Attorney Mark Lanier. Photo from superlawyers.com
HOUSTON – Despite the trial bar waging a war to end arbitration for more than a decade now, that hasn’t stopped some plaintiff’s attorneys from strategically placing arbitration clauses into contingency fee contracts and invoking that right when they themselves are sued by their clients.
Such is the case of Mark Lanier, a mega attorney out of Houston who was hit with a legal malpractice lawsuit earlier this year.
On June 14, Lanier answered the suit brought by Sheri Dorgan, a former client claiming the attorney had “more important” things to do instead of litigating her BP oil spill claim.
Lanier asserts Dorgan’s claims “must be resolved by binding arbitration.”
Here’s what Texas Watch, a self-proclaimed consumer watchdog funded by trial lawyers, has to say about the “dangers of forced” arbitration:
“Binding arbitration clauses are inescapable. They appear in all forms of consumer contracts, big and small. Federal law limits what states can do to rein in the use of arbitration. But states have the power to ban mandatory binding arbitration in insurance contracts and improved disclosures. Getting rid of this system is one step toward leveling the playing field for policyholders and consumers.”
On the other hand, defenders of arbitration argue its one of the few ways to control the enormous costs of lawsuits – a case made by James Copland in his WSJ opinion piece, entitled: “Why the Trial Bar and Its Friends Detest Arbitration.”
In addition to wanting the case abated, Lanier also wants the recovery of exemplary damages is limited.
As of July 24, the case is still active, with the most recent filing coming two weeks ago.
Court record show on July 10 Lanier and his firm filed an objection to Dorgan’s request for disclosure and motion for protective order.
Lanier is asking the court to enter a protective order stating that he and his firm are not required to respond to Dorgan’s discovery requests because the contingency fee contract she signed contains a “valid, enforceable arbitration agreement.”
“This agreement clearly requires that Ms. Dorgan claims be arbitrated, not litigated,” the filing states. “For this reason, the Lanier Defendants object to responding to any discovery … on the grounds such discovery is harassing, unnecessary, creates unnecessary expenses, and is violative of the Lanier Defendants’ rights under the arbitration agreement.”
Seeking in excess of $1 million in damages, Dorgan filed her suit against Lanier and Charles Herd, a former Lanier Law Firm attorney, on May 7 in Harris County District Court.
Dorgan alleges she was “drastically” affected by the Deepwater Horizon well blowout incident and claims that she was exposed to benzene and other carcinogenic chemicals.
She says she hired Lanier and his firm. Herd also worked on her case. When Herd left the firm to start his own, he took her case with him. Yet, Lanier and his firm did not withdraw from representing her and continued to expect compensation from the case.
“Unfortunately, these Super Lawyers had too many ‘more important’ things to do while handling Sheri’s case and failed to follow the dictates of Judge Carl Barbier, the federal court judge presiding over the underlying case,” the suit states. “Lanier was too busy accumulating accolades to be distracted by Sheri’s case and Herd was too busy starting his own practice.”
The lawyers allegedly neglected to address at least three orders by Judge Barbier, which led to him issuing a show of cause order on Aug. 20.
“The Super Lawyers failed to timely respond to this show cause order,” the suit states. “Thus, Sheri’s case was dismissed with prejudice on Jan. 31, 2019, because her claims were filed ‘significantly late or not submitted at all.’”
Dorgan is accusing the attorneys of negligence and gross negligence and seeks to recover actual and exemplary damages, plus damages for emotional distress.
Houston attorney Lance Kassab represents her.
Lanier is represented by Aaron Pool, attorney for the Houston law firm Donato, Minx, Brown & Pool.
Case No. 2019-31827