The Scarlet K

…while the stated intent of a “scarlet letter” would be to protect the public, in actual use it has been used as a method to increase the severity of a punishment.

Who wears the Scarlet K of Katrina? According to a Daily Journal story now making the rounds - Two years after indictments, state’s legal community tries to fix Scruggs case damage -  it is the debarred and the Bar:

a stain on the profession…a scar on the Mississippi Bar…a devastating blow

A far more devastating blow, however, is the Bar’s betrayal of the spirit, if not the letter, of the Rules of Professional Conduct that provide a framework for the ethical practice of law - a betrayal that wrongly hung a scarlet K on some and wrongly ignored the conduct of others.

A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice…

There are limits to what those of us not schooled in the law can understand about the law and the ethical practice thereof; yet, Compliance with the Rules, as with all law in an open society, depends…secondarily upon reinforcement by peer and public opinion.  In other words, we the people have a seat at the Bar and we the people have a concomitant responsibility to express our opinion on the Bar’s action and lack of same.

The bombshell went off two years ago – Nov. 28, 2007…The news shocked the nation. Scruggs and company had been Giant Killers against Big Tobacco and Big Asbestos and they were bearing down on Big Insurance after Hurricane Katrina’s devastation.

The Bar responded to the November 2007 bombshell; but, offered nothing but an eerie silence in the aftershock when bombs continued to drop.

…the profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.

In addition to the Scruggs Law Firm, the were four other member law firms of theScruggs Katrina Group.  One was Jones, Funderburg, Sessums, Peterson, and Lee, LCC – and then there were three: Barrett Law Office, PA; Nutt & McAllister, PLC, and Lovelace Law Firm, PA.  Following the indictment of Dick Scruggs et al and the dissolution of the SKG, the three firms formed a successor joint venture group known as KLG.

Not only was the Bar silent on the procedural issues of Jones v Scruggs lawsuit, it raised no questions about such issues during State Farm’s relentless attack on the three SKG/KLG firms and their subsequent disqualification from all Katrina litigation involving State Farm and its alleged co-conspirator E.A. Renfroe.

A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others…the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.

Most troubling of all, however, is the Bar’s unwillingness to address the plight of attorneys with these firms – employees, hung with a Scarlet K by Judge Senter’s Order, disqualified for no reason other than their association with one of the member firms and the rectitude of the Bar.

Although a recent Mississippi Supreme Court opinion held the trial court erred by finding that Richard Scruggs’s misconduct occurred in the ordinary course of SKG business, the vindication came too late for the attorneys working for the disqualified firms, particularly those unemployed when Nutt & McAllister folded.

After the disqualification of KLG, David Nutt closed his law firm and retired to private life a wealthy man – so wealthy that he declined all potential compensation due his firm from Katrina litigation, a move that would benefit firms receiving any transferred Katrina cases and leave Nutt responsible for compensating attorneys working for his firm on a contingency fee basis.

and then there were two – the Barrett and Lovelace firms have continued to be active in Katrina litigation against other insurers.  Meanwhile, State Farm’s attorneys continue unbridled use of the law’s procedures… to harass or intimidate others – and for that, when the gong sounds, it will be the Bar wearing a Scarlet K.

“When the situation was manageable it was neglected, and now that it is thoroughly out of hand we apply too late the remedies which then might have effected a cure.

There is nothing new in the story. It is as old as the sibylline books. It falls into that long, dismal catalog of the fruitlessness of experience and the confirmed unteachability of mankind.

Want of foresight, unwillingness to act when action would be simple and effective, lack of clear thinking, confusion of counsel until the emergency comes, until self-preservation strikes its jarring gong—these are the features which constitute the endless repetition of history.”