Month: October 2014

$44 Million Contingency Fee Upheld for Graubard Miller

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The final decision on appeal in Lawrence v. Miller was just released, where the New York Court of Appeals upheld the $44 million contingency fee and reversed an intermediate appellate court decision that had overturned the fee. The casebook covers this opinion in Chapter 3, beginning at page 280.

From the New York Law Journal:

A contingency fee agreement that netted Graubard Miller $44 million for five months’ work was valid and must be adhered to, the state Court of Appeals ruled Tuesday.

The law firm took substantial risks by making the agreement with Alice Lawrence in January 2005, and the fact that the real estate matter on which it had long represented Lawrence unexpectedly settled in May 2005 did not make it unconscionable, the court decided.

Joe Nocera’s Op-Ed in the New York Times

jstearns20141 Comment

The debate on the funding of judicial elections and the impact of campaign finance is well covered by Joe Nocera in the Tuesday, October 28 column called Are Our Courts for Sale?

Definitely worth asking why we aren’t pushing harder for public finance of judicial elections in light of the increasing impact of private contributions in judicial campaigns.

Nocera quotes Professor Joanna Shepherd from Emory Law School and her report entitled Skewed Justice.

All of these are great resources to supplement our discussion of judicial ethics in Chapter 7.

MDL Litigation: the Wild West and the smoke filled room – Redish & Karaba //Boston University L. Rev.

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Northwestern Law profs Martin Redish and Julie Karaba offer a challenge to the MDL process which dominates mass injury tort litigation since the Supreme Court found the class action did not provide for a “day in court”. Does the MDL system undermine fatally the duty of the lawyer to the client, placing the interests of the group (and perhaps the lawyers) over that of the client to whom loyalty is owed?
– gwc
“MDL amounts to a strange cross between The Wild West and political smoke-filled rooms of the twentieth century — hardly a combination that augurs well for either due process or the rule of law….The most immediate response to reliance on the utilitarian calculus is that it completely ignores any concern with individual dignity or autonomy, which are properly deemed to provide the theoretical DNA of the Due Process Clause…Whereas class action in every case requires a transparent judicial finding of adequate representation of the interests of absent claimants, MDL has no such requirement.  Whereas in most class actions absent class members have the right to opt out of the proceeding, MDL provides no means either for withdrawing from the proceeding or even meaningfully challenging the legality or propriety of inclusion within it. “- Redish &Karaba

via OTHERWISE: MDL Litigation: the Wild West and the smoke filled room – Redish & Karaba //Boston University L. Rev..

Common interest doctrine privilege claim in ferry accident case

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A federal judge in New Jersey is being asked to decide whether the community-of-interest doctrine extends the attorney-client privilege to protect communications between a ferry company and the ship’s captain in litigation over the crash of a Wall Street commuter ferry.

Ferry owner SeaStreak LLC is trying to shield its joint defense agreement with the ferry captain, Jason Reimer, and bar the questioning of Reimer about his discussions with SeaStreak’s counsel in the days leading up to his deposition.

A motion to compel that disclosure, filed by passengers who claim they were injured in the crash, argues that neither the agreement with Reimer nor SeaStreak’s communications with him are privileged because SeaStreak and Reimer share no common interest in light of the facts that Reimer no longer works for the company and has not been sued along with it.

Further, during the investigation conducted by the National Transportation Safety Board, the company blamed Reimer for the crash and said it had removed him from operations as a result of the crash, the claimants argue.

The NTSB report, released April 8, found Reimer largely at fault, but was also critical of the company.

In the Jan. 9, 2013 accident, the SeaStreak Wall Street, a high-speed ferry carrying 331 people from Atlantic Highlands, N.J. to lower Manhattan, struck a pier, gashing a hole in the bow.

Passengers were flung about by the impact, with some sent tumbling down stairs and into walls, injuring 79 of them, as well as one crew member, according to the NTSB report.

In the aftermath, the company went to court seeking to avoid or limit its liability under a federal statute dating back to 1851 that shields shipowners from liability for losses incurred without their “privity or knowledge.”

If the shipowner is held liable, the law can limit their exposure to the value of the ship and any cargo. SeaStreak claims the ferry was worth no more than $7.6 million and has posted a bond in that amount.

Forty-six clams seeking more than $75 million in damages were filed in the case, In the Matter of the Complaint of SeaStreak LLC, which is pending in the U.S. District Court for the District of New Jersey, in Newark.

Read more: http://www.njlawjournal.com/id=1202674827037/Common-Interest-Privilege-at-Issue-in-Ferry-Crash-Case#ixzz3HT6dVoct

A famous, some would say infamous, Plaintiff’s trial lawyer speaks about Karl Rove, “buying” judges, and the plight of lawyers who represent injured people « Hercules and the umpire.

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A famous, some would say infamous, Plaintiff’s trial lawyer speaks about Karl Rove, “buying” judges, and the plight of lawyers who represent injured people « Hercules and the umpire.:by Richard Kopf, U.S.D.J. D. Nebraska”When Lee Pacchia from Mimesis wrote to let me know that he had interviewed the highly controversial and very successful Plaintiff’s trial lawyer Fred Levin, and that the interview was available on You Tube, I hit play and was fascinated. I thought of Vince Powers, who is a fine Plaintiff’s trial lawyer here in Lincoln. Vince has spoken eloquently about many of the things that Mr. Levin talks about in his interview. In short, I thought that readers of this blog would be interested in Mr. Levin’s point of view. So, with the caveat that you should judge for yourself, here is the interview:”VIDEO HERE

via A famous, some would say infamous, Plaintiff’s trial lawyer speaks about Karl Rove, “buying” judges, and the plight of lawyers who represent injured people « Hercules and the umpire..

OTHERWISE: Courting Corruption: The Auctioning of the Judicial System – The Atlantic

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American Enterprise Institute  Congressional scholar Norm Ornstein starts of this piece by noting a David Brooks column that makes Ornstein “cringe”.  That’s every Brooks column for me, but Ornstein is focused on the Times conservative writer’s advice that we should just “relax” about Citizens United and unlimited campaign spending.  Ornstein – the perennial and sensible NewsHour talking head, begs to differ.  – gwc

via OTHERWISE: Courting Corruption: The Auctioning of the Judicial System – The Atlantic.

OTHERWISE: Oregon Supreme Court Imposes Aggregate Settlement Rule in Clergy Sex Abuse Case //Mass Tort Blog

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by Elizabeth Chamblee BurchOn August 21, 2014, the Oregon Supreme Court embraced the ALI’s definition of a non-class aggregate settlement and held that an attorney who represented victims of clergy abuse failed to get the clients’ informed consent before distributing a lump-sum settlement.  In In re Complaint as to the Conduct of Daniel J. Gatti, the court noted that Gatti failed to get clients’ informed consent in writing to the formula or method he devised to divvy up the defendants’ lump-sum settlement payments, which violated Rule 1.8g.  As a result, the court imposed a 90-day suspension as a sanction.For more on the problems associated with lump-sum settlements, see Howie’s article, The Trouble with All-or-Nothing Settlements.

via OTHERWISE: Oregon Supreme Court Imposes Aggregate Settlement Rule in Clergy Sex Abuse Case //Mass Tort Blog.

OTHERWISE: The Dental School Model for Law Schools Future

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OTHERWISE: The Dental School Model for Law Schools Future.
In the 1970’s and 1980’s dental schools experienced a decline in applicants very similar to what law schools have been experiencing. Several universities closed their dental schools – including Georgetown, Loyola Chicago, and Fairleigh Dickinson (NJ). Absent an unanticipated surge in law school applications – which could only follow a substantial uptick in jobs – law schools are in for an era of reduced enrollment and threats to solvency. Independent schools will be hit hardest, but university-based schools will also find the limits of what their hosts are willing to pay in subsidies. – gwc

Feinberg backs BP bid to overturn settlement

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Feinberg backs BP bid to overturn settlement.
Kenneth Feinberg, who worked for BP in the Gulf oil spill while claiming to be independent, is trading again on his reputation as a modern day Edward the Confessor. He has urged the Supreme Court to grant cert in BP’s attack on the deal it negotiated but now regrets in part.

His amicus brief declares “Amicus Kenneth R. Feinberg was selected by Executive Branch officials to help design, implement, and administer two successful alternatives to the conventional tort litigation system.” “Selected by Executive Branch officials’ is cagey. True for the 9/11 Fund, not for the BP spill. He was “selected” by BP and presented at a June 2010 White House press conference to spread pacifying oil on the troubled waters of public opinion as the Gulf region reeled from the still uncontained spill.

In an incidental irony BP is trying to remove Patrick Juneau as court-appointed settlement administrator. They claim not to have known Juneau had represented Louisiana in dealing with the Feinberg-administered “Gulf Coast Claims Facility”. Feinberg, of course, knew, so in my view his principals are chargeable with that knowledge. MDL judge Carl Barbier ruled that Feinberg was BP’s agent. – gwc

OTHERWISE: New Jersey Supreme Court compels disclaimer by lawyers citing judges’ praise

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OTHERWISE: New Jersey Supreme Court compels disclaimer by lawyers citing judges' praise.
New Jersey attorneys like Andrew Dwyer – who want to advertise laudatory remarks by judges must now print a disclaimer. Dwyer successfully challenged the New Jersey Supreme Court’s advertising strictures which required the advertisement to include the complete text of any ruling the lawyer wants to use for promotional purposes. The Third Circuit held that the Court’s rule was too onerous. But the Circuit left some wiggle room – allowing for a disclaimer. The state high court has now spoken. Such a statement as Dwyer wants to use “must be prominently displayed in proximity to such quotation or excerpt: `This comment, made by a judge in a particular case, is not an endorsement of my legal skill or ability.'” Attorney Advertising Guideline 3, October 17, 2014

Conflicts and teeth whitening

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Yesterday the Supreme Court heard oral argument in North Carolina Board of Dental Examiners v. FTC, involving an antitrust challenge to the Board’s sending of cease and desist letters to non-dentists engaged in teeth whitening services.  You can access the filings and more detailed coverage at Scotusblog.  In my PR class today, we will discuss conflicts of interest inherent when regulators are members of the industry they regulate, and this case does a nice job of setting the issues, albeit in a somewhat different context than the way lawyers are regulated.  I’m planning to use this NPR audio clip to spark discussion. For more detail on how the Court’s decision in this case might impact the legal profession, you can read this amicus brief, which I helped put together.  And Scalia did ask a few questions about implications for the legal profession during oral argument (transcript here).

ABA Formal Opinion 467: New guidance for prosecutors

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In recent years, the U.S. Supreme Court has continued to review the conduct of prosecutors, both under the Model Rules and the constitutional standards set by Brady. The ABA has now issued a new Formal Opinion 467, called Managerial and Supervisory Obligations of Prosecutors under Rules 5.1 and 5.3. This Opinion clarifies that prosecutors may have additional duties under 5.1 and 5.3 to supervise and manage the attorneys in their offices. The opinion notes that in some instances the duties to take appropriate remedial action under 5.1 and 5.3 may be broader than what Model Rule 3.8 currently requires. The Formal Opinion also discusses standards for establishing office-wide policies and training (including ethical obligations.)  Further, the ABA recommends creating a “culture of compliance” and the impact of Rule 1.13 on governmental offices including those of the Prosecutors.

This opinion is an important supplement to Chapter 7 materials for students and teachers alike, and I will be tackling this with my class in the weeks ahead.