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Transparency is the solution, not the problem: a reply to Bruce Green.

Article Excerpt
INTRODUCTION



I. LEEDS, MORELLI & BROWN AND THE NEXTEL SETTLEMENT A. Information B. "Factual Unreliability" C. "Legal Unreliability" II. THE ROLE OF THE EXPERT WITNESS A. Publicity and Credibility B. Litigation Process and Accountability CONCLUSION

INTRODUCTION

I fear that the diffuse and ad hominem tendencies of Bruce Green's reply will distract attention from the core issues I sought to discuss.

First, I argued that issues of professional and academic integrity and accountability are raised when lawyers give advice with certain third-party effects under conditions of partial or complete secrecy. I proposed a variety of soft norms, including especially a presumptive duty of publicity.

Second, I criticized novel aggregate litigation arrangements applied by Leeds, Morelli & Brown (LM&B) in a series of campaigns involving many hundreds of clients, and I criticized the opinions of academic experts, including Green, who approved them.

Although I believe the discussion of LM&B is interesting in itself as an account of a novel litigation structure, I intended it to amplify my discussion of quasi-third-party opinion practice in two ways. First, it shows the significant role that professional, and especially academic, experts can play in legitimating transactions both before and after the fact. Second, if the reader agrees with my argument that these opinions were egregiously "wrong" (that is, either procedurally sloppy or substantively incorrect), then they provide anecdotal evidence that existing norms and practices are not adequate to safeguard the relevant public interests.

I am grateful for the portion of Green's response that engages these issues, and I reply to it here, looking at his discussion of LM&B first, and then his disagreement with my proposal for more transparency.

I. LEEDS, MORELLI & BROWN AND THE NEXTEL SETTLEMENT

Green's response to the substance of my critique of the experts in the Nextel case asserts that I failed to consider pertinent information and that I misstate the facts and the law.

A. Information

Green faults me repeatedly for failing to take account of the Colorado trial transcripts, and protests my failure to discuss a twenty-seven-page report he made and "documents relating to the negotiation of the Dispute Resolution and Settlement Agreement (DRSA) that would have shed light on its meaning." (1) In none of these instances does he say what is in the documents and how it would affect the merits.

In making these arguments, Green is picking up the pieces of a collapsing effort by LM&B to use confidentiality as a shield from accountability for its treatment of its former clients in Nextel and other matters. The lawyers induced the clients to agree not to discuss their cases on pain of serious monetary sanctions. In the subsequent malpractice cases, they have asserted these provisions aggressively against the clients. Various gag orders have been entered. A notorious one in a case arising from an LM&B aggregate settlement with Prudential Insurance seemed to preclude the clients' current lawyers not only from publicizing their claims, but from efforts to recruit professional assistance in preparing their cases. The clients' current lawyer in New Jersey was summoned on criminal contempt charges for violating this order before it was reversed on appeal. (2)

Since the appellate court reversal in New Jersey, other courts have refused some of the broad confidentiality orders LM&B has sought, but the firm continues to use the legal system to deter discussion of its conduct. As Green notes, a settlement of an Arapahoe County, Colorado class action brought against LM&B by several hundred Nextel claimants is sealed, and a protective order in the Denver McNeil case forbade discussion of its terms. The belligerent stance of LM&B's defenders is well conveyed by Green's statement that, by publishing my views on LM&B's conduct in Nextel, I was "invit[ing] ancillary litigation over whether [I] was violating the court's protective order" (even though he can cite no respect in which such litigation would have been justified). (3)

I tried to get all the materials I could about the Nextel settlement; I considered all the materials I received, and I discussed all the materials I considered that I thought relevant. I do not have the trial transcript, or Green's twenty-seven-page statement, or some discovery materials. Green and LM&B were at the trial and have all the documents and could, if they wanted, describe or disclose them. While Green does volunteer a variety of information he considers exonerating, his main response on the merits is to appeal to information he will not describe or disclose. His position seems to be that, as long as he or LM&B control material information, they are immune from criticism. Similarly, while Green asks us to give great weight to the trial judgment in the McNeil case, which involved two of the Nextel claimants, he tells us nothing about the trial other than that he testified and that I did not, and he reminds us that no one can discuss the class action settlement, which involved hundreds of the Nextel claimants.

The broader social stakes in LM&B's information control strategy are not, as Green says, the "tension between the regulatory interest in transparency and client confidentiality, which promotes the private and public interest in obtaining effective legal assistance." (4) Confidentiality is not being invoked here to protect clients, but to protect lawyers from accountability to clients. The "public and private interest in obtaining effective legal assistance" depends as much on assuring prospective clients that they will not be exploited by their lawyers as on assuring them that their secrets will be kept. LM&B's campaign against transparency does serious injury to that interest.

B. "Factual Unreliability"

I continue to believe that my criticisms can be fairly assessed by review of a small number of documents that have been available to anyone who wants to look at them since I first circulated my draft.

The principal focus of my critique is an opinion letter by Geoffrey Hazard expressly based on the DRSA and mentioning no other basis. The DRSA contains a clause stating that it "supersedes all prior and contemporaneous oral and written agreements, understandings, and representations." (5)

I also criticized Green and Roy Simon for giving expert opinions in the McNeil litigation that referred to Hazard's letter without noting...

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