GRAND RAPIDS, Mich. (Legal Newsline) - The federal judge in charge of litigation over the Flint water scandal refused law firm Napoli Shkolnik’s request to disqualify a rival lawyer for simultaneously representing clients who approved of a $600 million settlement and those who wanted it to fail, saying the lawyer probably violated ethics rules but it wasn’t worth removing him from the case.
New York-based Napoli Shkolnik filed a motion to disqualify Philadelphia lawyer Mark Cuker, who made headlines in the case after falling asleep during a Zoom hearing, after he filed objections to the settlement on behalf of 12 clients while his remaining 968 clients approved it. The State of Michigan agreed last year to pay $600 million to settle lawsuits accusing it complicity in Flint’s botched transfer to a municipal water supply that caused widespread lead contamination. Other defendants are contributing about $26 million to the settlement.
The Flint crisis sparked a stampede for clients and intense infighting among plaintiff attorneys, who could take home $180 million of the taxpayer-funded settlement as fees. In 2020, the Napoli firm and Levy Konigsberg defeated efforts by rival attorneys to have them removed as co-liaison counsel over allegations including they were trying to garner more money for their clients by requiring expensive “bone scans” to provide evidence of lead exposure. In the end, U.S. District Judge Judith Levy approved the settlement, including plaintiff lawyer fees.
Napoli argued Cuker violated the Michigan Rules of Professional Conduct by simultaneously representing clients who objected to the settlement and those who wanted it to proceed. Judge Levy largely agreed, saying “these positions are irreconcilable.”
The ethics rules allow lawyers to represent clients who have competing opinions about a settlement, the judge said, but only after “consultations” in which they are informed about the conflict and the participation of other clients. Cuker said he did just that, citing a July 2021 fairness hearing over the settlement.
“I’m not going to tell you I spoke to every single one,” he said then. “I will say that everyone I spoke to -- I certainly sent email blasts out, I sent letters out to everyone. I’ve certainly spoke to hundreds.”
The judge was skeptical.
“Mr. Cuker’s persistent denial that there was any divergence of interests between his objecting and non-objecting clients does not inspire great confidence that he properly appraised all of his clients of that divergence of interest,” she wrote.
The settlement was approved anyway, however, and there is no sign the 12 objectors have taken any further action, the judge said. Given the apparent conflict was short-lived, she said, there was no reason to disqualify Cuker.
Cuker argued all of his clients would prefer a better settlement and the silence of the non-objectors shouldn’t be considered assent, citing cases including class actions where so-called “absent class members” participate in a settlement even though they never agreed to it. The judge said that doesn’t apply here since “his clients are not class members and they did not stay silent” and had to affirmatively agree to the settlement.
The judge rejected Cuker’s argument the rival law firm didn’t have standing, saying a motion to disqualify counsel is the proper mechanism for informing the court about alleged ethical violations. Cuker doesn’t have a Michigan law license but he was admitted to practice in the courts overseeing the Flint litigation.