Via Lyle Roberts at 10b-5 Daily (Aug. 29), we learn of the latest advance in methods guaranteed to bring us a more ruthless legal profession: “Christopher Waddell, general counsel of the California State Teachers’ Retirement System, said that he uses both bounty and sliding-scale fees in order to ‘incentivize’ his outside counsel to go after personal assets. CalSTRS, the nation’s third-largest public pension fund, has promised its lawyers a 2.5 percent bounty, plus an undisclosed fee, in a pending suit against the former directors of WorldCom.” (Sue Reisinger, “Securities Fraud: Attorneys Are Receiving Bounties for Pursuing Officers and Directors”, Corporate Counsel, Aug. 24). For the reasons most other countries’ legal systems consider contingency fees for lawyers to be unethical, see Chapter 2 (“A Piece of the Action”) of The Litigation Explosion (PDF).
Louisiana protecting medical volunteers
Sydney Smith at MedPundit has a list of volunteer opportunities for medical professionals, and those in a position to donate medical supplies, in the hurricane aftermath. The text of Louisiana Gov. Kathleen Blanco’s executive order on out-of-state medical volunteers is here (PDF) and relevant excerpts appear on the Louisiana State Medical Society site. Briefly, Gov. Blanco’s order suspends licensure requirements for professionals licensed elsewhere and brings out-of-state medical personnel (but not, apparently, those who already practicing in Louisiana) under a liability umbrella by designating them as agents of the state for purposes of tort action provided they “possess[] current state medical licenses in good standing in their respective states of licensure and that they practice in good faith and within the reasonable scope of his or her skills, training or ability.” See Aug. 31, Sept. 2. More ways to help: NOLAHelp.com (via Ernie the Attorney).
Blawg Review #22
…hosted this week by Blawg Wisdom, is inevitably dominated this week by discussions of the impact of Hurricane Katrina on lawyers and the legal system (including a link to C.G. Moore’s account on this site) and the Court vacancies.
Liability fears delayed evacuation order
Hundreds, and perhaps thousands, died in New Orleans because Mayor Ray Nagin did not issue a mandatory evacuation order until Sunday morning, well after the Saturday mid-afternoon order issued by neighboring parishes. The blogosphere has been wondering what took Nagin and the city so long; Glenn Reynolds has found the answer:
President Bush declared a state of emergency in Louisiana, authorizing federal emergency management officials to release federal aid and coordinate disaster relief efforts.
By mid-afternoon, officials in Plaquemines, St. Bernard, St. Charles, Lafourche, Terrebonne and Jefferson parishes had called for voluntary or mandatory evacuations.
New Orleans Mayor Ray Nagin followed at 5 p.m., issuing a voluntary evacuation.
Nagin said late Saturday that he’s having his legal staff look into whether he can order a mandatory evacuation of the city, a step he’s been hesitant to do because of potential liability on the part of the city for closing hotels and other businesses. [emphasis added]
(Bruce Nolan, “Katrina Takes Aim”, New Orleans Times-Picayune, Sunday, Aug. 28). Once again, the lawyers got in the way of the public-safety decision-making, an issue I discussed Aug. 26.
Caesarean sections in Australia
Use of the procedure seems to be following the American path, “and could soon hit a record of 32 per cent of deliveries — far higher than in countries such as Britain and New Zealand.” Among the factors:
Andrew Pesce, consultant obstetrician at Westmead Hospital in Sydney, told the conference litigation was a factor in the caesarean rates.
No obstetrician had ever been sued for doing a caesarean, while some of the largest medical negligence payouts — including the $11 million Calandre Simpson case in 2001- – followed claims the doctor should have performed a caesarean section earlier, Dr Pesce said.
(Adam Cresswell, “Midwives left ‘powerless’ by soaring caesar births”, The Australian, Sept. 5). See Nov. 29, 2004; Jul. 18 and Aug. 13, 2003; and Feb. 5, 2001.
Katrina botch: heads must roll
Update: “Maris family, Anheuser-Busch settle lawsuit”
The beer giant agreed to pay at least $120 million in a confidential settlement to settle a defamation suit and other litigation arising from its termination of a beer distributorship held by the family of baseball great Roger Maris. (AP/Orlando Sentinel, Aug. 24; Tiffany Pakkala, “Maris deal taps Busch for $120m”, Gainesville Sun, Aug. 25). The dispute took the form of several distinct legal actions; in 2001 a Gainesville, Fla. jury awarded the Maris family $50 million following a three-month trial at which celebrated attorney Willie Gary, representing the family, was charged with repeated misconduct (see Apr. 1-2, 2002). However, a judge later threw out ethics charges against Gary (Jan. 5 and Jan. 7, 2004). In the latest round, Gary was again representing the family, this time in a defamation suit against the brewing company; a jury was preparing to return its verdict when the parties settled. (Gregory Cancelada, “Maris family, Anheuser-Busch square off in defamation suit”, St. Louis Post-Dispatch/San Jose Mercury News, Aug. 22).
Australia: High Court upholds injury-ad ban
By a 5-2 margin, Australia’s High Court has rejected a constitutional challenge to a ban imposed by the country’s most populous state, New South Wales, on advertisements intended to solicit personal-injury law work. Plaintiff’s lawyers had unsuccessfully argued that such ads amounted to political speech deserving of protection, but the court ruled that they were more plausibly understood as commercial solicitations. The two dissenters were Justice Michael McHugh, who apparently embraced a reading of the national constitution under which states could not constitutionally enact legislation “which has the effect or object of reducing litigation” — surprised our ATLA hasn’t come up with that one — and Justice Michael Kirby. (Michael Pelly, “Injury ad ban to stay, judges rule”, Sydney Morning Herald, Sept. 2).
Update: Indictments in Roberts sex/extortion case
We reported June 13, 2004:
According to a story in the San Antonio Express-News, husband-and-wife legal partners Ted H. and Mary Schorlemer Roberts received money in a curious sequence of events. Mary, claiming to seek “no strings” discreet encounters, would seduce men over an Internet dating service. Ted would then write the men (in legal documents sometimes typed by Mary) and notify them that he planned to seek intrusive and public civil discovery to investigate whether the affair brought forward potential causes of action that were flimsy at best; the men would pay tens of thousands of dollars for a release and confidentiality agreement.
The Roberts couple’s bankruptcy trustee has since sued the Express-News over the story, on the theory that it “invaded their privacy, inflicted emotional distress and drove them into bankruptcy.” But a Texas grand jury has voted to indict the two on three charges of “theft” (which, in Texas, encompasses extortion); the FBI decided that federal charges weren’t possible. The Roberts couple’s attorney predicts they’ll be exonerated. “You can rest assured that I believe that lawyers are held to the same standards as everyone else in the community,” Bexar County District Attorney Susan Reed said. “The law doesn’t carve out the word ‘lawyer'” for special protection.” (Maro Robbins and Joseph S. Stroud, “Pair facing extortion indictment”, San Antonio Express-News, Sep. 1). The story does not detail what happened to the Roberts’ former partner, Robert V. West III, who originally brought the allegations to light; in return, the Roberts sued him and the Texas bar chose to investigate West rather than the Roberts.
The old Curmudgeonly Clerk weblog explored the legal legitimacy of the underlying Roberts lawsuits back in 2004.
In the original story, the newspaper asked Texas law professor and legal ethics specialist John Dzienkowski if legal ethics prohibited the Roberts’ tactics. “In the spectrum of Rambo litigation, and in the spectrum of trying to push people a little bit, just sending that piece of paper is probably on the mild side,” said Dzienkowski. “That’s why ethically I don’t really see a problem with it.” But who says reform of the legal profession is needed?
Katrina refugees
Employ them. (George Lenard, Sept. 2).