As readers of this blog know, Bexis’ firm is involved in the Vioxx litigation. This post, like all of the others about the Vioxx litigation, represents Herrmann’s work alone:
Many folks interpreted the Vioxx settlement agreement to require participating plaintiffs’ counsel to (1) recommend to all of their clients that they participate in the settlement, (2) withdraw from representing any plaintiff who chose not to participate, and (3) refuse to represent any new client who was not participating in the settlement. (At this blog, we’ve remained completely agnostic on the ethics issue; we express no opinion one way or the other.)
The ethical charges created the predictable firestorm. Ethicists howled; pundits pontificated; and groups of plaintiffs’ lawyers filed motions in assorted courts challenging certain aspects of the settlement.
Professor George Cohen of Virginia is a particularly vocal critic of the settlement. At a panel at the American Enterprise Institute earlier this month (which was then broadcast on C-SPAN and C-SPAN2), Cohen leveled criticisms of the settlement on grounds including alleged violations of Model Rule of Professional Conduct 1.2(a) (failure to abide by the client’s decisions), 1.16(b) (withdrawing from representation for an improper reason), 2.1 (failing to exercise independent judgment), and 5.6 (improperly restricting the lawyer’s right to practice). Cohen also suggested that the settlement might violate the antitrust laws, because all of the participating lawyers were “conspiring” to refuse to represent clients who opted out of the settlement.
If you thought Cohen was kidding, you were wrong. He has now filed a letter with the Federal Trade Commission requesting an antitrust review of the Vioxx settlement because of his concern about an illegal group boycott.
Hat tip to Point of Law, and plainly much more to come.