"New York Loses a Top Legal Ally in Suit Over Guns" is the headline to this front page story today in the NY Times. Some quotes:
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.According to the Times, "more than 35 similar suits that were filed by cities from coast to coast against the firearms industry beginning in 1998." Gary Indiana has such a suit pending, but a law passed by the Indiana General Assembly in 2001 precludes any future suits. The Times reports that on the national level "an effort by the gun industry and its supporters ... failed in Congress last month to get immunity for the industry from such suits."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. * * *
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. * * *
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.
Earlier Indiana Law Blog entries:
The Indiana Supreme Court's December 2003 ruling allowing Gary's suit against gun dealers to proceed -- City of Gary v. Smith & Wesson Corp. (12/23/03 IndSCt). The initial Indiana Law Blog entry is here, a more complete entry is here; more here.
After Gary filed its lawsuit in 1999, the General Assembly voted in 2001 to ban lawsuits by other municipalities in the state." A complete discussion of the 2001 legislation is found near the end of this earlier ILB entry.
Posted by Marcia Oddi at April 17, 2004 10:58 AM