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May 29, 2007

MCGUIREWOODS FIRES LAWYER OPPOSED TO BAR/BRI SETTLEMENT

By Rebecca Beyer
Daily Journal Staff Writer


     
LOS ANGELES - Eliot G. Disner drew widespread attention for his legal fight against the nation's largest bar-review provider.
      But those cases ultimately caused Disner to be fired by McGuireWoods, where he was a partner in the firm's Los Angeles office.
      Disner, who represented 300,000 class members against BAR/BRI owner West Publishing, said he was let go Wednesday for opposing a $36 million settlement. The attorney wanted to take the case, which alleged that BAR/BRI monopolized the bar-review market, to trial.
      "They said I had damaged the reputation of the firm by my general opposition to the settlement," Disner said. "Then they escorted me out of the office."
      A McGuireWoods spokesman, Richmond, Va.-based partner William Allcott, would confirm only that Disner no longer is with the firm, which has 750 attorneys in 15 offices.
      Disner's departure came only a few days after class members who object to the settlement had filed a brief written by the attorney. Disner represented aspiring lawyers who used BAR/BRI's review course from 1997 to 2006.
      He filed two related class actions against West Publishing in 2005, alleging that the company conspired with leading test-preparation firm Kaplan to keep competition out of its bar-review market. Rodriguez v. West Publishing, CV05-3222 (C.D. Cal., filed April 28, 2005).
      In February, McGuireWoods attorneys agreed to a $49 million settlement, with Kaplan paying $13 million. U.S. District Judge Manuel L. Real gave the settlement preliminary approval in March, despite the objections of class representative Loredana Nesci, a Burbank private practitioner. A final settlement hearing is scheduled for June 18.
      Disner opposes the settlement agreement, which after attorney fees would result in about $125 per class member. Some people, he claims, paid $1,000 more than they should have because of BAR/BRI's monopoly on the market in full-service bar-review courses.
      In his May 10 brief, Disner wrote that the settlement should be severed, with the court approving the $13 million Kaplan agreed to pay and rejecting the $36 million that would be BAR/BRI's contribution.
      Disner said McGuireWoods indicated to him that he would be allowed to file his brief with the court, even though it was contrary to the firm's position. On May 16, while Disner was in the Czech Republic speaking at a conference, the firm wrote him a letter denying him that right.
      But Disner had submitted his brief to three class representatives - Nesci, Lisa Gintz and Ryan Rodriguez - for their approval. Four other class representatives approved the settlement.
      After learning that Disner could not file the brief, Nesci filed it for him May 17, writing in her introduction that, "although Disner had been silenced again, he came above ground just long enough to leave us a message before that occurred."
      Nesci, a former Los Angeles police officer, said she told herself, "If they're not going to file it, I will."
      In his brief, Disner wrote that if taken to trial, the class's claims against BAR/BRI had an 80 percent to 90 percent chance of recovering more than $400 million without fees. In addition, he wrote, the case should result in the injunctive breakup of BAR/BRI.
      "I feel a bit like a crusader because I died for a cause," he said. "I was absolutely convinced that the settlement wasn't very good."
      Disner said he wants to remain involved in the case on behalf of those who object to the settlement but that he must clarify with McGuireWoods how that might work.
      "The firm has warned me that if I speak negatively to the position of the firm's clients in court, I could still be liable to the firm," he said. "My position to speak out is not clear right now - they believe I can't; I believe I can - but I'm trying to find a way."
      When Disner originally planned to file the case, his former firm Manatt, Phelps & Phillips would not take it. So Disner joined Van Etten Suzumoto & Becket in November 2004. That firm merged with McGuireWoods in April 2006.
      As for what's next, aside from the BAR/BRI case, Disner said he is considering several opportunities, including going in-house at a company, working in mediation and arbitration, or working as of-counsel at a firm.
      "I expect to have a varied kind of practice, consistent with what I'd always hoped to do," he said. "I just didn't think it would happen so soon. They forced my hand a little bit."