeat in litigation, a secondary justification for such fees. Because they have a large portfolio of litigation at all times, they are the ideal self-insuring litigants.

  11. Their counsel, also, have few if any of the traditional justifications for entering into contingent-fee contracts. The contingency that the term "contingent fee" refers to is not the risk of defeat in court, but the risk of non-payment by the client. Where the client is a sovereign, that risk is non-existent. When the fees are achieved by virtue of federal legislation, they are still less contingent, and it is questionable whether they have been secured by a litigation process in any meaningful sense of that term.

  12. In some respects, however, it might seem that states should be able to avoid at least some of the pitfalls of the contingency-fee device. At a minimum, they should be sufficiently sophisticated to avoid unfair fee contracts or disadvantageous settlements. And they have sufficient bargaining power to deal on equal economic terms with their private lawyers. Nevertheless, the story of the tobacco litigation to date might have been designed to illustrate the limitations and risks of the contingent-fee device.

    The Costs of Contingent Fees Without the Benefits

  13. Each of those risks has already manifested themselves in this litigation. First and foremost is the risk of a divergence of interest between the contingent-fee lawyer and his or her client. As you know, a number of the contingent-fee lawyers involved in pursuing Florida's lawsuit against the tobacco industry have placed liens on the proceeds of the settlement in that case in an attempt to secure the full one-quarter of the prceeds that the state's contingent-fee contract provided, preventing Florida - their supposed client - from receiving the first $750 million installment in settlement funds - monies that were supposed to advance public health. [8]

  14. The second risk in contingent-fee cases is that the attorneys' fees will not bear any reasonable relation to the work that the lawyers have invested in the case. In the Florida case, Judge Harold Cohen rejected the contingency fee agreement, ruling that the lawyers' demands were "unconscionable and clearly excessive." In his decision, the judge estimated that the requested fees would yield an hourly rate of approximately $7,716, assuming that each lawyer on the case billed 24 hours a day for the full 42 months the case went on. [9] Estimates of the attorney's fees provided for under the existing state contingent-fee contracts range from $14 -19 billion, while the $92 billion settlement of tort claims could generate more than $30 billion in fees under standard contingent-fee arrangements for a 33 share of any recovery.

  15. It is specious to argue that these $45-55 billion in fees are not being diverted out of the funds available for public health and taxpayers. The tobacco industry is willing to pay a certain sum to get rid of these cases. That sum is the total cost of the payment to the plaintiffs and their lawyers. It is a matter of indifference to the industry how that sum is divided - 75% for the plaintiffs and 25% for their lawyers, or vice versa. That means that every penny paid to the plaintiffs' lawyers - whether it is technically "in" the settlement or not - is money that the industry could have paid to the states or the private plaintiffs. Excessive attorneys' fees in this case will not be a victimless crime.

  16. For whatever reason, Mr. Chairman, these sophisticated litigants do not seem to have engaged in particularly hard bargaining with their lawyers. After analyzing all the state fee agreements, Professor John Strait of Seattle University Law School told the Seattle Times recently, "What I don't understand is why the other attorneys general didn't [negotiate better contracts]. We're not talking about groundbreaking techniques in negotiations. It's just odd that so many went with vague definitions and large fee amounts." [10] It may be that here, as in so many cases, governments proved unable to drive the kind of hard bargain that a profit-driven business would. It may be that the renowned political clout of these wealthy law firms played a part: the 89 firms in question reportedly contributed $3.8 million to federal candidates alone over the past two years. [11] In any case, it is surely revealing that the states themselves are now seeking to replace their fee contracts with some arbitration mechanism, on the grounds that the contracts would generate grossly excessive fees. At a minimum, I hope that the Subcommittee will look into the question of whether any of these contracts were competitively bid before deciding that they represent a free-market valuation of the risks of this litigation.

  17. The final risk traditionally associated with contingent-fee contracts - that they would provide an irresistible incentive for improper conduct - has already been alleged by some of the plaintiffs' lawyers themselves. The press has reported that in the Florida litigation alone, one of the state's lawyers has sued another alleging collusion with the defendants; another of the state's private lawyers is being investigated for allegedly loaning a state employee some $30,000 as a quid pro quo for being retained as one of Florida's lawyers; and that same lawyer recently testified before a Committee of the Florida Senate that a Texas firm that did no work on the Florida case was going to receive $20 million in fees for it in violation of the state's bar rules. He also testified that some of the state's private lawyers "were involved in a nationwide cartel trying to control legal fees." [12]

    The Unholy Alliance: Contingency Fees and the Power of the State

  18. But state contingency-fee agreements are worse than merely unnecessary, and they involve dangers far greater than private contingency-fee arrangements. State and federal sovereigns are not ordinary litigants in any sense. First and foremost, they have a higher responsibility than private litigants and counsel. Government lawyers are properly held to a higher standard of advocacy than private counsel. And while most private parties have no higher motive than to recover the largest possible amount of money in any given case, government has key non-monetary interests - including, first and foremost, seeing justice done in every case. On the wall outside the office of the Solicitor General of the United States the following inscription appears: "The United States prevails whenever justice is done." State sovereigns share, or ought to share, that philosophy. And state and federal officials have programmatic goals that go beyond maximizing monetary recoveries - particularly in cases like this, which state officials rightly insist is about much more than money. At the federal level, the Appointments Clause, Clause 2, Section 2 of Article II of the Constitution, guarantees that only politically responsible advocates can make litigating decisions for the United States. But when states contract out their litigating authority to a contingent-fee lawyer, they automatically create a profound agency problem: the conduct of the litigation is in the hands of lawyers whose direct personal interest is in maximizing the state's, and thereby their own, monetary recovery. It is simply unrealistic to believe that such agents will give sufficient weight either to the sovereign's abstract interest in justice and the highest standards of advocacy, or to the sovereign's non-monetary policy objectives in pursuing litigation.

  19. Moreover, sovereigns possess a wide array of coercive authorities outside the civil-justice system that can be used or abused to further their cause in civil cases, such as parallel criminal, administrative, or legislative proceedings and investigations, abuse of government records, misuse of taxing authority, attempts to leverage contracting or grant-making power, or simply the bully pulpit. [13] The existence of all these forms of extrajudicial leverage is a moral hazard for any government litigator, particularly in a high-stakes case. But when the sovereign's litigating authority is subcontracted not just to a private lawyer but to a private lawyer subject to the extraordinary incentive of personally participating in billion-dollar jackpots, the moral hazard becomes intolerable. In such cases, the contingency-fee device ensures that an actor motivated solely by the allure of staggering personal wealth will be heard in the highest councils of the government. Ironically, almost two millenia ago Roman law found it necessary to outlaw a particular form of champerty whereby, to quote Professor Radin, "a claimant offered to give, or actually gave, a share in his claim to the Imperial Treasury (the fiscus). The fiscus had far-reaching procedural privileges and in general was so powerful a plaintiff that its claims were rarely resisted. Evidently, if this transfer was accepted, many a dubious claim would be recovered, and the claimant might well be satisfied with half. A series of enactments forbade this particularly knavish fashion of sharing ill-gotten gains with the state." [14] Almost eighteen hundred years later, the Supreme Court ruled in the case of Tumey v. Ohio (273 U.S. 510, 1926) that a defendant's right to due process is violated when he or she is tried in a court that receives its own fees out of the fines that it levies. The Court surveyed American and English common law, finding "no usage at common law by which justices of the peace or inferior judicial officers were paid fees on condition that they convicted the defendants." Instead, the Court observed that "there was at the common law the greatest sensitiveness over the existence of any pecuniary interest, however small of infinitesimal, in the justices of the peace." (273 U.S. at 525).  Mortgaging the sovereign's litigating authority to lawyers with an enormous stake in the recovery approaches the same level of abuse.

  20. A final flaw when states litigate through contingent fees is the absence of political accountability. Since lawmakers do not need to appropriate funds for litigation on contingency, there is far less likelihood that state legislatures will be able to scrutinize the decision either to hire private lawyers or to pursue the lawsuit in question. In this case, for example, the Attorney General of Mississippi hired Richard Scruggs on a contingency-fee basis for precisely that reason, with full knowledge that the governor and legislature would not have approved it. As Attorney General Moore has conceded, "I knew I wouldn't be able to spend taxpayer dollars on this." [15] Whether or not these arrangements formally violate state constitutional restrictions on off-budget financing, they violate the spirit of democratic government, which requires political accountability for policy decisions.

    A Better Solution: Fees That Reflect the Public Interest

  21. In short, state use of contingency-fee contracts is inherently abusive in principle, and has proven intolerable in the current case. What should Congress put in its place?

  22. The plaintiffs' bar would prefer that Congress do nothing concerning their fees, leaving the issue for resolution through a side agreement between the parties - which may or may not already exist, but which has not been disclosed to the public or Congress. It reportedly contemplates some type of binding arbitration, possibly combined with an annual cap on total payments. In support of this outcome plaintiffs' lawyers argue that principles of federalism and freedom of contract militate against federal legislation in this area. And yesterday Attorney General Moore argued before the Commerce Committee that advocates of the full recovery rule - the so-called "loser pays" or English rule - should be particularly reluctant to tamper with these fees, which he regards as the fruits of a litigation victory. These arguments are each without merit.

  23. First, there is every reason to believe that unless Congress authoritatively settles the fees issue it could obstruct any larger settlement. As we have seen, disgruntled Florida attorneys have already delayed disbursement of three-quarters of a billion dollars to the state in attempting to enforce their original contracts. With so many more billions of dollars at stake in a national settlement, why should we expect greater forbearance from lawyers in each of the other thirty-nine states involved in the settlement? Second, as I mentioned previously, any funds paid by the tobacco industry to opposing counsel are by definition monies that the industry could have paid to the states and injured plaintiffs as part of the settlement. The lawyers' fees simply reduce the size of the settlement that the states need to cover the costs that inspired these suits in the first place. If Congress is to act at all in this area, there is no reason why we should not look at the totality of the fund available to resolve this dispute.

  24. That, of course, is also the reason why the plaintiffs' federalism arguments are without merit. The parties to these suits - including the states - have invoked Congress' authority to codify their settlement. They freely concede that without congressional action the settlement cannot become effective. They have yet to explain why it is appropriate to federalize almost every significant aspect of the settlement except the fees of the attorneys involved in it.

  25. The liberty of contract argument likewise ignores decisive facts. Courts already strictly scrutinize contingency-fee contracts, and freely revise them if they are found to be unfair. And Congress, at the plaintiffs' urgent request, is now considering whether to supersede the judicial function with respect to almost every other aspect of these cases. The plaintiffs themselves are now actively seeking to abrogate the existing fee contracts in this case, and to replace them with arbitration agreements. Many decades ago Justice Holmes observed that people could not withdraw subjects from federal jurisdiction by making contracts about them. If that is true of pre-existing contracts, it is greatly more true of shadowy arbitration agreements that apparently have not yet been signed.

  26. Finally, although I strongly support the full recovery rule, I am utterly at a loss as to how it could justify the multibillion-dollar fees being discussed. The rule means what it says-that litigants are made whole for their injuries, including their legal expenses. When someone can demonstrate to me that the states' trial lawyers incurred legal fees of $7,000 an hour, I will concede that their lawyers deserve that level of recompense.

    The McInnis-Cox-McHale Bill (H.R. 2740)

  27. Rather than leave the fee-setting to an unaccountable body of arbitrators, we in Congress have the responsibility to ensure that we are voting for a fair and knowable outcome rather than a process. At some point in this process, some politically accountable body finally needs to take responsibility for legal fees that, at a minimum, will run into tens or hundreds of millions of dollars.

  28. The McInnis-Cox-McHale legislation (H.R. 2740), with its $150 per hour rate, represents a fair accommodation of the conflicting interests in this case. Unlike the existing contingent-fee contracts and the reported arbitration proposals, it genuinely applies the full-recovery rule, ensuring that plaintiffs and their attorneys recover their appropriate expenses.

    Existing Fee Limitations

  29. The fees provided in the McInnis bill are consistent with the fee contract entered into by the only state that provides for specific hourly rates, Maine, whose fee agreement provides $150 per hour for partners and $120 per hour for associates, with a further cap on total allowable fees, which cannot exceed 13% of the proceeds. And it is consistent with previous legislative attorney's fees. The Sessions Amendment to the Labor-HHS appropriation provided for a somewhat higher fee of $250 per hour. But under the Criminal Justice Act, 18 U.S.C. 3006A, criminal defense attorneys are limited to $60 an hour for time spent before the court and $40 an hour for preparation time, though they may seek court approval for fees of up to $75 an hour; their fees are further capped at $3500 per case for felonies, $1000 per case for misdemeanors, and $2500 per case for appeals. The Equal Access to Justice Act, 28 U.S.C. 2412, provides for fees consistent with prevailing market rates, but caps those rates at $125 an hour, unless higher fees are specifically justified by an unusually high cost of living or a limited availability of lawyers capable of pursuing the litigation. Just last month, as part of the FY 1998 Commerce-Justice-State Department Appropriation Act, Congress included these limits to attorneys fees awarded under the Murtha Amendment to certain prevailing federal criminal defendants. The Internal Revenue Code, 26 U.S.C. 7430, permits awards of attorneys fees to certain prevailing parties in tax cases, but caps them at $110 per hour. Although these statutes cover payments from the federal treasury, I do not see why we should be more protective of the fisc than of state taxpayers and public health.

  30. Obviously no method of calculating fees will be entirely satisfactory. An hourly rate will only roughly account for the higher risk of the earlier lawsuits, in that it will reward those who have worked the largest number of hours. But other alternatives like a set percentage are more arbitrary, whether the percentage chosen is large or small; and codifying an arbitration process simply dumps all of these problems in the lap of a third party - as well as continuing the process of political evasion that has characterized these cases from the outset. Under these circumstances, a set hourly rate seems the best - or perhaps the least bad - option.

  31. Finally, I should add that a legislated rate like the McInnis bill is entirely appropriate as a stand-alone bill, even without legislation codifying a global settlement. As I mentioned earlier, settlement legislation without a fee provision could easily result in an obstruction of the settlement; stand-alone fee legislation could facilitate either a codified settlement or a judicial resolution. And stand-alone fee legislation, by limiting the diversion of resources to attorneys, can enhance the resources available to the parties themselves.

    Constitutionality of the McInnis-Cox-McHale Bill

  32. I addressed earlier the constitutional objections to any federal fee legislation. I will offer only a few additional observations on specific issues relating to the McInnis-Cox-McHale bill. I am quite sanguine about the constitutionality of a stand-alone federal fee bill. The transfer of tens or hundreds of millions of dollars - much less billions or tens of billions of dollars - from the tobacco industry to the plaintiffs' bar would have clear, direct, and demonstrable effects on interstate commerce - particularly given the fact that such fees would necessarily reduce the monies available to address tobacco-related public health issues that even more clearly implicate interstate commerce. In my view, these facts bring the fee transaction itself comfortably within the scope of Congress's regulatory authority under the Interstate Commerce Clause. And even if they did not, it is well established that Congress may, if it chooses, address aspects of interstate commerce in a piecemeal fashion rather than comprehensively.

  33. I also believe it is clear that the McInnis-Cox-McHale bill is consistent with the Tenth Amendment. The McInnis bill regulates all attorneys' fees in the tobacco cases, both those of the states and those of other plaintiffs. As a result, it is not federal regulation of states as states, but rather the application of a general rule to both the states and the private plaintiffs. Accordingly, it is completely consistent with both New York v. United States (505 U.S. 144, 1992), and Printz v. United States (117 S.Ct. 2365, 1997), which condemn federal commandeering of state governments.

  34. Like several other members of the Committee, I disagree with the Supreme Court's holding in Garcia v. San Antonio Metropolitan Transit Authority (469 U.S. 528, 1985), which held that Congress could impose virtually any restriction on the states so long as it was part of a rule of general applicability. Under Garcia, of course, there is no question but that the general rule set out in the McInnis bill is constitutional. I believe that the Court was instead quite correct when in National League of Cities v. Usery (426 U.S. 833, 1976), it invalidated the application of even general rules if they interfered with "functions essential to [the States'] separate and independent existence." In Usery, the Court struck down the application of federal wage-and-hour laws to state employees as such an intrusion on "traditional governmental functions." But although prosecuting state interests in court is almost certainly a traditional state function, entering into contingency-fee agreements to do so is clearly not. As discussed earlier, these agreements are quite rare and recent, and cannot be considered core functions that are essential to the states' independence. Therefore, even under a more exacting standard the McInnis bill would pass Tenth-Amendment muster.

  35. The questions of taking lawyer's property and impairing their contracts appear to be equally clear. It is of course true that Congress may constitutionally take private property, although such takings must be compensated. And the Supreme Court has been extraordinarily permissive about legislation that retroactively alters private contracts - more permissive than I believe it should be. [16] I personally could not conscientiously urge Congress to enact legislation that purported to limit attorneys' fees but actually only shifted them to federal taxpayers in the form of liability for a taking. And I would be loath to endorse legislation revising vested contractual interests, no matter how justifiable the cause. Fortunately, the McInnis bill does neither.

  36. The attorneys' fees in this case will accrue if, and only, there is a favorable resolution. To date there has been a global settlement whose viability depends on as yet unenacted federal legislation, and state settlements in Mississippi and Florida that themselves nullify the pre-existing fee agreements. In other words, the contingencies specified in the fees contracts have simply not occurred, and they have accordingly conveyed no vested interests that could be taken or impaired.

    Conclusion

  37. Congress will set a critical precedent in this case, whether by action or inaction. We can either step up to the plate and take political responsibility for a key aspect of the settlement, or we can continue the course of evasion and irresponsibility that has characterized the fee issue to date.


    Endnotes


  38. 1 See Max Radin, Maintenance by Champerty, 24 Cal. L. Rev. 49, 51, 53 (1935).

  39. 2 See id. at 67; Charles W. Wolfram, Modern Legal Ethics 8.13, at 489.

  40. 3 Radin, supra, at 67.

  41. 4 Wolfram, supra, '9.4 at 526-27.

  42. 5 Alfred D. Youngwood, The Contingent Fee - A Reasonable Alternative, 28 Mod. L. Rev. 330, 333 (1965).

  43. 6 Indeed, the Comment to Model Rule I.5(c) specifically quotes Ethical Consideration 2-20 of the Code for the proposition that the two "bases for permitting contingent fee arrangements" were that such arrangements were "often...the only practical means by which [one party] can economically afford, finance, and obtain the services of a competent lawyer...and successful prosecution of the claim produces a res out of which the fee can be paid." American Bar Association, Annotated Model Rules of Professional Conduct, at 62 (citations omitted). The second condition is of course directly related to the first.

  44. 7 Wolfram, supra, '9.1 at 498.

  45. 8 Peter Katel, Spoils of Law, Newsweek, Dec. 8, 1997, at 53, 55.

  46. 9 The State of West Virginia's contingent-fee contract has already been invalidated by the State's court as unconstitutional.

  47. 10 Lawyers Could Get Billions in Tobacco Deal, Seattle Times, Oct. 5, 1997, at A1.  "Private lawyers representing 40 states in their suits against the tobacco industry stand to get more than $14.7 billion over 25 years if the national settlement between the states and cigarette makers is approved by Congress and the White House, a Seattle Times analysis shows."

  48. 11 Id.

  49. 12 Katel, supra, at 54, 55.

  50. 13 For example, hearings before the House Commerce Committee's Oversight and Investigation Subcommittee in 1995 revealed that the Food and Drug Administration had collaborated with plaintiffs' lawyers litigating a private suit over the safety of spinal screws. In violation of a court order, the FDA released boxes of documents containing the names of the doctors who had participated on a confidential basis in FDA studies. Because the doctors had been concerned that their participation would leave them open to lawsuits, the information was considered highly sensitive and was kept at the FDA in encoded form. Nevertheless, the documents were turned over with the key to trial lawyers. After the information was leaked, there was a four-fold increase in the number of doctors subpeonaed. And this improper use of data collected outside the litigation occurred when the federal government was not even a party to the lawsuit.

  51. 14 Radin, supra, at 55.

  52. 15 Michael Orey, Fanning the Flames, Am. Law., April 1996, at 52.

  53. 16 See, e.g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976).
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