FINDINGS OF JUDGE WILLIAM GRAHAM ACTING AS KBA TRIAL COMMISSIONER IN CASE AGAINST STANLEY M. CHESLEY

 The next step in the KBA Discipline proceedings is for the Board of Governors to review the findings.  They can take additional evidence.

 After the ruling by the Board of Governors, either party may appeal to the Ky. Supreme Court.

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SUPREME COURT OF KENTUCKY

KBA FILE 13785 pi, »_

KENTUCKY BAR ASSOCIATION COMPLAINANT

vs.

STANLEY M. CHESLEY RESPONDENT

REPORT OF TRIAL COMMISSIONER

I. THE CHARGE

Pursuant to SCR 3.190, the Inquiry Commission charges that Stanley M. Chesley,

whose Kentucky Bar Association member number is 11810, engaged in professional

misconduct by violating the following nine ethical rules:

1. SCR3.130-1.5(a)

2. SCR3.130-1.5(c)

3. SCR3.130-1.5(e)

4. SCR 3.130-1.7

5. SCR3.130-1.8(g)

6. SCR3.130-3.3(a)

7. SCR3.130-8.1(a)

8. SCR3.130-8.3(c)

9. SCR 3.

Each rule will be specifically quoted in the Conclusions of Law.

II. THE PROCEEDINGS

A hearing regarding these charges began on November 5-6, and 12-13,2009, with

Judge Rod Messer presiding as the Trial Commissioner. Present representing the KBA

were Linda Gosnell, Esq., Carey Howard, Esq., and other staff members of the Bar. The

Respondent Stanley Chesley was present on some of the days with counsel (appearing at

various times), Kent Westberry, Esq., James Gary, Esq., Frank Benton, IV, Esq., Scott

Cox, Esq., Mark Miller, Esq., and the Honorable Susan Dlott, wife of the Respondent.

Prior to the hearing, testimony of video depositions from five witnesses located

out of the state were provided to the Trial Commissioner. These video recordings were

entered of record at the hearing. In this initial hearing 44 exhibits were introduced by the

Complainant through the out-of-state testimony of John Vardaman, Esq., Heidi Levine,

Esq., Helene Madonick, Esq., all three of whom represented the Defendant in the

underlying action, American Home Products. Also presented was the deposition of Faye

Stilz, Esq., an employee of the Respondent Chesley, and Frank Dominguez, a

representative of one of the banks in which the settlement funds from the underlying

action were held.

Approximately one week into the hearing, Judge Messer learned of a potential

conflict and recused with respect to the Respondent Chesley, but continued with the

charges against David Helmers. Subsequently, on March 9, 2010, this Trial

Commissioner was appointed to continue the hearing with respect to the Respondent

Chesley. That hearing resumed on September 13-15,20-24, 2010. Prior to the hearing

this Trial Commissioner reviewed all the pertinent records including the pleadings, the

depositions mentioned above, and all of the testimony given at trial prior to Judge

Messer’s recusal. Again the KBA was represented by Ms. Gosnell and Mr. Howard,

along with Bar Counsel paralegals. The Respondent was present and represented by

Mr. Gary, Mr. Benton, Mr. Cox, Mr. Miller, Esq., and Sheryl Snyder, Esq. Forty-three

witnesses gave testimony either by deposition or in person. The Trial Commissioner also

considered 124 exhibits.

At the conclusion of the hearing Counsel requested a briefing schedule. This

motion was granted, the transcript prepared, and briefing was concluded and the case was

submitted to the Trial Commissioner on January 31, 2011.

III. FACTUAL HISTORY

Both the Board of Governors and the Supreme Court are no doubt familiar with

many of the underlying events that led to these charges against the Respondent Chesley

from their review of the disciplinary cases of the other plaintiffs’ counsel in the

underlying action. These counsel include Shirley Cunningham, Melbourne Mills,

William Gallion, and David Helmers. The actions of the presiding judge, Joseph

Bamberger, are also before the Court in disciplinary proceedings taken against him. The

Judicial Conduct Commission also took action against Judge Bamberger, which resulted

in his resignation from the bench. We will focus therefore on a review of some of the

facts in this case as they relate specifically to the Respondent Chesley.

Chesley has argued and would have the Trial Commissioner believe that he was

brought into this case by plaintiffs’ other counsel for a very limited purpose of lending

his “expertise” to the case in acquiring a favorable settlement from the Defendant,

American Home Products (hereinafter AHP.) This argument is misleading and not

supported by the facts.

The lawsuit at issue in this proceeding, Darla Guard, et al or Jonetta Moore, et al

versus A.H. Robins Company, et al, (herein after the Guard case) was filed in Boone

Circuit Court as Civil Action Number 98-CI-759 in 1998. Counsel of record in that

action were William Gallion, Shirley Cunningham, and Melbourne Mills. The action was

filed and certified as a class action complaint on behalf of individual named plaintiffs and

“all those similarly situated” in Kentucky who claimed injury from certain diet drugs

commonly referred to as the fen-phen drugs. Cunningham and Mills, primarily through

advertising, had signed up hundreds, if not thousands of potential clients for the tort

claims against the manufacturer of the fen-phen drugs, AHP, and a doctor who prescribed

the drugs in Kentucky, Dr. Rex Duff. Gallion, who had previously shared offices with

Cunningham, was brought in as a litigator who would prepare the case and try it. David

Helmers was his associate.

Near the same time as the filing of the Guard case, many similar diet drug cases

were being filed in many jurisdictions across the country. Most were being consolidated

in a federal court action as multidistrict litigation (MLD) in the Eastern District of

Pennsylvania. Respondent Chesley was involved in representing plaintiffs in that federal

litigation and became a member of its management committee for purposes of settlement

negotiations with AHP. This federal action resulted in an agreed settlement for many diet

drug cases throughout the country.

The Guard case in Boone Circuit Court, however, was not removed to the federal

court and many plaintiffs in the Guard action signed opt-out agreements from the national

settlement. These cases were to proceed toward trial in the Boone Circuit Court.

Shortly after the Guard case had been certified as a class action on behalf of “all

Kentuckians who had consumed diet drugs prescribed by Dr. Duff,” another class action

(seeking a remedy of medical monitoring) was filed in Leslie Circuit Court by four

attorneys, Kenneth Buckle of Hyden, Kentucky, Alva Hollon of Florida, but licensed in

Kentucky, Michael Gallagher of Texas, and Robert Arledge of Mississippi. The

presiding judge of the Leslie Circuit Court certified this case as a class action on the same

day it was filed. This case was styled Feltner, et al versus AHP, et al, Case Number 99-

CI-127, Leslie Circuit Court. The two suits created problems for the AHP counsel as an

issue arose as to whether these cases were overlapping in their certified classes. This

problem seemingly was resolved, however, when the Feltner case nearly immediately

was removed to the U. S. District Court for the Eastern District of Kentucky. It appeared

that the Feltner case would likely be transferred to the MDL proceedings in Philadelphia.

On July 30, 1999, Respondent Chesley filed his own class action complaint in the

Boone Circuit Court styled Courtney, et al versus AHP, et al, Case Number 99-CI-842.

His clients included three individuals. Two weeks later Respondent Chesley filed a

motion to consolidate his case with the Guard case. The Guard counsel, including

Gallion, strongly objected to this motion to consolidate. Interoffice memos between

Helmers and Gallion at this time reveal their strong objection to any attempt by Chesley

to enter their case.

Next, while the Feltner case was under stay in the federal court pending a possible

transfer to the MDL in Philadelphia, Respondent Chesley entered his appearance as

counsel for that plaintiff class on September 29,1999, in that case. Shortly thereafter, on

October 12, a notice of an Agreed Order to Remand the case to Leslie Circuit Court was

entered. Attorney Buckles’ signature on the order of remand contains the initials “SMC.”

David Schaefer, counsel for AHP, testified that the remand had been worked with AHP

by the Respondent Chesley. Upon remand of the Feltner action, cocounsel in the Feltner

case quickly moved to intervene in the Guard action in Boone Circuit Court. Almost at

the same time, Respondent Chesley filed a “status report” in the Courtney action in

Boone Circuit regarding the current status of his negotiations with Gallion to work

together in the Courtney and Guard cases. That status report contended that the Court

should consolidate Courtney and Guard despite the inability of the attorneys to come to

an agreement. The status report also informed Judge Bamberger of the order to remand

the Feltner case to the Leslie Circuit Court. Chesley cited this as an additional reason

that his case should be consolidated with the Guard case. He failed to inform the Boone

Circuit Court that it was he himself who had arranged for the remand.

Soon thereafter, Gallion and his cocounsel in the Guard case threw in the towel on

their efforts to resist Respondent Chesley’s entry into their case. The Guard counsel and

Respondent Chesley entered into a written stipulation to consolidate and the Courtney

case was thereby consolidated with the Guard action for “all purposes.” Once Courtney

was consolidated with the Guard class action, the Feltner matter fell by the wayside as far

as any involvement by these attorneys. Many of the Feltner claims were later settled as

part of an inventory settlement administered in another state. Likewise the Courtney

plaintiffs were not included in the Guard settlement but were sent back to the national

case. Respondent Chesley, however, had accomplished his goal ofjoining the class

action as counsel in the Boone Circuit Court. Soon thereafter, Gallion, Cunningham, and

Mills entered into a fee splitting contract with the Respondent Chesley and one other

Cincinnati attorney who had some clients in the class action. This agreement (KBA

Exhibit 147) was reached following a negotiation of all the attorneys in a meeting in

Cincinnati.

Under specific language in the agreement the attorneys agreed to be cocounsel in

the Guard action, but with designated roles for the various counsel. Respondent Chesley

agreed to act as “lead negotiator” in any attempts to settle the case. In this initial

agreement, if the case were successfully settled, he was to receive 27 % of the attorney

fees generated by the settlement of any individual opt-out cases or a settlement of the

entire class action. Gallion would be lead trial counsel in the event that the case had to be

tried. If there were no settlement but the plaintiffs prevailed at trial, Chesley’s portion of

the attorneys’ fees would be reduced to 15 %. This agreement had an expiration date of

December 31, 2000. The agreement also provided a specific provision allowing all

attorneys to review the fee contracts with the clients. Chesley claims that he never did

this. The agreement provides that the clients are to be notified, but they were not.

During the year 2000, attempts to negotiate a settlement with AHP were fruitless.

The Respondent Chesley conversed with John “Jack” Vardaman, a Washington lawyer,

who represented AHP and with whom Chesley had a longstanding professional

acquaintance. At the end of that year Chesley wrote a letter to Gallion requesting that

their fee agreement be renewed. This renewal of the agreement was accomplished and

resulted in a change in the fee splitting portion of the agreement. In the new agreement

Chesley’s percentage was reduced to 21 % (KBA Exhibit 148), upon a successful

settlement.

Meanwhile, the Boone Circuit Court set the matter for trial in the summer of

2001. Before trial, however, the Court directed parties to make another attempt at a

negotiated settlement through a mediation. All parties met for mediation for two days,

April 30 and May 1 of 2001, in the offices of their mediator in Lexington, Kentucky.

Counsel present for the Defendant AHP were Jack Vardaman, Helene Madonick, and

local counsel David Schaefer. Counsel present for the Plaintiff class were Gallion,

Helmers, the Respondent Chesley, and for the second day Cunningham. Also present

was a “trial consultant” named Mark Modlin, a longtime personal friend of the presiding

judge.

In preparation for the mediation David Helmers sent both the mediators and

defense counsel binders of materials relating to the medical conditions of the Kentucky

opt-out clients with whom they attorneys had contracts. He also sent materials to

Chesley, which included a detailed chart breaking down proposed settlement ranges for

clients in these various injury categories. Included in that chart prominently near the top

was a notation that the fee contract rate to be applied to the settlement amounts was 30

percent (KBA Exhibit 261). After two days of negotiation, an agreement was reached for

an aggregate settlement of the Guard claims against AHP for $200 million. A settlement

agreement letter was drafted by counsel memorializing this “inventory” settlement.

Respondent Chesley did not sign this settlement letter agreement as one of the “settling

attorneys.” The only class plaintiffs included in the aggregate settlement were persons

who had fee contracts with either Gallion, Cunningham, Mills, or Lawrence. This letter

of agreement by its terms incorporated and contained reference to three exhibits, two of

which were, at the time the letter was signed, not yet in existence. One exhibit not yet in

existence was to contain the names of each individual client whose claims were settled by

the aggregate agreement. The other exhibit was to be a list of the amounts to be

designated to be the allocations of the total settlement fund for each of the individual

clients. These allocations to the individual clients were to be determined by plaintiffs’

counsel.

The settlement agreement also contained two conditions precedent to the

agreement’s effectiveness that could only be ratified by order of the Boone Circuit Court.

One of those conditions was the decertification of the previously certified class action

and the other was the dismissal of the Guard lawsuit. The dismissal with respect to the

settling plaintiffs would be with prejudice; as to all other class members who were not the

opt-out clients of the settling attorneys, the dismissal was without prejudice. The

agreement also referred to and incorporated a “side letter” which outlined an agreement

by the settling attorneys and their clients that they would indemnify AHP for any claims

brought against Dr. Duff or his clinic up to $7.5 million (no such claims were ever made).

The clients were not informed of this indemnity nor in fact were they informed of any of

the terms of the settlement.

On May 9,2001, the Respondent Chesley, Gallion, Helmers, Cunningham, and

David Schaefer appeared before the Boone Circuit Court to present the results of this

negotiated settlement. No notice of this hearing was ever sent to a member of the class.

This astonishing hearing was recorded. It would be the last of any such recorded

proceedings before the Court. Before the hearing begins, counsel had presented the

presiding judge with a jointly drafted and proposed Order Decertifying Class and

Dismissing Action. At no point, however, either during or after the hearing did any of

the lawyers provide Judge Bamberger with a copy of the letter agreement itself. Judge

Bamberger’s questions and the Respondent Chesley’s response to those questions are

well worth viewing. Chesley deftly deflects the judge’s concerns about lack of notice to

either the class or any of the settling clients. In spite of his concerns, Judge Bamberger

signs the Order Decertifying Class and Dismissing Action that same day. This order was

not filed for record with the Boone Circuit Court, however, until May 16, 2001.

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Following the settlement agreement and the hearing before Judge Bamberger

resulting in the Order Decertifying Class and Dismissing Action, Gallion, Cunningham,

Mills, and their employees began meeting with their clients and collecting releases from

them. No client was informed of the amount of the settlement or that the settlement

represented an aggregate settlement for 431 individuals. They were not told that the case

had already been dismissed by the Boone Circuit Court. Many of these clients have

testified in this proceeding as well as other disciplinary proceedings and court actions, all

to the same general effect of what they were told. Not one was ever shown the settlement

document, even though some asked to see it. The disclosure requirements specifically

required within the settlement document, as well as by Court rule, were essentially

ignored by class counsel. The clients were threatened with dire consequences if they

revealed the amounts and circumstances of their settlement to anyone, including their

own families.

After obtaining the requisite percentage of client releases, David Helmers, on

instructions from the Respondent Chesley, flew to New York City to hand-deliver them

to the appropriate officials at AHP. Shortly after the delivery of these releases, AHP

made its initial deposit of $150 million (three-fourths of the total) to a Cunningham client

trust account. Shortly thereafter, on June 19, 2001, Chesley received a check for

$12,372,534.37. Later on July 5 and August 4, 2001, two additional checks totaling

$4,124,287.50 were mailed to Chesley. As a result of this initial distribution to class

counsel, Chesley received a total of $16,497,121.87. We deem Respondent Chesley to be

reasonably conversant with fifth grade arithmetic. Even a rough calculation would reveal

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that the sixteen and a half million dollars received by Chesley is several million in excess

of the 21 % of the attorney’s fees to which he was contractually entitled.

The criminal schemes of Gallion, Cunningham, and Mills began to unravel soon

thereafter. The story, well documented in other disciplinary proceedings before the

Kentucky Bar, are by now familiar to both the Board of Governors and the Court. It is a

sordid tale worthy of the pen of Charles Dickens were he alive and well. Alas, this tale is

not fiction.

Initially, the law practice partners of both Gallion and Mills became suspicious of

the handling of the proceeds from the Guard settlement. Both Michael Baker (against his

former partner Gallion) and David Stuart (against his former partner Mills) brought suit

alleging entitlement to proceeds from the settlement. In the course of their discussions

regarding their grievances, Baker informed Stuart that the settlement had been for $200

million. This was a surprise to Stuart, and when he mentioned this to Mills, Mills was

shocked. Mills had not attended the settlement negotiations and, at the time of the

settlement, Gallion had lied to Mills and told him that the settlement was for $150

million. On February 6, 2002, Gallion attended an office birthday party for Mills. In a

heated exchange, Mills confronted Gallion concerning the $50 million lie. He demanded

that an additional distribution be made to the clients from these funds and then ordered

Gallion to leave his office.

That very evening, Gallion, Cunningham, and Judge Bamberger’s good friend

Modlin met with the Respondent Chesley in Boone County. The party then paid a visit to

Judge Bamberger in the jury room of the Boone Circuit Courthouse. No motion had been

filed, no notice given, and no record made of this extraordinary ex parte meeting with the

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Judge. Respondent Chesley claims that he does not recall this meeting, but his failure to

recollect is not credible. The Commissioner finds by a preponderance of evidence he did

attend this meeting and played a leading role in the presentation made to Judge

Bamberger on that evening. Among other issues taken up with the Judge, Chesley argued

the appropriateness of an application of the cy pres doctrine to dispose of “extra” funds

remaining in the possession of the attorneys and provided a legal memorandum in

support of this argument. He also made an argument for an order approving attorneys’

fees and cited factors from a case called Grinnell v. Detroit as governing the issue. It is

unclear which Grinnell case was cited. In any event, no mention was made to the Judge

of the fact that the attorney’s fees were governed by contracts with the clients and by a

contract among the lawyers. Still Judge Bamberger at the time of this “meeting” had

never been provided with settlement documents or any other financial or accounting

documents in the case. The result of this extraordinary “meeting” was Judge

Bamberger’s oral approval of attorneys’ fees totaling 49 % of the $200 million settlement

as appropriate. The resulting written order was signed somewhat later.

Meanwhile, both Baker and Stuart had contacted the Kentucky Bar Association

with their concerns over the handling of this settlement money. On January 30, 2002, an

application requesting the Kentucky Bar’s Inquiry Commission to issue subpoenas to

Gallion, Cunningham, Mills, and Bank One was filed and served upon Mills. February

11, 2002, was the hearing date set for this application.

On February 11, 2002, the Inquiry Commission, over the objection of Mills’

counsel, authorized issuance of the subpoena application for bank records and other

records relating to the receipt and disbursement of the settlement funds from the Guard

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case. That same afternoon, five wire transfers totaling approximately $59 million were

made by Gallion and Cunningham from several of their personal accounts into an account

at First Union Bank in the joint names of Gallion, Cunningham, and Mills.

On February 15,2002, Judge Bamberger signed the order which he had orally

agreed to a few nights previously. This order approved all attorneys’ fees paid but made

no mention of an amount either in numbers or percentages. This order also authorized

further distributions of funds to clients of half the remaining funds, the amount of which

was not specified. This order, although apparently signed on February 15, was not filed

for record with the Boone Circuit Clerk until June 6, 2002.

Sometime after the “meeting” with Judge Bamberger, Respondents Chesley and

Gallion both contacted David Helmers who was then established in his own firm and

asked him to assist in a “second distribution” to the clients. Helmers received a letter

from Respondent Chesley’s office providing him with a document to show to each client

and have them sign. David Helmers, along with employees from the other firms,

followed these instructions with all of the clients.

On April 1, 2002, Respondent Chesley received an additional check for $4

million, not drawn on the client trust account from which his previous fees had been paid,

but drawn on a different account in a bank outside of Kentucky. Respondent Chesley’s

fees now totaled in excess of $20 million.

Over the spring months in 2002, the Guard clients received a second distribution

from their attorneys. However, Judge Bamberger’s order approving the second

distribution and approving additional attorneys’ fees was not filed with the Boone Circuit

Clerk until June 6, 2002. Concurrently with this filing, the Judge entered an order sealing

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the record and restricting the Clerk’s certificate of service in the Guard case to only Mills,

Gallion, Cunningham, Helmers, and Chesley. All subsequent orders over the following

months were mailed only to those individuals. Judge Bamberger’s order approving

additional attorneys’ fees listed no amount and provided no accounting. Again, there was

no motion, no notice and no hearing for the entry of this order.

The Respondent Chesley received this June 6, 2002, order and must have been

well aware of its factual inaccuracies. He claims, unconvincingly, that he did not read it.

The Respondent Chesley also was noticed on the series of subsequent orders purporting

to create the nonprofit corporation funded by the undistributed remains of the settlement

moneys. We now know those remaining proceeds to be $20 million, although this

amount was never mentioned in an order.

On another front in 2002, William E. Johnson of Frankfort, Kentucky, was

representing Mills in his response to the Kentucky Bar Association’s Inquiry

Commission’s subpoena. Whitney Wallingford represented Gallion and Cunningham in

responding to the subpoenas which they had been issued. At a meeting attended by

Wallingford, Mills, Johnson, Gallion, Cunningham and Chesley, Chesley urged that all

counsel from the Guard case who had received subpoenas from the Bar Association be

represented by the same counsel, William E. Johnson. The Respondent Chesley attended

this meeting and urged the joint representation by Mr. Johnson even though he had not

received subpoenas from the Inquiry Commission. After that meeting, Wallingford

agreed to withdraw as counsel for Gallion and Cunningham, but he completed a

submission to the Bar on which he had previously been working. Before filing his

submission, as he had been instructed, he sent a copy to Chesley for his approval. This

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submission contained a chart which inaccurately and grossly inflated the amounts of

money that had been paid to the clients. Chesley called Wallingford and told him to go

ahead and submit it to the KBA, and Wallingford complied.

On still another front, David Stuart had filed an action against Mills relating to the

dissolution of their law firm. Stuart demanded that Mills provide an accounting of the

firm’s total income, including amounts received from the settlement of the Guard case.

As part of Stuart’s discovery, Stuart’s counsel had obtained a commission from the

Fayette Circuit Court authorizing the out-of-state deposition of the Respondent Chesley

and the authorization of an appropriate subpoena. Mediation of this lawsuit was ordered

and Mills attended along with his former partner, Stuart, their respective counsel and

others. The others included an employee of Mills, Rebecca Phipps, who had been in

contact with Chesley in her efforts to be appointed to the Board of Directors for the

Kentucky Fund for Healthy Living, the nonprofit corporation founded to dispose of the

$20 million “leftover” fund. Chesley had made arrangements with Rebecca Phipps to

contact him if it appeared that the parties were encountering difficulties with the

settlement. Mills’ offer for settlement fell short of Stuart’s demand. At some point

Phipps excused herself from the mediation and called the Respondent Chesley to inform

him of this stalemate. Chesley informed her that he would contribute the difference to

get the matter settled. Respondent Chesley ended up wiring $500,000 to a client trust

account to be combined with Mills’ money and then used to pay the Stuart settlement.

Apparently $250,000 of that amount was later reimbursed to him from his other

cocounsel, Gallion and Cunningham. Stuart’s action was settled without the necessity of

Respondent Chesley’s deposition.

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A new fire soon developed on another front. An attorney in Lexington in January

2005 filed an action in Boone Circuit Court on behalf of several of the Guard clients

against the Respondent Chesley, Cunningham, Gallion, Mills and the Kentucky Fund for

Healthy Living. In his response to this action, Chesley admits having acted as class

counsel in the Guard case. Subsequent pleadings denied that he had ever acted as class

counsel. He also filed a motion to dismiss and attached redacted copies of his fee

agreements wherein language identifying him as cocounsel had been removed.

Also in 2005, when the Kentucky Judicial Conduct Commission preferred charges

against Judge Bamberger for his alleged misconduct in the Guard case, the Respondent

Chesley met with Bamberger to prepare for his meeting with the Commission. He

attended this meeting before the Conduct Commission and apparently argued in support

of Bamberger’s application of the cy pres doctrine and the establishment of the Kentucky

Fund for Healthy Living. After this appearance, Judge Bamberger resigned his office and

has since been disciplined by the Kentucky Bar.

With the civil action against Chesley and his Guard co-counsel under way,

(Abbott, et al. v. Chesley, et al., Case No. 05-CI-735, Boone Circuit Court), Chesley

called his friend, Kenneth Feinberg, to enlist his assistance in obtaining an affidavit in

support of the actions by co-counsel in the Guard settlement. Feinberg obtained the

information for the preparation of his affidavit from Gallion. In this proceeding Feinberg

disavowed the information which he provided in his affidavit and stated that if he knew

what he knows now he would have thrown the affidavit in the wastebasket. He was

supposed to have been paid $50,000 by Gallion, but Gallion never paid this amount.

Chesley testified that he was embarrassed to discover that Gallion had not paid Feinberg,

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so he gave him $10,000. Feinberg was never informed that this affidavit had been filed

of record in the Abbott case by a codefendant of the Respondent.

Sometime in 2006 Chesley also dropped by the office of AHP’s counsel in

Washington, D.C., Jack Vardaman. He left a copy of the settlement agreement with

handwritten notes attached and asked Vardaman to send him a letter along the lines of

Chesley’s notes. Chesley’s first note read: “This case was settled as a class action.

Decertification was not relevant to the collateral issues of attorneys’ fees or

administration of the settlement proceeds and process.” Vardaman testified that this was

not a true statement. Nor were other statements suggested thereon by Chesley.

Vardaman wisely did not send the requested letter. (Vardaman deposition, pp. 67-71).

In late March of 2006, Respondent Chesley was informed that the Inquiry

Commission was now investigating his conduct in the Guard case. The Commission

requested written responses to a number of questions. The Commission received its

responses on May 9, August 8 and October 4, 2006. The Respondent’s responses are in

some instances misleading, other instances incomplete, and in some instances outright

falsehoods. These responses will be dealt with individually in the conclusions of law.

On December 4,2006, the Inquiry Commission issued its Complaint of

Misconduct against Respondent Chesley and this hearing ensued.

IV. CONCLUSIONS OF LAW

The Respondent Chesley is charged with violating three provisions of Kentucky’s

Rules of Professional Conduct with respect to his collection in the Guard case of fees in

excess of $20 million.

1. Supreme Court Rule 3.13 0-1.5 (a) provides in pertinent part:

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“[a] lawyer’s fee shall be reasonable. Some factors to be considered in

determining the reasonableness of a fee include the following: (1) The time

and labor required, the novelty and difficulty of the questions involved, and

the skill requisite to perform the legal service properly; (2) The likelihood that

the acceptance of the particular employment will preclude other employment

by the lawyer; (3) The fee customarily charged in the locality for similar legal

services; (4) The amount involved and the results obtained; (5) The time

limitations imposed by the circumstances; (6) The nature and length of the

professional relationship with the client; (7) The experience, reputation and

ability of the lawyer or lawyers performing the services; (8) Whether the fee is

fixed or contingent.”

Without question the Respondent’s acceptance of fees of more than $20 million in

this litigation is unreasonable and a violation of the above quoted rule. Not only is the

Respondent’s fee part and parcel of the grossly unreasonable fees collected by the

lawyers in this case in light of what the clients had contracted to pay, it is ethically

unreasonable under the above criteria per se. The evidence presented by Vicki Hamm

based upon the financial records of the transactions documenting the fees paid by counsel

to themselves is unrefuted. Even a simplistic calculation of what Chesley was entitled to

under the contractual agreements with the clients is somewhat less than $13 million, not

in excess of $20 million. Respondent Chesley was present and participated in argument

to Judge Bamberger wherein the Judge approved fees in the case of 49 %. In fact, he

argued the holdings of the Grinnell case to Judge Bamberger. In that case a fee of 15

percent was reversed as excessive. The greed evidenced by the plaintiffs’ attorneys in

this case is astounding, and Chesley, although his avarice may not be as breathtaking as

that of Cunningham, Gallion and Mills, is culpable of unethical conduct under this rule.

2. Supreme Court Rule 3.13 0-1.5 (c) provides in pertinent part:

“[a] fee may be contingent on the outcome of the matter for which the service

is rendered, except in a matter in which a contingent fee is prohibited by

paragraph (d) or other law. Such a fee must meet the requirements of Rule

1.5(a). A contingent fee agreement shall be in writing and should state the

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method by which the fee is to be determined, including the percentage or

percentages that shall accrue to the lawyer in the event of settlement, trial or

appeal, litigation and other expenses to be deducted from the recovery, and

whether such expenses are to be deducted before or after the contingent fee is

calculated. Upon recovery of any amount in a contingent fee matter, the

lawyer shall provide the client with a written statement stating the outcome of

the matter and showing the remittance to the client and the method of its

determination.”

Without question the Respondent Chesley has violated this ethical standard. All

the clients in this class action had contractual contingency fee agreements with class

counsel. These fees were either for 30 % or 33 1/3 %. Under the contractual agreements

counsel were also permitted to charge expenses up to 3 %. All attorney fees in the Guard

case should have been calculated from the total recovery of each individual client based

upon the contractual percentage agreed to by that client. The above quoted rule was

completely ignored by all class counsel. Chesley participated with his co-counsel in

charging a 49 % contingency fee to these clients with no accurate written statement of the

fees, expenses or method of determining the fee provided to anyone. Chesley’s

contractual agreement with class counsel was for 21 percent of fees upon successful

settlement of the case. Ms. Hamm’s chart based upon the financial records of these

transactions clearly demonstrates what Chesley’s fees should have been under these

contingent fee contracts. Chesley’s share should have been $12,941,638.46. This

amounts to a bit more, (a relative term in these circumstances), than his initial payment

on June 19, 2001. The circumstances of the later payments is of record. Of course the

final $4 million payment came only after Chesley lent his critical assistance in persuading

Judge Bamberger to sign the order approving the unjustified fees after their unrecorded

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meeting in Boone County. Chesley was paid some $7,555,000 in excess of his proper fee

calculations under the contracts.

3. Supreme Court Rule 3.130-1.5(e) provides in pertinent part:

“[a] division of a fee between lawyers who are not in the same firm may be

made only if: (1) (a) The division is in proportion to the services performed

by each lawyer or, (b) By written agreement with the client, each lawyer

assumes joint responsibility for the representation; and (2) The client is

advised of and does not object to the participation of all lawyers involved; and

(3) The total fee is reasonable.”

The Respondent Chesley has violated the above quoted rule in numerous respects.

No client was ever advised of Chesley’s participation nor ever given an opportunity to

object. Chesley himself took no measures to ensure compliance with this rule and made

no inquires concerning advice to the clients. As noted above the total fees are clearly

unreasonable. Chesley argues that he was hired to represent Gallion, Cunningham and

Mills in this case – not the class. This argument is belied by all the actions and

documents in the case. The obligation to inform the clients and obtain their consent to a

division of fees among lawyers from different firms lies with all the lawyers involved.

The lack of notice to, and advice and consent of, the clients in the Guard class was

obvious to all class counsel. Indeed, Chesley’s own expert witness was at a loss to

explain how this rule had been followed.

4. Supreme Court Rule 3.130-1.7 provides in pertinent part:

“[a] lawyer shall not represent a client if the representation of that client will

be directly adverse to another client unless: (1) The lawyer reasonably

believes the representation will not adversely affect the relationship with the

other client; and (2) Each client consents after consultation, (b) A lawyer

shall not represent a client if the representation of that client may be

materially limited by the lawyer’s responsibilities to another client or to a

third person, or by the lawyer’s own interest, unless: (1) The lawyer

reasonably believes the representation will not be adversely affected; and (2)

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The client consents after consultation. When representation of multiple

clients in a single matter is undertaken, the consultation shall include

explanation of the implications of the common representation and the

advantages and risks involved.”

The Commissioner cannot find a clear violation of this rule in the evidence. Bar

counsel argues violation of this ethical principle in two respects. First, the Respondent

Chesley and other counsel in the Guard action, agreed to the decertification of the case

and a dismissal “without prejudice” with respect to the 70 “unknown” members of the

Guard class without notice of either the May hearing before the Boone Circuit Court or

notice after entry of the order. Without question the identity of these 70 opt-out class

members could have been discovered from AHP. But the obligations of class counsel

with respect to such notice under Civil Rule 23 or any other legal principle is unsettled.

Notice, in our view, is the better rule, but some jurisdictions hold otherwise.

Second, Bar counsel argued that Chesley’s actions in settling three other

individual claims for severely injured plaintiffs who suffered from PPH as a result of

ingesting fen-phen drugs conflicted with his representation of the Guard class. Although

such practices merit close examination, this Commissioner can find no evidence that

these settlements affected or impacted the aggregate settlement made for the 431

members of the Guard class in any adverse way.

5. Supreme Court Rule 3.130-1.8(g) provides in pertinent part:

“[a] lawyer who represents two or more clients shall not participate in making

an aggregate settlement of the claims of or against the clients…., unless each

client consents after consultation, including disclosure of the existence and

nature of all the claims… and of the participation of each person in the

settlement.”

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A more egregious violation of this ethical rule by all plaintiff counsel in the Guard

case is difficult to imagine. This includes the Respondent Chesley. The settlement

agreement itself specifically provides contractually for compliance with this rule by the

“settling” attorneys. Chesley points out that he did not sign the settlement agreement as

one of the “settling” attorneys, even though he was noticed with the final agreement. It is

important to note that this ethical rule exists separately from the settlement agreement

and is an independent requirement in and of itself in any aggregate settlement. There is

no evidence in the record that clients were consulted concerning the aggregate settlement

before, during or after the mediation before it was presented to the Boone Circuit Court.

No notice was given to either settling claimants or those 70 who were dismissed without

prejudice. Respondent Chesley does not escape liability for this rule simply because he

had the foresight not to sign the settlement document. He was class counsel pursuant to

his agreement with Cunningham, Gallion and Mills. Chesley was fully aware that his

clients had not been informed concerning the settlement at the time the agreement was

reached and afterward. He was fully aware that no notice had been sent to the settling

clients prior to the hearing on May 9, 2001, in Boone Circuit Court. Chesley himself

bamboozled Judge Bamberger with his often non-sensical answers to the Judge’s queries

about notice. The actions of the Respondent Chesley and his co-counsel were deliberate

and dishonest. Their failure to comply with this rule demonstrates their true motivation -

to get the money and run – rather than to protect the interest of their clients.

6. Supreme Court Rule 3.130-3.3(a) provides in pertinent part:

“[a] lawyer shall not knowingly: (1) make a false statement of material fact or

law to a tribunal; (2) Fail to disclose a material fact to the tribunal when

disclosure is necessary to avoid a fraud being perpetrated upon the tribunal…”

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The Respondent Chesley violated this ethical rule by his participation in the

“meeting” with Judge Bamberger in the jury room of the Boone Circuit Courthouse in

2002. He participated in the argument that the Grinnell case provided legal authority

justifying attorney’s fees totaling 49 % of the total recovery of $200 million. Chesley

knew at this time that his clients all had contractual agreements for attorney’s fees much

less than this amount. He was aware that there was no notice given and that the

presentation was being made to the judge behind closed doors and off the record. He

made no effort to disclose to the Court that the attorneys had contingency fee contracts.

Chesley also provided a written memorandum arguing the application of the cy

pres doctrine to create a charitable fund for what the attorneys described for the Judge as

“extra” settlement funds. This doctrine clearly had no proper legal application to the

aggregate settlement in the Guard action.

Furthermore, in the May 9, 2001, hearing he argued to Judge Bamberger that no

notice was needed to the class members of the agreement to settle the case and decertify

the class. This decision had significant legal ramifications for both the 431 who settled

and for the 70 who did not. He also argued for dismissal of the action without notice to

any members of the class. Chesley was presented to the Court as the “expert” in these

class action matters. He mislead the Court regarding notice while knowing full-well that

his clients had neither been informed of the settlement nor had given their consent.

7. Supreme Court Rule 3.150-8.1 (a) provides in pertinent part:

“…a lawyer…in connection with a disciplinary matter, shall not: knowingly

make a false statement of material fact.”

Respondent Chesley has violated this ethical provision in several instances. In

making his responses to questions asked him during the investigation into his conduct in

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the Guard litigation by the Inquiry Commission of the Kentucky Bar, Respondent’s

answers were incomplete, misleading and/or false. He answered Bar questions in letters

dated May 9,2006, and August 8, 2006 (KBA Exhibits 266 and 270). In answering a

question regarding his communications with other Guard attorneys or Judge Bamberger

regarding the appropriateness of the use of the

cy pres doctrine, Chesley gave a seriously distorted reply. He made no mention of his

off-the-record meeting with Judge Bamberger in February 2002 wherein he presented

legal authority supporting the appropriateness of a cy pres fund. His answer to the next

question, Number 15, is false and misleading wherein he denies any communications of

any nature with Judge Bamberger regarding the establishment of a charity or nonprofit

entity to disburse any funds from the Guard settlement. Again no mention is made of his

participation in the 2002 courthouse “meeting”. His answer to Question 16 is untruthful.

Chesley was well aware that there would be a second distribution prior to his receipt of

the $4 million check. He himself had called David Helmers asking him to assist in the

second distribution. An employee of his law office delivered a letter to Helmers to have

the clients sign in the course of this distribution. His answers to Question 17 and 18 are

not truthful. He in fact did communicate with counsel regarding the second distribution

of funds and met with Judge Bamberger in this secret 2002 meeting to discuss the second

distribution. Experienced counsel in his office participated in drafting the deceptive letter

to be given to the Guard clients upon receipt of a second distribution. These answers

were egregious misrepresentations, if not outright lies, to the Inquiry Commission.

8. Supreme Court Rule 3.150-8.3(c)(now 8.4) provides in pertinent part: that it

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is misconduct for a lawyer to “[ejngage in conduct involving dishonesty, fraud, deceit or

misrepresentation."

Clearly from the evidence, Respondent Chesley believed that he would be able to

"take his money and run" after the settlement and avoid any responsibility in the

distribution of the settlement to the clients. When he became aware of the misdeeds of

Cunningham, Gallion and Mills, his responsive actions all became part of an attempt to

conceal and cover up their misdeeds. Chesley must have been fully aware of the fraud

perpetrated by his accepting fees far in excess of what he was entitled to under his

contractual arrangement. He was fully aware that no accounting had been made to the

clients or to the Court. Rather than taking actions to correct these misdeeds, to inform his

clients and the Court, and to disgorge ill gotten gain, Chesley acted with dishonesty,

deceit and misrepresentation in assisting his co-counsel in their efforts to conceal what

had transpired. His entire course of conduct was one of self-interest and self-preservation

of both himself and his co-counsel. His actions set out above evidence a complete lack of

concern for his clients and the proper and just application of the law.

9. Supreme Court Rule 3.150-5.1 (c)( 1) provides in pertinent part:

"[a] lawyer shall be responsible for another lawyer’s violation of the Rules of

Professional Conduct only if: The lawyer orders or, with knowledge of

specific conduct, ratifies the conduct involved…”

Respondent Chesley has violated this ethical provision in numerous respects.

Chesley had to have learned that the settlement fund had not been properly administered

and distributed to the clients when he learned after Mills’ confrontation with Cunningham

that a second distribution would be required. That evening he along with Gallion and

Cunningham met with Judge Bamberger in their off-the-record “meeting”. Chesley’s

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actions in attending that meeting and all actions he took subsequently were designed to

assist his co-counsel in a “cover-up” of their thievery. It is clear from the evidence that

from this point on Chesley became “counsel in chief. He attended meetings to settle

David Stuart’s suit against his former partner Mills and made a significant contribution to

that settlement in order to avoid depositions and publicity. Counsel were instructed to

obtain his approval before sending documents to the Inquiry Commission and he

specifically approved a document sent by Whitney Wallingford to the KBA which was

later determined to contain false and misleading information. He assisted Judge

Bamberger in his presentation to the Judicial Conduct Commission. He accepted an

additional $4 million fee after his “meeting” with Judge Bamberger to argue for an order

allowing the second distribution and approval of attorneys’ fees up to 49 %. From

February of 2002 on the evidence clearly demonstrates that the Respondent Chesley was

involved in, and at many points primarily orchestrating, the attempts of his co-counsel to

conceal their fraud.

V. RECOMMENDED SANCTIONS

SCR 3.380 provides the following degrees of discipline upon findings of ethical

violations defined in the Supreme Court Rules:

“Upon findings of a violation of these rules, discipline may be administered by

way of private reprimand, public reprimand, suspension from practice for a

definite time with or without conditions as the Court may impose, or permanent

disbarment.”

Respondent Chesley took more than $7 million in fees beyond his contractual

agreement with his co-counsel. These fees came not from the portions allotted to cocounsel,

but from the Guard clients themselves. He took these fees with no notice to the

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Guard clients and with no disclosure or accounting in any court proceeding or court

order. Indeed, $4 million of these fees, his “bonus”, came only after his clandestine

“meeting” with Judge Bamberger wherein he participated in urging the Court’s blanket

approval of attorneys’ fees totaling 49 % of the $200 million settlement funds. Chesley’s

greed may not be as eye-popping as that of his co-counsel, Gallion and Cunningham, but

it is no less egregious.

It is difficult to discern exactly when Chesley must have become aware of the

criminal enterprise undertaken by Gallion and Cunningham, but it is clear from the

evidence that well before he received his $4 million “bonus”, he was fully aware that a

major portion of the funds had not been properly distributed to the clients. He willingly

and actively participated in the February 6, 2002, “meeting” with Judge Bamberger in

order to get the Court’s stamp of approval upon this criminal enterprise. He subsequently

received all orders signed by Judge Bamberger containing many statements which

Chesley knew to be false and inaccurate. Never in any instance did Chesley, the

experienced class action “expert”, take action properly to inform the Court or his Guard

clients that something was amiss. Every action taken by Chesley after this meeting with

Judge Bamberger was calculated to assist in the cover-up of these misdeeds by Gallion,

Cunningham and Mills. His callous subordination of the interests of his clients to his

own greed is both shocking and reprehensible. His actions justify a permanent

disbarment from the Kentucky Bar Association.

Bar Counsel have argued aggravating circumstances in this case. Other Kentucky

disciplinary cases have called for consideration of aggregating factors in determining

discipline. The ABA standards for imposing lawyer sanctions provides a guide as a

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model system to assist in the determination of proper sanctions. These ABA standards

have been cited favorably by the Kentucky Supreme Court. [See Anderson v. KBA,

262 SW 3rd 636 (Ky. 2008)]. The relevant aggravating circumstances are as follows:

“9.2 Aggravation

9.21 Definition. Aggravation or aggravating circumstances are any

considerations, or factors that may justify an increase in the degree of

discipline to be imposed.

9.22 Factors which may be considered in aggravation.

Aggravating factors include:

(a) prior disciplinary offenses;

(b) dishonest or selfish motive;

(c) a pattern of misconduct;

(d) multiple offenses;

(e) bad faith obstruction of the disciplinary proceeding by

intentionally failing to comply with rules or orders of the

disciplinary agency;

(f) submission of false evidence, false statements, or other

deceptive practices during the disciplinary process;

(g) refusal to acknowledge wrongful nature of conduct;

(h) vulnerability of victim;

(i) substantial experience in the practice of law;

(j) indifference to making restitution.”

With the exception of factors (a) and (e), all these factors apply emphatically to

the Respondent.

Counsel for Chesley argue that mitigating factors exist in his favor. Indeed, he

has never been disciplined by any bar association in a long and distinguished career. But

his character witnesses and his prior unblemished record are insufficient to mitigate

Chesley’s egregious conduct in this case.

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It is furthermore appropriate that Chesley disgorge the $7,555,000.00 excess fees

which he received in this case. This sum should be provided as restitution to his clients

either through the auspices of the Abbott case, should those clients prevail, or some other

means designed by the Court.

This the 22nd day of February, 2011.

HON. WILLIAM L. GRAHAM

TRIAL COMMISSIONER

Certificate of Service

I certify that the original of this Report of Trial Commissioner was filed with the

Disciplinary clerk of the Kentucky Bar Association, 514 West Main Street, Frankfort,

Kentucky 40601-1883 this 22nd day of February, 2011.

HON. WILLIAM L. GRAHAM

TRIAL COMMISSIONER

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Comment sent to LawReader re: Graham Findings.

 Dear Sir I can’t help butting in – FYI– in reading Wm Graham’s report, e.g.,  p. 27— He doesn’t know that Bill Gallion on 2/28/02 outlined the entire settlement to Linda Gosnell. This was her testimony in the trial before Danny Reeves. Bill Gallion wasn’t hiding anything. Also they made a full accounting of Settlement funds to the Bar in 4/02. Is it proper to blame attorneys for lack of oversight by the court. Bar and govt keep saying the Judge didn’t know this , didn’t know that.. Does he have an obligation to ask, to be informed !
 
How grossly unfair and ridiculous is it to accuse attorneys for not telling the Judge there were contingency fee contracts. In the first trial on cross examination Judge Bamberger concerning such contracts explained his lack of knowledge on the fact that in class actions there are no contracts… he forgot  the clients were not before him pursuant to  Notice ordered by the court but rather pursuant to television advertisements. Mr. Almand’s questioning of Judge Bamberger in this matter is highly instructive.  
 
Needless to say we think Mr. Graham got it wrong. It was not the Aggregate Settlement that he outlined. It was not a settlement solely for 431 people. AHP was financially benefited in getting the Duff Class decertified and they paid a great deal of money to make it go away. Hon. Mike Dowling 

 

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