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Legal Shark's Last Bite

How Mel Weiss still stands to receive millions from fees. 
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Melvyn Weiss, once one of the most feared securities class-action lawyers in the country, must report to prison on Thursday.

For years, until entering a guilty plea in June, Weiss proclaimed his innocence on charges that he paid kickbacks to the investors who served as plaintiffs in his lawsuits against corporations. But the former founding partner of the law firm once known as Milberg Weiss is, if nothing else, a master deal maker.

Last October, he cut a deal in preparation for this day—an agreement to keep some of the future legal fees from cases he brought to his former law firm. Fees he might not otherwise have been entitled to share with his former partners, as an admitted felon who has lost the right to practice law, having pleaded guilty in June to racketeering and obstruction-of-justice charges.

Justice Herman Cahn of the New York State Supreme Court has approved the deal between Weiss and his former firm, now known simply as Milberg L.L.P. "Law firms are generally prohibited from sharing legal fees with non-lawyers," Justice Cahn wrote in his decision. But the ethical rules governing lawyers also allow a disbarred or suspended lawyer to be compensated for the fair value of his work before the termination of his or her right to practice law.

Cahn's decision notes that Weiss, who is 72, cannot be compensated for matters that were the subject of the federal prosecution. He will not get any fees for some lawsuits against Xerox, for example.

Weiss's deal with his former firm came under harsh criticism by the editorial board of the Wall Street Journal. On July 14, the eve of a court hearing regarding the agreement before Justice Cahn, the Journal published an editorial under the headline "The Milberg Double Cross," suggesting that prosecutors "may have been conned" by the "felonious" Weiss and his former firm. Already annoyed that the firm "got off easy" with its deal to avoid prosecution by paying $75 million, the Journal was disgusted that current partners would ink a deal to allow him to reap millions in the future: "Apparently, crime does pay," the piece huffed.

The Journal editorial, however, was inaccurate: The federal prosecutors in Los Angeles in fact had been apprised of Weiss's deal, as Justice Cahn's opinion points out.

The Journal itself acknowledged the error, if snarkily, in an August 5 editorial, after five Milberg partners wrote a stinging letter about it. ("Poor Bernie Ebbers, the former WorldCom boss now serving a 25-year prison sentence," the Journal editorial said. "If he'd been a class-action lawyer, he might have gotten a fat payout from his employer despite his felony rap.")

Sanford Dumain, Milberg's managing partner, defended the firm's deal with Weiss in an interview, noting that under the former partnership agreement, "Weiss had absolute dictatorial power if he wanted to use it."

"He gave up a lot in terms of monetary value, and he gave up all of his power," Dumain said.

And whatever fees Weiss collects under the deal may go back to the firm, at any rate. The firm has not given up its right to sue Weiss for contribution to its $75 million settlement with the Justice Department.

"Dollars are fungible," Dumain said. "You know, if Mel ends up contributing either by agreement or because we go after him for a judgment, dollars are dollars."

Weiss, for his part, will soon begin serving a 30-month prison sentence at a minimum-security camp in Morgantown, West Virginia.

And with Justice Cahn's ruling, the remaining lawyers at Milberg have their vindication that all was on the up and up with the prosecutors: There was no "double cross," as the Journal called it.

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