Stack denies Lakin's motion to disqualify Burke in CCN class action

Steve Korris May 7, 2009, 11:29am




As Brad Lakin tries to stop a class action settlement that former employee Richard Burke reached in New Jersey, Burke tries to stop a Lakin settlement in Madison County.

In April Burke intervened on behalf of an objector in a suit he filed years ago as a Lakin lawyer against CCN Management Care and First Health Group.

In response Lakin asked Circuit Judge Daniel Stack to disqualify Burke, but after an April 27 hearing Stack denied disqualification.

Lakin fired Burke in 2007. At the same time a class action partnership between Lakin and Paul Weiss of Chicago ended.

Burke sued Lakin, Lakin sued Weiss, and Weiss sued Lakin.

They settled the disputes and dismissed their claims but their struggle for control of class actions resumed.

In January Lakin claimed that Burke and Weiss ran a "reverse auction" in settling a class action against telephone company Sprint.

Lakin claimed they rushed to settle for less than he would have obtained from Sprint in a similar case in Madison County.

U.S. District Judge Jose Linares held a hearing on the settlement in March and hasn't reached a decision.

In the case before Stack, Burke intervened for chiropractor Kathleen Roche against a settlement Lakin reached for chiropractors
Lawrence Shipley and Richard Coy.

At Stack's hearing, Robert Schmieder II of LakinChapman said a lawyer can't represent a person who has a position adverse to a former client.

Schmieder said Burke signed the complaint and the first class certification motion.

He said Weiss's firm, Freed and Weiss, also appeared on the complaint.

He said Shipley and Coy did not consent to Burke's representation of Roche.

He said Stack might also have to disqualify Belleville lawyer Kevin Hoerner, who accompanied Burke to the hearing.

"This is a somewhat bizarre situation," Schmieder said.

"To the extent that his firm falls under associated or affiliated counsel the disqualification is imputed to his firm as well," he said.

Burke said, "We have been dealing with Lakin law firm disqualifications now for about eight months on one case after another."

"I suppose persistence should be rewarded at some point but they have not gained any rewards to date.

"Is this really a disqualification because of the interest of Mr. Coy and Mr. Shipley or is this really a disqualification for a tactical purpose?

"If you remove me, are you really removing for the
purpose of preventing the disclosure of confidential information or are you really doing it because the proponents of this class want no objection?

"If the interest of the class today is for a thorough examination of the settlement through an adversarial process, then it's in the interest of the class today that the best person knowledgeable about that remain in the case.

"Their purpose is to push through a settlement without any objection and to minimize the amount of information that's going to be available to you in your determination of fairness."

Schmieder said, "The court is going to have the final fairness hearing regardless of their participation.

"This isn't about their participation," he said. "They have no right to be there."

Stack said, "It just appears to me that there's a conflict."

He told Burke, "You represented them. You were their lawyer."

Burke said, "I can get you an ethics opinion."

He handed it to Stack and said, "This was the ethics opinion by professor Roy Simon that we used a couple of weeks ago in the case next door with Judge Ruth."

Stack said, "Just because a client has a substantial right doesn't mean you can hire the same lawyer.

"Mr. Hildebrand lost his license for this."

Burke said, "I understand."

Former associate judge Thomas Hildebrand remains on suspension for misconduct that included representing clients with adverse interests.

Stack said, "You're not the only guy. We've got Kevin sitting right there and a whole bunch of other lawyers whose business is down right now."

He asked if Roche had to intervene in order to object to the settlement.

Burke said, "She just has to do it to get the discovery."

For CCN Management Care and First Health Group, Eric Brandfonbrener said his clients sent letters to 23,000 doctors and hospitals.

"We received very little by way of responses," he said.

He said two opted out and one objected.

Burke said, "One of the bases for the objection is, it's almost impossible to make one.

"If Roche is not allowed there will be none."

On May 5 Stack denied disqualification.

If Roche challenges LakinChapman's adequacy as class counsel, however, Stack ruled that Hoerner must represent Roche.

Stack has set the fairness hearing May 26.

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