How Tort Law Firms Take Over State Attorney Generals
If the Process in Michigan is not Illegal, It’s Certainly Unethical
Should American State Attorney Generals (AGs) be subcontracting their responsibilities to self-interested tort law firms?
Once they get used to letting other people do their work for them, should state justice officials be allowed to let these law firms determine the work programs they bid for?
And should tort law firms, the greediest, most Machiavellian and least transparent of the law practices, be in charge of carrying out judicial processes in their entirety on behalf of the state?
In all of these cases, the answer is clearly ‘No!’ Unless you are the Michigan Attorney General, Dana Nessel, and then this situation fits perfectly within the politicized structure she is nominally leading.
This article brings together a series of different Firebreak investigations that further reveals how corrupted the anti-industry, litigious strategy of tobacconization has become. We were looking at how foundations were discretely funding law firms like Sher Edling to sue oil industries out of existence (part of what we called the La Jolla Tobacconization Playbook). While I was examining the Senate investigation into the inappropriate foundation funding of Sher Edling, we ran a story on how the Michigan AG, Dana Nessel had just concluded the tender for law firms to run climate nuisance suits against the fossil fuel industry. It did not surprise us to see that Sher Edling was one of the three firms selected and it did not take much time to identify the close relationship that has formed between Sher Edling lawyers and Michigan AG staffers, going back to 2019.
SAAGing Ethical Standards
Intrinsic to the Michigan Attorney General, Dana Nessel’s strategy is to outsource as much of her work as possible to external consultants known as SAAGs (Special Assistant Attorneys General). These nominees or law firms are given carte blanche to act in the name of the State of Michigan, represent the state in court and make decisions themselves. See, for example, the description of the role of the SAAGs provided in the request for proposals (quoted below) for law firms bidding to be in charge of the State’s climate nuisance lawfare cases held from May to June, 2024.
Just to be clear, the SAAGs (consultants acting as assistant AGs for the Michigan State climate nuisance lawsuits) will be in charge of defining the litigation strategy, identifying the possible claims, identifying the possible defendants to charge, prosecuting the cases and handling any appeals. In other words, the SAAGs will be doing everything in these lawsuits (leaving the Michigan AG, Dana Nessel, with more time I suppose for photo shoots with “hot” Detroit Lions and Pistons players). That begs the question: With the consultants doing all of the work, does the Michigan AG’s office need to employ any lawyers at all?
Justice Served by the Lowest Bidder
Lawyers are notoriously expensive, so how much are the Michigan State’s taxpayers paying to have their justice representatives outsource the judicial process? This is where the situation gets interesting.
Looking at the SAAG contract signed by Sher Edling (spoiler alert, their bid won), it seems that the State of Michigan will be prosecuting the fossil fuel industry for free. Dana Nessel’s exploits will cost her taxpayers nothing … technically.
This seems like quite a unique situation. There has never been a successful climate nuisance lawsuit against the fossil fuel industry and the ability to link any property damage to climate change, and then link it to some fossil fuel company, is quite a challenging endeavor. Firms like Sher Edling, presently engaged in more than 20 such climate nuisance lawsuits, are not deterred by this since their costs are covered by a group of climate foundations hiding behind the veil of a fiscal sponsor (paying them at least $14 million and counting).
It can be assumed that the other two winners of the Michigan call (DiCello Levitt and Hausfeld) are covered by similar foundation funding agreements. DiCello Levitt is working with Sher Edling in their climate nuisance case for the city of Chicago, so perhaps they are sharing the foundation honeypot. In fact, it would work to Sher Edling’s advantage to have this fee contingency stipulation in the request for proposals as it would limit the competition (more on this later).
In total, 17 lawyers signed the Michigan SAAG contract, meaning there will be 17 Special Assistant Attorney Generals on the prowl looking for companies to sue for climate change while claiming to be acting on behalf of the state’s judiciary. The courts might get overwhelmed by litigation swarms.
In any case, this is not about winning lawsuits or some notion of protecting the environment. It is about destroying the reputation of the fossil fuel industry. Sher Edling has been paid up front for these litigations via a group of large foundations operating via a discrete fiscal sponsor. They have received at least $14 million (that they have declared). The more cases they file, the more foundation funding they can receive. They have created a lucrative “lose-win” situation so 17 lawyers on the loose in Michigan will simply pump up the timesheets remunerated by philanthropic organizations that should be doing so much more with this money.
Michigan AG Dana Nessel is no idiot. Getting external law firms to do all of her work while acting on behalf of the State of Michigan, and not paying them unless they win, would look quite ethically challenging. The very idea of law firms running around claiming they are Special Assistant Attorneys General would also demean her office, risk dragging her down into the questionable ethical issues (mud pit) these tort law firms usually find themselves in and leave the citizens of the Great State of Michigan wondering why they even have an attorney general. Therefore, this particular SAAG agreement is confidential and must not be revealed to the public or the media.
The SAAG contract clearly states:
Dana, could I have a moment of your precious time? If you want to keep confidential the SAAG contract, the fee conditions and the fact that these tort consultants are doing all of your work, then I suggest you don’t publish all of this information online. I suppose you have to be transparent and you think people are too stupid to be able to find and read the documents (and with the quality and bias of the media that support you, I can understand your reasoning), but not everybody is that naïve or thick.
So while Dana Nessel wants to bask in the headlines and show herself as a climate champion standing up to the big fossil fuel industry (that just so happens to power the State of Michigan and, to a large extent, the automotive industry), there is a lot behind the veil that she would prefer would not be exposed. And there are a lot of questions that need to be asked (if only we had a curious or responsible media in Michigan). For example:
How did the state AG office know that law firms would bid for the SAAG consulting post without remuneration with the understanding that no cases have ever succeeded?
Was the Michigan AG made aware that Sher Edling’s expenses and fees were paid up front by a group of billionaire philanthropists hiding behind a non-transparent fiscal sponsor?
Why did the Michigan AG Request for Proposals leave the SAAGs free to define the entire litigation strategy, file the claims, litigate and manage any appeals?
Why did Dana Nessel insist that the tort lawyers keep their position as Special Assistant Attorneys General confidential?
The absurdity of Dana Nessel’s decision can be summed up in an Energy In Depth article:
To answer these questions, we need to go back to a series of email exchanges from 2019.
A Story of the Tort Tail Wagging the AG Dog
In researching the relationship between Dana Nessel and the law firm, Sher Edling, I came across a FOIA of emails from inside the Michigan Attorney General’s office, published by an organization called Climate Litigation Watch. I assume the fossil fuel industry produced this FOIA and given the unethical conduct within the Michigan AG office, I don’t question at all their frustration and exasperation in having to deal with such arrogant hypocrites.
The emails tell an interesting story of how Sher Edling lawyers relentlessly pushed a network of activists to worm their way into the Michigan AG office, how the AG, Dana Nessel passively allowed it and how the Sher Edling partners were able to influence the State of Michigan into employing them to lead the climate nuisance lawsuits on their behalf.
The supporting actors in this story include a serving SAAG, Skip (Stanley) Pruss and Lisa Wozniak, an activist working for the Michigan League of Conservation Voters. Skip was the co-founder of 5 Lakes Energy, a clean energy consultancy, and in these exchanges, he bounced between using his Michigan.gov email and his consultancy address. He was also, before, the Director of the Michigan Department of Energy so he is not only an insider, but also one with a clear interest. How he won a SAAG bid to be a Special Assistant AG is anybody’s guess, but his timesheet in 2019 was full of meetings with lobbyists (including calls with Sher Edling lawyers). This is a clear example of the risk of loose cannon abuse and why Michigan needs to stop relying on SAAGs to do their work.
Lisa and Skip met lawyers from Sher Edling at a conference in 2019 who convinced them to use their internal network to sell the Sher Edling climate nuisance lawsuit gameplan to the Michigan Attorney General’s office. And so the story begins.
How to Capture an Attorney General
May 21, 2019: Michigan’s deputy AG, Kelly Keenan, informs the AG, Dana Nessel, of a conversation with an activist, Lisa Wozniak from the Michigan League of Conservation Voters, who had met Sher Edling lawyers at a conference and informed her boss that it might be worth meeting the law firm to discuss their climate nuisance litigation strategy.
Lisa did not need to be introduced to the AG so it can be assumed they have worked together in the past (Spanolia refers to Tony Spanolia, a PFAS litigator). Dana gave the go-ahead to meet Sher Edling lawyers but begged off being involved. Most of the exchanges did not include the Attorney General or even have her in copy, suggesting that Dana Nessel was not really a “hands on” manager and her staff seemed to know it.
Lisa Wozniak was coordinating with Skip Pruss who shared her objective and just happened to be serving as a SAAG under contract for the Michigan AG. Lisa got the ball rolling with the Michigan deputy AG and on the same day messaged Skip to update him and request a call to use his internal contacts to push Sher Edling onto the Michigan AG agenda.
That same week, Skip contacted Peter Manning, the Division Chief at the Michigan AG office, on this subject. A few days later, Peter revealed to the AG, Dana Nessel, how he was approached by Skip Pruss, informing her that her Special Assistant AG was working with Lisa Wozniak to push for a meeting with Sher Edling lawyers. Recall that at that time, the first lawsuits against Exxon were being announced in the news (although it was not widely known that Sher Edling was wholly-funded by climate foundations and keeping controversial academics like Ann Carlson and Naomi Oreskes on retainer).
Once again, Dana, in an apparently tortured state of regalia boredom, passed the decision back down the chain. Does she actually do any work? While Peter wanted to be in on a meeting with Lisa, he was not going to drive this forward. So Skip had to try again.
Somewhere during that week, it emerged than many of the Michigan AG actors were presently busy with a PFAS case. So the Michigan Special Assistant AG attempted to keep the strategy alive with the Michigan Deputy AG, Kelly Keenan. Skip sent a message to the founding lawyers, Vic Sher and Matt Edling, with the Deputy AG in copy, saying the meeting will happen, just not yet.
Fast forward to the end of September, 2019 when Matt Edling tried to renew the contacts via the external consultant under a Michigan SAAG contract.
There was no bite so a week later, Matt Edling tried a more direct approach.
This is a clever tactic. There is a fair bit of geography between the two state capitals so just “shooting over” for a coffee would not be that easy (nor CO2 emission-friendly). But the tactic worked and at the end of October, after six months of pressuring, Matt Edling finally gets a call set up with the Deputy AG, Kelly Keenen, Peter Manning and, of course, the kingmaker, Skip Pruss.
Why is this story interesting?
With what we know today:
How Sher Edling is funded by special interest foundations that try to hide their involvement in underwriting the tort law firms climate nuisance suits.
How a Senate investigation of Sher Edling showed how the process has been corrupted and how the law firm has been anything but cooperative or transparent.
How there has been no headway or lawsuit success, five years after the first climate nuisance cases were filed.
We need to ask why the State of Michigan AG would have decided to pursue this climate nuisance strategy now, with a firm like Sher Edling and leaving them with the risk of a PR nightmare being associated with such a disreputable law firm.
Is it any wonder, given what we know about Sher Edling, that these lawyers would use any tactics and networks they could to try to get inside state AGs to convince them to represent them in lawsuits (more copy-pasted climate cases equals more foundation funding). We don’t have any information on what was discussed at the meeting between the Deputy AG and Sher Edling lawyers (although they sent an application form in attachment in the meeting agenda).
I suspect the offer from Sher Edling was too good to be refused but they likely needed to award it as a SAAG position and as an open tenderwith a public Request for Proposals (RFP). Given the Michigan AG SAAG work program details for this tender, Sher Edling clearly had an influence in writing up the RFP, designing the parameters to fit their present activities honed in representing other states and cities while filtering out the risk of any other serious competitive bidders.
Is it legal for a government official to have internal contact with a lead candidate for a tender and to have that contact influence or write the RFP outline? It certainly is not ethical and those officially writing the tender/RFP surely knew that. Giving a group of tort lawyers like those at Sher Edling the title of Special Assistant AG and the right to act on behalf of the State of Michigan in judicial activities is just mind-numbing.
Kelly Keenan, as Deputy AG, should not have been working with one of the candidates for the climate litigation SAAG RFP to write up the work program. That is a definite conflict of interest and she should resign. As for her boss, well, Dana Nessel did not appear to be present or interested in any of her staff’s activities and her absence indicates that she has been anything but an effective manager. She should not be serving the State of Michigan in this manner. She’ll make a good governor.
This FOIA and the Michigan SAAG contract serve to show how state and local attorney generals are easily interacting with tort lawyers, tolerating many of their unethical practices and letting them do the work on behalf of the government. Justice now is being served by the lowest bidder and the quality and integrity of this service reflects that.