Sunblock for Lawyers

It's no secret that law can be a lucrative profession, save of course for public defenders and prosecutors. It has been well documented (in presidential politics, of all places) that plaintiffs' lawyers often earn a king's ransom in the lottery of personal injury and class action awards. Apparently, there must be some shame in that. Or do lawyers have something to hide?

Take this unusual case. Lawyers filed a class action on behalf of motorists who complained that Shell gasoline overloaded with sulphur caused gas gauges to break. Shell paid to repair tens of thousands of cars. Lawyers then extracted (extorted?) a settlement requiring Shell to expand the repair program and to set aside $3.7 million for damages claims for things like lost wages (up to $300 for each plaintiff). Plaintiffs' lawyers also managed to squeeze another $6.8 million out of Shell for their fees. The real drama in this case concerned the distribution of legal fees -- sadly, fairly typical. The strange part is the court-ordered secrecy surrounding the resolution.

The lawyers evidently weren't content to simply divide the bounty evenly (at roughly $86,000 per head), so the federal judge overseeing the case assigned five lawyers from the group to assess the relative contribution of each lawyer to determine the proper division. So far, so good, as long as you're not bothered by a conspicuous conflict of interest. Then the judge "sealed" the judgment, ruling that the final distribution would remain secret. He went so far as to forbid the lawyers from comparing notes on what they were paid. Apparently the lawyers can't be trusted not to sue each other if they find out someone got a bigger slice of pie than they did. After objections to the secret distribution, the judge refused to unseal the judgment and then sealed that ruling (effectively saying, "I won't disclose the distribution, and I won't tell you why I won't tell you."). Huh?

Seems to me that the public, including the tens of thousands of class members, should know how much the lawyers got paid. After all, the class members can't recover more than $300 a piece, so why can't they know how much their lawyers each were paid? And why can't the lawyers disclose what they got... must they check their First Amendment rights at the courtroom door?

If the lawyers can't be trusted not to fight over the fee distribution, then something tells me the distribution itself may not be equitable. If the judge is concerned that lawyers would fight each other if they knew what one another received, then by the same logic shouldn't we seal all judgments so all potential litigants would be denied the ability to compare notes? (Would the public be more or less litigious if there were no publicity for runaway jury awards?)

I don't know much about this particular case, but I generally favor public disclosure. If the distribution was proper, then exposure shouldn't concern anyone involved. If not, "sunlight is said to be the best of disinfectants." That observation comes from Louis Brandeis, who later jointed the U.S. Supreme Court, in his book "Other People’s Money, and How the Bankers Use It." I won't venture to predict the result on appeal, but I'd suggest a Brandeis sequel: Other People's Money, and How Lawyers Keep It."