This Section describes the chapter 7 estate’s malpractice claims against Jenner & Block. 

The estate can no longer recover damages from Jenner & Block, since the claims were waived several years ago, in exchange for the firm’s waiving an $800,000 unsecured claim against the estate.  Nevertheless, the underlying facts and legal issues remain an essential part of the narrative underlying the estate’s claims against those who sought to restrict my right to practice law. 

Jenner & Block’s malpractice included the firm’s failure to invoke the doctrine of collateral estoppel to reverse the Contempt Order’s finding that on January 21, 1993, I was discharged by Grove Fresh. See §B, below. The failure to argue collateral estoppel doomed the efforts to reverse the Contempt Order and caused three kinds of damages:

  1. The affirmed Contempt Order injured my reputation by permanently branding me as an untruthful lawyer and deceitful witness. 
  2. The affirmed Order left me liable for $150,000 in Rule 11 and contempt sanctions. 
  3. The prior restraint that was affirmed along with the Contempt Order cut off my opportunity to earn a $1,000,000 fee in the related class action cases in state court. 

Jenner & Block would not argue the collateral estoppel effect of the December 1994 adjudication because doing so would have opened the door to questions about Judge Zagel’s integrity.  Jenner & Block was unwilling to open that door because doing so would have jeopardized the firm’s financial interest in continuing to represent other clients with cases on Judge Zagel’s calendar, including Milberg Weiss Bershad Hynes & Lerach (“Milberg Weiss”). 

Section A below sets forth the pertinent facts from Jenner & Block’s representation of Milberg Weiss.  Section B analyzes the collateral estoppel issue. Section C summarizes Jenner & Block’s representation on appeal.  Section D analyzes the malpractice claims.

A. Jenner & Block’s representation of Milberg Weiss.

1.  Lexecon, Inc. and its ties to the University of Chicago School and to Seventh Circuit judges. 

Lexecon, Inc. is an economic consulting company with ties to the University of Chicago and to the Seventh Circuit Court of Appeals.  Lexecon was founded in 1977 by, among others, Richard Posner, a professor at the Law School who is now the Seventh Circuit’s Chief Judge.  Another Law School professor, Frank Easterbrook, worked at Lexecon from 1981 until 1985, when he was appointed to the Seventh Circuit.  Dan Fischel, now the dean of the University of Chicago Law School, joined the firm in 1981 and developed a securities law niche that became the most successful practice at the firm. 

The Wall Street Journal has called Lexecon the “Cadillac” of shareholder suit defense consultants.  Lexecon’s clients include Michael Milken, the former junk bond financier.  In 1995, Dean Fischel wrote an apologia for Mr. Miliken:  “Payback:  The Conspiracy to Destroy Michael Milken and his Financial Revolution.” 

In 1998, Dean Fischel and his colleagues sold Lexecon for $60 million in cash and stock to Nextera Enterprises, Inc.  Mr. Milken is one of the investors in Nextera.  Mr. Milken is also an investor in UNEXT, which is headed by Andrew Rosenfeld, another of Lexecon’s founders.

Judge Zagel holds a Bachelor of Arts degree and a Masters degree from the University of Chicago.

2. Lexecon’s claims against Milberg Weiss.

In November 1992 Lexecon sued Milberg Weiss, alleging claims for malicious prosecution, abuse of process, tortious interference, commercial disparagement and defamation.  The complaint arose out of Milberg Weiss’s conduct as class counsel in a prior class action brought against Charles Keating and American Continental Corporation for violations of the securities and racketeering laws.  Lexecon was also a defendant in the prior class action, charged with giving misleading statements to regulators regarding the financial condition of American Continental and its subsidiary, Lincoln Savings.  Lexecon filed its case in the Northern District of Illinois, where it was randomly assigned to Judge Zagel. 

Milberg Weiss hired Jerold Solovy, the co-chairman of Jenner & Block, to defend the case.  A number of other lawyers worked on the case, including David P. Sanders. 

3. Jenner & Block’s decision to seek a permanent transfer to the District of Arizona.

In 1993 Judge Zagel made preliminary rulings which suggested that he would entertain what were characterized by The Phoenix, a publication of the University of Chicago Law School, as “Lexecon’s improbable commercial claims.” [emphasis added]   Before discovery began, Jenner & Block filed a motion with the Judicial Panel on Multidistrict Litigation to transfer the case to the District of Arizona for pretrial proceedings in consolidation with other matters known as the Lincoln Savings litigation, Judge John Roll presiding. 

Jenner & Block’s unwritten reason for seeking a change in venue was its concern that Milberg Weiss would not receive a fair trial in Judge Zagel’s courtroom.  According to Mr. Sanders, that concern was grounded in the firm’s prior experiences with Judge Zagel generally, and in particular, in a prior defamation case in which the plaintiff was represented by the same Mayer Brown & Platt lawyer (Alan Salpeter) who was representing Lexecon in the case against Milberg Weiss. 

In June 1993 the Panel granted Jenner & Block’s motion for a transfer.  In November 1993 Judge Roll dismissed some of Lexecon’s claims.  In April 1995, Judge Roll granted Milberg Weiss’s motion for summary judgment on all the remaining claims except one in defamation.

In the meanwhile, Lexecon twice moved for remand to Judge Zagel.  Milberg Weiss responded with a motion to make the transfer to the District of Arizona permanent.  In April 1995 Judge Roll granted Milberg Weiss’ motion.  Lexecon sought immediate review by way of a petition for mandamus.  The Ninth Circuit denied the petition, but it ruled that in the event that Lexecon lost on the merits at trial and then appealed, the appeal could include the denial of its motion to transfer back to Judge Zagel. 

4. The Arizona verdict and the Supreme Court’s reversal.

Trial on the defamation claim went forward in the District of Arizona, ending in judgment for Milberg Weiss on or about July 28, 1995.  Lexecon appealed the dismissal of its claims for malicious prosecution and abuse of process and the denial of its motion for a transfer back to Judge Zagel, but it took no exception to the Arizona court’s jurisdiction and pursued no claim of error in the conduct of the trial. 

On December 20, 1996, the Ninth Circuit affirmed the verdict.  On May 19, 1997, the Supreme Court granted certiorari on a single issue:  Whether a transferee court conducting pretrial proceedings pursuant to 28 U.S.C. §1407 may later assign a transferred case to itself for trial.  On March 3, 1998, the Supreme Court answered this question in the negative, vacated the jury verdict for Milberg Weiss, and remanded the case for trial before Judge Zagel. Lexicon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998),

5. The retrial in Judge Zagel’s court.

In November 1998 Judge Zagel held that the Supreme Court’s ruling had deprived Judge Roll of jurisdiction and that neither the original district court judgment nor the Ninth Circuit affirmance prevented him from reconsideration of every one of Lexecon’s claims.  Judge Zagel proceeded to reinstate the abuse of process claim that Judge Roll had dismissed before the first trial, a ruling that the Ninth Circuit had affirmed in December 1996.  He dismissed all of Lexecon’s other claims, including the defamation claim that was the only claim to proceed to trial in Arizona. 

The May 1999 issue of The Phoenix gives this account of the six -week jury trial that began on March 3, 1999: 

While Judge Zagel allowed Lexecon plenty of room to prove its sweeping theory, he kept Milberg Weiss on a short leash.  Whether the issue was admissibility of key evidence or just the responsiveness of a witness’s answer, chances were that an objection from the plaintiff’s table would be sustained, and one from the defense would be overruled. 

Thus, Lerach’s ranting jury memo[1] was in, but the fact that Fischel wrote a book defending the once-imprisoned Michael Milken was out.  Judge Zagel admitted Lexecon’s association with Judges Posner and Easterbrook and the University of Chicago (“Watch what you say about the University,” the judge told defense lawyers, “I hold two degrees from there.”), but excluded Milken’s company’s purchase of Lexecon last December.[2]  Milberg Weiss recovered $240 million for Lincoln’s shareholders, but it could not tell that to the jury.  Lexecon paid over $700,000 to resolve Lincoln’s claims against it after a judge refused to throw the claims out, but the jury would not hear that either. 

* * * *

Several times during the defendants’ testimony, Judge Zagel sustained objections before Lexecon’s lawyers even made them.  Mark Hansen [one of Lexecon’s lawyers] once stood during defense testimony, and before he said anything the judge told him, “The objection, which I infer from Mr. Hansen’s demeanor he is about to make, is sustained.”  Another time Judge Zagel turned to lawyers seated at plaintiff’s table and asked “objection?”  When Hansen nodded, the judge replied, “sustained.” 

On April 12, 1999, the jury returned a verdict for Lexecon in the amount of $45,000,000.  The following day, in order to avoid the punitive damages phase of the trial, at which Lexecon intended to ask for an additional $45 million, Milberg Weiss wire-transferred $50 million to a Lexecon account to settle the case. 

B. The collateral estoppel issue.

As discussed earlier (§XXVII-I), on December 1, 1994, Judge Zagel ruled on a defense motion in the Rule 60(b) proceeding to compel discovery of communications between Grove Fresh and me on and after January 21, 1993.

Grove Fresh had objected to this motion on the ground that the communications were protected by the attorney-client privilege—i.e., that Grove Fresh and I had continued as attorney and client after January 21, 1993.  Judge Zagel sustained Grove Fresh’s claim of privilege.  He based his ruling on an in camera review of ten letters and memos that Grove Fresh and I had exchanged on and after January 21, 1993.  Because a claim of attorney-client privilege requires proof that the communications were “between a client and an attorney acting in his professional capacity,” the ruling constituted a finding that Grove Fresh and I continued as attorney and client after January 21, 1993.  F.T.C. v. Shaffner, 626 F.2d 32, 37 (7th Cir. 1980). 

Under the doctrine of collateral estoppel, this adjudication should have controlled the resolution of all other claims in 90c5009 that turned on the issue of my status as a Grove Fresh attorney.  Under that doctrine, “once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party (or privy) to the prior litigation.”  3 Moore’s Federal; Practice 3d §132.01[1].  The doctrine protects a defendant from the burden of litigating an issue that has been fully and fairly tried in a prior action and decided against the same plaintiff.  Id. at §132.01[2].  For collateral estoppel purposes, “subsequent suits” may “include collateral proceedings in the same litigation ….” Amcast Industrial Corp. v. Detrex Corp.,, 45 F.3d 155, 158 (7th Cir. 1995). 

The Contempt Order contradicted the December 1994 adjudication by ruling that Grove Fresh had discharged me on January 21, 1993.  The Order sanctioned me under Rule 11 on the ground that I had intentionally deceived the Seventh Circuit in October 1993, when I filed my motion for a hearing in the Coalition’s appeal wherein I described myself as one of the attorneys of record for Grove Fresh.  The Order also included findings about my demeanor and credibility as a witness on the issue of my relationship to Grove Fresh after January 21, 1993.  The Order characterized my testimony on this issue as “insulting” and stated:

Having watched an evasive Mr. Messina under cross-examination waffle over his reasons for omitting the obvious, I cannot choose but to disbelieve him.

888 F. Supp. at 1451.

C. Jenner & Block’s representation. 

On or about August 21, 1995, Jenner & Block agreed to represent me in the Seventh Circuit and in a parallel investigation at the ARDC.  Mr. Solovy was one of the Jenner & Block lawyers who filed an appearance for me in the Seventh Circuit.  Mr. Sanders was the partner in charge of the engagement.  Barry Levenstam was the lead lawyer in the Seventh Circuit. 

Jenner & Block’s agreement to represent me was memorialized in a letter dated October 9, 1995.  Pursuant to that agreement I (a) paid Jenner & Block a $3,000 retainer; (b) agreed to pay within 30 days of invoicing all disbursements and internal charges incurred on my behalf; and (c) agreed to pay additional charges for professional services rendered when I had the financial resources to do so.  The agreement also provided as follows:

Jenner & Block will do the legal work and be counsel of record in the appellate and ARDC proceedings.  You agree to cooperate fully with the firm in its rendering of legal services.  In addition, you agree not to object if Jenner & Block should seek leave to withdraw as counsel for you based on the firm’s belief that it has irreconcilable differences with you relating to the conduct of the litigation or the ARDC proceedings.  (emphasis added)

1. The August 1995 Meeting.

On August 29, 1995, I discussed the facts underlying the Contempt Order with Mr. Levenstam, Jacob Corre, and several other Jenner & Block lawyers.  Near the end of this meeting Mr. Levenstam identified what he characterized as the most difficult obstacle to a successful appeal: the findings about my demeanor and credibility as a witness on the issue of whether Grove Fresh and I continued in an attorney-client relationship after January 21, 1993.  Mr. Levenstam explained that he was concerned about this finding because for all practical purposes, credibility findings based on a witness’s demeanor are all but unreviewable.

2. Jenner & Block’s conflict of interest.

According to a letter from Jenner & Block dated July 9, 1998, the firm believed that its representation of me conflicted with its financial interest in representing other clients (“Other Clients”) who had cases on Judge Zagel’s calendar, or whose cases would be assigned to Judge Zagel’s calendar in the future.  One of those Other Clients was Milberg Weiss. 

The firm concluded that if it were to make any arguments on my behalf that challenged Judge Zagel’s credibility or integrity, the firm would have to disclose those arguments to, and obtain the prior consent of, Milberg Weiss and the Other Clients.  The firm believed that if it sought such consent, Milberg Weiss and some or all of the Other Clients might refuse to give their consent and might cease doing business with the firm.  The firm decided to instruct the lawyers representing me to refrain from making any arguments on appeal, or in the related proceeding at the ARDC, that would require the firm to make disclosures to, and seek the prior consent of, Milberg Weiss and the Other Clients. 

The firm made this decision in 1995 without disclosing it or the underlying conflict to me. 

3. The discussions with Mr. Corre regarding the December 1994 adjudication. 

Mr. Corre was assigned to write the first draft of the legal argument section of the brief on appeal.  In the fall of 1995 he and I had several conversations regarding the collateral estoppel effect of the December 1994 adjudication.  Mr. Corre advised that it would be tactically unwise to argue the collateral estoppel effect of the December 1994 adjudication.  He based this advice on the firm’s concerns about the collateral bar rule, which, if applicable to me, would bar me from challenging on appeal the validity of the orders underlying the Contempt Order.  Mr. Corre believed that the problems posed by the collateral bar rule would be worsened if I were to affirmatively raise a collateral estoppel argument of my own. 

In at least one of these conversations I asserted that the collateral bar rule should not apply to my case because I had no prior opportunity to obtain review of the seal order: Since the seal order had still not been entered on the docket (it wasn’t docketed until the spring of 1997), it could not have been appealed prior to the issuance of the Contempt Order.  These facts did not change Mr. Corre’s views.  (In fairness to Mr. Corre, it is my understanding that at all relevant times, Mr. Corre was expressing the views of the firm, and not his own personal views, which may or may not have been the same.) 

4. The December 1995 Meeting.

In December 1995, I met with several Jenner & Block lawyers, including Mr. Levenstam, to discuss Seventh Circuit Operating Procedure 6(b), which governs successive appeals in the same case.[3]  I was concerned that the Coalition’s 1992-94 appeal challenging the seal was a prior appeal within the meaning of OP 6(b), and that his appeal would be assigned to the same panel that had decided the Coalition’s appeal.  I was concerned about that prospect because of the relationship between Judge Zagel and Judge William Bauer, the senior member of that panel.  Judge Bauer and Judge Zagel are friends and co-authors of a textbook on criminal procedure. 

I told Jenner & Block that human nature being what it is, I expected that Judge Bauer would be inclined to resolve the appeal in a way that was protective of Judge Zagel.  I believed that public scrutiny of the appeal was the only possible check on the influence that the Bauer-Zagel friendship might have on the outcome of the appeal. 

Mr. Levenstam told me that it was highly unlikely that the panel that had decided the Coalition’s appeal would also rule on my appeal.  He also stated that Jenner & Block would not pursue a strategy of public scrutiny because in his and his partners’ collective judgment, a low-key, low-profile approach to my appeal would be the most effective.

5. The Seventh Circuit’s affirmance.

The briefing of my appeal was completed in the fall of 1997.  The briefs filed by Jenner & Block did not include any arguments about the collateral estoppel effect of the December 1994 adjudication.  The only mention of the December 1994 adjudication was a passing reference at p. 41 of the opening brief. 

On February 5, 1998, the panel that had ruled on the Coalition’s appeal issued a five-page, unpublished order affirming the Contempt Order.  Citing OP 6(b), the court held that oral argument was “unnecessary” because of its familiarity with the Coalition’s prior appeal.  The court gave the following reasons for rejecting my challenges to the validity of the orders underlying the contempt citations:

On appeal, Mr. Messina suggests that the district court erred in its interpretation of the orders and argues that they lack legal and factual bases.  However, we find nothing inappropriate with the court’s judgment.  As we previously stated, Judge Zagel’s initial failure to articulate his reasoning for ordering the seal and protective order does not automatically translate into a reversal.  Grove Fresh, 24 F.3d at 898-99.  On remand, we requested that the district court set forth its reasoning, and Judge Zagel has provided ample explanation for his initial decision to enter a protective order and to seal the case.  We find absolutely no reason to substitute our judgment for that of the district court, and we are certainly in no position to question Judge Zagel’s first hand impressions of Mr. Messina’s conduct and the court’s motivation for entering the protective order and seal.  The district court has sufficiently explained its reasons for entering the seal and protective order. 

(2/5/98 Order 4) [emphasis added].

6. The procedural effect of the failure to argue collateral estoppel.

The failure to argue collateral estoppel paved the way for the Seventh Circuit to deny me oral argument.  A collateral estoppel argument about the effect of the December 1994 adjudication would have established that I had had standing to participate in the Coalition’s prior appeal, and that the Seventh Circuit had wrongfully denied me my right to be heard in that appeal.

If the briefs on appeal had demonstrated that the standing issue had been wrongly decided against me in the Coalition’s appeal, it is unlikely that the Seventh Circuit would have compounded that error by citing the prior appeal as a ground for denying me oral argument in my appeal from the Contempt Order.

7.  Jenner & Block’s withdrawal from the ARDC proceedings.

In July 1998, after the ARDC investigation had escalated into a referral to an Inquiry Panel, Jenner & Block withdrew from representing me in that forum.  Jenner & Block withdrew after I told them I expected the firm’s presentation to the Panel to include arguments supported by the record that called into question the integrity of the 90c5009 proceedings.  Jenner & Block was unwilling to present such arguments because of its financial interest in continuing to represent Milberg Weiss and Other Clients with cases on Judge Zagel’s calendar. 

In a Memorandum filed with the ARDC in November 1998 (“ARDC Memo.”), I presented the following arguments, which are among the arguments that Jenner & Block would not pursue because of its conflict of interest: 

  • Judge Zagel’s undisclosed and unexplained decision to block the creation of an official record for five years tainted the fairness and integrity of the judicial process in 90c5009.  (ARDC Memo. 20-22.) 
  • The undisclosed and unexplained decision to block the creation of an official trial court record destroyed my right to obtain timely review of Judge Zagel’s conduct regarding the enforcement of an unethical restriction on his right to practice law. (ARDC Memo. 22-26.)
  • The undisclosed and unexplained decision to block the creation of an official trial court record violated the First Amendment and the Due Process Clause. (ARDC Memo. 27-29.)
  • The unexplained decision to block the creation of an official trial court record adversely affected the outcome of a prior appeal by the Ad Hoc Coalition of In Depth Journalists and, ultimately, the outcome of the contempt proceedings.  (ARDC Memo. 29-33.)
  • Judge Zagel’s contradictory findings regarding the sources of information for the 90c5009 complaint and my status as a Grove Fresh attorney after January 21, 1993, call into question the integrity of the 90c5009 proceedings.  (ARDC Memo. 34-37.)
  • Judge Zagel and the defendants used the contempt proceedings to enforce the unethical restriction on my right to practice law.  (ARDC Memo. 38.) 

After considering these arguments, the Inquiry Panel closed its investigation without voting a complaint.  Because the ARDC was reviewing the same record that was before the Seventh Circuit in the direct appeal from the Contempt Order, the ARDC’s action is compelling evidence that, but for Jenner & Block’s conflict of interest, I would have succeeded in reversing the Contempt Order. 

D. Analysis of the malpractice claims.

When a client alleges that he lost an appeal because of his attorney’s malpractice, he must show that the lawyer breached a duty, and that the appeal would have succeeded but for the breach.  Environmental Control Systems, Inc. v. Long, 703 N.E.2d 1001 (Ill. App. Ct. 5th Dist. 1998).  I can show that but for Jenner & Block’s breach of its fiduciary and professional duties, the Seventh Circuit would have reversed the Contempt Order. 

1. The 90c5009 record provided objective grounds for challenging the integrity of the 90c5009 proceedings.  Presenting these grounds would have ensured the inapplicability of the collateral bar rule. 

In a letter dated December 23, 1998, Mr. Levenstam implied that the 90c5009 record did not provide any objective grounds for challenging the integrity of the 90c5009 proceedings.  His implication contradicts the assessment Mr. Sanders made in the fall of 1995, after the firm had investigated the facts underlying the Contempt Order.  Mr. Sanders described Judge Zagel as “venal,” and he characterized the Contempt Order’s attacks on my character and veracity as examples of “the Big Lie.” 

Some of the objective grounds for challenging the integrity of the 90c5009 proceedings are set forth at pp. 20-38 of the ARDC Memo.  Presenting the facts regarding Judge Zagel’s interference with the creation of an official record (ARDC Memo. 4, 10, 19n.14, 20-26) would have established that I had no prior opportunity to appeal the seal order.  Establishing that fact would have assured that the collateral bar rule would not apply to my appeal. 

2. Jenner & Block’s refusal to present facts and arguments bearing on Judge Zagel’s integrity breached its fiduciary duties to me and its duties under the Rules of Professional Conduct. 

Once Jenner & Block satisfied itself that the Contempt Order had falsely accused me, the firm had a fiduciary duty to present arguments supported by the record that would discredit my accuser. 

For example, Judge Zagel’s disregard for the principles of collateral estoppel provided Jenner & Block with an objective basis for challenging his credibility as a fact finder.  See Moore’s Federal Practice 3d §132.01[3] and Heyman v. Kline, 456 F.2d 123, 130-31 (2d Cir. 1972) (suggesting that inconsistent determinations, which collateral estoppel is intended to avoid, signal a lack of integrity in the judicial process).  Just as a witness can be impeached by evidence of a prior inconsistent statement, so, too, could Judge Zagel have been impeached by showing that the Contempt Order’s finding regarding Mr. Messina’s status as a Grove Fresh attorney contradicted the December 1994 adjudication of that very same issue.  Such a showing would also have cast doubt on the good faith with which Judge Zagel made findings about my demeanor when I testified at trial on this issue.

The firm’s decision not to present arguments challenging Judge Zagel’s integrity was made to protect its financial interest in representing Other Clients with cases on Judge Zagel’s calendar.  This decision, which was made at the beginning of the representation without my knowledge or consent, was a breach of the firm’s fiduciary duty to place my interests above its own.  In re Rosin, 118 Ill. 2d 365, 515 N.E.2d 85 (1987).  The decision also violated the firm’s duties under R.P.C. 8.3(b), which requires lawyers to report unprivileged knowledge of judicial misconduct, and under In re Himmel, 125 Ill. 2d 531 (1988), which holds that lawyers have an absolute duty to report unprivileged knowledge of attorney misconduct involving dishonesty or moral turpitude. 

3. My alleged consent to the conflict of interest was ineffective. 

There is one crucial fact that Jenner & Block does not dispute:  Between August 1995 and December 1996, the firm did not breathe a word to me about its conflict of interest.  During that 16-month period, Jenner & Block made a number of tactical decisions that materially shaped the course of the subsequent proceedings.  I went along with these decisions, but because I did not know about the conflict, I was not able to evaluate whether the firm’s conflict of interest was driving the tactical decisions. 

Jenner & Block claims that it cured all problems in December 1996, when it allegedly made a complete disclosure of its conflict of interest and of the limits on the appeal.  Jenner & Block alleges that I implicitly consented to the conflict and to the limits.  I vigorously dispute Jenner & Block’s version of events.  I did not learn about the limits imposed on the appeal until June 1998, after the Seventh Circuit had already affirmed the Contempt Order.

Even if one assumes arguendo that Jenner & Block made a complete disclosure in December 1996, my alleged consent was ineffective for four reasons.  First, in order to obtain my informed consent to the conflict as it affected the appeal, the firm was obliged to explain the tactical considerations and alternative courses of action that would be foreclosed, or made less readily available, because of the firm’s conflict of interest.  Restatement §202, comment c(i).  Neither Mr. Levenstam nor any other Jenner & Block attorney ever provided any such explanation. 

Second, the disclosure came too late in the representation for my alleged implied consent to be deemed voluntary.  See C. Wolfram, Modern Legal Ethics 347 (1986).  Third, as a matter of law I could not consent to a resolution of the conflict of interest that required the firm to violate its duties under R.P.C. 8.3(b).  Restatement §202(2)(a); id., comment g(i). 

Fourth, Jenner & Block did not meet its burden of clearly communicating its position to me.  On several occasions between December 1996 and June 1998, I sent Mr. Hoover drafts of memorandums that I wanted Mr. Hoover to file at the ARDC.  These drafts included material that questioned the integrity of the 90c5009 proceedings.  If I had known about, and consented to, the limits on the firm’s representation of me, I would not have taken the time to draft memorandums for Mr. Hoover’s consideration that went beyond those limits. 

4. Jenner & Block’s breaches of its duties were the proximate cause for the loss of the appeal. 

The defendants had no legal or factual grounds with which to rebut an argument that the December 1994 adjudication was collateral estoppel on the issue of whether Grove Fresh had discharged me on January 21, 1993:  They had never moved for reconsideration of that ruling, nor had they introduced any new evidence on the issue at the February 3rd trial.  Thus, if Jenner & Block had argued for the collateral estoppel effect of the December 1994 adjudication, the Seventh Circuit would have had no credible grounds for rejecting the argument. 

Jenner & Block’s omission of the collateral estoppel argument adversely affected the outcome of the appeal in three respects:  First, the sole basis for the Rule 11 sanction was the finding that Grove Fresh had discharged me on January 21, 1993.  Therefore, a reversal of that finding would have resulted in an outright reversal of Judge Zagel’s Rule 11 adjudication that I had misled the Seventh Circuit about my status as a Grove Fresh attorney.

Second, the December 1994 adjudication was relevant to my credibility as a witness.  If the court of appeals were shown that my testimony at the February 3rd trial was consistent with a prior ruling by the trial court on the exact same issue, the court of appeals would have had to conclude that Judge Zagel had no grounds for finding that testimony to be untruthful. 

Third, Jenner & Block devoted a substantial portion of its briefs to attacks on the factual and legal validity of the orders underlying the contempt citations.  The Seventh Circuit disposed of these arguments in a single paragraph.  The court treated Jenner & Block’s arguments as presenting it with a choice between Judge Zagel’s version of events and mine.  Because Jenner & Block had failed to present any arguments that provided an objective basis for questioning Judge Zagel’s credibility, the court was free to believe Judge Zagel over me.

/s/ John P. Messina

[1] The reference is to a memo a Milberg Weiss lawyer wrote after losing a jury verdict in a case in which Dean Fischel testified for the defense.  After interviewing the jury the lawyer wrote a memo about jurors in which he claimed that “women are less susceptible to reason” and disparaged teachers, Republicans, and overweight people. 

[2] According to The Phoenix, Lexecon’s damage claims included a claim of $87.7 million in profits allegedly lost in the sale to Milken’s outfit.  In that transaction, Lexecon assigned its interest in the lawsuit to a corporation formed by Fischel and others for the purpose of receiving proceeds from the case.  The Phoenix does not explain how Judge Zagel could exclude information about the purchase when Lexecon’s alleged damages included alleged lost profits from that purchase.

[3] OP 6(b) provides in pertinent part as follows:

Briefs in a subsequent appeal to this court in a case in which the court has heard an earlier appeal will be sent to the panel that heard the prior appeal.  That panel will decide the appeal on the merits unless there is no overlap in the issues presented.  When the subsequent appeal presents different issues but involves the same essential facts as the earlier appeal, the panel will decide the subsequent appeal unless it concludes that considerations of judicial economy do not support retaining the case….  If the original panel retains the successive appeal, it will notify the circuit executive whether oral argument is necessary.