Confidential settlements are threatening public health and safety

[Guest guest]

Thanks Lea!

Confidential settlements are threatening public health

and safety ~~~

many thanx to prudan@... ~~~

http://www.lawnewsnetwork.com/opencourt/stories/compass/c032699a.html

© American Lawyer Media

POSTED: March 26, 1999

What Is the Moral Compass?

Hide and Secrets Confidential settlements are

threatening public health and safety

By Zitrin and Carol M. Langford

Eight years ago this month, Bill Lockyer, then the

powerful chairman of the state Senate Judiciary

Committee, introduced a " sunshine in litigation " bill.

The legislation provided " as a matter of public

policy " that, with rare exceptions, no case involving

allegations of defective products, environmental

hazards or financial fraud could be settled in

secrecy, and no evidence supporting these allegations

could be kept from public disclosure. Lawyers who

entered into secret settlements in violation of the

act could be disciplined. In 1993 Lockyer won approval

from both houses of the California legislature for

what would have been the broadest such law in the

country. But Gov. Pete vetoed it.

This January brought a new governor to California, and

Lockyer is now the state attorney general. Perhaps

next time, this bill will become law. But, as of now,

only three states -- Florida, Texas and Washington --

have strong prohibitions against secrecy in

litigation. And, although these states have clear

language creating presumptions of openness for filed

court documents and discovery, not even these more

progressive regimes include relevant impositions of

discipline for offending counsel, as the California

legislation proposed to do.

For years, plaintiffs' and defense lawyers alike have

been using secrecy as a settlement tool. Secrecy keeps

the defendants happy: Evidence of a client's defective

product or toxic waste won't be broadcast to the world

at large. And plaintiffs' lawyers find that secrecy is

often part of an offer they can't refuse -- their

clients will be paid the fair value of the case, but

only if they agree to keep everything they've learned,

including discovery materials, confidential. Given the

choice, most plaintiffs' lawyers feel ethically bound

to recommend a settlement that is in the best

interests of their individual clients (not to mention

their own pocketbooks), even when they know secrecy

might hurt other victims down the road.

But the long-standing precept of our adversarial

system that an individual client's interests come

first, ahead of everything else, should give way when

secret settlements hide serious and substantial

dangers from the public.

Harvard Law School professor Arthur , a strong

proponent of confidential settlements, claims that

evidence suggesting that such secrecy has been widely

used to conceal the dangers of defective products has

been " anecdotal, " at best. But 's argument

simply doesn't hold up. Long before the prescription

drugs Zomax and Halcion, the Bjork-Shiley heart valve

and the Dalkon Shield intrauterine device were taken

off the market, numerous secret settlements kept the

public in the dark about the dangers of these

products.

A British investigation provided the proof against

Halcion. Disclosures about Zomax came only after a

scientist experienced a near-fatal allergic reaction

and decided to investigate; by the time Zomax was

removed from the market, it was reportedly responsible

for a dozen deaths and more than 400 severe allergic

reactions, almost all of which were kept quiet through

confidential settlements worked out by McNeil

Laboratories, the drug's manufacturer. Attorneys for

A. H. Robins, maker of the Dalkon Shield, even tried

to condition their secret settlements on plaintiffs'

lawyers' promises never to take another Dalkon case --

a clear violation of the ethics rules of almost every

state.

No product with a suspicious track record has been

more thoroughly defended by more lawyers on more

fronts than General Motors' pickup trucks with

side-mounted gas tanks. In 1993 GM's lawyers went on

the offensive by suing consumer advocate Ralph Nader

and the Center for Auto Safety for defamation.

Meanwhile, however, other GM lawyers were quietly

settling lawsuits over the exploding pickups with

amazing frequency. In 1996 Nader lawyers obtained GM's

own records of those cases in discovery, revealing

some 240 individual gas tank pickup cases -- almost

all settled and almost all requiring the plaintiffs to

keep the information they discovered confidential. The

earliest cases marked " closed " were filed in 1973, the

latest 23 years later, just before the records were

turned over.

We're not just talking about dangerous products. A

home for the mentally disabled secretly settled a case

accusing the home's administrator of sexually abusing

someone with Down syndrome; the administrator

privately admitted to molesting more than a dozen

others. The Catholic Church's Chicago archdiocese

secretly settled a child molestation case, ostensibly

to protect the identity of the child; an investigation

by Chicago Lawyer later estimated that 400 lawsuits

had been settled by the Catholic Church in the

previous decade -- almost all of them secretly.

Allegations in a lawsuit, of course, don't prove

anything. Some cases are filed for publicity, others

to reach into deep pockets. Still others, although

filed in good faith, may not have merit. Just because

a car has defective brakes doesn't mean the brakes

caused the accident in every case; perhaps the driver

was drunk or inattentive. Even if the brake defect

played a role, there other factors might have

contributed. A settlement may signal nothing more than

a defendant's desire to avoid having its name linked

with accusations of a defective product, whether true

or false. It may be smarter to settle, particularly if

all evidence of the defect remains secret.

Still, it's hard to conclude that the secret

settlements of hundreds of lawsuits involving

dangerous drugs, exploding gas tanks and child

molestations result merely from unsupported individual

claims. At some point, " anecdotal evidence " begins to

take on a clear pattern. Where that pattern points to

the existence of a danger to the public health and

safety -- or even the serious possibility of such a

danger -- it is time to question how our legal system

can afford to allow secrecy.

Suppressing evidence not only denies information to

the public, it unbalances the scales between plaintiff

and defendant. Plaintiffs' lawyers have to start each

case from scratch, with no evidence from previous

cases and without being able to share either

information or strategies. Meanwhile, defense

attorneys are aware of the entire history of

litigation over a product. They're able to learn from

experience, raising new and higher hurdles for

plaintiffs' lawyers to leap over in order to get

information that others already obtained but have

promised not to reveal.

What about the concern expressed by lawyers from both

sides that without secrecy cases will no longer

settle, at least not for their " true " value? So far,

no evidence supports this. In those states that have a

" sunshine in litigation " law, cases continue to

settle, and no one has yet shown that they settle for

less than before the law went into effect.

Currently, nothing in the ethics rules prevents

lawyers from settling cases secretly and keeping the

public in the dark. Even the strong Florida, Texas and

Washington laws have exceptions. Plaintiffs' and

defense lawyers in those states can work together in

the name of " zealous advocacy " to convince a judge

that their case is the rare one where secrecy is

needed. (And too often, judges are more focused on

clearing their dockets than on larger issues.) For

these reasons, we believe that lawyers should be

prevented from advocating secrecy for a settlement

where a substantial danger to the public health and

safety exists. As U.S. Rep. Lloyd Doggett, architect

of Texas' groundbreaking legislation, put it: " To

close a court to public scrutiny of the proceedings is

to shut off the light of the law. "

Zitrin and Carol M. Langford are in private

practice in the San Francisco Bay Area and both teach

legal ethics at the University of San Francisco and

Hastings College of the Law. Their book, The Moral

Compass of the American Lawyer, will be published by

Ballantine in May.

[Guest guest]

This makes me sad, but what else can we do...the lawyers are in charge and

they want their money...love to all.........Lea

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~```

http://www.lawnewsnetwork.com/opencourt/stories/compass/c032699a.html

> >>

> >>

> >> © American Lawyer Media

> >> POSTED: March 26, 1999

> >>

> >> What Is the Moral

> >> Compass?

> >>

> >> Hide and Secrets

> >> Confidential settlements are

> >> threatening public health and safety

> >>

> >> By Zitrin and Carol M. Langford

> >>

> >> Eight years ago this month, Bill Lockyer, then

> >> the powerful chairman of the state Senate

> >> Judiciary Committee, introduced a " sunshine in

> >> litigation " bill. The legislation provided " as a

> >> matter of public policy " that, with rare

> >> exceptions, no case involving allegations of

> >> defective products, environmental hazards or

> >> financial fraud could be settled in secrecy, and

> >> no evidence supporting these allegations could

> >> be kept from public disclosure. Lawyers who

> >> entered into secret settlements in violation of

> >> the act could be disciplined. In1993 Lockyer

> >> won approval from both houses of the

> >> California legislature for what would have been

> >> the broadest such law in the country. But Gov.

> >> Pete vetoed it.

> >>

> >> This January brought a new governor to

> >> California, and Lockyer is now the state

> >> attorney general. Perhaps next time, this bill

> >> will become law. But, as of now, only three

> >> states -- Florida, Texas and Washington -- have

> >> strong prohibitions against secrecy in

litigation.

> >> And, although these states have clear language

> >> creating presumptions of openness for filed

> >> court documents and discovery, not even these

> >> more progressive regimes include relevant

> >> impositions of discipline for offending counsel,

> >> as the California legislation proposed to do.

> >>

> >> For years, plaintiffs' and defense lawyers alike

> >> have been using secrecy as a settlement tool.

> >> Secrecy keeps the defendants happy: Evidence

> >> of a client's defective product or toxic waste

> >> won't be broadcast to the world at large. And

> >> plaintiffs' lawyers find that secrecy is often

part

> >> of an offer they can't refuse -- their clients

will

> >> be paid the fair value of the case, but only if

> >> they agree to keep everything they've learned,

> >> including discovery materials, confidential.

> >> Given the choice, most plaintiffs' lawyers feel

> >> ethically bound to recommend a settlement that

> >> is in the best interests of their individual

clients

> >> (not to mention their own pocketbooks), even

> >> when they know secrecy might hurt other

> >> victims down the road.

> >>

> >> But the long-standing precept of our adversarial

> >> system that an individual client's interests come

> >> first, ahead of everything else, should give way

> >> when secret settlements hide serious and

> >> substantial dangers from the public.

> >>

> >> Harvard Law School professor Arthur , a

> >> strong proponent of confidential settlements,

> >> claims that evidence suggesting that such

> >> secrecy has been widely used to conceal the

> >> dangers of defective products has been

> >> " anecdotal, " at best. But 's argument

> >> simply doesn't hold up. Long before the

> >> prescription drugs Zomax and Halcion, the

> >> Bjork-Shiley heart valve and the Dalkon Shield

> >> intrauterine device were taken off the market,

> >> numerous secret settlements kept the public in

> >> the dark about the dangers of these products.

> >>

> >> A British investigation provided the proof

> >> against Halcion. Disclosures about Zomax came

> >> only after a scientist experienced a near-fatal

> >> allergic reaction and decided to investigate; by

> >> the time Zomax was removed from the market, it

> >> was reportedly responsible for a dozen deaths

> >> and more than 400 severe allergic reactions,

> >> almost all of which were kept quiet through

> >> confidential settlements worked out by McNeil

> >> Laboratories, the drug's manufacturer. Attorneys

> >> for A. H. Robins, maker of the Dalkon Shield,

> >> even tried to condition their secret settlements

> >> on plaintiffs' lawyers' promises never to take

> >> another Dalkon case -- a clear violation of the

> >> ethics rules of almost every state.

> >>

> >> No product with a suspicious track record has

> >> been more thoroughly defended by more

> >> lawyers on more fronts than General Motors'

> >> pickup trucks with side-mounted gas tanks. In

> >> 1993 GM's lawyers went on the offensive by

> >> suing consumer advocate Ralph Nader and the

> >> Center for Auto Safety for defamation.

> >> Meanwhile, however, other GM lawyers were

> >> quietly settling lawsuits over the exploding

> >> pickups with amazing frequency. In 1996 Nader

> >> lawyers obtained GM's own records of those

> >> cases in discovery, revealing some 240

> >> individual gas tank pickup cases -- almost all

> >> settled and almost all requiring the plaintiffs

to

> >> keep the information they discovered

> >> confidential. The earliest cases marked

> >> " closed " were filed in 1973, the latest 23 years

> >> later, just before the records were turned over.

> >>

> >> We're not just talking about dangerous products.

> >> A home for the mentally disabled secretly

> >> settled a case accusing the home's administrator

> >> of sexually abusing someone with Down

> >> syndrome; the administrator privately admitted

> >> to molesting more than a dozen others. The

> >> Catholic Church's Chicago archdiocese secretly

> >> settled a child molestation case, ostensibly to

> >> protect the identity of the child; an

investigation

> >> by Chicago Lawyer later estimated that 400

> >> lawsuits had been settled by the Catholic

> >> Church in the previous decade -- almost all of

> >> them secretly.

> >>

> >> Allegations in a lawsuit, of course, don't prove

> >> anything. Some cases are filed for publicity,

> >> others to reach into deep pockets. Still others,

> >> although filed in good faith, may not have merit.

> >> Just because a car has defective brakes doesn't

> >> mean the brakes caused the accident in every

> >> case; perhaps the driver was drunk or

> >> inattentive. Even if the brake defect played a

> >> role, there other factors might have contributed.

> >> A settlement may signal nothing more than a

> >> defendant's desire to avoid having its name

> >> linked with accusations of a defective product,

> >> whether true or false. It may be smarter to

> >> settle, particularly if all evidence of the

defect

> >> remains secret.

> >>

> >> Still, it's hard to conclude that the secret

> >> settlements of hundreds of lawsuits involving

> >> dangerous drugs, exploding gas tanks and child

> >> molestations result merely from unsupported

> >> individual claims. At some point, " anecdotal

> >> evidence " begins to take on a clear pattern.

> >> Where that pattern points to the existence of a

> >> danger to the public health and safety -- or even

> >> the serious possibility of such a danger -- it is

> >> time to question how our legal system can

> >> afford to allow secrecy.

> >>

> >> Suppressing evidence not only denies

> >> information to the public, it unbalances the

> >> scales between plaintiff and defendant.

> >> Plaintiffs' lawyers have to start each case from

> >> scratch, with no evidence from previous cases

> >> and without being able to share either

> >> information or strategies. Meanwhile, defense

> >> attorneys are aware of the entire history of

> >> litigation over a product. They're able to learn

> >> from experience, raising new and higher hurdles

> >> for plaintiffs' lawyers to leap over in order to

> >> get information that others already obtained but

> >> have promised not to reveal.

> >>

> >> What about the concern expressed by lawyers

> >> from both sides that without secrecy cases will

> >> no longer settle, at least not for their " true "

> >> value? So far, no evidence supports this. In

> >> those states that have a " sunshine in litigation "

> >> law, cases continue to settle, and no one has yet

> >> shown that they settle for less than before the

> >> law went into effect.

> >>

> >> Currently, nothing in the ethics rules prevents

> >> lawyers from settling cases secretly and

> >> keeping the public in the dark. Even the strong

> >> Florida, Texas and Washington laws have

> >> exceptions. Plaintiffs' and defense lawyers in

> >> those states can work together in the name of

> >> " zealous advocacy " to convince a judge that

> >> their case is the rare one where secrecy is

> >> needed. (And too often, judges are more

> >> focused on clearing their dockets than on larger

> >> issues.) For these reasons, we believe that

> >> lawyers should be prevented from advocating

> >> secrecy for a settlement where a substantial

> >> danger to the public health and safety exists. As

> >> U.S. Rep. Lloyd Doggett, architect of Texas'

> >> groundbreaking legislation, put it: " To close a

> >> court to public scrutiny of the proceedings is to

> >> shut off the light of the law. "

> >>

> >> Zitrin and Carol M. Langford are in

> >> private practice in the San Francisco Bay

> >> Area and both teach legal ethics at the

> >> University of San Francisco and Hastings

> >> College of the Law. Their book, The Moral

> >> Compass of the American Lawyer, will be

> >> published by Ballantine in May.

> >>

> >>

> >>

> >

> >

>

>

>