When Oregon’s sweeping child welfare class action lawsuit was finally settled this fall, the judge presiding over the case lamented how “frankly over-lawyered beyond belief” the case had been.
U.S. District Court Judge Ann Aiken was blunt: She said the case “should have been settled five years ago” and the money spent on attorneys and hired experts would’ve been put to better use had the state spent it “on kids and families.”
Now, the final tab is becoming clearer.
Defending the state’s problematic child welfare system in court could cost upwards of $30 million of taxpayer money.
Oregon child welfare officials have spent years struggling to find appropriate places to house the state’s most vulnerable children.
Illustration by Kristyna Wentz-Graff / OPB
The main lawyers doing the “over lawyering” — in the judge’s words — are with the Portland law firm Markowitz Herbold PC. Their bill included more than $18 million in legal fees, $4.7 million in other costs, such as finding legal experts and $464,333 in travel and basic legal research. They are the legal team charged with defending the state’s well-documented problematic child welfare system.
Other legal fees include Oregon Department of Justice attorneys of $325,504. Those who sought changes to the foster care system, the plaintiff attorneys, are requesting $10.9 million in legal fees, and $590,570 in costs.
Emily Cooper, legal director with Disability Rights Oregon, who represented kids in the foster system suing the state, said Markowitz has essentially been given a blank check.
“To me, it shocks the conscience that the state would pay (so much) … to fight a lawsuit that just asks for systemic changes,” Cooper told OPB in a previous interview. “We just asked the system to change so kids would not be hurt so much.”
Cooper said they had hoped the case would have been settled within a year. If it had, her firm’s legal fees would have been around $12,000, instead of the more than $10 million the plaintiffs are now requesting. It will be up to the judge, Aiken, to determine how much to reimburse the plaintiffs.
Markowitz Herbold attorneys argued they had exercised “reasonable billing judgment.”
“Markowitz Herbold staffed this case by performing work at the lowest billing rates when possible. For example, only 33% of all hours billed over the life of the case were by partners,” their attorneys wrote in documents to the judge.
State Sen. Sara Gelser Blouin, D-Corvallis, who was the target of one of the Markowitz Herbold firm’s subpoenas in the child welfare civil lawsuit, Wyatt B. v. Kotek, said the Portland-based legal firm “enjoys a rare and profitable privilege with its no-bid contract with the state for the (child welfare case) and several other cases.”
“The longer these cases go on, the more money this private firm makes,” Gelser Blouin said in a previous interview with OPB. “This is not in the best interest of taxpayers, nor is it in the interest of citizens who have a cause of action against the state.”
The law firm’s relationship with the state’s Department of Justice, which the state’s Attorney General oversees, goes way back. A 2014 column in The Oregonian detailed a $5,000-head event at David Markowitz’s office where Attorney General Elllen Rosenblum spoke. At that time, the article notes, the firm had just been hired to spend millions to prove Oracle — the software company at the heart of the Cover Oregon debacle — was guilty of racketeering. That case was ultimately settled for $100 million.
Since then, the relationship has only grown more lucrative for the Markowitz Herbold law firm. The firm has secured contracts to defend the state’s actions in prisons during the COVID-19 pandemic and led its efforts to implement a voter-approved measure regulating firearms.
While defending the state child welfare system in court, Markowitz Herbold’s attorneys weren’t afraid to use aggressive and costly tactics. For example, they issued a subpoena for Gelser Blouin’s emails with journalists, lawyers, foster children and even the hotel heiress Paris Hilton for the past nine years. As the chair of the Senate Committee on Human Services, Gelser Blouin is expected to be a watchdog over the state’s Department of Human Services agency. The lawmaker had to hire her own lawyer to comply with the subpoenas and that cost about $47,000, which will also be paid for by the state Legislature. She said it felt hard to see as anything except retaliation for her advocacy work in the child welfare arena.
It was another example, Gelser Blouin said, of “egregious use of taxpayer money.”
Markowitz Herbold isn’t only involved in high-profile cases. Lately, they have been defending the state in other smaller child welfare cases. For example, they are currently defending the state against a lawsuit involving a foster parent who was convicted of sexually assaulting a child. Markowitz Herbold has charged the state $2 million for its legal defense so far.
That case is ongoing.