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Misconduct in Lice Case Puts AU Professor's Job in Jeopardy

By James V. Grimaldi
Washington Post Staff Writer
Monday, March 10, 2003; Page E01

After five long years, American University law professor Mark M. Hager finally is paying the price for his legal misconduct.

Hager was found by the District of Columbia Court of Appeals in December to have engaged in "conflicts of interest, dishonesty" and "improper conduct" when he represented two southern Virginia mothers who wanted to sue the makers of the lice-killing shampoo Nix. The court upheld the D.C. Bar's one-year suspension of Hager and further ordered him to disgorge the $225,000 fee he shared with co-counsel.

Now, American University is trying to kick him off the faculty of the Washington College of Law, according to a filing Hager made with the appeals court. Hager said in an affidavit that the dismissal proceedings began upon notice of his suspension.

Longtime Hearsay readers will remember that Hager's misdeeds occurred in 1997 while he was representing Debra Duke of Richmond and Erika Littlewood of Charlottesville when their children, some of whom are now young adults, used Nix to kill lice. The product didn't work, despite repeated use. They wanted to force Nix maker Warner-Lambert Co. to remove a label saying Nix was 99 percent effective, put more accurate warnings on the product and make a public admission of the existence of Nix-resistant lice.

Duke and Littlewood turned to the law professor, a frequently quoted expert on product-liability matters who was willing to moonlight as a litigator on the case.

Instead of filing suit, Hager and his co-counsel on the matter, John F. Traficonte of Boston, began negotiating with Warner-Lambert and got refunds for Duke and other members of a class action and some other concessions. But Hager and Traficonte also got secret attorney fees and expenses from Warner-Lambert -- a total of $225,000. Consumers, on the other hand, got $10,000 in coupons. The attorneys agreed not to tell Duke or their other clients about the payments. They also didn't inform their clients that they had agreed never to represent anyone else with similar claims.

Duke and Littlewood learned of the fees anyway and filed ethics grievances. The court, in the case the Bar Counsel brought against him, ruled that Hager's behavior was unethical and dishonest.

"It demonstrated at best an ethical numbness to the integrity of the attorney-client relationship, the very core of the active practice of law," the court said.

Asked about the matter, Washington College of Law Dean Claudio M. Grossman said, "This is a personnel matter, and we don't make any statements concerning personnel issues." American University rules require informal negotiations on proposed dismissal, and then a referral to the law school's Rank and Tenure Committee, sources said. The next step is either for Grossman to refer the matter to the provost or for Hager to resign.

"I don't know how a law school would keep someone on their staff as a prominent, tenured professor who's made such violations," Duke said. But, she added, she sort of feels sorry for Hager, who has a record of pro bono service.

"Do I want him to lose his job? Do I want him to lose his way of earning a living? I don't feel that strongly about it. I don't wish him the worst thing professionally, which is to lose his job," Duke said.

Duke recalls Hager telling her five years ago that Traficonte was friendly with the attorneys for Warner-Lambert who would be negotiating the settlement. She found that suspicious.

"I feel a little bad because I think Mark was not the mastermind of this," Duke said. "I think Mark went along with it and the money looked good."

Hager was not happy to hear from Hearsay, and he accused the column of "putting a hatchet in my back." (Apparently, he doesn't appreciate our coverage.)

Asked if he now felt remorse, Hager declined to comment. A few minutes later, he called back and said, "I'm sorry I broke the rules." A little while later, Hager's lawyer, Hamilton P. Fox III of Sutherland Asbill & Brennan LLP, called to say his client is "continually frustrated" because Hager believes that the lice-vexed moms got the best settlement they could have gotten.

The court of appeals had the last word on that argument: "Obtaining the best possible outcome for one's clients is never a viable defense to charges of ethical misconduct; the ends do not justify the means."

According to the law school schedule, Hager this semester teaches on Tuesdays. The class is called "Federal Courts, Federal Torts."

© 2003 The Washington Post Company


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