Fayette County

Attorney should be suspended for role in fen-phen case, commissioner rules

David L. Helmers, a Lexington attorney who worked on the class-action lawsuit over the diet drug fen-phen, should be suspended from practicing law for five years, a trial commissioner for the Kentucky Bar Association has ruled.

The fen-phen case, which was settled for $200 million in 2001, involved 440 clients who said they suffered heart and lung damage as a result of taking the drug.

Attorneys Melbourne Mills Jr., William Gallion and Shirley Cunningham Jr. were all tried for conspiring to steal millions of dollars of the settlement from the clients. Mills was acquitted of all criminal charges; Gallion and Cunningham were convicted.

Helmers worked as an associate of Gallion's law firm and "played an important role in the litigation" of the civil case, according to the report by Trial Commissioner Roderick Messer dated Aug. 12.

Among Messer's findings was that Helmers was guilty of "deceiving his clients into accepting the individual settlement amounts offered" and "misrepresenting the amount of attorneys fees paid to the lawyers relative to the payments to the clients."

The ruling says Helmers did not tell the clients the total amount of the settlement or explain to them "that the settlement agreement stated that the attorneys would determine the amount that each client would receive ... ."

Helmers "maintained that he did nothing wrong" throughout the bar's 2009 hearing, the document states.

The Kentucky Bar Association had asked that Helmers be permanently disbarred and requested that he be ordered to pay back $3 million he received as a bonus for working on the case, but Messer did not agree.

Messer wrote that Helmers had "violated the duties he owed to his clients," that "his conduct was "dishonest" and that it "contributed to the great harm his clients suffered."

However, he pointed out that Helmers did not devise the scheme and "was subordinate to Gallion, Cunningham and Mills." Messer said Helmers had cooperated with federal prosecutors in the cases against the other three attorneys and "seems to have a good reputation as an attorney in the years he has worked as a sole practitioner."

Helmers would have to reapply for admission to the bar association after the five-year suspension ends, according to the report.

The bar association's governing board will now review the trial commissioner's findings and make a recommendation to the state Supreme Court on whether to uphold them. The Supreme Court will make the final decision. Helmers has the right to appeal.

Mills, Gallion and Cunningham were permanently disbarred because of the fen-phen case.

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