A fight over fees from about 500 fen-phen lawsuits has been raging in Harris County since January 2008, when Houston plaintiff's lawyers Charles and Stephen Kirklin and their firm, The Kirklin Law Firm, sued plaintiff's lawyer George Fleming and his Houston-based firm over millions in fees.
The fee dispute is set for trial on Oct. 7 in 164th District Judge Alexandra Smoots-Hogan's court, but that's the eleventh trial setting for the lawsuit, according to court records. Most of those trial settings went by the wayside after judges granted continuances, including a legislative continuance Smoots-Hogan granted in March at the request of Fleming and Fleming & Associates. Craig Eiland, a Galveston attorney who is in the Texas House of Representatives, is a member of the defense team.
Fleming's firm is now Fleming Nolen Jez.
That was the only legislative continuance granted in The Kirklin Law Firm et al. v. George Fleming, et al. although judges presiding over the litigation have granted continuances for various reasons, including the loss of power at lawyer offices due to Hurricane Ike hitting the Gulf Coast in 2008, conflicting trial settings, and a conflict with a lawyer's summer vacation. (Local rules allow lawyers to reserve vacation weeks.)
Plaintiff Charles Kirklin, who is working pro se on the litigation, says there have been quite a number of continuances in the suit, but he declines to say if there's any link between Eiland's appearance in the litigation in December 2010 and the continuance that was granted in March 2013.
"All I can tell you is he's never been at any hearing or any deposition or discovery I've been involved in, and I've been involved in them all," Kirklin says.
Eiland, of The Law Offices of Craig Eiland, says he will participate in the trial.
"I was hired because I'm a damn good lawyer and George knows it. We've tried cases together before involving fen-phen and this case involves attorneys fees related to fen-phen," Eiland says.
The legislative continuance granted in Kirklin is one of only two Eiland filed during the 83rd Session, according to information he reported to the Texas Ethics Commission.
However, Fleming says he hired Eiland to work on Kirklin because Eiland has experience in fen-phen litigation.
"We brought him on because he knows what he's talking about. He plans to be active when it goes to trial," says Fleming, who says Eiland is working on the litigation but was understandably busy with legislative matters for much of this year.
Fleming says he's been on both sides of the legislative continuance issue, and while he doesn't always like how a legislative continuance can delay a trial setting, he understands it now.
In 2002, Fleming complained about a legislative continuance granted in a fen-phen case he was trying in Jim Wells County after defendant Wyeth added legislator Gabriella Canales of Alice to the defense team three weeks before trial. At the time, Fleming told Texas Lawyer that the addition of Canales to the trial team and the legislative continuance request was a "clear abuse of the system." [See " To Be Continued? Last-Minute Legislative Continuance Frustrates Plaintiffs' Lawyer," Texas Lawyer, Dec. 16, 2002, page 1.]
Background of Kirklin
In Kirklin, the plaintiffs allege in their seventh amended petition that Fleming and Fleming & Associates failed to pay them all of the fees they should have under referral agreements, failed to "take all necessary action on behalf of the clients referred by the Plaintiffs," failed to abide by disciplinary rules when representing those referred clients, breached duties to the clients, and overcharged for expenses. They allege the contracts called for a 40 percent referral fee and costs and expenses.
They bring breach of contract and fraud causes of action against the defendants, and seek a declaratory judgment that the fen-phen clients they referred to Fleming and his firm "can only be charged case specific expenses" and all unsettled or undistributed fen-phen cases are to be handled in accordance with agreements.
The Kirklins and their firm also allege George Fleming is individually liable for "all debts, obligations and other liability" of Fleming & Associates because of the insurance it carried.
Charles Kirklin says the damages they seek from the defendants are in the seven-figure range, but he declines to be more specific. The plaintiffs seek actual and punitive damages and attorney fees and interest.
In their fourth amended answer, filed on Nov. 9, 2012, the defendants deny the allegations and bring several affirmative defenses, alleging the plaintiffs' claims are barred under several doctrines and statutes. They also allege the plaintiffs' claims for exemplary, punitive or other damages are barred under Chapter 41 of the Texas Civil Practices and Remedies Code.
Fleming and his firm bring counterclaims of breach of contract, alleging the Kirklins failed to "jointly prosecute" the clients' claims as required in their referral contracts.
"Because the Kirklins breached that agreement, they are not entitled to the referral fee contemplated by the agreement for which sum F&A herein sues. In the alternative, F&A seeks damages equal to the expense incurred as a consequence of the Kirklins' failure to participate in the joint prosecution of their clients' claims, which is at a minimum the Kirklins' proportionate share of the common and professional service expenses incurred," they allege in the answer.
— BRENDA SAPINO JEFFREYS