Vioxx Settlement: Ethical Dilemma or Common Attorney-Client Conflict?
(image links to ABC News article on New York's own recent lawsuit against Merck)
In his provocative Los Angeles Times article Vioxx deal may cause pain, staff writer Daniel Costello asks whether the contingent settlement agreement we've written about here, here and here raises an ethical dilemma for Plaintiffs' attorneys.
As Costello reports:
The highly unusual agreement not only requires 85% of plaintiffs to agree before it can be finalized but also might unduly force some claimants to settle or risk losing their lawyer.
That's because the deal includes highly unusual restrictions on plaintiffs' lawyers. The settlement requires them to recommend the deal to all of their clients or none. In addition, lawyers must stop representing any clients who turn it down as long as they don't violate ethics rules.
The agreement was hammered out by Merck and a committee of top trial lawyers who represent Vioxx claimants. Lawyers for both sides said it was a good deal because it provided immediate and fair compensation instead of lengthy trials with uncertain outcomes. Merck requested the all-or-nothing conditions because it feared lawyers would settle weaker cases and cherry-pick stronger ones for trial and possible higher payouts.
Clients are not inventory that lawyers can just shed when they become inconvenient. It's forbidden.
Local trial attorney Tom Girardi, however, who took at least one 'bellwether' Vioxx case to a jury verdict before Assistant Supervising Complex Court Judge Victoria Chaney in Los Angeles earlier this year, notes that it is
always the clients' decision to accept a settlement or not, and lawyers aren't going to do anything that's unethical [and that] those considering [whether to accept the offer] should know these are not easy cases to try in court.
So is a Mass Tort Injustice on the Horizon? Not Likely.
The law -- and the contract between attorney and client -- gives both the right to withdraw from the attorney-client relationship for any or no reason. Generally, however, the relationship continues unless the same type of "irreconcilable differences" that permit husband and wife to divorce, arise between counsel and client.
One of the most common reasons for the dissolution of the attorney-client relationship is a disagreement over settlement. The attorney is not, of course, the client's indentured servant and the client is neither chattel nor "inventory."
If the attorney believes the client has been offered a settlement that is a better alternative to further litigation and trial, he would dishonor his ethical obligation if he didn't say so. If the client disagrees and their difference of opinion cannot be resolved, they separate.
The only ethical requirements on the part of the attorney in this circumstance are: (1) not to abandon the client or separate at a time when it would cause harm, i.e., bowing out on the eve of trial; and, (2) not putting the attorney's own interests above those of the client.
This is where that pesky contingency fee comes in.
Any attorney who has a one-third to fifty percent financial interest in a settlement reached or judgment entered in his client's case will often appear to have a financial interest that conflicts with his client's. This apparent conflict, however, is actually more of a guard against unnecessary litigation than the defense lawyers' practice of charging their clients an hourly fee.
A contingency attorney lives or dies by his ability to assess the risk of victory or loss and maximize the value of the threat of further litigation and trial to the defendant.
When the contingency fee intersects with mass tort practice, however, common daily practice is writ so large that the tension between attorney and client that accompanies all personal injury litigation can be made to look like injustice -- clients as inventory and attorneys as self-serving monsters.
Let's Talk About the Risks in the Real World
Tom Girardi, after trying a brilliant case to the jury in Judge Chaney's courtroom, lost to Merck. In closing, Merck's attorney argued to the jury that Tom's client was "all in" based upon his testimony about the number of Vioxx tablets he'd taken.
Clients, however, just like any other fallible human beings, "forget" or dissemble. Whatever the Plaintiff's "true" recollection, the pharmacy records proved otherwise. He had not only not taken the number of Vioxx tablets prescribed -- his recollection of how many he took was not even close.
Can the Vioxx attorneys predict victory? No. Can Merck? Nope. Did both sides take their best shot at trying a couple of dozen cases at enormous expense. I think so.
Is there an ethical problem here? Not likely. These are some of the best personal injury trial attorneys in the country. And they don't get that reputation by settling their clients' claims for less than they're worth.