Welcome back to the Big Law Business column on the changing legal marketplace written by me, Roy Strom. Today, we look at the plaintiff’s bar, and how a local rule in North Carolina is opening a window into a touchy question: Who should get to represent Camp Lejeune victims? Sign up to receive this column in your Inbox on Thursday mornings.
Lawyers across the country have spent millions of dollars and thousands of hours preparing lawsuits on behalf of military veterans and their families exposed to toxic water at Camp Lejeune.
A rule in a North Carolina federal court threatens to throw all that work into chaos.
The rare, obscure rule limits out-of-state lawyers to appearing in only three unrelated cases each year—and a judge has already asked a law firm to explain why it shouldn’t be tossed from a case for going over the limit.
It seems hard to believe, but this local rule could result in lawyers en masse being turned away from the courthouse.
The rule has opened a window into a tricky fault line in a case that’s estimated to result in $6 billion in government payments: What lawyers should represent these victims, and should courts be the one to police that?
You’ve probably heard about Camp Lejeune by now. Congress and President Biden last year enacted the Promise to Address Comprehensive Toxics Act. The law lets veterans seek damages if they were exposed for at least 30 days to the toxic water at Camp Lejeune between August 1953 and December 1987.
The process set up under the law requires claims first to be filed with the Department of the Navy, which has six months to adjudicate each one. If no settlement is reached, veterans can file lawsuits—but only in the Eastern District of North Carolina.
Nearly $150 million has been spent on advertising to sign up clients. Some members of Congress are pressing to cap lawyers’ fees in the cases, which they say have reached as high as 40%.
So far, about 15,000 claims have been filed with the Department of the Navy, and most haven’t hit the six-month toll that allows them to take their case to federal court.
A group of 16 plaintiffs filed their claims early, arguing their previous efforts to obtain compensation met the law’s requirement to first go through an administrative process. Lawyers at Keller Postman, a high-powered plaintiff’s firm where one-third of the partners clerked for US Supreme Court justices, filed those lawsuits in September.
Less than a month later, district court judge Terrence Boyle asked the lawyers to explain why they shouldn’t be removed from the case for violating the rule that limits out-of-state attorneys to three unrelated cases each year.
Keller Postman lawyers made two arguments. First, they said the cases are related, so they should only count as one total appearance.
Second, even if the cases aren’t deemed to be related, the lawyers argued they should get a pass under a “good cause” exception to the rule.
Beyond the early lawsuits it filed, the lawyers said “thousands” of clients with Camp Lejeune claims chose their firm. Many don’t live in North Carolina. They are elderly or in poor health. Forcing them to hire new lawyers would be a heavy burden for those “who have already waited decades for their day in court,” the lawyers wrote. The firm is also partnering on the case with local counsel who vouched for the lawyers’ good work.
Judge Boyle took the arguments under advisement without issuing a ruling.
On Monday, he dismissed the early cases, finding they must first go through the Navy process created by the new law.
He said the local rule no longer needed to be addressed considering the dismissal—meaning it will likely be brought up again when cases begin to flow into federal court.
The case drew attention from attorneys in North Carolina and elsewhere who urged the court to allow some out-of-state counsel to represent their Camp Lejeune clients in court.
One interested party was Edward Bell, a South Carolina lawyer who represented a group of about 900 Camp Lejeune plaintiffs in an unsuccessful class-action case that began more than a decade ago. He went on to draft the Camp Lejeune Justice Act, which was part of the law passed in August.
Bell’s law firm argued it is important for plaintiffs to choose their own lawyer and that experienced out-of-state attorneys, including Keller Postman, should be allowed to represent their clients in court.
The firm expressed disappointment in the flood of advertising for clients and seemed to urge the judge to prevent inexperienced lawyers from appearing in court.
“Many of us are discouraged at the constant and sometime scurrilous advertising that has taken place,” Eric Flynn, a lawyer at Bell Legal Group, wrote. “Some of these ads were by lawyers who have never handled an environmental case, and many have never actually been to court in any meaningful way.”
The firm urged the court to allow good cause exceptions for lawyers whose “experience and expertise is unmatched.”
“This structure can ensure that not only are clients receiving the best legal representation but that the culture of the district is respected and is not polluted by those seeking to turn this case into the next ‘mass tort’ and move on when done,” Flynn wrote.
Courts have a role to play in determining what out-of-state lawyers get to appear, but it’s a difficult line to draw, said Michael Frisch, ethics counsel at Georgetown University Law Center.
Wielding the local appearance rule too strictly risks courts being seen as protectionist and runs counter to clients’ best interests, he said.
“Any decision that uses a technical, procedural rule to separate qualified, experienced counsel from a client is not necessarily in the public interest,” he said.
But it’s also hard for courts to “separate the wheat from the chaff” when it comes to lawyers, he said.
Courts aren’t available to only the “best possible counsel,” he said. Legal profession rules state that just because lawyers have never handled a certain type of case before doesn’t mean they can’t take on that type of matter now.
Still, Frisch is wary of cases in which lawyers rely on mass advertising to sign up clients but might not do much legal work.
“If what we are really talking about is a bait and switch, where you sign up the clients and lay them off on somebody else to do the work—that’s ethically problematic in my view,” he said.
Mona Lisa Wallace, a North Carolina plaintiff’s lawyer who is representing Camp Lejeune victims and serving as local counsel to out-of-state attorneys in other cases, filed a brief urging the court to make appearance exceptions on a case-by-case basis.
In an interview, she said the cases are not as easy as some lawyers or the public think—despite some aspects of the law that make the government’s defense more difficult than in typical tort claims.
Her firm has a team of lawyers working 10 hours a day on the cases, including developing expert witness testimony, she said. They have begun to take early depositions of clients they fear might not live long enough to collect compensation. And they’ve opened more than 100 estates for plaintiffs whose claims will be brought by family members.
“These cases are not what so many people believe they are, which is an automatic compensation,” Wallace said. “Excellent firms are working 1,000 times harder than the general public recognizes on these cases.”
Out-of-state lawyers will be eager to see how North Carolina judges handle this issue.
One option remains on the table if the judges take a hard line: Dedicated out-of-state lawyers working on the cases could pass the North Carolina State Bar exam.
After all, the state would probably find itself needing more lawyers. Some estimates say as many as 500,000 Camp Lejeune claims will be filed—which would make it the largest case in US history.
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That’s it for this week! Thanks for reading and please send me your thoughts, critiques, and tips.
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