Whether a lawmaker has a conflict of interest concerning legislation over lawsuit reform might hinge on how the word "competitor" is defined. It might also come down to whether anyone is willing to pursue a complaint.
Rep. Dan Sullivan, R-Tulsa, is the main conduit for the tort reform effort in the Legislature this session. He has introduced several bills dealing with changes in the legal system that could have a dramatic effect on the courts, lawyers and plaintiffs.
The state House approved Sullivan's House Bill 1602 and moved it on to the Senate, where the debate is sure to be heated, just as it was in the House.
While a potential conflict of interest was not debated in the Legislature, that topic has arisen outside the chamber. HB 1602 calls for a referendum on capping the fees of trial attorneys. The measure places a 33 percent cap on what attorneys could collect on the first $1 million a plaintiff is awarded from either a court judgment or settlement. The cap goes down to 20 percent for any amount that exceeds $1 million.
Sullivan's bill caps the income of attorneys that sit across from him in the courtroom. When he is not debating and voting on bills at the state Capitol, Sullivan is one of the state's top attorneys for defending hospitals and doctors who have been sued.
Sullivan said although he did not check with the state Ethics Commission, he believes there is no conflict of interest.
"I can tell you for one reason it's against my financial interest to offer these bills," Sullivan said. "If lawsuits go down, so do the cases that I defend physicians in. It's not in my financial interest, but I think it's good policy for the state of Oklahoma."
There are specific clauses in the state ethics manual on the topic of conflicts of interest. The first states no legislator shall introduce or vote on bills of monetary interest or that he or she would gain benefit from. However, another clause exempts lawmakers who are members of large professional organizations " like lawyers " where voting on bills of interest would be unavoidable " as long as the bill does not have a greater impact to others in the profession.
Included in the definition of a "reasonably foreseeable benefit" is "detriment to a business competitor to the legislator," according to the ethics manual. In a business sense, a competitor could be someone competing for the same dollars as the legislator.
In the courtroom, Sullivan is not paid by the same person who is suing the doctor or hospital. But, he is competing with the plaintiff attorney over who wins and loses, which could have monetary consequences for the loser.
Sullivan does not hide the fact the aim of his bill is to reduce the number of lawsuits filed against businesses.
"I do not consider that a conflict of interest," Sullivan said. "My attorney fees have been capped for a long time on an hourly basis. There are people that look over my shoulder all the time when I'm defending a physician to make sure I'm not spending more time than necessary, but that I do the job that is necessary to make sure the case is defended."
Sullivan practices with the Pierce Couch Hendrickson Baysinger & Green law firm in Tulsa. On his profile page, where he is listed "of counsel," Sullivan lists medical malpractice and professional negligent defense as his areas of practice. He lists Physicians Liability Insurance Company (PLICO) as one of his clients. PLICO is the largest insurer of doctors in Oklahoma.
Democrat Leader Rep. Danny Morgan, D-Prague, said Sullivan's possible conflict of interest has been discussed within the Democratic Caucus.
"There has been some real concern by some of our members that he is going after a very specific group of people, and those people are on the other side of most of the issues that he's talking about," Morgan said. "It has raised questions by some of us lay members. We haven't really discussed it with the attorneys, but you always have to do that when it looks like one group is being preyed upon by another."
Morgan said the issue of filing an ethics complaint has also been discussed, but downplayed any attempt at it.
Marilyn Hughes, executive director of the state Ethics Commission, said, while many complaints are filed, only a few get investigated.
"We have said in our House FY-10 budget request hearing that approximately 60 percent of the (complaints) are against legislators," Hughes said. "Having said that, there (are) very rarely signed, verified (complaints) filed."
A signed complaint is a notarized document for which a majority of the members of the commission can approve opening an investigation. An unsigned complaint requires a unanimous vote of the commission to open an investigation. "Scott Cooper