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

• Author: Simon, William H.
• Position: Response to article in this issue, p. 1605

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.

1. 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.

   1. 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.

   2. "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 its deficiencies, that reasserted most of the positions in it, and that supported LM&B's position that the Nextel claimants had given informed consent to the DRSA.

      A fair prima facie assessment of all of my criticisms except those concerning informed consent can be made with nothing more than the DRSA and the original retainer agreements the DRSA replaced. The issue of informed consent is more complex because it turns in part on conduct of the lawyers that is in dispute. However, I tried to tailor my criticisms to this limitation.

      First, I faulted Hazard in his ex ante letter for failing to provide any guidance as to what the lawyers should do to obtain informed consent, and I faulted the ex post opinions of the litigation experts for failing to note the disadvantages of the DRSA that would have to be discussed in any disclosure adequate for informed consent. In addition, I offered my own example of the type of disclosure of the DRSA that would be required for informed consent. (6) The reader can make her own assessment of my opinion on required disclosure simply by examination of the DRSA. She is also entitled to draw inferences from the fact that Green makes no response to this argument and does not say what alternative disclosure, consistent with the record, would have been adequate.

      Second, although I do not know what oral disclosures the lawyers made, we do have the key document prepared for distribution to claimants, and it is not only materially incomplete, but affirmatively misleading in purporting to describe the "Highlights" of the agreement while omitting key terms about the amounts and conditions of payment. (7) Perhaps Green is right that this record does not permit a definite conclusion, but it is hard to imagine what kind of purely oral disclosure could compensate for such deception.

      Green's charge of factual misstatement is supported by only three specifics:

      First, "Simon assumes that a DRSA provision restricted the plaintiffs from discharging LM&B and substituting other counsel.... But LM&B, its clients, and its experts did not understand the DRSA to impose this restriction." (8)

      Here is what the DRSA says: "[e]ach Claimant agrees that LM&B shall be his/her legal representative throughout DRP [Dispute Resolution Process] (or if he/she elects [an alternative process])." (9)

      Here is what Exhibit A, the "Individual Agreement" intended for signature by the claimants, says: "[w]hile I may consult other counsel of my choosing with respect to the Dispute Resolution and Settlement Agreement, I agree that LM&B shall be...