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Wrong Mark Hager?

Mark M. Hager

Law Professor

American U.


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Background Information

Employment History



Corporate and Intellectual Property Associate

Foley Hoag LLP

Assistant Professor


Law Professor

American University

Professor of Law

Washington College of Law

Web References(42 Total References)


Bar discipline and client protection, 2003: "Probate's misplaced trust" (Washington Post series), Jun. 16-17. 2002: "Crumbs from the table", Feb. 8-10. 2001: "Law firm sued over fen-phen settlement practices", Dec. 28; "Updates" (IOLTA), Dec. 15-16 (& Jan. 31); "Holiday special" (Canadian lawyer's misconduct), May 28; "Mills of legal discipline" (updates on Brock, Hager, Fieger cases), Mar. 3; "Dangers of complaining about lawyers" (Ga. considers easing defamation counter-complaints by lawyers), Mar. 30-Apr. 1.
2000: "'Judge Lenient With Perjurer, Cites Clinton Case'", Oct. 16-17 (& May 16); "Disbarred, with an asterisk" (Mass. has let many attorneys resume practice), Sept. 20; "Funds that don't protect" (client protection funds), Aug. 23-24; "Fit to practice? (California bar disciplinary board), Aug. 21-22; "That Hager case" (American U. law professor Mark Hager, settlement of Warner-Lambert Nix lice treatment case), Feb. 23 (& update May 3, 2001: board recommends three-year suspension).

www.headlice.org [cached]

After five long years, Mark M. Hager finally is paying the price for his legal misconduct

www.headlice.org [cached]

After five long years, American University law professor Mark M. Hager finally is paying the price for his legal misconduct.
Hager was found by the District of Columbia Court of Appeals in December to have engaged in "conflicts of interest, dishonesty" and "improper conduct" when he represented two southern Virginia mothers who wanted to sue the makers of the lice-killing shampoo Nix. The court upheld the D.C. Bar's one-year suspension of Hager and further ordered him to disgorge the $225,000 fee he shared with co-counsel. Now, American University is trying to kick him off the faculty of the Washington College of Law, according to a filing Hager made with the appeals court. Hager said in an affidavit that the dismissal proceedings began upon notice of his suspension. Instead of filing suit, Hager and his co-counsel on the matter, John F. Traficonte of Boston, began negotiating with Warner-Lambert and got refunds for Duke and other members of a class action and some other concessions. But Hager and Traficonte also got secret attorney fees and expenses from Warner-Lambert -- a total of $225,000. The next step is either for Grossman to refer the matter to the provost or for Hager to resign. Hager was not happy to hear from Hearsay, and he accused the column of "putting a hatchet in my back. (Apparently, he doesn't appreciate our coverage.) Asked if he now felt remorse, Hager declined to comment. A few minutes later, he called back and said, "I'm sorry I broke the rules. A little while later, Hager's lawyer, Hamilton P. Fox III of Sutherland Asbill & Brennan LLP , called to say his client is "continually frustrated" because Hager believes that the lice-vexed moms got the best settlement they could have gotten. The court of appeals had the last word on that argument: "Obtaining the best possible outcome for one's clients is never a viable defense to charges of ethical misconduct; the ends do not justify the means." According to the law school schedule, Hager this semester teaches on Tuesdays. The class is called "Federal Courts, Federal Torts."

www.headlice.org [cached]

In early 1997, they retained lawyer Mark M. Hager, a professor at American University, to champion their cause.
But according to the D.C. Office of Bar Counsel, the group that prosecutes lawyer misconduct, Hager didn't file suit against Warner-Lambert Co., the maker of Nix lice shampoo. Instead, he met with Warner-Lambert's attorneys and cut a deal for himself and his co-counsel: In exchange for $225,000, Hager agreed to drop the matter and hand over the names of 90 consumers interested in joining the suit, the Bar Counsel alleges. Those allegations are part of ethics charges filed recently against Hager, who teaches torts and labor law at American's Washington College of Law. A hearing on the matter is scheduled for Nov. 23. Hager referred calls to his attorney, Mark Foster, who declined to comment. It's common for law professors to moonlight as litigators, so Hager, who is a frequently quoted expert on product-liability matters, must have seemed like an ideal attorney for Debra Duke and a neighbor. In April 1997, Hager was collecting the names of consumers willing to join the plaintiffs' case, according to the Bar Counsel. By June, roughly 50 people had signed up and 40 more were ready to join the potential class, close to the 100 required by law. But the following month, the Bar Counsel contends, Warner-Lambert heard about the proposed class action and initiated discussions with Hager. The Bar Counsel has alleged that Hager violated 10 of its Rules of Professional Conduct. Last June, the D.C. Office of Bar Counsel, which prosecutes ethics cases here, accused Mark Hager, a tenured professor at the Washington College of Law, with 11 violations of the D.C. Rules of Professional Conduct. The case, which apparently raises novel ethics issues under the D.C. rules, stems from a confidential deal, which included $225,000 in attorney fees, that Hager and his Boston co-counsel reached in 1997 with the Warner-Lambert Co., the pharmaceutical giant that was the target of their clients' complaints. It is undisputed that Hager achieved for his clients the full relief that they could have won in court. Bar counsel's primary charge, however, is that Hager violated ethics rules by resolving the matter, before a complaint was filed, without informing his clients. At last week's hearing before a three-person committee of the D.C. Board on Professional Responsibility, it appeared that the outcome of the ethics case was likely to turn on the arcane issue of whether the deal struck between Hager and Warner-Lambert lawyers was a "settlement agreement." Senior Assistant Bar Counsel Elizabeth Herman, prosecuting Hager, argued at the hearing that Hager violated ethics rules by entering into the agreement, which included refunds, a money-back guarantee on the product, and a pledge by Hager not to sue the company without his clients' consent. If the committee finds that Hager did violate ethics rules, the sanctions would almost certainly not reach the level of suspension, given Hager's clean record. The matter has its roots in early 1997, when Erika Littlewood, a Richmond, Va., resident and an acquaintance of Hager's, asked him to look into filing suit over the alleged ineffectiveness of NIX, Warner-Lambert's anti-lice shampoo. Hager, who has maintained a mostly pro bono, part-time practice since joining AU's faculty in 1988 as a professor of constitutional law and torts, told Littlewood that he would be interested in pursuing a class action against Warner-Lambert. Hager testified that he had never handled a class action before. Littlewood, Hager, and Boston solo practitioner John Trafficonte, a classmate of Hager's at Harvard Law School, then set about to find the 100 plaintiffs they would need to qualify for class certification. Littlewood, Hager, and Boston solo practitioner John Trafficonte, a classmate of Hager's at Harvard Law School, then set about to find the 100 plaintiffs they would need to qualify for class certification. "We never imagined that it would be so difficult and take so long," Hager testified at the hearing. The attorneys also were worried that they lacked the requisite scientific background to succeed in the case. "For every product failure, there are three or four factual explanations," Hager testified. "Because the other explanations are always out there, we were afraid of not getting [certified] on a factual basis." What's more, there was the possibility that the suit would be dismissed even if the court did certify the class. Under the Magnuson-Moss Act, which Hager and Trafficonte planned to invoke, Warner-Lambert would have the right to "cure" the dispute by issuing refunds to the plaintiffs, thus ending the case. At about the same time, Hager testified, Warner-Lambert found out that a suit was brewing, and company counsel Karel Zaruba contacted Trafficonte to see if there was a way to resolve the matter before litigation. On Aug. 8, Hager and Trafficonte reached the deal with Warner-Lambert that became the focus of the ethics case. In the resolution, entitled "Settlement Agreement," Warner-Lambert granted unlimited refunds for the lawyers' 90 clients, agreed to create a scientific panel to investigate pesticide-resistant lice, offered a money-back guarantee to future purchasers of NIX, and agreed to pay Hager and Trafficonte $225,000 in fees. In return, the lawyers agreed not to sue Warner-Lambert and not to divulge the fact or the amount of the attorney fees to anyone, including their clients, Hager testified. Hager and Trafficonte furnished Warner-Lambert with the names of the 90 would-be plaintiffs, while insisting that they retained the right to sue if the company reneged on the bargain. "Without the confidentiality, we would not have had a resolution," Hager testified. "We wanted to answer that question. We were obligated not to answer that question. Hager also testified that while negotiating the deal, he informed Littlewood of the agreement's basic terms, and that she was not satisfied with Warner-Lambert's concessions. Hager refused but offered to pay her for the time she had invested in creating a web-site for the case. Debra Duke, a friend of Littlewood's and one of the potential plaintiffs, says that when Hager offered so readily to pay Littlewood, she began to think something was wrong. Duke confronted Hager and Trafficonte with her concerns, but they would not reveal anything about their fees. "In the beginning," Duke says, "Hager said he thought this could be the suit of the century." Hager is charged with three violations of the ethics rules that rely on the definition of "settlement": Rule 1.2 (a), failing to abide by his clients' decisions concerning the settlement of a matter; Rule 1.4 (c), failing to inform his clients of an offer of settlement; and Rule 5.6, participating in offering or making an agreement in which a restriction on his right to practice was part of the settlement of a controversy between parties. Bar counsel also accuses Hager of crafting the deal without his clients' consent or consultation, and of disregarding their right to know about the fees he received. The petition also asserts that his silence on the fee matter amounted to dishonesty.

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