Quin Hillyer: Why the wetlands lawsuit is pure poison

Environmental plaintiffs’ attorney Gladstone Jones is taking Louisiana taxpayers for a very bad ride. Author/activist John Barry gave Jones the keys. Even if their intended destination is laudable, their chosen vehicle and operation thereof have both been unconscionably reckless.

While serving on the Southeast Louisiana Flood Protection Authority-East (SLFPA-E), Barry led the effort to hire Jones to file an absurdly sweeping lawsuit against various oil companies, trying to get them to pay Louisiana gazillions (approximately) of dollars for their role in despoiling Louisiana’s wetlands.

The scope of the lawsuit’s demands is virtually limitless. So too, we now find out, is the scope of the payments that can be claimed by Jones and his compatriot lawyers. The attorneys will benefit by a so-called a “poison pill” that Barry deliberately inserted in their contract, as a means to discourage abandonment of the suit — by putting taxpayers on the hook for many millions in legal fees.

Those bills keep rising. Despite a recent law passed to the contrary, Jones vows to challenge the law (whose legitimacy merits a separate column). He told The Lens last week that the lawsuit “is barely close to even starting.” So says the lawyer with no direct fiduciary obligation to the taxpayers who could be forced, through the levee board, to pay for the suit.

Barry, meanwhile, has the gall to complain about how the state Legislature passed a bill clarifying that levee authorities (and other like agencies) have no independent power to file lawsuits of this kind. Although the bill was widely and publicly debated, Barry claims lawmakers did not provide proper “public notice” when moving the bill between committees.

This is rich, coming from the man who engineered the suit, and the awful terms of the contract with the lawyers (more on those terms momentarily), behind closed doors, without notice or public bid. (Barry assured me that three expert attorneys in public bid-and-notice requirements advised the board that its procedures were legal. But what’s legal isn’t necessarily what’s right.)

The suit, Barry’s brainchild from the start, apparently had been in the works for more than six months, with only one extremely vague reference in the levee board’s minutes before June 2013. For example, neither the board nor its official Legal Committee (the latter of which didn’t even meet) discuss any such lawsuit in May.

The agenda for that June’s meeting said nothing concrete about a suit, but it did, again vaguely, list an “executive session” to discuss some unnamed “future litigation strategy” — about which the official Legal Committee also failed to meet in June.

The full board did indeed go into executive session partway through its public June meeting — to do what, the public had no idea — and then emerged with a resolution, unadvertised in advance, to contract with the law firm of Jones, Swanson, Huddell and Garrison, “regarding claims for damages due to land loss and erosion,” with the contract made “on a contingency basis.”

Even that resolution said nothing about suing energy companies. And it said not a word about any alternative fee arrangement, under any condition, in lieu of the publicly described pure contingency arrangement.

Yet now we’re told the actual contract required payment of hourly fees — ranging from $200 to a disgustingly high $800 — if the suit for any reason is abandoned before reaching a resolution. It’s quite a nice present for Jones and his legal team, at Barry’s instigation.

As far as my experience tells me, the provision (Barry himself called it the “poison pill”) is quite unusual.

Jones has said his firm already has done 14,000 billable hours of work on the case. That boggles the mind. The suit was filed just a year ago this week. Seven attorneys each would need to bill 40 hours weekly, for 50 full weeks, to amass 14,000.

Either way, the contract’s poison pill — for a suit never debated in public by the levee authority, via lawyers hired without public bid, under terms that could cost taxpayers many millions of dollars — is one of the most irresponsible provisions in a government contract that I’ve seen in 35 years as a journalist and congressional aide.

It’s inexcusable, and common decency should make it unenforceable.

New Orleans native Quin Hillyer is a contributing editor for National Review. You can follow him on Twitter, @QuinHillyer. His email address is qhillyer@theadvocate.com, and he blogs at blogs.theadvocate.com/quin-essential.