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Injury law, money and corruption
There is something in all of us that likes to think that we are contributing to a greater good. For a plaintiff accident and injury lawyer, satisfaction comes from assisting individual clients to level the playing field against large adversaries and to achieve a measure of justice, important to each client, one case at a time. Some very fortunate plaintiff lawyers are able to greatly contribute to the welfare of many people and even have an impact on social policy, while being well paid into the bargain. For an injury lawyer, that is as good as it gets.
Dickie Scruggs is one of those fortunate lawyers. In the early 1990s, he became one of the dominant forces along with Ron Motley and other leading trial lawyers, in the wave of plaintiff litigation against the US tobacco industry which resulted in the 1998 global settlement. This settlement was worth $206 billion over 25 years. The money is going not to injured smokers, but to the states with expense claims for treating sick smokers. Dickie Scruggs and his colleagues in Mississippi were awarded $1.43 billion in fees, spread over 25 years. Rich fees indeed, but the risk was enormous and the monetary recovery almost beyond ken.
Why then would Dickie Scruggs even think to bribe a judge in a court dispute with another lawyer over $26.5 million in legal fees from a mass settlement of Hurricane Katrina insurance cases? And for the measly amount of $50,000?
I was recently a presenter at a class actions conference in Halifax along with Ontario Chief Justice Warren Winkler, regarded as Canada’s leading class action judicial expert, and had a chance to discuss the issue of ethics with him.
The wild west atmosphere of the American political and judicial systems provides some of the explanation for why a lawyer like Scruggs would risk so much for (to him) so little. The sums of money involved on the American mass tort and class action injury playing field are so vast and the ethical issues so complex, that even the best lawyers can find themselves in difficult ethical situations. But bribing a judge? Surely this is madness, and how Scruggs had the thought and began to act on it I will leave to psychologists, historians and novelists like John Grisham.
The first rule in the Code of Professional Conduct is integrity, and whether an accident and injury lawyer is doing a whiplash case or a mass tort with enormous damages, 99 percent of the time the honest course of action is obvious. The course of integrity does not include bribing the judge. In those complicated situations where the course of action is not obvious, the class action lawyer can seek directions from the judge managing the case.
Tobacco litigation in both the US and Canada has evolved into an argument over the deceptive marketing of light and mild cigarettes. Litigation over electronic machine gambling (EMGs) or video lottery terminals (VLTs) is at an earlier stage, but the central issue is the same: two enormously powerful and wealthy industries are promoting a dangerous product contrary to consumer protection laws. I have committed myself and my firm to litigating the light cigarette case for Victor Sparkes, and the VLT case for the Piercey family. Time will tell what success we may have. I both believe in these cases, and have made a risk-reward calculation before committing to them – I have to run a business. Sure, I’d like to help a lot of people who have been deceived, and I’d like to have the money which comes with winning too, but not at the expense of my integrity.
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