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Edward Achorn: Legal scheme ensnares Patrick Lynch

01:00 AM EDT on Tuesday, August 29, 2006

THE RHODE ISLAND Ethics Commission -- a name that some people regard as an oxymoron -- has decided not to investigate the state's attorney general, Patrick Lynch, over what seems to be a questionable deal with DuPont.

Perhaps there was nothing to investigate, no laws broken. But what Mr. Lynch has done certainly raises some eyebrows.

Decades ago, the nuns instructed children to avoid the "near occasion of sin." The whole lead-paint lawsuit, initiated by Sheldon Whitehouse, Mr. Lynch's fellow Democrat and predecessor as attorney general, presents such an occasion in the political realm. An unjust grab for money and self-serving headlines, using outside lawyers operating on the profit motive and not in the public interest, is bound to enhance opportunities for political corruption.

Whether this will ever come back to haunt either of them remains to be seen. But the public has good reason to question the wisdom of their approach, especially in light of what has happened.

Let's start at the beginning.

Mr. Whitehouse decided to use outside lawyers, working on contingency -- and thus, with a motive of lining their pockets, not serving the public -- to go after lead-paint manufacturers. Although the rate of poisoning had sharply declined, children had been harmed by consuming lead-paint chips and breathing lead dust in poorly maintained buildings.

Normally, the paint manufacturers would have been protected from lawsuits based on such misuse of their product. The manufacturers stopped making the paint decades before the government banned it, and the statute of limitations on product liability had long run out. But the contigency lawyers had a brilliant scheme for gouging the companies anyway -- prosecuting them under the state's "public-nuisance" laws.

It worked (pending appeal). A number of paint companies may now have to spend billions of dollars somehow remediating the problem of poorly maintained buildings in Rhode Island with 50-plus-year-old paint on the walls. And, oh yes: many tens of millions of dollars will be diverted to the clever lawyers who succeeded in this plot. (Is it any wonder that American manufacturing jobs are disappearing by the day, while lawyers spread like locusts?)

Except, DuPont managed to get away relatively unscathed.

Mr. Lynch, succeeding Mr. Whitehouse, cut a deal with the company, at the same time individuals involved in the negotiations were contributing to Mr. Lynch's campaign coffers.

For $12.5 million, DuPont's lawyers got Rhode Island off their backs. And the deal they struck with Mr. Lynch was most peculiar.

The money will not go into the state treasury. Most of it -- $9 million -- will be funneled into something called the Children's Defense Forum, a nonprofit based in Washington, D.C. This group, it turns out, has a very strong DuPontish flavor. As the Associated Press reported, at the time of the deal, four of the Forum's five board members had current or previous business ties to the company.

Another $2.5 million is to be sent out of state to Boston's Brigham and Women's Hospital. Interestingly, the law firm handling this on contingency for Rhode Island, Motley Rice, had pledged $3 million to Brigham and Women's.

It appears, as The Wall Street Journal noted in an Aug. 16 editorial, that the deal will allow money "that would otherwise go to lead-paint cleanup in Rhode Island to be used instead by a private law firm to fulfill its pledge to an out-of-state institution."

The deal may raise questions about separation of powers, as well. Under Rhode Island law, settlement money is supposed to go into the general treasury, to be used as the General Assembly sees fit (with the governor potentially wielding a veto pen). An attorney general is not supposed to spend it as he pleases.

Now that the Ethics Commission has punted on the matter, is there any other governing authority that might look into the case? The A.G.'s office will certainly not investigate the A.G.

Mr. Lynch's Republican opponent, Bill Harsch, is asking the General Assembly to conduct a full investigation, but he can't be serious. Mr. Lynch is firmly entrenched in the Democratic political machine -- his brother, William, is the state party chairman -- and the Assembly (85 percent Democratic) will not go about abetting a Republican who, if somehow elected A.G., might probe some of the more colorful political activities around here.

That may leave the upcoming campaign as the only forum for exploring Mr. Lynch's deal. Mr. Harsch, who says the DuPont case suggests "a clear conflict of interest and has the unmistakable appearance of impropriety," obviously intends to pound on the issue.

"Unfortunately, Rhode Island has become defined by corruption, influence peddling, and conflicts of interest. That our chief law-enforcement officer has chosen to engage in behavior that is of such suspicion is a sad reflection on the current state of affairs in our great state," Mr. Harsch said last week.

The voters, ultimately, will decide whether Mr. Lynch's deal was as bad as all that. Certainly, the topic is worthy of discussion.

Edward Achorn is The Journal's deputy editorial-pages editor. His e-mail address is eachorn@projo.com.