Fourth Fen-Phen lawyer disbarred

Jessica M. Karmasek Sep. 23, 2011, 12:11pm

FRANKFORT, Ky. (Legal Newsline) - The Kentucky Supreme Court on Thursday disbarred David Helmers, a Kentucky attorney who worked on a controversial class action lawsuit over the diet drug Fen-Phen.

The state's high court, in its 10-page opinion, wrote that Helmers committed "serious ethical violations."

In addition to permanently disbarring him from practicing in the state, the Court also directed him to pay all costs associated with the disciplinary proceedings -- $39,673.53.

Helmers is the fourth attorney involved in the fen-phen case to be disbarred.

The Court also is considering disbarring prominent plaintiffs lawyer Stanley Chesley, who has maintained he was not co-counsel for the plaintiffs and was not aware that other attorneys were deceiving their clients. He says he was simply brought in to negotiate the 2001 settlement.

Chesley's own disbarment was recommended by the Kentucky Bar Association's Board of Governors in June. The board also has recommended that the Cincinnati trial lawyer, known for winning billions of dollars for his clients in other mass torts, should return $7.5 million in fees he received in the settlement.

If Chesley is disbarred in Kentucky, it could mean disbarment in his home state of Ohio as well. The two states have a reciprocal agreement.

The lawsuit at issue is Darla Guard, et al or Jonetta Moore, et al v. A.H. Robins Company, et al.

The suit, filed in Boone Circuit Court in 1998, sought damages for injuries from the diet drug.

Chesley was one of the four lawyers involved in the settlement with American Home Products, the manufacturer of the drug. The others included Lexington-area lawyers Shirley Cunningham, William Gallion and Melbourne Mills Jr.

The lawyers received roughly 50 percent of the $200 million settlement. Their 431 clients received the rest. Chesley, himself, collected a $20.5 million fee for negotiating the settlement.

The clients later sued the lawyers for allegedly breaching their duties by diverting most of the settlement money to themselves.

In 2009, Cunningham and Gallion were sentenced to 20 years in federal prison for their roles in stealing the settlement money. Mills was acquitted of all charges. All three have lost their law licenses.

In addition, Judge Joseph F. Bamberger, a senior status special judge who approved the settlement, later resigned. It was revealed he was paid $5,000 a month as a director of a phony charitable entity, The Kentucky Fund for Healthy Living, which was funded by the settlement and allegedly directed by the lawyers.

Helmers was an associate at law firm Gallion, Baker and Bray at the time of the settlement.

The Court, while it was sympathetic to the fact that he was relatively new to the firm at the time, said it couldn't ignore the facts.

"We are aware that Respondent was a young law student when he first began working for Gallion, and that Gallion was then a well-regarded and reputable attorney. We are aware that as a new attorney working with Gallion, Cunningham and Mills, Respondent was inexperienced, impressionable and may have been influenced, and perhaps even led astray, by those more seasoned lawyers," Chief Justice John Minton wrote.

"But, we cannot ignore the fact it takes no technical expertise or experience in the settling of class action lawsuits or any sophisticated understanding of the rules of ethics to know that Respondent's course of conduct, personally and directly deceiving his clients, some of whom had been egregiously injured, was wrong."

Minton added, "That he did so at the direction of his employer does not permit us to overlook the serious deficiency in character revealed by the facts before us."

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