July 21, 2011

   We repeat our comments in a prior article on the Louisville Firefighter lawsuit about Ann Oldfather.   “We make no charges against Ann Oldfather, a respected attorney…”   That respect has only increased after our interview with her. 

  We are glad to be informed that Ms. Oldfather did not solicit her Firefighter clients by a mail solicitation as was done in the Fen Phen suit filed by Angela Ford against the original Fen Phen attorneys.

  Ms. Oldfather has a history of representation of a large number of the members of  the Louisville Firefighter group.  We are advised that the Firefighters themselves held a mass meeting to discuss their options.  So when the firefighters determined that they had a claim they wished to pursue, they requested  that Ms. Oldfather  represent them.  We believe that is an important distinction that distances her from the mail solicitation tactics alleged to have occurred in the Angela Ford lawsuit.   It appears that the Firefighter’s solicited Ann Oldfather, and not the other way around.

  We still believe that anytime an attorney files a lawsuit representing hundreds of clients that it is  legitimate to question how they obtained those clients.  Ms. Oldfather  in our opinion, has clearly passed the test imposed by the Code of Professional Conduct. 

  We will remain curious about all strike-back lawsuits.  The merits of the Firefighter lawsuit will be decided in court and we do not have the capability to knowingly predict the outcome. 

  But anytime an attorney obtains a judgment for a client, and then the client sues the attorney, we come a step closer to the day when all lawyers will refuse to accept meritorious claims due to the likelihood they will be sued if they are successful.

  Meanwhile, the KBA Bar Counsel has been in possession of a transcript made before the Judicial Conduct Commission in 2005  raising questions about the solicitation of clients by mail by Angela Ford in her Fen Phen strike back lawsuit.  The client solicitation practices of  Angela Ford have been discussed in both the Gallion and Cunningham criminal trials, in depositions and in findings filed by KBA Trial Commissioners.  These references to Ford’s solicitation practices have been made public at one time or another but are buried in the trial transcripts and have been ignored by the media. 

   The media and one jury has found Gallion and Cunningham guilty, but they have ignored  the issues regarding client solicitation procedures of Angela Ford, which if  they were found to have been in violation of the Code of Professional Conduct, would result in a forfeiture of her fee to her clients.  She made a statement to the press in response to the  Court Order of U.S. District Judge Danny Reeves ordering her to provide an accounting of her handling of funds she seized from Gallion and Cunningham and the Charitable Trust they created.  

Ford is reported to have already paid herself $13 million dollars and told the Courier-Journal….there is no way a future judge or jury would ever give this money back to Gallion and Cunningham.   That statement assumes that even though the Court of Appeals reversed the only judgment in her client’s favor, that she will never be ordered to return the money she has seized.

She argued to the U.S. Attorney’s office that the Summary Judgment granted by the Boone Circuit Court was a good judgment even though the Court of Appeals remanded it for a jury trial.

Why would she think she is entitled to any money unsupported by a judgment in her client’s favor?   We even question whether she is entitled to an appeal to the Supreme Court, since after the Court of Appeals remanded her judgment for a jury trial. There is caselaw that suggests that, an appeal to the Supreme Court would be interlocutory and not ripe for discretionary review since the ruling of the Court of Appeals was not a final ruling….the Ct. of Appeals remanded the case for a jury trial in the Boone Circuit Court.  There is a good argument that Angela Ford is not entitled to discretionary review by the Supreme Court until such time as there is a final judgment of the Boone Circuit Court and a final ruling by the Court of Appeals.

 Her statement to the Courier Journal failed to discuss the possibility that she could be ordered to pay her $13 million dollar attorneys fee to her own clients.  Perhaps  she is not aware of SCR 3.130 (7.10) which states:

SCR 3.130(7.10) Waiver and forfeiture of fees for prohibited solicitation  If a lawyer illegally or unethically solicited a client for which compensation is paid or payable, all fees arising from such transaction shall be deemed waived and forfeited and shall be returned to the client. A civil action for recovery of such fees may be brought in a court of competent jurisdiction.”

  That rule provides one way that the courts could order Angela Ford to return her $13 million dollar attorneys fee. (Assuming of course that she was found to have violated the rule.)  

   Other possibilities that could result in her having to return this money arises from the fact that the Court of Appeals has ordered a new trial for Gallion and Cunningham in the civil case.  While Angela Ford is confident a jury would find in her favor, we personally learned years ago the danger in predicting what a jury will do.

   Further, the criminal convictions of Gallion and Cunningham are on appeal.  While Ms. Ford is confident of the future ruling of the Sixth Circuit Court of Appeals, we are not so confident. 

We recall that in the first criminal trial Judge Bertlesman allowed the defendants to present evidence on whether the settlement was an aggregate settlement or a class action settlement.  Ten of twelve jurors in the first criminal trial voted for acquittal.  On the second trial Judge Danny Reeves denied the defendants the right to introduce the defense (which was allowed by Judge Bertlesman).   If the Sixth Circuit agrees with the first judge, then there will be a second criminal trial, and who but Angela Ford, knows what the next jury will find.

  If  Gallion and Cunningham get new trials, and if they were to win, then Ford would be hard pressed to justify her attorney fee and she would be hard pressed to claim that her clients had any claim to the $43 million she has seized from the assets of Gallion and Cunningham.  Ford turned the original Fen Phen clients against their original attorneys.  Those clients have shown a willingness to sue their own attorney ….will those litigious clients have any hesitation is going after Ford if they think they can get another $13 million?

  When Angela Ford tells the Courier Journal that there is no way she would ever be ordered to return the money she has seized, in light of the Court of Appeals reversal, and the pending civil and criminal appeals, this suggests she has a lack of appreciation of the serious legal issues which have yet to be decided.  Is she whistling while passing by the graveyard?

Until such time as the KBA Bar Counsel demonstrates some interest in client solicitation practices, we believe  it will be prudent for all attorneys to closely examine client solicitation practices, particularly when the lawsuit is filed against attorneys who have obtained large settlements for their clients.

 We wonder if the KBA Bar Counsel will ever be heard on this topic.

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