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"Fen-Phen" Lawyers In Legal Focus Of "National Importance"

COVINGTON, KY -- The upcoming trial of three lawyers charged with bilking their clients out of millions in a fen-phen settlement figures to draw plenty of attention from legal scholars, attorneys and ethicists both in and outside Kentucky, reports the Lexington Herald-Leader in its Sunday edition.

William Gallion, Shirley Allen Cunningham Jr. and Melbourne Mills Jr. go on trial in Covington on Monday before U.S. District Judge William O. Bertelsman.

Bertelsman perhaps set the tone himself in a comment during a hearing last year: "Not only these three gentlemen are on trial, but the whole legal profession is on trial."

Indeed, national law publications and legal blogs have been buzzing with commentary on developments in the case since well before Cunningham, Mills and Gallion were indicted by a federal grand jury last June on one count each of conspiracy to commit wire fraud., reports the Herald-Leader.

Mainstream publications such as The New York Times and The Wall Street Journal also have waded in with news stories and editorials. All that adds up to levels of attention that court cases in Kentucky rarely receive.

But that isn't surprising, considering that this case involves charges that three high-profile lawyers committed various unethical or illegal acts in their handling of a $200 million settlement with their former clients, says Lester Brickman, a professor of legal ethics at the Benjamin Cardozo School of Law in New York City, who has written extensively about class action law, the newspaper reports.

"There is considerable interest in this case because of the dollar amount of the alleged fraud by the lawyers against their clients," Brickman said. "It's not penny ante fraud that is being charged here. It is multimillion-dollar fraud. So, of course, it's attracting the attention of the bar."

Even though the case has yet to be decided, it could lead to changes in the way class action or mass tort cases are handled in Kentucky. In February, outgoing Kentucky Chief Justice Joseph Lambert appointed a 12-member committee to study the state's existing court rules and procedures over the next year and determine whether they need strengthening to prevent unethical or illegal conduct in class-action cases. The indictment against Mills, Gallion and Cunningham was cited as an example of class-action problems in a state supreme court press release announcing the committee's creation, the newspaper reports.

Grace Giesel, the James R. Merritt Professor of Law at the University of Louisville's Louis D. Brandeis School of Law, said she thinks the committee almost certainly is an outgrowth of the fen-phen case.

"I really think that if that case had not happened, there would not be this committee," she said. "I think that's an indication of the concern in Kentucky about that case."

Giesel added that she thinks many lawyers in Kentucky will follow the trial because "everybody kind of gets painted by the same brush" if Cunningham, Mills and Gallion are found guilty, the Herald Leader reports.

Steve Wolnitzek, a Northern Kentucky attorney and member of the Kentucky Judicial Conduct Commission, also said he thinks attorneys in the state will be following what happens in the Covington trial because of the amount of money involved and allegations against three "pretty well-known lawyers." Wolnitzek said he can't recall another case in Kentucky that involved issues of class action law and such large amounts of money.

"When this case started, I had just read John Grisham's book The King of Torts, and I said to myself, 'Here it is right here,'" Wolnitzek said. Grisham's 2003 book follows a young lawyer who receives huge attorney fees handling class-action cases. "It isn't exactly the same, but to a great extent that's what you're dealing with here," reports the Lexington Herald-Leader.

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