Former Georgia Attorney General Thurbert Baker, paid spokesman and lobbyist for the U.S. Chamber of Commerce and its Tort Reform affiliate The Institute for Legal Reform, and now member of the Atlanta based law firm and lobbying practice of McKenna Long and Aldrige, recently got his canned speech to kill the legal funding industry published in The Widener Law Journal.
Actually, it was more than Former Georgia Attorney General Thurbert Baker's usual, oft delivered anti-legal funding diatribe (or "lawsuit lending" as he likes to refer to it)– because this time Thurbert Baker tried to re-imagine that speech as a commentary on legal ethics. Ironically, for an article that was long on specious ethical advice, it was short on ethical disclosure. Its clear purpose appears not to engage in scholarly review, but rather further the anti-consumer agenda of the U.S. Chamber of Commerce, which Thurbert Baker advances as the paid advocate for the U.S. Chamber of Commerce and its Institute for Legal Reform in front of state legislatures around the Country.
Would not revealing who your paid sponsor is be a best practice when purportedly dispensing ethical advice? Thurbert Baker only mentions his affiliation with Atlanta based law firm McKenna Long and Aldridge, and past history as Georgia's Attorney General, in this law journal article. Missing is any mention of his ongoing paid advocacy on behalf of the US Chamber of Commerce (and its Institute for Legal Reform) and its members State Farm, Allstate, Chevron and Pfizer (to name a few of the member companies of the US Chamber board that are pushing the anti-legal funding agenda through the US Chamber of Commerce and their own lobbyists).
One of the problems with Thurbert Baker’s ethics opinion is that some of his more unintentionally humorous cited sources on the dangers of legal funding were provided by his client's staunch allies and affiliates, from the well-known foxbusiness.com to the obscure anti-consumer “Citizens Against Lawsuit Abuse of Central Texas”. At one point Thurbert Baker even cites a Kentucky Chamber of Commerce blog to give heft to his account. Thurbert Baker uses these groups’ made-to-order comments to argue for a ban on legal funding in the guise of an ethical review of the issue.
Other sources are less made for order to his point of view, and thus are taken completely out of context. For example, Thurbert Baker cites repeatedly to a law review article written by Maya Steinitz of the University of Iowa, College of Law, which was published in 2011 in the Minnesota Law Review. Thurbert Baker uses Ms. Steinitz’s scholarly article to try to warn attorneys off of funding transactions, implying broadly that such transactions create ethical problems. To the contrary, Ms. Steinitz argues for a system that includes legal funding and does not “lead [plaintiffs] to settle meritorious cases at a discount or to refrain from bringing them altogether[,]” which is exactly what Thurbert Baker’s client wants. In fact, Ms. Steinitz foresees a positive role for legal funding, one that “could radically alter the social function of courts by systemically equalizing the ability of society’s ‘have-nots’ to use the courts to affect rule change via litigation. This is in contrast to the court system serving (unwittingly, perhaps) as the guardian of the status quo in favor of society’s ‘haves.”’ Societies “haves” do not need any more help as long as they have paid lobbyists and advocates like Thurbert Baker and the U.S. Chamber of Commerce looking out for them.
Thurbert Baker also discusses a case against Chevron for polluting the Amazon River in Ecuador, without mentioning that Chevron is a member of his client, the U.S. Chamber of Commerce, and a member the board of its Institute for Legal Reform. Thurbert Baker's article does not mention that this case involves 18.5 million gallons of toxic waste dumped into the Amazon, and the 20 years that Chevron has actively used the court system to avoid liability to compensate the locals, which includes avoiding payment on an $18 billion pending judgment against Chevron. Perhaps Chevron, with nearly unlimited resources, has an axe to grind with plaintiffs using legal funding to sustain a 20 year legal battle against Chevron that, after two decades, seems to have no end in sight?
Forgive me for being dubious, but I have heard Thurbert Baker’s speech many times before – from the imaginary coalition of the willing opposed to legal funding to the supposed concerns of plaintiffs’ attorneys about third – party interference in cases. What Thurbert Baker, who styles himself a reformer, is actually trying to do is to deny lower and moderate income consumers’ access to justice.
The truth is that the legal funding industry has already proposed the type of regulation that Thurbert Baker suggests is necessary. In bill after bill before state legislatures the legal funding industry has sought to create a regulatory scheme that would protect consumers, only to be blocked by the U.S. Chamber of Commerce and its army of lobbyists led by Thurbert Baker. The industry’s recommendations include regulation by an appropriate state authority, full disclosure of costs and fees, plaintiff’s attorney’s acknowledgement, and even a right of rescission in case the consumer has second thoughts about the transaction. Rather than joining with the industry to enact a common sense regulatory scheme, the U.S. Chamber of Commerce has repeatedly acted to obstruct regulatory efforts unless they are inclusive of provisions to ban lawsuit lending. Thurbert Baker deftly uses the predictable result of the U.S. Chamber of Commerce’s obstructive efforts, namely inaction, to suggest that legislatures want to eliminate rather than regulate legal funding.
In truth, the U.S. Chamber of Commerce, steered by the big insurance companies that now control it, seeks to outlaw the legal funding industry and leave control of the judicial system in the hands of the “haves”.
Former Georgia Attorney General Baker's article can be found at:
http://lawprofessors.typepad.com/...
(note Thurbert Baker does cite his paid sponsor, the US Chamber of Commerce's Institute for Legal Reform, as a source)
For some background on legal funding (aka lawsuit lending):
http://en.wikipedia.org/...
Board members of the institute for legal reform can be found at:
http://www.fixtheuschamber.org/...