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Willie E. Gary insists there’s nothing wrong with his owning a cable TV network that signed an advertising contract with Coca-Cola while he pursues a race discrimination suit against the beverage giant for millions of dollars. “It’s small potatoes, not a big deal. Read my lips,” the senior partner at Gary Williams Parenti Finney Lewis McManus Watson & Sperando, with offices in Stuart, Fla., and Fort Pierce, Fla., said of the advertising contract. “If that [conflict] becomes an issue, I would drop the deal with Coke in a heartbeat, it’s just as simple as that.” In fact, Gary has taken what legal ethics experts say is an increasingly popular approach for lawyers who confront apparent conflicts of interest — obtaining the client’s consent to the situation. “People seem to be pushing the envelope with more emphasis on the ‘consent to cure’ approach,” said Anthony V. Alfieri, director of the Center for Ethics and Public Service of the University of Miami School of Law. “From the viewpoint of the clients, complete disclosure is required,” Alfieri said. Gary signed up three of eight original plaintiffs last month on the eve of a court-ordered mediation after putting the MBC Network-Coke deal to bed. The trio will not participate in the mediation. Gary said he told the three about the Coke negotiations and deal before agreeing to take their case. The clients consented, Gary said. “They were fully informed.” Attempts to reach the clients were unsuccessful. Ideally, all consent agreements should be in writing, said the American Bar Association, which has developed model rules of professional conduct since 1983. The ABA Commission on Evaluation of the Rules of Professional Conduct, known as “Ethics 2000,” plans several revisions to the rules regarding informed consent, according to associate ABA ethics counsel Eileen B. Libby. Informed consent means advising clients of all the facts, risks and complications that may exist when there’s an apparent conflict of interest, she said. Current ABA rules require consent after a consultation. Revisions to those rules will require at least a confirmation letter from the lawyer, Libby said. Some conflicts cannot be resolved through consent, she said, such as a class action suit. “Each client would have to be fully informed in writing and give a consent in writing,” she said. “It becomes very unwieldy.” Obtaining consent may solve one problem, but may expose Gary to even greater liability. An attorney who advises his clients to sign a consent form vastly increases the risk that he will be perceived as guaranteeing a victory, Alfieri said, based on a hypothetical situation that mirrors Gary and Coca-Cola. “It could invite claims of legal malpractice,” Alfieri said. The key is whether — in this case — Gary believes his ownership of the MBC Network will compromise his ability to represent his clients and as many as 2,000 other Coke workers he hopes to sign up, Alfieri said. That conflict has yet to affect MBC Network. It is cutting deals with Ford, Hertz and DaimlerChrysler even as Gary’s firm sues DaimlerChrysler for Jeep rollover injuries and Gary plans suits against Ford and Hertz. Gary said he owns a majority interest in the Atlanta-based Major Broadcasting Cable Network he and others created in November 1998. MBC Network began negotiating with Coke last October, according to Coke spokesman Ben Deutsch in Atlanta. The deal concluded in March. Gary and Coca-Cola refused to disclose the value of the one-year contract, which has options that could extend it to five years. “We’re making an ad buy because it’s good business,” added Deutsch. “We’re doing it because it gives Coke a great opportunity to support some very meaningful programming and connect our brands with African-American consumers.” Meanwhile, Gary met last week with 200 prospective African-American clients who may hire his firm in the suit. “We’re getting between 15 and 20 new phone calls daily,” he said. His firm may end up representing between 500 and 600 members of the class, he said. In April 1999, Washington lawyer Cyrus Mehri of Mehri Malkin & Ross — who has brought successful public interest suits against Fina, Westinghouse and Sikorsky Aircraft — first filed the Title VII race discrimination suit against the Coca-Cola Co. in Atlanta federal district court, along with co-counsel H. Lamar “Mickey” Mixson of Atlanta’s Bondurant Mixson & Elmore. According to the Fulton County Daily Report, Mehri said he and Mixson had jettisoned the three people Gary now represents because they were not acting in the best interests of the class. The three reportedly wanted more money than future class members. Gary, however, puts a race spin on the trio’s choice of his firm. “These clients wanted to have an African-American lawyer representing them, and they wanted Willie E. Gary, with his civil rights record,” he said. Gary said African-Americans know he has given away more money than he’s made. “They want someone who is not a fair-weather friend,” he added, “someone who is not in it just for the money.” Gary said his long-standing client, the Rev. Jesse Jackson, informally introduced him to the three plaintiffs. The non-Gary plaintiffs seek to certify their suit as a class action. It accuses Coke of racially discriminating against up to 2,000 African-American workers companywide since, at the latest, 1995. The suit claims Coke systematically discriminated against its African-American workers, paying them less, offering fewer promotions and writing fewer positive performance reviews, compared with non-black counterparts. Coke, according to spokesman Deutsch, vehemently denies these claims and will also vigorously oppose any class action. Mixson told the Miami Daily Business Review he and Mehri plan to file papers asking for class certification this month. In pretrial wrangling, Mehri accused Coke lawyers of shredding documents, a charge the company also denies. The acrimony had prompted U.S. District Judge Richard W. Story in February to order mediation. As Gary files documents with the Atlanta court seeking to represent the three plaintiffs, his partner F. Shields McManus is listed by the clerk of Atlanta’s federal trial court as representing the three former Mehri-Mixson plaintiffs. In addition to himself, Gary said he’s adding C.K. Hoffler, Dana Tucker, Maria Sperando, Lorenzo Williams, Ginger Jenkins and his son Sekou Gary, who will be fully admitted to the Florida Bar in July, to his firm’s Atlanta litigation team. “I can’t take myself out of the [legal] market because of this,” said Gary, vowing he would never shortchange his clients because of these deals. That promise may not be enough. Like Libby, Alfieri doubts a lawyer with an enduring conflict can expect consent from a class of plaintiffs. Individual consents from each class member would be required, he said. Florida Bar ethics counsel Elizabeth Tarbert in Tallahassee said the Bar has no model rule on whether a class can waive a conflict by one of its co-counsel. Alfieri said that if you asked 10 legal ethics experts the same question about waiving a conflict with consent, you might get as many differing answers. “Some lawyers wouldn’t know a conflict if it hit them on the head.”

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