The ideological blinders of five members of the Southeast Louisiana Flood Protection Authority-East (henceforth: “the board”) were on full display yesterday when they voted to proceed with the levee board’s lawsuit against 88 energy-related companies even though a federal district judge had dismissed the suit so scathingly that I described the board’s loss as being the equivalent of Cumberland College’s 0-222 loss to Georgia Tech in a 1916 football game.
The board had a chance to escape the suit free and clear from all costs and expenses. As I suggested in my most recent column on the subject, I believe it is quite likely that a key provision in the board’s contract with the lawyers amounts to a violation of canons of legal ethics.
The provision says that the lawyers, on their own discretion, effectively have nearly full power to decide to appeal a lower court’s decision — with consultation with the levee board, but without the levee board’s approval. When combined with another provision, called a “poison pill,” that puts the board on the hook for millions in legal fees if the board ends the suit even if the lawyers want to go forward, the provision in question amounts to letting the the lawyers bilk the client for millions of dollars without the client’s full agreement.
This would seem to violate the state’s canon of ethics. I’ll let you follow the link and read the relevant part of the canon for yourselves. Specifically, see this:
A lawyer shall abide by a client’s decisions concerning the objectives of representation, and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.
This should mean that, once the federal district court issued a judgment (a dismissal is indeed the equivalent of a judgment), the board should have been free to refuse to appeal it without triggering the so-called poison pill.
But the board went ahead anyway. The thought seems to be that if it keeps appealing this thing all the way to the Supreme Court, and lose, well then, the poison pill will disintegrate and the contract with the lawyers will revert to a strict contingency fee arrangement, meaning that the board will owe not a dime in fees (although it might still owe certain limited expenses). So why not keep pushing for a huge jackpot by appealing until all appeals are done?
Here’s why. First, those aforementioned expenses will continue to accrue. Second, the appeals are likely to take several more years to work their way through federal courts (and perhaps to bounce back and forth among levels of the federal courts and even, in some aspects, in state courts), all of which provides more chances for those reimbursable expenses to build up. But the expenses of a long- drawn-out process, though important, are less important than other factors.
Such a lengthy process can actually get in the way of ongoing efforts, in which energy companies had been helpful, to find other ways to finance coastal restoration. Faced with a multi-billion lawsuit, the energy companies will spend their time and effort fighting the suit rather than contributing to the restoration. The lengthy appeals (as encouraged by the poison pill) thus serve to “poison the well” for other solutions.
The way to attract cooperation is certainly not to turn the would-be co-operator into an adversary.
The board should have told the lawyers to cease and desist. Either way, somebody with expertise in the subject of Louisiana legal ethics should consider asking somebody with enforcement power to investigate whether the attorneys are in violation of those canons of ethics. I am no expert on this, but I can read. The plain language of the canons at least raises the possibility that the board’s contract with the lawyers is unethical.