The Kentucky Supreme Court has permanently disbarred an attorney who participated in the settlement of claims involving the diet drug Fen-Phen. Ky. Bar Ass’n v. Helmers, No. 2011-000106 (Ky., decided September 22, 2011). According to the court, the attorney was admitted to the bar in 1997 and spent the greater part of his career as an associate working on the Fen-Phen litigation. He signed the settlement agreement and met with 39 clients to obtain their releases as instructed by the other attorneys, including his employers, representing the putative class. Part of his duties involved offering each client an amount “substantially below the amount assigned to that client in the predetermined allocations that [defendant] AHP had approved.” He did not give the clients a copy of the documents they signed, did not tell them they could refuse the offer and told many of them they would be penalized $100,000 if they discussed their settlement awards with others.
The attorney was charged with a number of ethical violations, and, following a hearing, was found guilty of most of them. The trial commissioner recommended a five-year suspension from the practice of law, noting that this attorney was not the “mastermind” and that he had cooperated in the criminal investigation. The board of governors of the Kentucky Bar Association considered the matter de novo, found the attorney guilty on most counts and recommended permanent disbarment and payment of all costs. The supreme court acknowledged the mitigating factors, including the attorney’s youth and inexperience, but found that the personal and direct deceit of clients, “some of whom had been egregiously injured,” rendered permanent disbarment reasonable. The attorney was also ordered to pay nearly $40,000 in costs.