One of Texas' most well known law firms is trying to disqualify a former partner from representing a defendant who wants his cut of a probable multi-million dollar settlement with Dole.
In January, the Beaumont-based Provost Umphrey Law Firm sued several attorneys over fees stemming from litigation brought against Dole on behalf of Central American banana pickers.
The suit, filed Jan. 25 in Jefferson County District Court, named the following defendants: the Law Offices of Benton Musslewhite, Carolyn Musslewhite, Newton Schwartz, Robert Roberts, David Pettus, Steven Kherker, Susan Kherker and David Line.
Court records show that the Law Offices of Benton Musslewhite hired Brent Coon, a former Provost Umphrey partner, to represent the firm. On Musslewhite's behalf, Coon answered the suit and filed a counterclaim.
On June 1, Provost Umphrey filed a motion to disqualify Coon, arguing that "Coon cannot represent a client adverse to Provost because he owes Provost a fiduciary duty of confidentiality, as a former partner."
"Coon forced Provost to file this motion, by ignoring Provost's informal request that (he and his firm) withdraw," the motion states. "Because Provost can establish grounds for disqualification, this court has no discretion but to grant this motion."
A response to the motion was filed July 27, stating Musslewhite has a constitutional right to select an attorney of its choosing.
The response also states that this is case in which Provost Umphrey is simply trying to take attorney's fees from a lawyer.
A hearing on the matter was held Monday, July 30, in Judge Bob Wortham's 58th District Court. The judge told the Southeast Texas Record that this was a complex case that could not be resolved in a single hearing. Another hearing is slated for Aug. 8.
Court records show that Provost Umphrey handled thousands of Central American banana-worker cases involving the exposure to dibromochloropropane (DBCP), a pesticide that was banned in the U.S. in 1977 due to its toxicity to male testes.
There is a tentative settlement involving three of the five countries where Provost Umphrey litigates DBCP cases.
Currently, Provost Umphrey litigates DBCP cases in Nicaragua, Costa Rica, Honduras, Panama and Guatemala. This tentative settlement is one with one grower, Dole Food Co. Inc, and implicates only Nicaragua, Costa Rica and Honduras, according to the suit.
The lawsuit alleges that Provost Umphrey and Benton Musslewhite executed a case referral and advance fee agreement in 2000, negotiating the deal in Beaumont. Musslewhite would originate the banana-worker claims, then refer them to Provost Umphrey.
The agreement calls for Provost Umphrey to receive 60 percent of attorney's fees of cases settled before or during trial and 66 percent if the case is tried to verdict and Musslewhite does not participate in the trial. The remaining percent belongs to Musslewhite.
Throughout the course of the litigation, Musslewhite "purported to further pledge, assign, sell, or otherwise convey his purported interest in the banana-worker cases ... under the referral agreement to other parties, who claim interest in resulting fees," the suit states.
"None of the defendants in this case actually financed this litigation, and it is undisputed that Provost Umphrey did virtually all of the litigation work without the help of any defendant, save perhaps the occasional trip by Musslewhite to Central America," the suit states.
Provost Umphrey claims there remains "several millions dollars in expenses and advances on the banana-worker litigation, for which, of course, none of these defendants have paid, none of these defendants have offered to pay, and, for that matter, none of these defendants will ever pay."
"It is axiomatic to any licensed attorney in this State that when a case is settled and there remains more expenses on the file, the expenses are paid down first, and only after expenses do you distribute fees," the suit states.
The suit further argues that the defendant attorneys' claims for money should come out of Musslewhite's interest, not Provost Umphrey's.
Provost Umphrey is asking for a declaration that there is no earned attorney's fee under the referral agreement available to any defendant from the funds of a partial settlement, as their remains significant expenses.
Provost Umphrey attorneys Joe Fisher II and Mark Sparks represent the firm.
Case No. E191-813