Thursday, August 11, 2005

Mailbag: More on Kay Murray -- And Kenneth Feinberg

Today’s CNI-Copyright mailbag brings more messages from folks who are shocked and appalled by the idea that the ethics of Kay Murray could be questioned. This after she left her job as general counsel of the Authors Guild to become an in-house lawyer for the Tribune Company -- while the copyright class action settlement that she helped negotiate faces serious and credible objections and has not gained final approval.

Lloyd Jassin echoes the character references for Murray. Meanwhile, John Noble rises to the defense of mediatorKenneth Feinberg, “as diligent and decent a lawyer as I know, and as good a mediator you're going to find anywhere.” Bully for them. Messrs. Jassin and Noble’s messages are reproduced below in full.

Now, Mr. Jassin: Kindly address the facts. What part of what Murray has done is justifiable? What part of pointing this out is not?

Mr. Noble: Kindly comment on the following arguments in objectors’ attorney Charles D. Chalmers' memorandum in support of the objections to the settlement (viewable at

The Mediation Process Was Flawed By The Mediator’s Fee Structure.

The Settlement Agreement indicates he will receive, a“mediator’s success fee.” Settlement Agreement, 1.b.(3).There is an indication in the Settlement Agreement that the mediator has not been paid, by plaintiffs, for work performed in February and March 2002. ( 1.b., p. 4.) The Model Standards for Conduct For Mediators discourages contingent fees. Scott R. Peppet, Contractarian Economics and Mediation Ethics: The Case for Customizing Neutrality Through Contingent Fee Mediation, 82 Tex. L. Rev. 227,242-243 (2003). The Comments to the Standards specifically state that "[a] mediator should not enter into a fees agreement which is contingent upon the result of the mediation or amount of the settlement." Id. This is due to the potential for abuse to diminish confidence in the process. Id. The Ethical Guidelines for Mediators promulgated by the Association of Attorney-Mediators bar contingent fees even more explicitly than do the Model Standards of Conduct for Mediators. Id. at 244. The rules of many courts prohibit contingent fee agreements for mediation. Id. at 247, notes 91 and 92.

Professor Peppet identifies three acknowledged reasons forcriticism of contingent fee mediation. The first is that itcan distort the mediation process. “The mediator might push for settlement even when settlement is not in the parties’ best interests.” Id. at 259. The second is that it undercuts the parties’ self-determination. “If a mediator takes a stake in a dispute through a . . . a success fee, the mediator may be so motivated to push the parties in a particular direction that the mediated outcome can no longer be considered party-driven or self-determined." 260. Third, the use of a contingent fee mediation may create the appearance of impropriety, even if none occurs.This is the reason many ethics codes for mediators prohibit the practice, particularly with court-connected mediations, where the mediator serves as an officer of the court. 260-261. Contingent fee mediation may “cast a shadow onthe mediation process.” Id.

Mr. Feinberg knows that using this fee structure is considered “very controversial.” Kenneth R. Feinberg, SYMPOSIUM ON MASS TORTS: REPORTING FROM THE FRONT LINE - ONE MEDIATOR’S EXPERIENCE WITH MASS TORTS, 31 Loy. L.A. L.Rev. 359, 365 (1998). Many professionals in the dispute resolution field believe that contingent fees should never be used. Carrie Menkel-Meadow, THE LAWYER AS CONSENSUS BUILDER: ETHICS FOR A NEW PRACTICE, 70 Tenn. L. Rev. 63, 96(Fall 2002). It is frankly amazing that Mr. Feinberg, serving as the mediator in court-ordered mediation, would employ a compensation scheme which he knows to be controversial, and which could call into question the propriety of the mediation. In this case several years have gone by without any litigation activity due to this mediation.


To: "CNI-COPYRIGHT -- Copyright & Intellectual Property"<;amp;YY=75537&order=down&sort=date&pos=0&view=a&head=b>
Date: Thu, 11 Aug 2005 12:25:46 -0400
Subject: [CNI-(C)] Re:

In a message dated 8/10/05 6:10:55 P.M. Eastern StandardTime,;YY=75537&order=down&sort=date&pos=0&view=a&head=b writes:

Gloria Phares replies:

I am more than astonished by the tenor of these remarks. But since you've posted your views to the whole list, I'm responding to the whole list. I know nothing about the terms of the settlement and have no opinion about it. ButI know Kay Murray professionally and personally. Not only is she a lovely person, but she is honorable and will certainly respect the attorney-client privilege. Authors and the Guild have been incredibly well served by her these past nine years, and you should be glad that this publisher will have a lawyer within its ranks who is so sensitive to authors' issues.

-- gcp

Gloria C. Phares
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, N.Y. 10036
(212) 336-2686

I also endorse attorney Phares' comments concerning KayMurray's character and professionalism. -- Lloyd Jassin

Law Offices of Lloyd J. Jassin
The Actors' Equity Bldg.
1560 Broadway, Ste. 400
New York, NY 10036
212-354-4442 (t)
212-840-1124 (f)
visit us at


To: "CNI-COPYRIGHT -- Copyright & Intellectual Property"<;amp;YY=75537&order=down&sort=date&pos=0&view=a&head=b>
Date: Thu, 11 Aug 2005 12:25:46 -0400
From: "JFN" <;amp;YY=75537&order=down&sort=date&pos=0&view=a&head=b>
Subject: [CNI-(C)] Re: FREELANCE RIGHTS: Authors GuildLawyer Exits Via the Revolving Doo

And Ken Feinberg is as diligent and decent a lawyer as I know, and as good a mediator you're going to find anywhere. As a freelance writer and lawyer, I've been leery of the tone of this campaign since we started getting bulletins here. I just wrote it off as a quixotic obsession.

John Noble


Post a Comment

<< Home