Posted on 04/16/2004 10:00:56 PM PDT by neverdem
New York City is preparing for the first trial of a civil suit by an American city claiming that the gun industry fosters an illegal market in the firearms criminals use to deliver death to the city's doorsteps.
Gun industry representatives say the case is crucial, and the companies have some of the country's top law firms defending them. Until a few weeks ago, the city had a powerful legal weapon, too: another of the country's top law firms, Weil, Gotshal & Manges, had agreed more than two years ago to work on the case for free.
But now the law firm is withdrawing from the case, acknowledging that at least one of its corporate clients had complained about its role. In a statement, the firm said that "certain potential `positional conflicts' " had been "brought to our attention." Some industry critics say the disruption in the city's legal team may have been intended to weaken the city's chances in what is certain to be a bitterly fought trial.
According to lawyers who have been involved in the case or have been briefed on it, Weil, Gotshal's withdrawal followed a rapid sequence of events out of the public eye.
The firm's lawyers appeared formally for the first time in court on Jan. 30. In February, the lawyers said, Alan E. Mansfield, a New York lawyer for Smith & Wesson, called at least one company he represents that is also a client of Weil, Gotshal. Smith & Wesson is one of the 40 gun makers and distributors sued by the city.
After the call by the Smith & Wesson lawyer, people at the corporate client of Weil, Gotshal raised questions with Weil, Gotshal lawyers about whether the gun case might lead to precedents that could later be used against them, lawyers involved in the case say.
With the gun case heating up in late March, the Weil, Gotshal lawyers privately told the city's lawyers that they could no longer continue to work on the case.
"The city has just lost an invaluable resource," said Elisa Barnes, a Manhattan lawyer who has handled other cases against the gun industry. "You've got to get King Kong to fight Godzilla."
The suit, which is likely to go to trial this fall, seeks an injunction stopping the industry from sales and distribution practices that the plaintiffs claim amount to a public nuisance. Critics have long accused the gun companies of closing their eyes to illicit distribution pathways. They say certain dealers, for example, are routinely tied to the sale of guns to criminals.
Almost no one is saying anything publicly about the behind-the-scenes events. Mr. Mansfield said he would not "talk about what I do or don't do on behalf of my clients." Lawyers for the city have not made a public assertion of any betrayal. Instead, after a request for a comment, the city's corporation counsel, Michael A. Cardozo, issued a statement praising Weil, Gotshal for its generosity in volunteering in the first place.
The battle over the role of Weil, Gotshal is the latest display of the hardball struggles over more than 35 similar suits that were filed by cities from coast to coast against the firearms industry beginning in 1998.
That struggle has included an effort by the gun industry and its supporters that failed in Congress last month to get immunity for the industry from such suits, and stark claims by the gunmakers in the city's case that the Brooklyn federal judge handling it, Jack B. Weinstein, is biased against the firearms industry.
The damage to the city by the firm's withdrawal is far from symbolic. It deprives the city not only of the skills of the two accomplished Weil, Gotshal lawyers handling the case, Richard J. Davis and Steven A. Reiss, but also of the vast resources of the firm, which has its headquarters at the General Motors building on Fifth Avenue in Manhattan and more than 1,100 lawyers worldwide.
"The gun industry and its lawyers will stop at nothing to prevent the plaintiffs from having their day in court," said Mathew S. Nosanchuk, a lawyer on the city's side of the case who is the litigation director for the Violence Policy Center, a gun-control group.
Lawyers at the city's Law Department, who have been working with Weil, Gotshal, are continuing to prepare for the trial. The department has scarce resources and few lawyers with the credentials to match those of Mr. Davis, 58, a former assistant secretary of the treasury for enforcement; and Mr. Reiss, 52, a former tenured professor at New York University Law School.
In his statement praising Weil, Gotshal, Mr. Cardozo, acknowledged that he regretted that the firm "needed to withdraw as co-counsel." He said the city would "continue prosecuting this case vigorously."
Lawrence G. Keane, the general counsel of the National Shooting Sports Foundation, the firearms industry trade group, said he knew of no role any lawyer for the companies had played in Weil, Gotshal's withdrawal. Smith & Wesson declined to comment.
Weil, Gotshal's statement described the issues brought to the firm's attention as "certain potential `positional conflicts' involving the position of long-term existing clients and those being advanced in the gun case."
By referring to potential conflicts, the statement suggested that legal ethics rules had influenced its decision. The rules bar lawyers from handling cases in which there are actual conflicts of interest among clients.
"We withdrew," Mr. Davis said this week, "when we determined that the client's concerns about potential conflicts had some validity, not simply because the client objected."
Mr. Reiss added that Weil, Gotshal wanted to avoid any appearance that it might have weakened its arguments on behalf of the city because of its other allegiances, adding that such appearances are "what the conflict rules seek to avoid."
But some legal ethics experts said it was far from clear that ethics rules required the firm to drop the city as a client. Instead, some of them said, the firm may have made what amounted to a business decision to bow to the wishes of long-term clients.
Several experts said they had reached that conclusion in part because a firm of Weil, Gotshal's sophistication would have taken on the city's case only after determining that it would not pose any conflict with its many other clients. The firm has represented scores of companies, including Texaco, Lorillard Tobacco Company, Enron, Johns-Manville and General Motors.
Rules dealing with actual conflicts of interest require a firm to decline a case, such as when a law firm is asked to handle a suit against an existing client. But, in contrast, several legal ethics experts said, a positional conflict often does not require a law firm to step down. A positional conflict occurs when a lawyer takes a position in one case while making a contrary argument in another.
Some legal ethics specialists said too little was known about the circumstances to determine what ethical rules applied. But others said that a "potential positional conflict" would rarely require a law firm to resign from a case.
"Positional conflicts arise every day," said Roy D. Simon Jr., a legal ethics professor at Hofstra University School of Law. He said a law firm would not usually be required to take any action at all.
Geoffrey C. Hazard Jr., a legal ethics professor at the University of Pennsylvania Law School, agreed. He said Weil, Gotshal appeared not to have confronted an ethical problem so much as what lawyers call a "client relationship problem."
"The law firm is being put in a squeeze," he said, adding, "Lawyers in private practice have to have a stream of income."
At last, someone looking ahead.
Don't gloat yet. Whoever took out Gotshal Weil did RKBA a favor, but we can't count on the support of corporate America. Businessmen as a group, however Republican they may be, are "economic conservatives" only -- they don't support 2A or a host of other constitutional and social issues favored by social conservatives. This according to the Pew study done in 1999. OTOH, Reagan Democrats are more favorable to RKBA when the argument is made logically and RKBA defenders don't let the opposition cast the issue as a "right to use 'cop-killer' bullets", an issue that Hollywood worked over famously in Lethal Weapon III.
If RKBA got some unexpected help from the corporate world, believe me, it was unexpected.
Advertising costs money, and the gov't get plenty of pro bono gun grabbing lawyers fresh out of law school who need to change the world.
True, but so does litagation. As far as the fresh ones out of school, their price is right but I doubt if they are a match for the high priced attorneys for the defense. Knowing a little how these attorneys think, I expect they would like to win, but not too easily or not too quickly. Have to let the attorneys on both sides get a fair pass at the trough. And the last thing they would want to do is win too decisively so as to dissuade future suits of a similar kind. Bad for business down the road
I wonder who the 3rd party was. General Motors? Chrysler? After all, some 50,000 people negligently die each year by there products which are widely known as dangerous killing machines.
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