Burke holds 2-0 advantage in Lakin shove match over class representation

Steve Korris Oct. 18, 2007, 2:39am



Though Brad Lakin and former Lakin lawyer Richard Burke pledged to pursue a class action against Hartford Insurance together like old pals, a class action against American Family Insurance has wrecked the truce.

In the American Family case, Lakin wants Madison County Circuit Judge Daniel Stack to remove Burke and Burke wants Stack to remove Lakin.

Burke holds an advantage in plaintiffs, two to zero.

Lakin has lacked a plaintiff since the death of Manuel Hernandez, who Stack certified in 2002 to represent a plaintiff class.

Hernandez alleged underpayment on medical bills from car crashes.

Lakin has failed for almost two years to replace him.

In September Burke, in association with Freed and Weiss in Chicago, offered Helen Nemeth of Ohio as substitute plaintiff.

In October Burke offered another substitute, Belleville chiropractor Dawn Robinson.

That put Lakin on thin ice. He couldn't argue that Freed and Weiss didn't belong in the case, for Stack had appointed his firm and their firm as class co-counsel.

Lakin decided to erase Freed and Weiss from the record. He moved for an order appointing his firm as sole class counsel.

He asked that Burke "not be allowed to appear for the class."

He objected to Burke's affiliation with Freed and Weiss due to pending litigation between Burke and Lakin.

In January Burke sued the Lakin firm in U.S. District Court seeking fees from class settlements, and the firm filed a cross claim against Burke.

The Lakin firm sued Freed and Weiss in Madison County, and Freed and Weiss sued the Lakin firm in Cook County.

Despite the conflicts, Lakin argued in a Madison County class action against Hartford Insurance that the firms could cooperate and serve the best interests of the class.

In that case, a pair of plaintiffs pretty well forced the attorneys to get along.

When Lakin asked clients to choose between him or Freed and Weiss, one Hartford plaintiff picked Lakin and the other picked Freed and Weiss.

Though they promised cooperation, they accomplished nothing. The Hartford suit has not moved forward since August.

Instead of applying resources to a joint effort against Hartford, the attorneys spend resources attacking each other in the American Family case.

In Burke's view, Stack shouldn't even read Lakin's motion to erase Freed and Weiss.

Lakin filed the motion on behalf of Nora Hernandez, widow of Manuel.

Burke wrote Oct. 9 that Nora Hernandez "is not a party to this litigation, has been denied status and standing as class representative, and is not a class member."

He wrote that, "…absent a client, the Lakin firm has no authority or standing to file the motion, let alone request that all other lawyers be excluded from the litigation."

He wrote that Lakin can't object to his affiliation with Freed and Weiss because, "Illinois does not allow restraints of trade or non-compete agreements in the context of legal representation, the Lakin motion notwithstanding."

"The Lakin firm itself initiated litigation against Freed and Weiss and as such it is disingenuous for the Lakin firm to now claim that 'pending litigation' is a proper impediment to participation as counsel in the litigation," Burke wrote.

He wrote that in the Hartford case, "the Lakin firm represented to the court that the pendency of litigation was not an impediment to cooperative prosecution of that litigation."

"The Lakin firm has not acted in the best interest of the class but contrary to those interests: it failed to substitute a class member as class representative within the time granted by the court when there was a class member willing and able to do so," Burke wrote.

He wrote that rather than accepting his substitutes, "the Lakin firm, apparently for its own personal interests, refuses to allow their substitution, but rather seeks exclusive control of the litigation without even having a client."

He wrote that he would not at this time move for an order appointing Freed and Weiss as sole counsel, "though grounds exist for such a motion."

"Undersigned counsel expressly do not waive their right to file such a motion as they have serious reservations as to the Lakin firm's adequacy as class counsel," Burke wrote.

Brad Lakin could have defended himself and his firm against these harsh charges at a hearing Oct. 18, but he passed up the chance.

On Oct. 10, Jeff Millar of the Lakin firm moved to continue the hearing.

He wrote that Lakin would be in Phoenix on Oct. 18.

Lakin signed a declaration that, "I believe my attendance is necessary and respectfully request the court reschedule the hearing for a date and time during which all counsel can be present."

Stack reset the hearing to Nov. 6.

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