‘A position of profit’
Judge Bamberger
approved the charity in 2002 and began attending board meetings, some of which were held at the Keeneland race course so the directors could attend the races after they met.
Bamberger ended court oversight of the charity in December 2003, about a week before he retired to become a senior judge. He joined the charity’s board of directors seven months later.
That move got the attention of Kentucky’s Judicial Conduct Commission.
The commission, which investigates and disciplines judges, wanted to know why Bamberger accepted a “position of profit” and why he allowed the lawyers to take more settlement money than their clients.
Investigators honed in on Bamberger’s decisions in 2002 that cleared the way for the lawyers and the charity to collect $125 million while the clients got $75 million.
Ford, the clients’ new attorney, later argued the judge’s orders gave the lawyers “cover” by approving the payment of fees after they had already taken the money.
She said the lawyers’ goal was to get court approval while still withholding money and information from their clients.
“They did everything they could to keep money that did not belong to them,” Ford said.
The judicial commission blasted Bamberger’s handling of the case, finding that he failed to review important information, such as the lawyers’ fee contracts, and questioned the propriety of his relationship with the attorneys and Modlin, a long-time friend.
“The actions of Judge Bamberger shock the conscience,” the commission declared in its 2006 reprimand.
The lawyers say they were just following Bamberger’s orders. Whatever people think of their fees, they say, they should not be blamed for accepting money approved by a judge.
“If there is a question, you eliminate the question by getting court approval,” said James Shuffett, Mills’ attorney. “It’s just like a golf match. You call the official over and you get a ruling.
“You’re protected if you get a ruling.”
The idea is that lawyers should not be held responsible, criminally or otherwise, for following a judge’s order. The problem in the fen-phen case is that some believe Bamberger’s orders are so flawed they are not reliable.
“In this instance, I think, there might be some reason to doubt the credibility of our noble institution,” the late Justice William McAnulty said last year during a Kentucky Supreme Court disciplinary hearing for Gallion, Cunningham and Mills.
“I can’t give much credibility to what was done judicially.”