Lakin firm says Burke's firing was legit

Steve Gonzalez Apr. 4, 2007, 8:00pm

Brad Lakin

Richard Burke

The Lakin Law Firm claims it acted responsibly in its treatment of attorney Richard Burke, who was fired in January without receiving a $500,000 year-end bonus.

Responding to allegations made by Burke in a $5 million, four-count civil suit filed Jan. 29 in federal court against the firm and its president Bradley Lakin, the firm claims it did not breach an agreement with Burke.

Burke, the former supervising attorney for the class action department at the Wood River-based firm, alleges his attempt to protect the interests of plaintiffs from persistent Lakin family scandals led to his firing and the loss of bonus.

The firm claims that any damages suffered by Burke were solely because he failed and refused to perform his duties under an agreement, breached his duty of loyalty, and breached his duty of good faith and fair dealing.

Bradley Lakin has yet to respond to the complaint. But last month Lakin attorneys filed a motion to strike portions of Burke's lawsuit claiming it is part of a scheme to lure clients and employees away from the Lakin law firm and to further Burke's financial interests with the Chicago-based Freed & Weiss law firm.

Burke claims that after a civil sexual assault lawsuit was filed against Thomas Lakin, Bradley Lakin, Kristopher Lakin and the firm in May 2006, he told Bradley Lakin that a plan should be developed to protect the interests of the certified and putative classes in the event that Bradley Lakin or the Lakin firm were indicted by a grand jury.

Burke said he also discussed the possibilities of Bradley Lakin and the firm being sanctioned by the Illinois Bar for unethical conduct.

Burke claims he told Bradley Lakin that adverse publicity could taint jury pools in Madison and St. Clair counties. He accuses Lakin and the firm of breach of contract, fraud and tortuous interference with contract and/or business expectancy.

In its answer, the firm admits that Bradley Lakin told Burke that he had been subpoenaed as a witness to appear before a grand jury and that he intended to engage in planning to protect the best interests of clients.

Burke claims Lakin told him he intended to invoke the Fifth Amendment before the grand jury and that he "would not be found guilty of anything."

Burke claims he told Lakin that if no plan to protect the clients or the classes was prepared, it could become too late to do so in the future.

The firm also claims Burke is barred by the doctrine of estoppel from enforcing the agreement and from recovering damages because he allegedly breached the agreement, failed and refused to perform his duties under the agreement, breached his duty of loyalty, and breached his duty of good faith and fair dealing.

The firm claims Burke's claim for a class action bonus is barred by the failure of him to perform all duties required to qualify for such compensation under the terms of their agreement.

The firm also claims that its actions were required by business necessity and were taken based on legitimate business reasons.

Burke claims that under the separation agreement, he was required to release substantial rights in exchange for compensation to which he was already owed for fulfilling his obligations under the employment agreement, thereby depriving the separation agreement of consideration.

Burke claims the separation agreement also appears to violate public policy, in that it attempts to contractually prohibit him from providing any information to any "tribunal," ethics committee, court or otherwise, regarding the conduct of Bradley Lakin or other members of the firm.

He claims the agreement would require him to return money earned to the Lakin firm if he talked to anyone.

Burke claims the separation agreement contained a rescission clause which allowed him to rescind the separation agreement, conditional upon him exercising this right within seven days and repaying the monies paid to him by Lakin under the terms of the separation agreement.

Burke claims he did rescind the agreement by notifying Lakin in writing and returned the money Lakin paid him.

Burke claims he was to be compensated by the payment of base monthly compensation, according to the regular payment schedule of employees of the Lakin firm, was entitled to the employment benefits otherwise available to employees of the Lakin firm, and was to receive additional compensation, called the Class Action Bonus Compensation to be paid on or before Dec. 31 of each calendar year.

He claims the amount of the Class Action Bonus Compensation was calculated as a percentage of gross attorney fees generated by the Class Action Department of the Lakin Firm and received by the Lakin firm within the calendar year.

He claims he was to receive a percentage of all the attorneys fees paid to the Lakin Firm from class action litigation. In the instances where his involvement was minimal, the percentage was to be 2 percent and was considered earned by virtue of his general supervisory responsibilities over the department.

When Burke's involvement was substantive, including negotiation of settlement, argument of critical motions, and preparing and arguing preliminary and final approval, the percentage was not to exceed 7 percent.

The case was assigned to District Judge David Herndon, however he recused himself and the case has now been assigned to District Michael Reagan and Magistrate Judge Philip M. Frazier.

No hearing has been set in the case, however Frazier set a settlement conference on April 30, in Benton.

According to Frazier, the purpose of the settlement conference is to permit an informal discussion of every aspect of the lawsuit bearing on its settlement value and to discuss, propose and consider, and in appropriate instances to enter into settlement agreements.

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