Flint, MI– One attorney from the Flint water settlement litigation is attempting to have another attorney disqualified from participating in it.
On Dec. 6, Hunter Shkolnik, who was appointed Co-Liaison Counsel for individual plaintiffs, filed a motion to disqualify Attorney Mark Cuker from the litigation “due to his irreconcilable conflict of interest,” arising from his objections to the settlement.
But Cuker, who is representing more than 900 individuals in the settlement, says “there is no conflict.”
The $626.25 million settlement, announced in August of 2020, would resolve all litigation related to the water crisis against the State of Michigan, the City of Flint, Rowe Engineering, and McLaren Hospital.
Before the settlement was granted final approval on Nov. 10, 2021, U.S. District Court Judge Judith Levy held multiple fairness hearings and heard objections from registrants and attorneys.
During the first hearing on July 12, Cuker objected to the lack of access to bone lead scans, as well as safety concerns with the device used to conduct them–a device the Napoli Shkolnik law firm obtained and had modified for use on humans.
Levy asked Cuker then if he believed his objections posed a conflict of interest for him, given that his clients who filed objections (12 people) hoped to see the settlement denied, while his non-objecting registered clients would want to see the settlement approved.
Cuker responded by saying he would have filed more objections if he had time, and that he had “not heard from a single client that they like the settlement as it is,” and didn’t want him to object to it.
On Nov. 24, Cuker filed a motion for reconsideration on Levy’s decision to give final approval to the settlement.
Shkolnik argues in his motion for disqualification that Cuker’s continued objections to the settlement, even after final approval was granted, pose a threat to his clients as well as all of those who registered for the settlement.
“Mr. Cuker’s filing of his Motion for Reconsideration to the approved partial settlement threatens the administration of settlement awards to not only his clients, but to the tens of thousands of Flint residents who have registered and are eager to have their claims resolved with the Settling Defendants,” Shkolnik wrote in his motion from Dec. 6.
He also wrote that Cuker’s actions violate a Michigan Model Rule of Professional Conduct which states that a lawyer shall not represent a client if there is a conflict of interest, which exists if “the representation of one client will be directly adverse to another client,” or if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person, or by a personal interest of the lawyer.”
Shkolnik argued that, “Mr. Cuker cannot be loyal to his objecting clients when his non-objecting clients want the partial settlement to proceed.”
On Dec. 20, Cuker filed a response to the motion to disqualify him, calling it an attempt to “suppress uncomfortable facts.”
According to Cuker, Shkolnik is mistaken in arguing that there is a “divergence of interest” between Cuker’s objecting and non-objecting clients.
“Every Cuker client’s interest would be best served by replacing the current plan of allocation with a fairer, more equitable one that did not revolve around Liaison Counsel’s bone scanning monopoly,” Cuker wrote in his reply.
He said that many more of his clients would have filed objections if it weren’t for the “onerous ‘wet signature’ requirement that the settlement demanded of each objector.”
“Silence is not consent, and failing to file an objection is not an endorsement of the settlement,” he wrote.
On Jan. 3, Shkolnik filed a reply, stating that Cuker’s “assumption that the absence of objections does not equate to endorsement of the settlement has absolutely no bearing on the conflict-of-interest issue.”
Cuker also wrote that disqualifying the attorney for 980 registrants this late in the process would be “highly prejudicial to those claimants, who would have to seek new counsel.”
“Proceedings would be brought to a halt until objectors retained new counsel, and that new counsel would need additional time to get up to speed on the issues in this case,” he wrote. “Non-objecting claimants would also need to retain new counsel at a time when the 120 day claims filing period may begin soon.”
In Shkolnik’s reply, he argued that Cuker has already caused delay in the process.
He wrote that Cuker’s actions “interfere with the administration of justice because his unfounded objections to this settlement has delayed the process for tens of thousands of Flint residents who registered for the settlement, including 980 of his own clients.”
Levy has not yet ruled on this matter.