BENTON – U.S. Magistrate Judge Philip Frazier has warned that if Brad Lakin and Richard Burke keep tearing each other down in a struggle to control class actions that Lakin's firm filed with Freed and Weiss of Chicago, their clients might fire both firms.
"I would be worried," Frazier said at a hearing in Benton, "that the other sharks swimming in the water out there, the other law firms that are looking around, come in behind you and have all of you bumped as incompetent counsel."
Attorneys at the hearing, John Renick for Lakin and Chet Pleban for Burke, bickered so bitterly that Frazier asked them to try not to kill each other.
Two days earlier, Frazier had canceled Burke's deposition of Brad Lakin, two minutes after it had begun.
"It sounded like the Ambassador Hotel after Bobby Kennedy was shot," said Frazier, who listened by telephone.
Lakin fired Burke a year ago, offering a $485,000 buyout that Burke refused.
Burke opened an office in St. Louis in association with Freed and Weiss, former class action partners with Lakin.
Burke sued Lakin at U.S. district court in East St. Louis, claiming Lakin owed him fees from class action settlements.
Lakin answered that he fired Burke for plotting to steal clients.
Burke responded that he tried to protect the interests of Lakin clients because Lakin put his own interests ahead of his clients.
U.S. District Judge Michael Reagan presides over the case. Frazier, as magistrate, presides over discovery.
'Sit down, shut up' and 'take a pill,' judge tells Lakin lawyer
The deposition blowup occurred Oct. 24, and Frazier held his hearing Oct. 26.
Renick, representing Lakin, placed a transcript of the hearing in the public record in December.
As the hearing began, Pleban said Burke's contract provided up to seven percent of net fees in cases where he acted as lead attorney and two percent in cases where someone else in Lakin's class action department acted as lead attorney.
Pleban demanded records but Renick protested.
"We have physically given him the boxes of every case that he asked for with every piece of paper," Renick said.
Pleban said, "There are tons of documents over there. I don't have an inventory of every single piece of paper."
Frazier said, "This kind of litigation is a real pain, Chet, if you haven't figured it out."
Pleban said, "I'm going back to the criminal stuff."
Frazier said, "You are going to have Judge Reagan trying this case. He's an old war horse – trial horse. He will smell reneging a mile away, and God help you."
Pleban said none of the files were complete.
Frazier said, "There is always something of a mistrust factor that is involved in every case and on a scale of one to ten, the mistrust factor in this one is ten."
Pleban said, "Or eleven."
Frazier said, "Tell me why you guys hit the wall the other day."
That started a hot exchange and Frazier said, "There will be no cross talk. You guys don't address each other unless I okay it first."
Renick said, "These documents show every penny in his compensation history."
He said Burke had seen the documents.
Pleban said, "No, he has not."
Renick said, "He received them."
Frazier said Lakin may have rolled dice to determine whether Burke got four percent or seven percent in a case.
Renick said, "We have given you the amount of the fees."
Frazier said, "That won't be all the documents. My god, you're in a law firm. Do you have one sheet that reflects what your billings are for a year?"
He asked Renick for anything reflecting fees in particular cases.
Renick said, "Just the ones where he was personally assigned as lead attorney?"
Frazier said, "Right," adding that there might be disputes about which cases Burke was assigned as lead attorney.
Renick said he expected disagreement about that.
Frazier said Lakin would have to tell a jury how he set a percentage.
Renick said, "He makes those decisions. He is running the firm."
Frazier said, "It is going to be a little incredulous then to say well, what did you rely on for that? Well, just how I felt that day."
Next, Frazier asked Renick how Lakin arrived at the $485,000 buyout figure.
Renick said, "We don't have documentation."
Another argument ensued and Frazier barked, "Hang on. Wait, wait, wait. John, don't get huffy for Christ's sake. Calm down. Take a pill."
Pleban said he wanted to see wire transfers from Lakin and from Freed and Weiss.
Another squabble started and again Frazier rebuked Renick. "John," he said, "why do you always want to do the negative stuff?"
Renick persisted and Frazier said, "Sit down and shut up."
Frazier told Renick to produce Burke's class action fee records from the start of his contract, in 2003.
Renick asked why and Frazier said, "It might help him try to figure out how he can best ask a jury to pay him for the year 2006."
Renick said, "It is undisputed."
Frazier said, "John, you are missing the point. This contract will be construed against the Lakin Law Firm. They drafted it."
He said, "It is a badly drafted contract and the problem is that he has this two to seven percent swing in there for which there is no objective criteria."
Renick said, "Then you have to ask, why did an experienced competent lawyer like that sign an unconscionable and unenforceable contract?"
"This case is a mess," Frazier said, and he warned that other law firms could bump all of them as incompetent counsel.
"They could pull up the record of this case and say, my god, you know, none of these people should be representing anybody in national class actions," Frazier said.
He told Pleban to show Renick all cases in which Burke believed he was lead counsel in 2006, and he asked if Pleban could do it in 15 minutes.
Pleban said he could.
Frazier said, "Try not to kill each other and then we'll resume in about 20 minutes."
The lawyers returned with a list of three cases.
Frazier said depositions of Burke, Lakin, and Lakin firm members Steve Schweitzer and Robert Schmieder would require some minding.
He asked Pleban, "Have you ever seen a lawyer testify?"
Pleban said, "I have, and I have cross examined them too."
Frazier said, "It's like trying to herd cats, all right? It's just a very difficult situation because it's hard to get a straight answer."
He said he anticipated that they might need "my loving guidance."
He asked if anyone would depose Paul Weiss, of Freed and Weiss.
Renick said, "We may. We haven't decided."
Frazier said he would deal with space problems for the depositions.
Renick asked if he wanted them to come to Benton, and Frazier said yes.
Renick said, "You're suggesting that?"
Frazier said, "It is beyond suggestion, John. That's the way it's going to be, because with all of these documents and the history of these things, I want to be able to get my hands around throats."
He said he would flip a coin to see who would take the first deposition. He directed a visitor to flip it and directed another visitor to call it.
"Tails," the visitor announced.
Frazier said, "Defendant gets first draft pick. Who is going first?"
Renick said, "Mr. Burke."
The hearing ended.
Court records do not show whether depositions have taken place.
Burke amended his complaint in December, and Lakin answered with motions to dismiss most of Burke's allegations.