The result was a call for a moratorium on lawsuits related to the terrorist attacks. Instead, the ATLA wants to provide free legal help to the families of the victims if they forgo litigation and seek compensation from a federal victims fund.
The move has been seen as a generous and sympathetic gesture and a shrewd bit of image-polishing. After all, no lawyer wants to be seen as seeking to profit from a national tragedy, perhaps provoking new anti-lawsuit legislation in the process.
But in spite of the peer pressure from the association, some trial lawyers are opting to simply be trial lawyers. To encourage plaintiffs to give up their right to sue before anyone knows how the victims fund will work is not in the best interest of clients, they argue. There's nothing patriotic about pressuring people to give up their rights, they say.
Framing the debate
The touchy debate has two Florida lawyers in the forefront.
Miami lawyer Larry Stewart, a past president and executive board member of ATLA, has taken charge of the association's moratorium program through a recently established corporation called Trial Lawyers Care. He says the moratorium won't prevent anyone who wants to sue from being able to bring a case. "We just asked our members to step aside for a while and let people grieve," he says.
Stewart says there's nothing unethical about trial lawyers taking the national interest into consideration when deciding how to proceed. "I think as a profession, we very definitely have to think in the large scope."
Stewart thinks the victims compensation fund makes practical sense as well. He points out that people who chose to sue over the 1993 World Trade Center bombing are still waiting for their cases to be resolved. The fund will provide plaintiffs with a streamlined procedure under which they won't have to prove liability but will still get to file individual cases on damages.
On the other side is Aaron Podhurst, a Miami lawyer who has made his reputation litigating airline crashes. He's already signed on to represent two families of airline passengers who died in the Sept. 11 attacks. He says ATLA's plan is noble but a bad idea.
"I've been opposed to it since the first minute I heard it," Podhurst says. He says plaintiffs shouldn't be too hasty in giving up their right to sue.
Among other concerns, Podhurst says the fund's provisions require that any award of damages be offset by "collateral sources." That means someone with a $5-million life insurance policy would have $5 million deducted from his damages. Podhurst is also skeptical of ATLA's plans to find enough pro bono lawyers to represent the estimated 12,000 relatives who may have a claim.
"I don't think there are 10,000 attorneys" experienced in such cases, he says. "They're trying to say this is a simple administrative procedure and push it through. I wouldn't be the first person in for all the money in China."
Among other issues still undetermined as of early November was whether applicants would have the right to appeal a settlement made through the fund. Podhurst says there is pressure to toe the line to "help out America." But he still characterizes the debate largely as "an intellectual dispute."
Stewart has harsher words for lawyers opposing ATLA's plan. "Ninety-nine percent of the trial lawyers in this country are 100% behind what we're doing," he says. "A few who have expressed any objection I think at least in part are motivated by desire to get their name in the paper for marketing purposes."
At the University of Miami law school's Center for Ethics and Public Service, director and law Professor Anthony Alfieri says he is troubled by ATLA's call for a moratorium "to the extent that it affects the market for competent legal services." At the same time, he says, "it is, in a way, inspiring."