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And this is my other brother, Darrell...

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SamCogar
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Post by ohio county Mon Jan 21, 2008 3:28 pm

McGraw is one of the best in the bunch.

In 2006, Weirton-based personal injury lawyers M. Eric Frankovitch and Michael Simon were trying a case against Cooper Wiring Devices and Leviton Manufacturing. McGraw “deputized” them and they were able to subpoena documents that they would not have had access to as private personal injury lawyers. The companies counter-sued raising questions about the propriety of the AG hiring contingency-based contractors. Mysteriously, their employment terminated. Prior to this the pair had collectively and individually donated over $10,000 to Darrell Vivian’s political campaigns.

http://www.wvrecord.com/news/178022-appointment-of-special-assistant-ags-terminated

The OxyContin case was brought in McDowell County Circuit Court. The court ruled that plaintiff had to enumerate his state agency clients. In the amended filing, AG attorneys contended that the WV Bureau of Employment Programs had been damaged to the tune of $2.23 million, PEIA had been damaged, they alleged, at a level of $440,000, and DHHR Medicaid had been damaged at a level of $4.6 million for calendar year 2000 alone. Yet none of these aggrieved agencies received any of the settlement. In fact, nobody discussed the settlement with any of the agencies in what appears to be an ethical violation.

Rule 1.2 Scope Of Representation and Allocation of Authority between Client and Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued

Rule 1.4 Communication
(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(f), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

RULES OF PROFESSIONAL CONDUCT

What’s more, interest by the Centers for Medicare and Medicaid Services (CPS) has nothing to do with arcane and unreasonable rule-making. Their position is that if this is the amount billed to DHHR, then they were the agency that paid this money and are, therefore, the ultimate aggrieved client. They want their money back and are not going to sit back and accept whatever he tells them. Chief Deputy Fran Hughes said, ““[w]e have arranged a methodology that has prevented the federal government from coming back and seizing the money.” Maybe not.

http://www.wvrecord.com/news/190609-mcgraw-will-stop-giving-away-money-top-deputy-says

Darrell’s one of the best alright – but not if you had reference to honest and ethical government. Don't even get me started on Debra Whanger.
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Post by Stephanie Mon Jan 21, 2008 5:03 pm

ohio county wrote:
I'm much more offended by the Legislator and the Governor of this state spending millions and millions of dollars on the renovation of a mansion with taxpayer dollars than I am the AG elevating his approval ratings with a couple of sales tax holidays. I don't understand why you feel so differently.

At least the Legislature has the power to make those allocations and the Governor has the responsibility to make them in accordance with the Legislature's stated desires. Would you also support expenditures by the State Tax Department with which you agreed? They, too, bring large in amounts of money for the state. The DNR sells hunting and fishing licenses. Would you be okay with their buying little umbrellas with those fees to put in drinks sold at state parks? For all the good those settlement funds are doing the state of West Virginia, we might as well not have them. Denying them to the State Treasury is a dangerous usurpation of consitutional power. The means of handling revenue and spending are delineated in the state constitution. I thought you a strict constitutional adherent.


You made no allusion to the timing of the criticism - another poster did. I am sorry for any confusion I may have created in putting all my thoughts in one place.

First of all, no apology is necessary. I only wanted to make sure you understood I was not the individual questioning the timing of these complaints.

Secondly, I believe you're comparing apples and oranges. The State Tax Department is collecting taxes under the authority of the Legislature and the DNR is collecting fees for licenses under the same authority. The revenue collected by the AG was not done on behalf of the legislature, nor was it done under their authority. The legislature had nothing to do with it.

That money wasn't collected as a tax, or as a fee. The revenue we are discussing is the result of litigation filed by the AG's office.

Are you suggesting that the Legislature should micromanage the Attorney General? The AG has powers all his own and requires no approval from the Legislature or the Governor. It is important the AG continue to have autonomy to negotiate the best settlements he or she can for the citizens of this state. What I believe you're suggesting is that the AG shouldn't be allowed to enter into settlements that commit settlement funds to certain projects or areas. If that's the case we're in major disagreement here.

I don't know Darrell McGraw or anything about him other than what little I have read in the newspapers. To me this isn't about this AG but about what powers and how much flexibility the AG needs and should have. It appears to me that you disagree with AG McGraw's judgement. The answer isn't to try to limit the powers and authority of his office, but to remove him from office. If and how this is accomplished is tied into his conduct and performance as AG.

That's my $.02 which probably isn't worth a whole lot.
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Post by ohio county Tue Jan 22, 2008 7:40 am

Are you suggesting that the Legislature should micromanage the Attorney General?

Not at all. That's the whole point - I want the Legislature to perform their constitutionally-prescribed functions and the Attorney General to perform his. His do not include managing funds from any source other than the Legislature. If he receives funds they should go to the Treasury the same as any other department. Apples and oranges notwithstanding. The courts usually accept settlements that are suggested by the parties to it. It is disingenuous for the Attorney General to suggest that his hands are tied with regard to the dispensation of the funds. His proper response in those negotiations is to state the obvious: it is not up to him how the settlement is handled. That was determined in 1863.

The answer isn't to try to limit the powers and authority of his office...

What? I'm not asking for anything new or that might be construed as limiting his powers and authority. I'm asking him to run his office as it was constitutionally empowered. No more. No less.
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Post by TerryRC Tue Jan 22, 2008 7:43 am

I don't like McGraw. I think he is likely crooked.

That being said, your above words are like me asking you how many times a week you beat your wife.


Because, if you don't have any evidence, it is a baseless accusation assuming guilt. It makes you look bad even defending yourself against it.

If you have evidence against McGraw, post it. Anything else is an unethical fishing trip.

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Post by Aaron Tue Jan 22, 2008 8:40 am

TerryRC wrote:I don't like McGraw. I think he is likely crooked.

That being said, your above words are like me asking you how many times a week you beat your wife.


Because, if you don't have any evidence, it is a baseless accusation assuming guilt. It makes you look bad even defending yourself against it.

If you have evidence against McGraw, post it. Anything else is an unethical fishing trip.

I think the big problem is you guys treat this small public forum like it's a court of law. I've been doing a little reading and it is my opinion that the AG does not have the authority to spend the money he brings in without oversight. Unitl I read something that gives him authority to do what he's doing, I'll do all the fishing I choose.

If you have something that clarifies that he does have that authority to spend that money, then post it as I'd like to see it because I haven't seen anything that says he does.

Stephanie talked about the tax department and the DNR spending money they receive. That is done within the guidelines of the WV Constitution. McGraw is not doing that and the only reason he wasn't stopped last year is because his office reached an agreement with legislatures that he would turn over future revenues to the state. We now see that was a lie.
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Post by Stephanie Tue Jan 22, 2008 11:52 am

Aaron,

I've got a news flash for you......forum members, myself included, are primarily comprised of backseat drivers. We know this. We're all giving our opinions. That's the reason we're here, to exercise one of our rights under the much battered, abused, misused, and neglected COTUS. I do it, you do it, as are OC and Terry.

I'd like to point out you have still provided no evidence against McGraw, just your opinion after doing some reading. I've been doing some reading too and I haven't altered my position one bit.

That said, I missed Jimmy's post yesterday about the special assistant AG's. I'm off to read all about it now.
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Post by Aaron Tue Jan 22, 2008 11:53 am

Stephanie wrote:Aaron,

I've got a news flash for you......forum members, myself included, are primarily comprised of backseat drivers. We know this. We're all giving our opinions. That's the reason we're here, to exercise one of our rights under the much battered, abused, misused, and neglected COTUS. I do it, you do it, as are OC and Terry.

I'd like to point out you have still provided no evidence against McGraw, just your opinion after doing some reading. I've been doing some reading too and I haven't altered my position one bit.

That said, I missed Jimmy's post yesterday about the special assistant AG's. I'm off to read all about it now.

Tell that to individuals asking for PROOF!
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Post by TerryRC Tue Jan 22, 2008 11:54 am

...it is my opinion that the AG does not have the authority to spend the money he brings in without oversight.

Well, you missed my point, particularly the one about ethics.

Hard to comment on someone's ethics when your own are questionable.

I don't like McGraw, as I have stated. I even think you are likely right. That being said, the way you asked the question about him and the state constitution is unfair.

Do you have anything more than "in my opinion"? The state constitution is pretty clear. Where, in your own words, is the AG violating it?

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Post by Aaron Tue Jan 22, 2008 12:06 pm

I think you need to go back and read all the post and put all comments in context. Ziggy stated that McGraw is well within his rights and states that it's better he spend money from settlements instead of turning it over to the legisalture and to then to take money from outside sources to purchase his trinkets that he passes out for his personal gain.

My comment was a sarcastic response to that statement. The answer was a rhetorical "All of it."

Unless specifically stipulated in the constitution as to how certain revenue is to be spent such as DNR or Tax Revenue, ALL revenue is to be turned over to the legislature for approiations. That is my stance.

Unless you or Zig (or anyone else for that matter) can show me something in the constitution or WV law that states otherwise, which I'll be more then happy to read it. Until then, my opinon hasn't and won't change. McGraw is not acting within the confines of the law or the constitution, is spending money that should be approiated by the WV Legislatur and is doing so for his own personal gain and that all money he spends is indeed unconstitutional.

Hope that clears up your confusion. Smile
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Post by TerryRC Tue Jan 22, 2008 12:13 pm


Unless you or Zig (or anyone else for that matter) can show me something in the constitution or WV law that states otherwise, which I'll be more then happy to read it.


Not confused at all.

The burden of proof is, of course, on the person making the accusations.

To make accusations not backed up by evidence is a tool of politicians or lawyers. When they are taken to task (which happens all too rarely), they, too, use the "just expressing my opinion" tack, also.

In your "rhetorical" question, you didn't say "I think", you said "how much".

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Post by Stephanie Tue Jan 22, 2008 12:22 pm

10-3. Receipts and expenditures of public moneys.


No money shall be drawn from the treasury but in pursuance of an appropriation made by law, and on a warrant issued thereon by the auditor; nor shall any money or fund be taken for any other purpose than that for which it has been or may be appropriated or provided. A complete and detailed statement of the receipts and expenditures of the public moneys shall be published annually.

The portion I highlighted, in my opinion, validates the AG's decision to disperse settlement money in accordance with the terms of settlement agreements.

Tell that to individuals asking for PROOF!

If you want to change someone's opinion, you're going to have to offer up some proof. While McGraw is a public figure and has placed himself in a position where he should expect public scrutiny, I don't believe it is fair to accuse him of violations of ethics and the law without providing a little bit of proof.

I read the article Jimmy provided a link to and it does seem suspicious. I'm still not ready to condemn him yet. Frequently we find the devil we know is better than the devil we don't know. McGraw has brought a lot of money into the state and I think he's done some really terrific things with that money.
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Post by Aaron Tue Jan 22, 2008 12:26 pm

Stephanie wrote:McGraw has brought a lot of money into the state and I think he's done some really terrific things with that money.

That's an opinion. Exclamation
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Post by ziggy Tue Jan 22, 2008 12:49 pm

Speaking of opinions, it is mine that Aaron and Jimmy give not a whit about the accusations of "unethical" or even "unconstitutional" conduct.

They have succombed to the Chamber of Commerce hype because their real beef is that McGraw has the balls to take on all manner of corporate crooks in the first place- as the WV consumer protection laws direct the AG to do.

If McGraw left the corporate crooks alone- as his predecessors did- Aaron and Jimmy would not care a lick about tacky campaign trinkets.


Last edited by on Tue Jan 22, 2008 12:55 pm; edited 1 time in total
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Post by Stephanie Tue Jan 22, 2008 12:49 pm

Aaron wrote:
Stephanie wrote:McGraw has brought a lot of money into the state and I think he's done some really terrific things with that money.

That's an opinion. Exclamation

He has brought a lot of money to the state, that is fact. It is my opinion he has done some real good with that money and that is why my view of him is mostly favorable.
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Post by ziggy Tue Jan 22, 2008 12:54 pm

Aaron wrote:I think you need to go back and read all the post and put all comments in context. Ziggy stated that McGraw is well within his rights and states that it's better he spend money from settlements instead of turning it over to the legisalture and to then to take money from outside sources to purchase his trinkets that he passes out for his personal gain.

Speaking of putting it all in context, physician heal thyself.

I said that it is better to handle the money in compliance with the terms of the Court's order than contrary to those terms.
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Post by Aaron Tue Jan 22, 2008 1:23 pm

ziggy wrote:
Aaron wrote:I think you need to go back and read all the post and put all comments in context. Ziggy stated that McGraw is well within his rights and states that it's better he spend money from settlements instead of turning it over to the legisalture and to then to take money from outside sources to purchase his trinkets that he passes out for his personal gain.

Speaking of putting it all in context, physician heal thyself.

I said that it is better to handle the money in compliance with the terms of the Court's order than contrary to those terms.

How can a court order something that is in direct violation of the Constitution, whether it be state or federal Ziggy? Question

And if a court did order something that was in violation of the constitution, wouldn't it be the duty or our state lawyer to first challenge that decision and if that decision is held intact, to ignore it? Question

How can a duly elected representative of the state knowingly ignore what the constitution states? Question

By that reasoning, a court could order the 10 commandments be placed in every class room, it could order that every child pray in class out loud and that all children who don't attend Sunday school be listed on a chart with a ugly face placed by their name and it's all good because it was ordered by a court ordered it, right Zig. Exclamation Exclamation Exclamation
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Post by Stephanie Tue Jan 22, 2008 1:50 pm

If the settlements are in violation of the WV Constitution, then aren't the judges who allowed those settlements at fault? Isn't it the judge presiding over the case the individual responsible for determining what is and is not legal, what is and is not Constitutional???
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Post by ziggy Tue Jan 22, 2008 1:53 pm

Aaron wrote:How can a court order something that is in direct violation of the Constitution, whether it be state or federal Ziggy? Question

Ahem. It is that same U.S. Constitution that directs that the Courts are the forum to decide questions of law and of the Constitution.

And if a court did order something that was in violation of the constitution, wouldn't it be the duty or our state lawyer to first challenge that decision and if that decision is held intact, to ignore it? Question

Challenge it where? Ask the Court to overrule itself?

How can a duly elected representative of the state knowingly ignore what the constitution states? Question

Now one has demonstarted that he has done that- only alleged it. If it is such a cut and dried case, take it to Court. But McGraw's idealogical opponents aren't doing that- because they know that their argument is bankrupt of legal standing.

By that reasoning, a court could order the 10 commandments be placed in every class room, it could order that every child pray in class out loud and that all children who don't attend Sunday school be listed on a chart with a ugly face placed by their name and it's all good because it was ordered by a court ordered it, right Zig. Exclamation Exclamation Exclamation

And if, in response to a case at bar, a Court ordered that, and the Appeals Courts upheld that order, it would be the law of the land until something else happened to overturn that. But for the Courts to act, someone has to bring an action asking the Court for this or that relief.

Why don't McGraw's opponents do that? We both know the answer to that.
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Post by Aaron Tue Jan 22, 2008 2:02 pm

Stephanie wrote:If the settlements are in violation of the WV Constitution, then aren't the judges who allowed those settlements at fault? Isn't it the judge presiding over the case the individual responsible for determining what is and is not legal, what is and is not Constitutional???

No. The Supreme Court has final say on what is and what isn't constitutional.
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Post by Aaron Tue Jan 22, 2008 2:10 pm

ziggy wrote:Now one has demonstarted that he has done that- only alleged it. If it is such a cut and dried case, take it to Court. But McGraw's idealogical opponents aren't doing that- because they know that their argument is bankrupt of legal standing.

If it's so bankrupt then why did McGraw's office agree in principal last year to stop this practice?

As for why the legislature doesn't do anything, you do realize that you're talking about the same WV Legislature that's has ran this state in the ground, don't you!!!

I've told you, I know how this state works and it wouldn't suprise me in the least if some of that settlement money doesn't have a way of getting depositied into personal bank accounts. I'm not saying that's what is happening so don't jump me asking me for proof or make assine statements about sueing or going to court or any other comments like that.

All I'm saying is that if that were the case, I would not be suprised. At all. Rolling Eyes
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Post by Stephanie Tue Jan 22, 2008 2:10 pm

Aaron wrote:
Stephanie wrote:If the settlements are in violation of the WV Constitution, then aren't the judges who allowed those settlements at fault? Isn't it the judge presiding over the case the individual responsible for determining what is and is not legal, what is and is not Constitutional???

No. The Supreme Court has final say on what is and what isn't constitutional.

Final say isn't the same thing.

When a case is brought to court, civil or criminal, the presiding judge is responsible for determining what evidence is allowed in, what witnesses can testify, even what kinds of questions can be asked. When a settlement or plea agreement is made, the judge has to accept the arrangement. What these decisions are supposed to be based upon is the law, of which the WV Constitution is a part of in this state. If it isn't Constitutional, the judge can and should reject it. That is what they're getting paid to do.

If one of the parties disagrees with a judges decision they file an appeal. Cases are appealed to the Supreme Court and those justices at that point have the "final say".

Ziggy's right, if the legislature or the Chamber of Commerce really believes what McGraw is doing is a violation of the law and the WV Constitution they should take him to court. Why don't they?????
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Post by Aaron Tue Jan 22, 2008 2:13 pm

No, a judge does not have to accept a plea agreement or a settlement. It is his prerogative to throw them out if he so chooses.

As for what a judge is supposed to do, look at the recent relevations of democrat Spike Maynard. If that isn't enough, maybe you could do a little reserch on John Hay.
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Post by ziggy Tue Jan 22, 2008 2:15 pm

Aaron wrote:
ziggy wrote:Now one has demonstarted that he has done that- only alleged it. If it is such a cut and dried case, take it to Court. But McGraw's idealogical opponents aren't doing that- because they know that their argument is bankrupt of legal standing.

If it's so bankrupt then why did McGraw's office agree in principal last year to stop this practice?

Did it? To stop what practice? The "practice" of doing what the Court orders? I don't think that office agreed to stop doing what the Court(s) order.
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Post by ziggy Tue Jan 22, 2008 2:21 pm

Aaron wrote:No, a judge does not have to accept a plea agreement or a settlement. It is his prerogative to throw them out if he so chooses.

But once the Court does accept it, then it becomes the Court's order. If either party tries to circumvent it, the the other party- or even intervening parties that can show standing- can have the Court require full compliance, or to hold in contempt any party that does not comply.
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Post by Stephanie Tue Jan 22, 2008 2:41 pm

Aaron wrote:No, a judge does not have to accept a plea agreement or a settlement. It is his prerogative to throw them out if he so chooses.

As for what a judge is supposed to do, look at the recent relevations of democrat Spike Maynard. If that isn't enough, maybe you could do a little reserch on John Hay.

Then you're blaming the wrong person, by your own admission.

The judge is responsible. The judge has the discretion to reject a settlement and if the terms of the agreement violate the law then it is the judge's responsibility to do so.

Judges are elected in this state and the citizens can vote them out of office the same way the can vote the AG out if they don't like the jobs they are doing. The WV Consitution allows for other remedies if necessariy including suspension, censorship and even impeachment. Perhaps you should be looking into this rather than attacking the AG for doing his job and abiding by the terms of the settlements.
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