Lakin wants private hearing with Byron over Weiss battle

Steve Korris Apr. 27, 2007, 8:00am

Nick Byron

Richard Burke

Troy Bozarth

Five years ago Madison County Circuit Judge Nicholas Byron ordered Allstate defense attorney Troy Bozarth out of a hearing and chased Chicago attorneys out of town for the Lakin Law Firm.

Now he can do it again.

The Lakins want Byron to read a motion "in camera" on their termination of Paul Weiss and others from class actions they filed together.

In camera means in chambers, but in this case it means more than that.

It means "ex parte," communication between a judge and a party when the other party is not around.

Illinois judicial code prohibits "ex parte" action, but that did not stop Byron the last time Brad Lakin needed to shake off some Chicago attorneys.

In 2002, Lakin moved to terminate William Harte, Arthur Aufmann and Edward Joyce of Chicago as class counsel in a suit against Allstate.

Byron had certified it as a class action, so the Chicago trio did not turn it loose without a struggle.

At a hearing Harte whined to Byron, "They keep saying I'm not an attorney in this case."

At a hearing a few days later, Bozarth opened his mouth for Allstate.

"Your honor, I feel –," Bozarth started.

Byron said to Bozarth, "You are out of order. I will ask you to leave at this time."

Bozarth said he had not seen the motion.

Byron said, "Step out and we will call you back in when we get to the matters that pertain to you."

Byron ordered a court reporter to take a separate transcript and seal it.

Byron approved the terminations, brought Bozarth back and resumed the original transcript.

In following weeks the Lakins and others who stayed on the team set up an executive committee to divide the work and the proceeds.

Byron incorporated the committee into a pretrial order.

Now the Lakins have written a motion to rewrite the order. They have not filed it with the circuit clerk because they aim to keep it secret.

Jeff Millar of the Lakin firm moved March 27 to file it in camera.

"The substance of that pleading deals with the internal organization of Plaintiffs' co-lead counsel, executive committee, liaison counsel and steering committee," Millar wrote.

He anticipated an objection from Bozarth for Allstate.

"This Court has previously allowed Plaintiffs' counsel to file pleadings relating to pretrial order one in camera and found that no prejudice will result to Defendant as a result of same," Millar wrote.

Pleading in camera would hide the motion not only from Allstate but also from the public.

On April 11, Bozarth asked Byron to deny Millar's request.

"Illinois recognizes a constitutional, common law, and statutory presumption that pleadings be open to the public," Bozarth wrote.

Weiss did not oppose the secrecy, but he did not want Byron rewriting the order from 2002.

On April 19 his firm, Freed & Weiss, asked Chief Judge Ann Callis to assign a different judge to decide the secret motion.

Callis referred the question of special assignment to Circuit Judge Daniel Stack, as head of the civil division.

Stack set a hearing April 24.

A day before the hearing former Lakin attorney Richard Burke filed an entry of appearance as counsel for Freed & Weiss.

At the hearing, Burke appeared not on behalf of Freed & Weiss but on behalf of executive committee members.

Millar and Daniel Cohen of the Lakin firm represented the plaintiff class.

Bozarth represented Allstate.

Burke said, "We believe the entire procedure that the Lakin firm is prosecuting here to change this executive order is without authority and prejudicial to the interest of the class."

"And I don't want to get into the merits on that," he said.

Bozarth objected. He said, "They want to exclude us from the proceeding."

Stack said, "You mean this is in camera as to the rest of the world?"

Bozarth said, "Exactly. Not just being sealed, but no one else."

Stack said, "That sounds more like a motion to proceed ex parte."

Bozarth said, "That is exactly right."

Burke said, "That's why I think it's important that this be sent to a different judge."

Stack said, "They want you to hang out your dirty laundry in front of them so that they can take advantage of you if possible."

Burke said, "Of course."

Stack said, "The defendant."

Burke said, "Why wouldn't they? Which sort of is the reason why we believe it is detrimental to the class."

He said, "But I don't want to get into the merits right now."

Stack said, "I can see this now. Should the trial judge conduct an ex parte hearing?"

Burke said, "Right."

Stack said, "You want him to modify his order?"

Burke said, "No I don't. I think the pretrial order should be left alone."

Stack indicated the Lakin attorneys and said, "They want him to modify it."

Burke said, "They want him to modify it."

Stack said, "Don't you think he's the guy who should decide whether he should modify his order or not?"

Burke said, "Look, everybody knows what's going on, okay, and it seems to me that there has been investigations. There's ongoing investigations."

He said, "It may be that to have this kind of dispute separated from the judge who has got the overall jurisdiction of the case could be in the best interest of the circuit."

Stack said, "Here's my response to this. You take this to Judge Byron and you ask him if he wants somebody else to hear this."

He said, "If he feels like he can hear it, it's his."

Burke said that was fine.

For the Lakin firm, Cohen objected to Burke's involvement.

Burke said, "I do not believe that the Lakin Law Firm, given the fact that it certainly has the capacity to hire lots of lawyers for itself, has absolutely no right to determine who the executive committee's attorneys representing them are going to be."

Cohen immediately moved to strike Burke's entry of appearance, arguing that Burke might be a material witness before the court.

When Byron received Stack's order he set a May 29 hearing on Millar's motion to plead in camera and Cohen's motion to strike Burke.

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