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BP case has local lawyers under fire - Houma Times: News

BP case has local lawyers under fire

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Posted: Wednesday, February 19, 2014 2:32 pm

Legal issues arising from the 2010 Deepwater Horizon oil spill have resulted in unpleasant fallout for some members of a Terrebonne Parish legal dynasty.

But attorneys and other observers of the tangled legal web girding BP’s plan for damage payouts, as well as one criminal case arising from the disaster, say that for the reputations of Houma attorney Berwick Duval, his brother, US District Judge Stanwood Duval and other members of their family involved with practice should emerge unscathed.

Two issues have been at the heart of blog posts, news stories and a lot of gossip in New Orleans and in Terrebonne.

The first concerns Judge Duval, who presided over the trial of BP Engineer Kurt Mix. Mix was convicted of obstructing justice by deleting text messages relating to the tragedy and thus removing them from criminal scrutiny by the US Department of Justice.

Mix’s lawyers want Judge Duval to recuse himself from the case, because he and his law clerk had filed civil claims for damages against BP in April due to personally owned real property in Grand Isle.

Duval told attorneys in 2012 – including those representing Mix – that his family owns a beachfront home and so was entitled to seek damages. At that time, according to court papers, the judge saw no reason to recuse himself and attorneys raised no objections to that line of thinking.

Mix’s attorneys now want a new trial for their client due to an allegation of juror misconduct.  He is due for sentencing in March, when he will face a potential 20 years in prison and a $250,000 fine.

Defense attorneys argue Duval must disqualify himself before ruling on their request.

They allege that a juror has disclosed overhearing something on an elevator while deliberations were on-going, that made her comfortable voting to convict.

“’The mere fact that a reasonable observer might question the court’s impartiality suffices,’ the attorneys wrote, to require a recusal.

Loyola University Law School professor Dane Ciolino, who publishes a legal ethics blog and routinely examines ethical issues, said he is not unduly concerned by the suggestion of a conflict for the judge.

“The filed their motion after trial was over, when they had already gotten a guilty verdict,” Ciolino said.  “The timing or the filing of that motion is suspect for me. But I also realize that his lawyer is doing what a lawyer should do. I don’t fault the lawyers but certainly the timing of it makes it suspicious.”

If Duval does not recuse himself and rules on the motion for re-trial against Mix, then his decision against recusal would likely become an appellate issue.

According to Ciolino and other New Orleans attorneys, Judge Duval – now a senior judge – enjoys a good reputation and very few who were interviewed see any suggestion that he himself has acted in any way improper.

“He is a well-respected judge before him you can get a fair shake,” Ciolino said. “That view is shared by many in the profession here.”

Certain actions taken by Judge Duval’s lawyer-son, David, however, are inherently more problematic.

David Duval, who once worked for the Duval family’s firm in Houma, was hired as a claims appeals coordinator in regard to the mega-damages case BP has had before a different federal judge, Carl Barbier.

According to an investigation conducted by Special Master Louis Freeh, the former director of the FBI, in regard to how the claims operation is being handled, David Duval made a big mistake.

The investigation alleges that David Duval sent an email containing information about a claim issue to his cousin at the Houma firm, Stan Duval. Stan – the judge’s namesake – is the son of attorney Berwick Duval. Father and son along with other attorneys at the firm represent people with clams against BP.

Interviews with attorneys familiar with this situation indicate that David Duval was letting his cousin know one of his clients’ claims was being very closely looked at by BP, with an eye toward potential weaknesses.

Freeh had already criticized David Duval for chumminess unbecoming someone in his position, concerning lawyers for a BP claimant. The rules that were potentially violated had to do with lunches.

But the communication to the Duval firm, handled in a separate report released in December, was another matter.

David Duval has since resigned from the claims operation.

In his conclusions, Freeh wrote that David Duval’s sending of the e-mail to the Houma Duval firm was not as serious a transgression as might have been, since there was no indication at all that he personally stood to profit from it.

Freeh also wrote that Stan Duval and his father Berwick did not violate rules and are not accused of ethical violations.

Stan Duval notified his father immediately upon receiving the email. Berwick immediately made notifications that his firm received the letter, seeking official guidance on how to handle it, according to the latest Freeh report.

Berwick Duval and other members of the firm, attorneys confirmed, are under a gag order in regard to the BP case and are not allowed to discuss it.

Because of allegations against David Duval as well as other members of the team, BP attorneys have already put Freeh on notice that they see continued oversight an investigation as a necessity.

They are also requesting that Freeh obtain documents and information from David Duval and others affiliated with the claims center, a request that is still pending.

“BP cannot be expected to stand by while the facility continues to operate slowly, inefficiently, exposed to the risk of fraud, and in a fashion that is error-prone and tone-deaf to ethical concerns,” wrote BP attorney Kevin Downey in a blistering letter to the special master. 

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