The solution to reboot the claims process was to create a “Plaintiffs Steering Committee (PSC)”. These qualified lawyers would be selected by Barbier to represent the people along the Gulf Coast who had been decimated by the ongoing effects of the BP spill. Hence, Barbier issued a request for attorneys residing in the states affected by the spill to submit resumes to in order to win a spot on the PSC.
The list of Babier’s appointees are contained in this pretrial order:
I actually obtained the resume submissions to Barbier back in December of 2010 per a public records request. I found it interesting that at least one of the PSC appointee’s, Calvin Fayard, resume was nowhere to be found in the documents I received (we found it...see update #1 at the very bottom). I invite everyone to take a look and see if I missed something.
Any person or business filing a claim against BP is not forced to join the PSC process. They still have the right to file claims independently against BP and for entities that were affected most heavily by the spill, that would seem to be the logical path.
Also, public entities are not allowed to join the PSC structured settlement, they must arbitrate independently of the Plaintiff Steering Committee process.
Three of these PSC attorneys were also lucky enough to be chosen by the City of New Orleans to represent the City’s case against BP for damages from the oil spill. The City hired a team of 4 law firms in total to represent them in their case against BP.
In this post, I will refer to these attorneys as the “joint venture” attorneys or JV attorneys.
No conflict here. Wait...there's a conflict here!
In July of 2010, The Wisner Trust Advisory Committee hired the law firm, Waltzer and Wiygul, to represent the trustees’ claims against BP for the damage caused by the oil spill.
No RFP (Request for Proposal) was used to hire Waltzer & Wiygul. At the time Waltzer and Wiygul was hired, the committee members considered the trust to be a private entity, not public.
In fact, the heirs to the property still consider the entity to be private.
Last spring, around March and April of 2012, it became very clear that the mayor’s office was intent on removing Waltzer and Wiygul as the Wisner counsel for the BP case and replacing them with the JV lawyers that had been hired to represent the city.
As council for the Wisner trust, W & W would have little hesitation in taking Wisner’s case against BP to trial instead of simply seeking a quick settlement. The firm has a rich background dealing with environmental issues, in fact, they represent the local branch of the Sierra Club. While a lengthy trial process may be what’s best for the Wisner property to get proper compensation, it may not be the most attractive scenario for the City of New Orleans interests in its litigation process with BP.
In fact, one entity could be used as a bargaining chip to benefit the other.
The mayor’s office claimed that there was a conflict of interest between the City of New Orleans and Waltzer and Wiygul because the firm was representing a company who had a lawsuit against the city in the closure of the Old Gentilly Landfill.
Small world, huh?
How many lawyers does it take to screw in a light bulb?
Initially, there was an effort to have the JV (PSC) attorneys work with Waltzer and Wiygul to deal with the BP case. Even though the JV attorneys had not officially been brought on board for Wisner, the lines started to become blurred on their involvement with the process.
So much so, that on June 8, 2012 then Treasurer/Secretary, Cathy Norman, issued a letter to one of the JV attorneys, Steve Herman, asking him to define what role the JV attorneys believed they were playing on behalf of the trust. The JV attorneys had not officially been hired by a majority vote of the Advisory Committee, yet instances were occurring where they seemed to be arbitrating on behalf of the Wisner trust in their case against BP (more on this in a minute).
Fate or fait accompli?
The issue was becoming increasingly contentious but the majority of the committee members were intent on keeping Waltzer and Wiygul on as the trust’s council for the BP litigation.
Then a fortuitous turn of events took place that would turn the tide towards the agenda of the Mayor’s administration.
It started with the Tulane appointee to the committee, Dr. Sandra Robinson, abruptly resigning her post in October of 2011. Robinson was then replaced by Tulane with a new appointee, Anthony P. Lorino, who attended his first meeting in January, 2012 along with newly appointed committee member for the mayor, Michael Sherman.
Dr. Everett Williams was the committee appointee for LSU but due to personal issues beginning in the Fall of 2011, he was unable to attend the meetings so his alternate Stacy Gerhold-Marvin began to attend the meetings in his stead. Gerhold-Marvin took a very active role in her duties, even traveling down to the land to see it firsthand.
Secretary Treasurer and Land Manger of the Wisner Trust, Cathy Normand, spoke with Dr. Townsend about the sudden removal of Gerhold-Marvin . Townsend told Norman that Michael Sherman had called her and told her that Gerhold-Marvin was being “disrespectful and disruptive” in the committee meetings. (I have tried to contact Dr. Townsend to confirm the phone call took place and find out what the exact impetus for Gerhold-Marvin’s removal was but I have so far been unsuccessful.)
It’s worth noting that there were no previous complaints by any of the other committee members that Gerhold-Marvin was being disruptive in the meetings. However, she did not agree with the Mayor’s intent to remove Waltzer and Wiygul and this reportedly led to some heated discussions in the committee meetings.
I asked Michael Sherman if he contacted Roxane Townsend and lobbied her to remove Gerhold-Marvin from her role with the committee. He confirmed that he did call Townsend about the LSU appointee position but he said his concern was that Gerhold-Marvin was not an employee of “LSU proper” and he felt the committee needed a new representative to fill the position. I asked him if he told Townsend that Gerhold-Marvin was being “disruptive and disrespectful” in the meetings but he declined to comment about the matter on the record.
The stars align
In the July 31, 2012 regular meeting of the committee a motion was made by Michael Sherman to fire Waltzer and Wiygul and replace them with the JV attorneys that were already representing the city in the BP litigation. Gardner seconded the motion and it was subsequently passed in a 3 to 2 vote with Sherman, Gardner and Lorino voting yea, and the dissenting votes coming from Wisner heir appointee, Michael Peneguy, and Salvation Army appointee (alternate), Ed Buddy.
The way the meeting transpired is interesting. I was told by an attendee of the meeting that Sherman called a short recess immediately before the motion to remove W & W was introduced. Sherman, Lorino and Gardner then “huddled” in the hallway outside with Gardner eventually breaking away from the group to take phone call. When the meeting was reconvened, Sherman immediately made the motion to fire W & W with Gardner seconding it and the vote was cast.
Interestingly enough, all of the JV attorneys that were being proposed for the job showed up at this meeting,
Public: To be or not to be...
At this point I want to remind readers that in my previous post, where I laid out my discussion with Ryan Berni and Michael Sherman, they were stressing to me that their primary goal with the Wisner Trust is to create a greater level of transparency as they view the trust to be a public entity. In our discussion, I asked Sherman if he believed he was behaving as if the entity was public and if he was following the guidelines of
Louisiana’s Open Meetings Law. He responded that he believed he was.
My original concern was that it appears he was influencing committee member's decisions regarding the trust, outside of the official meetings. I was under the impression that the Open Meetings Law prohibited him from contacting other committee members outside of the meetings but I misunderstood the law when I originally posed this question to him in our meeting.
What the law actually states is that he can contact other members of the committee individually but he cannot create a quorum of the committee outside of the official meetings to discuss Wisner issues. This is known as a “roving quorum” and the Open Meetings Law strictly forbids it.
So Sherman was correct in that he had not violated the Open Meetings Law by contacting other members of the committee outside of the meetings
However, in the particular instance of the “huddle” that took place in the hallway during the recess from the committee meeting....if Lorino, Gardner and Sherman were discussing their intent to issue a motion to remove Waltzer and Wiygul and replace them with the JV attorneys, the three of these men conspiring together, outside of the meeting, would constitute a roving quorum.
One ring to litigate them all
With the 3 to 2 vote, some of these JV attorneys are not only serving on the Plaintiff Steering Committee, as well as representing the City in litigation against BP for the oil spill, they are now representing the Wisner Trust to boot. This begs the question, “Does hiring these lawyers (without an RFP mind you) to represent the Wisner Trust litigation against BP constitute a conflict of interest?”
There are numerous issues that would call a conflict of interest into play but the fact that some of the lawyers are on the PSC and representing the city simultaneously raises questions of conflict unto itself. Now they have been hired to represent one of the most critical plaintiffs in the entire realm of the BP oil spill litigation, the Wisner Land Trust.
What is in the best interest of the City is not necessarily in the best interest of the Wisner Trust and it’s hard to imagine that the JV lawyers could separate those interests when bargaining with BP.
One would think there is a shortage of law firms in South Louisiana.
Previous to the special Advisory Committee meeting that resulted in the removal of Waltzer and Wiygul, Joel Waltzer was asked by the JV attroneys to attend an informal meeting with Soren Giselson (Herman, Herman, Katz and Cotlar) and Caroline Fayard (Fayard and Honeycutt) to discuss a possible joint venture between the JV attorneys and Waltzer & Wiygul. Waltzer asked Cathy Norman to attend the meeting along with him.
In that meeting, held on July 15, 2012, Fayard told Norman that all the city has to do is get the votes on the committee and they could put whoever they want in as counsel. She also stated that the trust would “Live by the by-laws and die by the by-laws.”
Two weeks later, Sherman made the motion in the scheduled July meeting to remove Waltzer and Wiygul.
This document is Norman’s account of the meeting with Fayard and Giselson.
Back to the conflict of interest thing
Based on the limited account of the facts presented, we believe there is a concurrent conflict of interest present and , although Rule 1.7(b) may allow what the trustee has proposed, we believe you should be mindful of the risks and fully explain to all involved persons the potential for problems in this situation. Prudence may suggest that you consider the benefits against the potential risk and the option to avoid the conflict altogether by not using the lawyer for the city, or if needed, finding another, completely different, distinct lawyer to serve as co-counsel for the trust and its beneficiaries.
Coincidentally, Basile Uddo also serves on the Plaintiff Steering Committee ethics counsel.
The final decision came down to Federal Judge, Carl Barbier...the same judge overseeing the BP case and the same judge who originally chose the attorneys that comprise the PSC. He concluded that “..at this time there is no conflict of interest” clearing the way for this group of JV lawyers to represent both the Wisner Trust and the City of New Orleans in their respective cases against BP.
(PLEASE SEE UPDATE 2 BELOW)
At what time do we recognize a conflict of interest?
Even before the motion was made to fire Waltzer and Wiygul, it seems the JV attorneys had taken it upon themselves to arbitrate on behalf of the Wisner Fund.
In the letter Cathy Norman drafted to the City's JV attorney, Steve Herman, on June 8, 2012, she asked him to define what role, if any, he believed he was serving on behalf of the Wisner Donation in the pending BP litigation. Herman responded two days later (response is in the above link).
In that response Herman states, "'...we' ( I assume he is referring to his own law firm) have not been asked to become involved in the operation or management of the Wisner Donation."
Perhaps not being asked to become involved and becoming involved are two separate matters?
Three days later, Herman went so far as to inform BP counsel, via email, of decisions that were made in an executive session of the Wisner Trust Advisory Committee. This information was privileged and Herman may have violated attorney-client privilege laws by sharing it with BP lawyer,
Mark E. Holstein, in a
an email transmission at 1:56 PM on June 08, 2012:
Cathy Norman recognized the ethical breach and immediately informed the Committee members at 4:37 PM, June 8, 2012:
Robert Wiygul followed with a warning to the JV lawyers that the information was confidential:
Steve Herman then responded with an apology stating that he wasn’t aware the executive sessions were privileged information:
Even accepting Herman’s explanation that he wasn’t aware the information was privileged, why would he be sharing a plaintiff’s private deliberations with the defendant, BP? Especially if three days earlier he stated that he had not been asked to become involved with the Wisner Trust issues. It not only causes concern for the ethical actions of Herman's counsel in the Wisner case, it brings into question his interactions with BP as a member of the Plaintiff Steering Committee and his role as an attorney for the City.
Cathy Norman then forwarded this email exchange to the entire Advisory Committee to inform them of Herman's actions:
So before Herman's firm had been officially instated as Wisner attorneys and even after he had personally been asked not to inform BP attorneys of Wisner’s actions, Herman again forwarded Wisner information to BP lawyers.
This exchange of privileged information also brings up the question as to how Herman was obtaining the information in the first place.
I asked Michael Sherman if he was informing Steve Herman of decisions being made in the executive meetings of the Advisory Committee and he declined to comment stating it is a matter of litigation and that he was restricted from commenting.
Sherman did point out that all the Advisory Committee members have the right to have their own attorneys present at the meetings and they have the right to share information that has transpired in the meetings with their attorneys.
However, in this case, I am not sure that Herman or any of the other JV attorneys were officially representing Michael Sherman in his capacity as a City employee or as the Mayor’s appointee to the Wisner board. I would assume a city attorney should be providing that service, not Steve Herman who was serving as an independent contractor for the city with the specific purpose of litigating the City’s economic case against BP.
If Steve Herman was serving as Sherman's council in his role on the Wisner Trust Advisory Committee, was he billing the city for these services independently of his role as JV attorney trying the BP case?
Regardless, the information that Herman had about the Wisner actions in the executive meeting was privileged and should never have been shared with the defendant, BP.
I asked Michael Sherman if he was aware that Steve Herman had provided BP with this privileged information from the executive meeting and he once again declined to comment due to pending litigation.
It appears a plaintiff’s privileged information has been traded by an attorney acting as the plaintiff’s counsel (even though he officially wasn’t) to the defense attorneys in what is quite possibly the largest civil case in American history. The implications of this issue are staggering....so staggering....I don’t even want to speculate on the repercussions.
Transparency?
I’ve piled a lot of information into this post and I don’t want to overdo it but there is one last item I want to bring up here in Part 2.
Ryan Berni and Michael Sherman stressed to me that the goal of the Mayor’s administration with the Wisner trust is to increase transparency because they believe the trust is a public entity. As I pointed out in 1.5, this administration has made significant efforts to inform the public of the fund.
Ryan said he was unaware of this particular request but that he would look into it. Sherman was not serving on the Advisory Committee at the time the request was made, but he was made aware of the issue by Advisory Committee members in official meetings.
I also told Mr. Berni that I have spoken to other journalists who have filled multiple public records requests with the City that have gone unanswered. He told me he would look into it and stressed that this administration had made great strides in fulfilling PRR’s in comparison to the previous administration but that they still face manpower challenges in fulfilling all of them.
Along those lines, I have requested information from Mr. Berni that will show where the 2.4 million dollars in funds mentioned in Part 1 went when the City received it from the Wisner account. We will address that in Part 3 but it may take some time for me to get that information.
....and....it's Carnival time so don't expect much out of me til we hit lent.
Update 1: I was sent Calvin Fayard's application in email...it is here. But, I can't find Roy's either...anon, were you able to find Roy's application?
Update 2: I am being told, per email, that the JV attorneys never presented Judge Barbier with the Louisiana State Bar Associations legal opinion. They only provided him with the opinion presented by Basille Uddo. So Barbier may have issued his opinion without seeing the LSBA's original opinion. I am going to try and confirm this but in the meantime, check out the first comment by Kevin in the comment section.
