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San Francisco�Jocelyn Larkin is mad. She’s been hearing reports for the past few months�even from opposing counsel�that lawyers around the country are soliciting clients in a discrimination class action against Wal-Mart Stores Inc. The problem, Larkin said, is that her firm, the Berkeley, Calif.-based nonprofit Impact Fund, and five others are the court-named class counsel; any other firms retaining clients as class members, she said, are ostensibly providing duplicative services for additional fees that will come out of class members’ own pockets. “Everybody’s automatically in the class. They don’t have to do anything affirmative. They don’t need to get a lawyer,” said Larkin, litigation counsel at the Impact Fund. “If they wanted to talk to a lawyer, they could call any one of the class counsel, who are essentially providing this service for free.” Larkin said she has received calls from about a dozen women who have retained other firms thinking they were signing on with the class. ‘Ripe for abuse’ And she worries the practice is still going on. She has found several Web sites offering representation in the Wal-Mart case. For instance, under the subhead of “Wal-Mart and/or Sam’s Club Class Action,” www.clayburgess.com invites visitors to its Cases and Class Action page to “give us a call . . . to sign on and become part of the class.” Louisiana solo practitioner L. Clayton Burgess declined to discuss his solicitation of Wal-Mart claimants. “It’s an area that’s ripe for abuse by greedy lawyers,” said Richard Zitrin, an ethics specialist and partner with Zitrin & Mastromonaco who represents plaintiff firms. He and other lawyers say that firms are increasingly using the Internet and TV advertising to grab a share of the mass tort/class action pie without doing the litigating. And they worry that such arrangements can leave clients vulnerable to additional costs and misleading claims that they have secured legal services, when in fact they may only have reached a clearinghouse for referring names to class counsel or bigger firms. “People around the world smell what they think is easy money,” said Mari Mayeda, a Berkeley solo who in 1994 found that a Southern California auto repair shop had been selling signup paperwork for a class action against the Denny’s restaurant chain for $25 to $50. Mayeda’s firm at the time, Saperstein, Mayeda & Goldstein, had settled the discrimination case with Denny’s and was able to secure a court order to end the repair-shop signups. In a retainer agreement from one of the firms offering representation against Wal-Mart, Thomas Schultz, a partner with Lopez, Hodes, Restaino, Milman & Skikos in Newport Beach, Calif., proposes that the firm take a sizable chunk of a client’s potential award. “The legal fees to be paid for us representing you and prosecuting your claim against Wal-Mart Stores Inc. for gender discrimination in employment will be calculated as forty percent (40%) of any gross recovery, which is calculated before the costs,” the agreement states. This gross recovery, though, would already be reduced by fees for the class counsel. “A concern is that you don’t want to have class members pay twice for attorney fees,” said Joshua Thorpe, a partner with Bondurant Mixson & Elmore in Atlanta who specializes in discrimination class actions. Thorpe fended off lawyers trying to win away class members in a 2000 discrimination case he settled with Coca-Cola. But it is not necessarily unethical for outside firms to sign up clients for a class action, since class members maintain a right to individual representation, said Sean SeLegue, an adviser to the State Bar of California’s Committee on Professional Responsibility and Conduct. In some cases it may make sense to have a legal adviser, said the Rogers Joseph O’Donnell & Phillips partner, although he questioned why such an arrangement would be made on contingency.

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