Legal Ethics

Judge Rapped Over Order to Pay Class Action Attorney in Store Coupons

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Apparently figuring that what is considered reasonable reimbursement for winning clients in class actions is also fair pay for their lawyers, a California state-court judge ordered that a male attorney receive a structured stream of $10 gift cards from the defendant women’s apparel retailer.

However, the decision in January 2009 by now-retired Los Angeles Superior Court Judge Brett Klein resulted in a severe reprimand by the state Commission on Judicial Performance, reports the L.A. Now blog of the Los Angeles Times.

In an opinion (PDF) today, the commission censured Klein and barred him not only from presiding over future court cases but from receiving any state court-referred work.

This discipline was by consent, the opinion notes. It concerned Klein’s handling of a class action alleging that Windsor Fashions Inc. had violated a statute barring retailers from asking customers who make credit card purchases for personal information such as phone numbers.

The case was actually assigned to a different judge, Susan Bryant-Deason, who had granted preliminary approval of a mediated settlement. It called for the store to issue $10 gift vouchers to plaintiff class members and pay $2,500 in cash to the lead plaintiff and $125,000 in attorney fees and costs to class counsel Neil Fineman. But because Bryant-Deason was ill Jan. 16, 2009, when the final approval hearing for the settlement was scheduled, Klein substituted for her on the bench that day, the opinion explains.

During the hearing, “Judge Klein engaged in a pattern of sarcasm and improper remarks toward the attorneys,” the commission states. That afternoon, he revised the proposed final settlement order to include provisions that the lead plaintiff would receive 250 gift cards from the store with a $10 value and Fineman would receive a total of 12,500. However, he was to get only 3,500 in January 2009, followed by another 750 every month for the next 12 months.

“Judge Klein signed and dated the order and crossed off the word ‘proposed’ on the caption,” the opinion continues, noting that the judge “had not mentioned during the January 16 hearing that he was considering making such changes to the proposed settlement.”

As well as e-mailing copies of the document to the parties that afternoon, Klein also e-mailed one to the Metropolitan News-Enterprise, which published a news article about it.

Soon afterward, however, Klein had second thoughts and voluntarily moved for reconsideration of his own ruling, so that Bryant-Deason could vacate his settlement order and enter a new final order providing for cash payment of the $2,500 to the lead plaintiff and $125,000 counsel bill.

“Judge Klein’s conduct displays bias and embroilment and constitutes an abuse of authority,” the commission writes. “His conduct also reflects a failure to be patient, dignified and courteous to those appearing before him.”

In addition, “Judge Klein abandoned his role as a neutral arbitrator and gave the appearance of being punitive toward the plaintiffs’ attorney and grandstanding to the press,” the opinion continues, noting that he had previously been disciplined for displaying similar bias on the bench.

Klein now tells the LA Times that he was disappointed by the commission’s opinion today and defended his Jan. 16, 2009 attorney fee order to pay Fineman in gift cards as fair, since most of the lawyer’s class action clients also got gift cards. Concerning the commission’s additional rebuke for having provided a copy of his order to a local legal newspaper, Klein adds: “I’m a bit startled to be criticized for furnishing a public document to a journalist.”

Earlier Metropolitan News-Enterprise articles detail the unusual coupon payment order and reaction to it.

Hat tip: Associated Press.

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