For lawyers who were worried about what effect the “fen-phen three” criminal trial would have on their profession's image, the report of Melbourne Mills Jr.'s acquittal was not bad news.
Despite calls to hold the three lawyers — William Gallion, Shirley Cunningham Jr. and Mills — accountable, many lawyers viewed Mills as the least culpable.
“It will (only matter) to people that don't know the facts,” Lexington lawyer Fred Peters said. “From what we've been reading about the facts, he didn't participate. Hell, they lied to him about how much the settlement was. Obviously, Melbourne was not in the loop about what was going on. Melbourne just brought in clients; the other guys did all the divvying up.”
Lexington lawyer Burl McCoy thinks that the combination of Mills' poor health and his intoxication defense might have persuaded the jury. He hypothesized that jurors looked at Mills and concluded that he could not have been in the condition to carry out such a scheme.
When U.S. District Judge William Bertelsman revoked bond for the three fen-phen lawyers last August, he declared: “In my opinion, not only are these three men on trial; the whole legal profession is on trial.”
In interviews Tuesday, several Kentucky lawyers echoed Bertelsman's remarks.
The trial has gotten nationwide attention because of the staggering sum of money, $65 million, they're accused of stealing from their clients.
Lawyers have paid particularly close attention to the case because of the impact it could have on the profession's image. After all, lawyers — trial lawyers and criminal defense attorneys in particular — are already one of the least trusted groups in American popular culture.
“We think the whole profession has been on trial,” Peters said. “Those guys have brought a lot of shame and humiliation onto Kentucky lawyers.”
Last year, the U.S. Chamber of Commerce, a stalwart proponent of limits on damage awards in lawsuits — cited the fen-phen case as an example of “the damage that plaintiffs' trial lawyers are doing to Kentucky.”
Trial lawyers, in particular, are sensitive about their profession's image. The Kentucky Association of Trial Attorneys went so far as to change its name to the Kentucky Justice Association.
“There is this mantra, which I happen to believe comes directly from the bigwigs at insurance companies' mouths, that it is kind of accepted in this country that the scourge of society is the plaintiffs bar,” Lexington trial lawyer Chris Miller said. “Then you get something like this that happens, and it gives them a lot of ammunition to try to get people to believe that.”
Trial lawyers aren't the only ones tarred by the case. Legal blogs and Web sites such as www.overlawyered.com have used the case to attack the legal profession as a whole.
University of Kentucky law professor Richard Underwood, an expert on legal ethics, is one of many lawyers who hope to see the fen-phen three disbarred.
“I would hope they would be permanently disbarred,” Underwood said. “I can't understand why they haven't been. There have been any number of rules violations.”
Underwood said Mills' admission that he was drunk during important discussions might be a violation of a rule requiring competent representation.
Underwood also said he could not understand why immunity was granted to Cincinnati lawyer Stanley Chesley and former Boone Circuit Judge Joseph “Jay” Bamberger, “who seems not to understand rules of procedure.”
Jurors are probably now wrestling with the question of “how did the lawyers do it?” said McCoy, who represented Mills' secretary, Rebecca Phipps, a witness in the trial. “ Did they purposefully defraud their clients?”