Ethics professor: Feinberg ‘not BP’s lawyer’ (Updated)
The Gulf Coast Claims facility has released a letter (.pdf) from an expert on legal ethics, affirming the independence of oil spill claims administrator Kenneth Feinberg and suggesting steps the fund should take to explain its relationship with BP to claimants.
The company is paying Feinberg and covering the facility’s expenses, including paying the independent lawyers the fund will be making available to claimants as it prepares to process final claims. According to the letter, that does not mean Feinberg or his staff should be seen as BP’s representatives.
The Hill reports:
New York University legal ethics professor Stephen Gillers was given access to the unreleased agreement between BP and Feinberg regarding the claims process. Feinberg asked Gillers to review the agreement after James “Buddy” Caldwell, the attorney general of Louisiana, raised questions about the GCCF’s independence from BP in November.
Gillers suggests that the fund should advise claimants who have hired their own lawyers to consult with them before submitting any paperwork and clarify its role in the process.
“You are not BP’s lawyer,” he writes in his letter to Feinberg. “Nor are you its agent. However, it may help meet any concern if you expand on what you mean by ‘independent’ in appropriate disclosures.”
Update: The Associated Press is reporting that Gillers is billing the GCCF $950 an hour for his opinions.
Here’s the press release from the claims facility:
Washington, DC—The Gulf Coast Claims Facility today released a letter written by nationally recognized legal ethics expert Professor Stephen Gillers of New York University School of Law addressing the issue of whether the Administrator of the Fund, Kenneth R. Feinberg, is truly “independent” of BP.
In his letter, Professor Gillers States:
“You are not in an attorney-client relationship with BP. You are an independent Administrator and owe none of the attributes of the attorney-client relationship (e.g., loyalty, confidentiality) to BP. By ‘independent’ I mean (and I think the context is clear) that you are independent of BP. You are not subject to its direction or control…The ‘Gulf Coast Claims Facility Protocol for Interim and Final Claims’ similarly recognizes that you are ‘a neutral fund administrator’ and the GCCF ‘is an independent facility.’
Professor Gillers also asserts that “The fact that BP has an interest in the success of the GCCF does not make you its agent or its lawyer. Nor does the fact that BP is paying you for your services do so.”
Professor Gillers was asked by Mr. Feinberg for his advice regarding a letter, dated November 24, 2010, from James Caldwell, the Attorney General of Louisiana, questioning the independence of the Gulf Coast Claims Facility and Feinberg’s role as the independent administrator.
In response, Professor Gillers examined the agreement between Mr. Feinberg’s law firm and BP, finding that there is no attorney-client privilege between the two. He recommends in his letter that the GCCF reinforce the fact that the Facility is not a law firm and cannot dispense legal advice.
“As I’ve stated from the creation of the GCCF, decisions regarding payment are mine and mine alone,” said Feinberg. “The Gulf Coast Claims Facility is an independent entity and this letter from Professor Gillers reinforces this fact. Claimants are free to participate in the facility or seek compensation through the courts. Regardless of what claimants decided, they can rest assured, the only interests I have are in compensating them for their losses. That is my function as an independent administrator of the GCCF.”