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
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
"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
"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
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
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."