By Andrew Wolfson
The Courier-Journal
October 12, 2008
http://www.courier-journal.com/apps/pbcs.dll/article?AID=/20081012/NEWS01/810120454/1008
Bonar, facing complaint, denies any misconduct
The president of the Kentucky Bar Association allegedly tried to block the $84 million settlement of the Diocese of Covington priest-abuse case so she could extract a larger fee for herself, according to affidavits filed in bar proceedings.
The documents allege that Barbara Bonar, working behind the scenes, helped write an objection for a former client to the settlement and tried to drum up negative news stories to derail it -- even though she had been a lead lawyer for the 380 victims.
Ethics experts say that even as their former attorney, she had a duty not to hurt their cause.
 |
| Attorney Barbara Bonar, president of the Kentucky Bar Association, denies doing anything unethical or illegal. |
In one of three affidavits provided recently to The Courier-Journal, Fort Mitchell lawyer Jacqueline Sawyers said Bonar asked her to write the objection and vowed in January 2006 to "hold this settlement for years if I have to, until Stan Chesley" -- a lead lawyer on the class-action counsel team -- another member of the class counsel team -- "pays me my money."
In another affidavit, Russell McRoberts, one of the class members in the priest-abuse litigation, says Bonar persuaded him to file a bar complaint against Chesley and typed up notes for him to use in it.
"She told me I would have to say she and I never talked, because it was unethical for her to give me legal advice about this case," McRoberts said. "Every time we talked, attorney Bonar told me, 'Remember, we didn't have this conversation.' "
Bonar, who withdrew as a class lawyer in 2004 but later sought half the attorneys fees from the case, declined to be interviewed. But in a written statement issued by one of her lawyers, Peter Ostermiller, Bonar said, "I do expressly deny that I acted in anything other than an ethically and legally proper manner, to the same extent that would be expected of any attorney in Kentucky."
Bar proceedings and records are confidential, but the three affidavits were provided anonymously to The Courier-Journal, which confirmed their authenticity with the authors of each statement or their counsel.
And the KBA has confirmed that Bonar -- who became its president in July -- is under investigation, based on the findings of a senior judge who said she committed "numerous ethical violations" in the Diocese of Covington case.
Judge Robert McGinnis made those findings in May 2007 at the conclusion of a trial of a fee-dispute lawsuit in which Bonar, 55, demanded half of the $18.5 million in attorneys fees awarded to Chesley and other class counsel.
McGinnis awarded Bonar nothing and ruled that she had acted unethically by negotiating settlements for individual clients both while serving as class counsel in 2003 and after she withdrew, in February 2004.
McGinnis said that by her actions, Bonar violated her duty to the class by reducing the pool of money available for all victims. He also said she improperly drummed up negative publicity about the case and had conflicting loyalties to the Diocese.
In the prepared statement, Bonar noted that she has appealed McGinnis' findings and believes she will "ultimately be vindicated" in her pursuit of her "rightful share of Diocese class action from Mr. Chesley and his firm." The appeal notes that another judge had given her permission to represent her individual clients.
Bonar also faces a criminal investigation by Kentucky State Police of an allegation that she committed perjury in the fee-dispute trial by falsely asserting that she had personally represented a client in the Diocese of Covington case. The victim testified that he never talked to Bonar and that she wasn't his lawyer. Bonar did not respond to questions about that matter.
Earlier bar investigation
Sawyers and McRoberts indicate in their affidavits that their testimony was submitted in connection with a bar investigation of Chesley, a nationally known class-action lawyer whose law office is in Cincinnati but who is licensed in Kentucky, as well as Ohio.
The affidavits and other court documents indicate that Chesley has been under investigation by the KBA over allegations that he struck a deal to get two abuse victims to make last-minute withdrawals of their objections to the Covington settlement.
Scott C. Cox, one of Chesley's lawyers, said there was no such deal and that Chesley "has not acted unethically or inappropriately."
Citing its confidentiality rules, KBA chief counsel Linda Gosnell had declined to say whether it is investigating Chesley.
But under a rule that allows the bar to confirm investigations arising from findings in civil cases, Gosnell confirmed that a bar complaint was issued last month against Bonar after a Supreme Court panel found probable cause to go forward. The next step is that Bonar will file a response to the complaint. The panel could dismiss the complaint, issue a private admonition or a charge. If a charge is filed, the case would be tried before a trial commissioner, and ultimately, could be decided by the Supreme Court, which could reprimand, suspend or disbar Bonar.
Legal ethicists, including Stephen Gillers, a professor of law at New York University, say a former class counsel continues to have duties not to injure the class in order to achieve an advantage for herself.
"Doing it through an intermediary would aggravate the wrong," Gillers said.
The Sawyers affidavit
In her sworn statement, Sawyers said Bonar asked her in December 2005 to represent a victim who wanted to file an objection to the settlement.
Sawyers said Bonar told her she couldn't ethically represent the client because she was still class counsel. In fact, Bonar had withdrawn from that role the year before, court records show.
But in her Feb. 21 affidavit, Sawyers, 48, said Bonar gave her "specific instructions as to what should be said on behalf of the client" and asked Sawyers to talk to two reporters in an effort to get a story published the weekend before a Jan. 9, 2006 "fairness hearing" on the proposed settlement.
Sawyers also asserts in the affidavit that Bonar withheld information from her and the client showing that the proposed settlement would be fair to victims.
And Sawyers said Bonar told her she "should try to strike a deal on fees with Chesley regarding your fees and then you and I can work something out."
"I realized at that moment that Ms. Bonar's interest in the client and in the case was motivated by her desire to collect a fee from Mr. Chesley," Sawyers said, "and I was concerned ... since it was contrary to the best interests of all victims in the case, and specifically my client."
Sawyers investigation
Sawyers says in the affidavit that she was first questioned in December 2006 by a bar lawyer asking about Chesley's conduct, and that she was twice assured she wasn't under investigation herself.
But in November 2007, she says, the KBA told her she was being investigated for allegedly failing her duty of "candor to the court."
She says the bar cited an allegation from one of Bonar's lawyers, who said Sawyers failed to disclose at the fairness hearing that Chesley had agreed to pay legal fees for lawyers representing those objecting to the settlement.
In her affidavit, Sawyers said Chesley told her before the hearing that "he would be fair to me and would see that my attorney's fees were paid."
But she said there was no agreement struck with Chesley in exchange for the withdrawal of her client's objection and that Chesley responded truthfully when he told the court there were no deals made.
The McRoberts affidavit
McRoberts, 38, said in his affidavit that he picked Bonar out of the Yellow Pages in June 2006 to write a power of attorney for his grandmother, then mentioned in passing that he was a class member in the Diocese of Covington case.
In his statement, sworn on Jan. 7, 2007, McRoberts said Bonar told him she couldn't offer him legal advice because she was class counsel, but then proceeded to do so anyway.
He alleges that Bonar persuaded him to file a bar complaint against Chesley and one of his partners -- and provided him typed notes about what to say -- even though McRoberts said he had no problems with those lawyers.
McRoberts also alleges that Bonar told him the lawyers who represented the class "are not Catholic and do not understand the Catholic religion" and said that as a bar leader herself, she "wanted to get rid of the dirty lawyers and clean up the profession."
McRoberts said in his affidavit that he was providing his testimony to "correct an injustice" caused by his bar complaint against Chesley. The statement was taken by a lawyer for Chesley.
A third affidavit
Bradley McPeek, a Cincinnati lawyer, said in his affidavit that Bonar threatened to file a bar complaint against him and to seek other sanctions after he filed Judge McGinnis' findings as part of a motion in an unrelated lawsuit filed by Bonar in Ohio.
In an interview, McPeek confirmed he provided the affidavit but otherwise declined to comment.
In the affidavit, he said the findings in the Kentucky case were relevant to his efforts opposing class certification in the Ohio case, in which Bonar represented two women who alleged they were molested by a doctor.
Court records show McPeek didn't withdraw the findings, and that after her motion to make the case a class action was denied, Bonar motioned for sanctions against McPeek and his co-counsel. That motion was overruled.
Bonar declined to comment, saying in her statement that ethics rules prohibit her from "revealing confidential information regarding my representation of a client."
Reporter Andrew Wolfson can be reached at (502) 582-7189.
Contact: awolfson@courier-journal.com
Any original material on these pages is copyright © BishopAccountability.org 2004. Reproduce freely with attribution.