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Monday, September 29, 1997

Memo sparks debate about law firm's ethics

DALLAS (AP) -- Judges and defense lawyers are questioning the ethics of a Dallas law firm that uses a controversial document to prepare clients with asbestos damage claims. At stake is the credibility of millions of dollars in claims by Baron & Budd clients nationwide, The Dallas Morning News reported in Sunday's editions.

Defense attorneys for asbestos manufacturers claim in court records that a 20-page memorandum Baron & Budd gives clients before they testify is designed to "create evidence that would perpetuate a fraud."

Last week, state District Judge John Marshall in Dallas referred the issue to a State Bar of Texas grievance committee to determine if the firm violated ethics rules.

The document, titled "Preparing for Your Deposition," lists products that contained asbestos, along with descriptions of packaging and a list of asbestos-related health symptoms that could enhance legal damages.

One section tells clients: "You may be asked how you are able to recall so many product names. The best answer is to say that you recall seeing the names on the containers or on the product itself. The more you thought about it, the more you remembered!"

Another portion states: "If there is a MISTAKE on your Work History Sheets, explain that the Ôgirl from Baron & Budd' must have misunderstood what you told her when she wrote it down."

Firm founder Fred Baron told a San Antonio judge on Sept. 18 that he had been unaware of the document, but that legal experts have since found it "perfectly appropriate ... there has been absolutely no foul committed here."

The controversy is a defense tactic to sabotage legitimate cases, said attorney Bob Greenberg, who represents the firm.

But a defense lawyer in an Ohio asbestos case filed by Baron & Budd describes the document as a "psychological masterpiece" meant to induce false testimony.

"Step by step, it leads the client to the conclusion that in order to win money, the client must be free with his answers and in disregard of the truth," said Tom Riley, a Cedar Rapids, Iowa, attorney for Raymark Industries. "It tells how to lie. Do it with confidence. The more confident you are, the more money you'll get."

Thousands of Baron & Budd clients contend that they have been injured by exposure to asbestos, a fibrous substance known to cause cancer and other health problems.

Hundreds of millions of dollars in judgments and awards have been paid out nationally as a result of the litigation, which has forced some of the largest asbestos manufacturers into bankruptcy. Last year, according to Mealey's Litigation Reports, Owens-Corning alone paid out $267 million in damages and defense costs.

Baron & Budd's document surfaced Aug. 27 when one of its asbestos claimants referred to it during a deposition in Corpus Christi. Defense attorneys filed it as an exhibit a week later and within days, the memorandum began appearing in courtrooms from San Antonio to Cincinnati.

Over the last two weeks, Baron & Budd attorneys have appeared in at least six courts in Texas and Ohio, arguing that the document is protected by attorney-client privilege and relates only to the Corpus Christi case.

Defense attorneys are asking the courts to suspend Baron & Budd cases until they can determine if the document has influenced testimony.

"We can't have lawyers teaching their clients how to commit crimes or fraud," said William J. Skepnek, a Lawrence, Kan., attorney who also represents Raymark Industries.

Robert Thackston, an attorney for W.R. Grace & Co., another frequent asbestos defendant, said in a San Antonio hearing that the document "substitutes the law firm's story for what the (client's) story might have been."

But William Hodes, a professor at the Indiana University School of Law-Indianapolis who reviewed the document at the newspaper's request, said plaintiffs' lawyers have to prepare their clients for what to expect in testimony.

"Is it improper? There are parts of it that are quite troubling," Hodes said. "But overall, I don't see much of a problem."

In Corpus Christi, a judge last week suspended all the firm's cases in her court until a hearing scheduled for Thursday.

A Cameron County judge in Brownsville, however, denied a request last week for a new trial and said defense lawyers failed to show the memorandum reflected any improper conduct by Baron & Budd.

An Austin judge, meanwhile, has scheduled Baron & Budd attorneys for depositions next week to determine who wrote the document and how widely it was distributed among clients.