SUPREME COURT OF KENTUci^0FT«E D;sC/Pr i^

KBA FILE 9341 - ^

I 2 2010
KENTUCKY BAR ASSOCIATION - • COMPLAINT ANT

FILED

VS. REPORT OF TRIAL COMMISSIONER

DAVID L. HELMERS RESPONDENT

THE CHARGE

On October 10, 2008, the Inquiry Tribunal issued a seven-count charge against the

Respondent, David L. Helmers. On May 26, 2009, an additional count was added.

Count One charged that the Respondent was guilty of violating SCR 3.130-1.4(b) "by

failing to inform his clients in the Guard case of relevant information, including but not

limited to: the amount of the total aggregate settlement offer from AHP; the process that had

been used to determine the amount that each of the clients would receive; the options

available to the client in the event that participation in the aggregate settlement was refused

by the client; the fact that the small amount of money "left over" after the second payment to

clients was actually over $20 million; accurate information as to how and why the second

distribution occurred; and by instructing or allowing others to give his clients inaccurate

information about multiple aspects of the case."

Count Two charged that the Respondent violated SCR 3.130-1.8(g) "by, including but

not limited to: failing to explain to his clients that AHP had agreed to an aggregate

settlement of the claims of 440 clients and the total amount thereof; failing to explain that the

settlement agreement stated that the attorneys would determine the amount that each client

would receive from the aggregate settlement; failing to disclose or explain the proposed

allocations in the settlement agreement; failing to communicate the amount of the total
settlement from AHP to his clients; or failing to obtain the informed consent of his clients to

participate in an aggregate settlement."

Count Three charged that the Respondent violated SCR 3.130-2.1 "by failing to

exercise independent professional judgment in the settlement distribution process or by

failing to render candid advice to his clients during the representation, including advice

relating to their participation in the aggregate settlement."

Count Four charged that the Respondent violated SCR 3.130-5.2(a) "by violating Rules

of Professional Conduct in part at the direction of Gallion, Cunningham, and/or Chesley."

Count Five charged that the Respondent violated SCR 3.130-5.3(b) "by failing to

appropriately supervise non-lawyer staff persons in order to ensure that their conduct was

compatible with his ethical duties in their dealings with the clients and discussions about

settlement matters."

Count Six charged that Respondent violated SCR 3.130-8.3(a) "by violating the Rules

of Professional Conduct or by knowingly assisting the other lawyers, non-lawyers working

for the lawyers, and the Boone Circuit Judge to violate the Rules of Professional Conduct."

Count Seven charged that Respondent violated SCR 3.130-8.3(c) "by, including but not

limited to: deceiving his clients into accepting the individual settlement amounts offered;

deceiving clients about their claims even after demand for more specific accounting;

misrepresenting to the Boone Circuit Court that his clients had agreed to donate a substantial

portion of the total settlement received from AHP to charity; failing to inform the Boone

Circuit Court that the attorneys had contingent fee contracts with all their clients which set a

specific fee; misrepresenting the amount of attorneys fees paid to the lawyers relative to the

payments to the clients; failing to disclose to clients that "extra" funds were being held for

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various contingencies, or even that such contingencies existed; or providing, or assisting in

providing false or misleading information to the Boone Circuit Court about the fees and

expenses, as well as the manner in which the settlement had been reached with the clients."

Count Eight charged that the Respondent violated SCR 3.130-5.1(c)(l) in that "The

Respondent is fully responsible for any conduct of the other lawyers involved in the Guard

litigation, including Shirley Cunningham, William Gallion, Melbourne Mills and Stanley

Chesley, that he ratified with knowledge of their conduct by virtue of SCR 3.130-5.1(c)(l)."

THE DEFENSE

The Respondent filed an answer denying the allegations. In that answer, and

throughout the hearing, the Respondent has maintained he did nothing wrong. He contends

that he acted ethically at all times. The Respondent says that as a young, inexperienced

attorney he acted pursuant to the direction of experienced attorneys in dealing with a very

complicated and complex litigation. The Respondent says he should not be disciplined

because the proof presented by the Office of Bar Counsel (OBC) is directed primarily at

senior lawyers involved in the litigation. The Respondent also contends that for many

reasons the testimony offered by his former clients is not credible.

PROCEDURAL HISTORY

In February 2002, the Kentucky Bar Association (KBA) opened a file on the

Respondent, David L. Helmers (Helmers). In October 2005, the KBA issued an Inquiry

Commission Complaint concerning the 2001 and 2002 actions of Helmers related to the

settlement of the diet drug litigation. Helmers moved to hold the proceeding in abeyance,
but his motion was overruled in March of 2006. In October of 2008, the Inquiry Commission

issued an additional charge against Helmers. The Inquiry Commission consolidated the

Helmers case with the case against Stanley Chesley.

The undersigned was appointed Trial Commissioner on March 2, 2009. On May 26th,

the Inquiry Commission granted the KBA's motion to add an additional charge. After pre-

hearing conferences, the hearing in this action began in September of 2009 with the taking of

the deposition testimony from out-of-state witnesses. Live testimony began in November

2009. During these proceedings, Mr. Chesley made an oral motion to disqualify the Trial

Commissioner. Respondent did not join in the motion. The motion of Mr. Chesley was

sustained. Mr. Helmers did not object to continuing the proceedings, and the proceedings

continued until the evidence was concluded on November 25,2009. Thereafter, the record

was prepared and the parties filed post-hearing briefs, with the last briefs being filed in June,

2010.

THE HEARING

The evidence presented by the OBC came from the following witnesses:

A. Certain testimony offered by William Gallion, Shirley Cunningham, and David

Helmers in the case of United States t>. William Gallion and Shirley Cunningham in the first and

second trials.

B. The deposition testimony of:

1. Helene Madonick

2. Frank Dominguez

3. John Vardaman
 4. Heidi Levine

5. Faye E. Stilz, who was a witness deposed by Stanley Chesley

C. The live testimony of:

1. Tracy Curtis

2. Bonnie Henderson

3. Connie McGirr

4. Debbie Carman-Staton

5. Elizabeth Cosby Fannin

6. Connie Centers

7. Brenda Ford

8. Phyllis Combs

9. Deborah Turner

10. Angela Peace

11. Orene Miller

12. Kathy Daniels Stephenson

13. Angie Lynn Bowman

14. Lora J. Hoover

15. Jordan Coots

16. Carla M. Baldwin

17. Jacquelyn McMurtry

18. David Schaefer

19. Vicki Hamm

20. Ken Buckle

 21. Whitley Wallingford

22. Melbourne Mills, Jr.

23. Pierce Hamblin

24. Michael Baker

25. Rebecca Phipps

26. Joseph Bamberger

27. David Helmers

D. The Respondent presented the following witnesses:

1. David Helmers

2. Ronald Perry

3. Donald P. Maloney II

4. Samuel E. Davies

5. Toni Jackson

6. The affidavit of David Helmers regarding the anticipated testimony of

Shirley Cunningham

7. The affidavit of David Helmers regarding the anticipated testimony of

William Gallion

E. The OBC presented the testimony of Dawn Cheek in rebuttal.

F. The parties introduced over 250 exhibits into evidence and these exhibits are a

part of the record herein.

G. The parties also introduced certain avowal evidence which was not considered

as evidence but was made a part of the record.

 FINDINGS OF FACT

While still in law school at the University of Kentucky, Helmers went to work at the

law firm of Gallion, Baker and Bray. After graduating from law school and being admitted to

the Bar in 1997, Helmers worked as an associate with The Gallion Firm. In 2002, Helmers left

The Gallion Firm and opened his own practice, which he continued until the time of the

hearing in this case.

In 1998, a class action lawsuit was filed in the Boone Circuit Court against American

Home Products (AHP). The plaintiffs claimed to have been injured by the diet drug Fen-

Phen. All the plaintiffs represented by William Gallion, Shirley Cunningham, Melbourne

Mills, Jr., and Richard Lawrence had entered into contingent fee contracts with one of the

participating attorneys. The fee agreements provided that the attorneys were entitled to fees

ranging from 30% to 33.3 % of any recovery. The attorneys also were entitled to recover their

expenses, which they would later value at 3% of the total settlement.

Cunningham and Mills had obtained most of the clients who ultimately settled with

AHP. Gallion was the most experienced litigator and he led the litigation of the case.

Helmers, as an associate in the Gallion firm, spent considerable time on the case. In the last

year before settlement, he only worked on the case against AHP, which was known as the

Guard Case. While Helmers worked under the tutelage of Gallion, and to a much lesser

extent Cunningham and Chesley, there is no doubt that he played an important role in the

litigation, and on many occasions he was the contact person for clients and opposing counsel.

Many exhibits document his contact with the attorneys on both sides of the case.

At the time the Guard Case was filed in Boone Circuit Court, thousands of claims had

been filed against AHP, and many, if not most of the claims had been removed to federal

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court. The Guard Case remained in state court because, in addition to AHP, Dr. Rex Duff,

who had operated clinics in Kentucky, was also named as a defendant. In 1999, the Federal

Court in Pennsylvania in charge of the federal claims certified a national diet drug settlement

class and approved a national settlement. Many of the Guard plaintiffs were covered by the

national settlement. However, about 491 of the Guard plaintiffs opted out of the national

settlement.

In 2000, after the opt-out deadline had passed for the national settlement, Gallion,

Cunningham and Mills entered into a fee splitting agreement with Stanley Chesley and

Richard Lawrence. Lawrence had several diet drug clients of his own. Chesley is a

nationally known class action attorney who had been on the Plaintiffs' Management

Committee in the federal case. It appears that Chesley was brought into the case in large part

because it was believed he could help settle the case.

On March 7, 2001, the Boone Circuit Court redefined the Guard Class as "all people

who obtained fenfluramine or dexfenfluramine from the time of introduction until the time

of recall." The Court also set the case for trial in the summer of 2001. The Court ordered the

parties to mediate the case. Helmers, who had immersed himself in the medical records in

the case, prepared a large and detailed mediation binder which listed the plaintiffs and

contained their relevant medical records. By the time the case headed to mediation, Helmers

and opposing counsel had grouped clients into categories based on the seriousness of their

medical conditions.

At the mediation, Gallion and Chesley, along with Helmers, were present on both

days. Cunningham appeared on the second day. After two days, the parties reached an

agreement. The agreement provided that AHP would pay $200,000,000.00 to settle the cases

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of 440 plaintiffs represented by Gallion, Cunningham, Lawrence and Mills. Helmers took

notes concerning the settlement and was one of the signers of the settlement agreement.

The settlement agreement, dated May 1, 2001, provided that the "Settling Claimants"

were the 440 clients of the "Settling Attorneys" identified in Exhibit 2, who had opted out of

the national settlement or who had diet drug claims not covered by the national settlement

and were represented by the "Settling Attorneys." The settlement agreement made it clear

the allocation of the settlement among the plaintiffs was the responsibility of the plaintiffs'

attorneys. The agreement provided that the plaintiffs' attorneys, as "Settling Attorneys,"

agreed that they would comply with the Kentucky Supreme Court Rule 3.130-1.8(g). The

"Settling Attorneys" also agreed to prepare and sign "The Allocation of the Settlement

Amount to the Settling Claimants;" attach it as Exhibit 3 to the Settlement Agreement; and,

disclose it to AHP on or before the date that the "Settling Attorneys" submitted their first

batch of releases and dismissals to AHP. The "Settling Attorneys" also agreed to disburse the

appropriate amounts to their clients.

The Settlement Agreement also required that each settling claimant sign a release and

that if 95% of the settling claimants had not signed a release by the deadline, AHP had the

right to declare the agreement terminated, and AHP's only remaining obligation would be to

make partial payments based on the number of signed releases and dismissals that had been

provided by the termination date. The agreement required the "Settling Attorneys" to

provide AHP with a dismissal with prejudice for all settling claimants.

The agreement specifically required the "Settling Attorneys" to move to decertify their

class action claims and specifically said that the settlement was contingent on an order

decertifying the class and dismissing with prejudice the class action suit. The agreement

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required the "Settling Attorneys" to keep the settlement confidential, but the agreement

expressly stated that it did not prohibit the attorneys from discussing the settlement terms

with the settling claimants. It implied that it did not apply to family members of settling

claimants, since the agreement required "Settling Attorneys" to advise "Settling Claimants

and their family members" how to respond to questions from the media about their cases

and settlement.

The agreement also provided that it was contingent on a side letter which covered the

possible indemnification of AHP by the "Settling Attorneys" and their clients for a sum up to

$7,500,000.00 for any recovery made against Dr. Duff or his clinics. Helmers actually drafted

a proposed side letter and sent it to opposing counsel at a later date.

Helmers appeared with Gallion, Chesley, and Cunningham in the Boone Circuit Court

on May 9, 2001. Plaintiffs' attorneys and counsel for AHP asked the Court to decertify the

Guard Class and dismiss that action. The trial judge was concerned about notice to the class

members. The Judge was not shown the settlement agreement, but was told that the

settlement was only for particular clients represented by the attorneys and did not adjudicate

the claims of anyone else. The judge did as requested and decertified the class and dismissed

the Guard Case.

After the Guard Case was decertified, Gallion instructed Helmers to prepare a

schedule setting out the amount that each of the settling clients would receive. The clients

were to be divided into groups based on the seriousness of their injuries. Helmers prepared

documents and sent them to AHP. Since there were so many claims being settled, the

settlement agreement letter provided for payment to be made as batches of releases were

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obtained. Helmers was involved in this process and, on one occasion, even traveled to New

York to deliver releases to AHP.

After having been instructed by Gallion, Helmers met with many of the clients. In

fact, it appears that he met with most, if not all, of the most seriously injured clients.

Following Gallion's directions, Helmers had allocated One Hundred Fifty Million

($150,000,000.00) Dollars to these thirty-nine clients. Helmers met with the 39 clients and

obtained their releases. Helmers sent the releases and emails to AHP, along with instructions

directing AHP to wire transfer the funds to Cunningham. In June 2001, $150,000,000.00 was

transferred to Cunningham's trust account.

When he met with clients, Helmers did not tell the clients that their case had been

settled as part of settlements of 440 cases for a total of $200,000,000.00. He also did not say

that the amount the clients were to receive had been determined by the Plaintiffs' attorneys.

Helmers did not tell the clients that the Guard Class had been decertified and dismissed by

the Boone Circuit Court. Helmers did not tell the clients that $7,500,000.00 would be held

back to indemnify AHP for claims that might be made against Dr. Duff or his clinics.

Tracy Curtis was a client who had hired Cunningham. She asked for documents from

AHP related to her settlement. When she did not receive the documents, she contacted the

Kentucky Bar Association. She then sent a certified letter to Walter Overstreet, an employee

of Cunningham. In July 2001, Helmers replied to the letter. He said that AHP did not

provide any documents concerning her case, but that he would be glad to meet with her.

Curtis was still not satisfied and contacted the KB A again. Client Assistance Director, J.

Frank Burnette wrote to Helmers. Curtis and Helmers then spoke on the telephone.

Cunningham then wrote Curtis. Cunningham provided an accounting of her settlement and

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a letter from one of the mediators, David Weinstein. The letter from Weinstein vouched for

the fairness of her settlement. Based on correspondence in the record, there is no doubt

Helmers played a major role in obtaining the letter David Weinstein wrote concerning the

Curtis settlement. Helmers drafted language to be used in the letter. The language indicated

that Weinstein had made an independent review of an offer made by AHP to Curtis.

Helmers knew this had not happened.

Connie McGirr was a Mills client who spoke with Helmers. Helmers called her and

asked her to come in. When she did, she received a check for One Million Three Hundred

Thirty-Four Thousand ($1,334,000.00) Dollars. She had not previously authorized a

settlement for that amount. She signed a release and accepted the check. Helmers told her

she could be fined One Hundred Thousand ($100,000.00) Dollars if she discussed her

settlement. In 2002, Helmers called her back in and presented a check for Eight Hundred

Thirty Three Thousand One Hundred Nineteen Dollars and Twenty Cents ($833,119.20). He

told her a small amount of money would be left over and that it would be donated to a

charity. At Helmers request, she signed a letter that day which provided that Sixty Thousand

($60,000.00) Dollars, which had previously been deducted as expenses, was being refunded

to her.

Debbie Carman-Stanton was also a Mills client who met with Helmers. Helmers

presented her a check for One Million Five Hundred ($1,000,500.00) Dollars. She had not

previously authorized settlement. She was not told she could reject the offer. She was

warned that if she talked about the case she would be fined $100,000.00. She asked for copies

of the documents she signed, but did not receive any. Helmers contacted her again in 2002.

She met with Helmers and received a second check for Six Hundred Twenty-Four Thousand

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Eighty-Nine Dollars and Forty Cents ($624,089.40). The documents reflected that she was

reimbursed Forty-Five Thousand ($45,000.00) in expenses. Helmers told her that a small

amount of money would be left and she agreed that it could be donated to charity.

Elizabeth Cosby Fannin, another Mills client, met with Helmers. At one time, he told

her there was an offer for $100,000.00, which she rejected. She finally agreed to settle for

$300,000.00. In 2002, Helmers called her and said she would be receiving a second check.

Connie Centers also employed Mills, but in 2001 she met with Helmers. Helmers

called her and said her claim had been settled for One Million ($1,000,000.00) Dollars. She

told him she had hoped to get $1,500,000.00. Centers asked for something confirming the

settlement and Helmers gave her a handwritten letter. The letter said it was confidential,

could not be copied, and had to be returned before Centers received her money. In 2001,

Centers and Helmers met again and he gave her a check for One Million Five Hundred

($1,000,500.00) Dollars. Helmers did not inform her of the amount of the settlement, that her

allocation of the total settlement was Three Million Seven Hundred Fifty Thousand

($3,750,000.00) Dollars, or that the settlement agreement provided for possible

indemnification.

Phyllis Combs hired Helmers to represent her. Her claim was settled, but she was not

told of the amount of the settlement, or that her own attorneys determined how much she

received. She was warned that the settlement was confidential. In 2002, Helmers told her

that there was additional money and gave her a second check. Helmers also told her some

money was still being held back and would be donated to a charity.

Orene Miller hired Mills, but was referred to Helmers. Helmers told her he had

received an offer of Two Hundred Fifty Thousand ($250,000.00) Dollars. She had not been

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informed of that. Her case was settled for One Million ($1,000,000.00) Dollars. She was not

told about the total settlement. She got a second check for Four Hundred Sixteen Thousand

Fifty-Nine ($416,059.00) Dollars. She was told that a small amount would be donated to

charity.

Angie Lynn Bowman and her sister, Lora Hoover, hired Helmers to represent them,

and they agreed that his attorney fee would be 33.3% of any recovery. They asked for the

total settlement amount and in which group they had been placed. The sisters received no

response. Helmers told them that everyone had to settle or no one got any money, and that

they were lucky to get what they got.

Jordan Coots was the husband of one of the clients. Helmers told Coots and his wife

that there had been an original offer of Two Hundred Forty Thousand ($240,000.00), but he

had gotten it up to Five Hundred Thousand ($500,000.00). Helmers strongly urged them to

settle. He warned the Coots about confidentiality, and when the wife received her second

check Helmers told the Coots that 5% of the settlement would go to charity.

Helmers knew that $7,500,000.00 had been held back to satisfy the indemnity

provision in the settlement agreement. In fact, the side letter addressing this issue had been

sent by opposing counsel to Helmers. Helmers did not tell his clients about this. Helmers

also knew that plaintiffs' counsel had agreed to charge 3% of the total recovery as expenses.

Helmers knew that all clients had contingency fee contracts, with the lowest being 30% and

the highest being 33.3%. So, he knew that the total amount that needed to be deducted for

attorneys' fees and costs should have been between 33% (30% for fees and 3% for expenses)

and 36.3% (33.3% for fees and 3% for costs). In his testimony, Helmers confirmed that he was

aware that all the cases settled were the cases of clients who had contingent fee contracts with

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one of the plaintiffs' attorneys. After settlement was reached at the mediation, only those

clients who had contracts with one of the lawyers were sent letters. In a letter to opposing

counsel, Helmers spoke of 430 clients.

As a signer of the Settlement Agreement and a major participant in the litigation,

Helmers was aware of the terms of the settlement. He knew the amounts the plaintiffs'

attorneys had represented to AHP would be allocated to each claimant. He knew that it was

the duty of the plaintiffs' attorneys to allocate the settlement amount between the plaintiffs.

He knew the Guard claims had been decertified. He knew that in the settlement agreement

plaintiffs' attorneys had agreed to comply with SCR 3.130-1.8(g). He knew the settlement did

not prohibit telling the clients the terms of the settlement. Helmers was present when the

Judge decertified the Guard class and dismissed that case with prejudice as to the claimants

whose cases were settled and without prejudice to class members whose cases had not been

settled.

Helmers knew that the settlement was $200,000,000.00 at the time of the mediation.

He learned in early 2000 that Mills was extremely upset because he had been told by Gallion

that the total settlement was only $150,000,000.00. Helmers knew that because of this Gallion

agreed to a second disbursement to their clients. Helmers was directed to make a second

disbursement to the clients in 2002. He was guided by Gallion, Cunningham and Chesley.

Helmers set up meetings with the clients he had previously met with. Helmers showed the

clients a letter which said the Court had authorized a second distribution and that an

unspecified amount was still being held in escrow to indemnify certain third parties, if

necessary. Helmers also asked clients if they would object to a small amount left over being

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donated to charity. Helmers represented to clients that part of the second payment was

reimbursement of expenses.

In fact, by this time, no money was held in escrow and there was never any settlement

money paid out to indemnify anyone. There did still remain $20,000,000.00, which later was

paid to the "Kentucky Fund for Healthy Living, Inc."

CONCLUSIONS OF LAW

As to Count One of the charge, Respondent is GUILTY of violating SCR 3.130-1.4(b) by

failing to adequately advise the clients he represented in the Guard Case about the specific

terms of the settlement of their case so the clients could make an informed decision as to

whether to accept the settlement.

As to Count Two of the charge, Respondent is GUILTY of violating SCR 3.130-1.8(g),

in that he failed to inform his clients that AHP had offered to settle 440 of the clients' claims

for a lump sum and that the settlement provided that the plaintiffs' attorneys were

responsible for allocating the settlement funds among their clients. Respondent also failed to

disclose and explain the rationale for the proposed allocations, so that the clients were not

able to make informed decisions concerning the settlement. This is true in spite of the fact

that Respondent and other settling attorneys had agreed to comply with the rule.

As to Count Three of the charge, the Respondent is GUILTY of violating SCR 3.130-2.1

by failing to offer his clients candid and truthful advice concerning the settlement of their

case with AHP. Respondent failed to exercise his independent professional judgment in spite

of the information he had available to him.

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 As to Count Four of the charge, the Respondent is GUILTY of violating SCR 3.130-

5.2(a). The Respondent was bound by the Rules of Professional Conduct, even when acting

at the direction of Gallion or other senior attorneys. While a subordinate lawyer doesn't

violate the rules if the lawyer acts "in accordance with a supervising lawyer's reasonable

resolution of an arguable question of professional duty," that is not the case here. The

Respondent knew the fee agreement terms; the terms of the settlement agreement; and, the

rights of his clients to be informed as to the particulars of the clients' case.

As to Count Five of the charge, the Respondent is NOT GUILTY of violating SCR

3.130-5.3(b). The staff members of the various firms were supervised by senior members of

these firms and not by the Respondent.

As to Count Six of the charge, the Respondent is GUILTY of violating SCR 3.130-8.3(a)

in that Respondent distributed to his clients a letter given to him by Chesley which he knew

contained misleading information concerning the second distribution of funds to his clients.

As to Count Seven of the charge, the Respondent is GUILTY of violating SCR 3.130-

8.3(c) by failing to provide his clients important information about their claims. Respondent

led his clients to believe that he was negotiating with AHP to get more money after the case

had already been settled with AHP. Respondent did not tell his clients money was being

held back for possible indemnification. Respondent misrepresented the terms of the

confidentiality clause. Respondent communicated with David Weinstein to obtain a letter,

which he knew contained incorrect information, that was used to convince clients that the

amount the clients received was a good settlement.

As to Count Eight of the charge, the Respondent is NOT GUILTY of violating SCR

3!30-5.1(c)(l). The Respondent did not order any of the senior attorneys to violate the rules

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and he did not ratify their conduct. The Respondent played an important but subordinate

role in the litigation and carried out the directions of the senior attorneys.

SANCTIONS

The Complainant requests that Mr. Helmers be permanently disbarred from the

practice of law in the Commonwealth of Kentucky. The KBA says the legal authorities cited

by the KBA support its position that permanent disbarment is appropriate. The KBA

contends that Respondent has taken no responsibility for his actions. The KBA cites several

cases where lawyer dishonesty connected to criminal convictions resulted in permanent

disbarment of the attorney, and three cases where permanent disbarment was ordered where

there was no criminal conviction. The KBA also asks that Respondent be ordered to make

restitution of the $3,000,000.00 he received as a bonus.

While the Respondent argues that he did nothing wrong, he points out the impact of

any sanction which includes a suspension. Respondent also points out that there is now a

pending charge against him that relates to other diet drug cases handled by the Gallion,

Baker and Bray firm in 2001, which the KBA did not consolidate with this case.

The Respondent in this case violated the duties he owed to his clients; he violated the

duties he owed the legal system; and he violated the duties he owed the legal profession.

The Respondent's conduct contributed to the great harm his clients suffered. The

Respondent's conduct was dishonest and he repeated his actions many times. To date, the

Respondent has not acknowledged the wrongfulness of his conduct.

On the other hand, the Respondent had no prior disciplinary matters and, outside this

case, he seems to have a good reputation as an attorney in the years he has worked as a sole

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practitioner. The Respondent fell under the influence of Gallion even before he graduated

from law school. He also had regular contact with Cunningham and Mills. While he played

an important role in assisting Gallion and Cunningham carry out their scheme in this matter,

he was not the organizer of the plan. He was subordinate to Gallion, Cunningham and Mills.

The Respondent did cooperate with the federal prosecutors in their criminal cases against

Gallion, Cunningham, and Mills. He has apparently cooperated with the plaintiffs in a civil

case against certain of the attorneys.

Based on the fee agreements, the plaintiffs' attorneys, Gallion, Cunningham, Mills and

Chesley, were legitimately entitled to attorney fees in excess of $60,000,000.00. The

$200,000,000.00 settlement was due, in part, to the work of the Respondent, who worked on

the case from the beginning, up to the settlement. In fact, in the year leading up to the

settlement, Respondent worked on the case fulltime. The Respondent was the attorney

primarily responsible for obtaining the medical proof which supported the claims of the

various plaintiffs.

Given the amount of the attorney fees the attorneys were legitimately entitled to

receive and given the work performed by the Respondent, it could be that the Respondent's

bonus paid by Gallion, Cunningham and Mills came from funds legitimately earned by those

attorneys and was for the work Respondent did which resulted in the settlement. It is also

worth noting that while various former clients chose to pursue civil claims for damages

against the other attorneys, those clients did not sue the Respondent. The request for

restitution is DENIED.

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 CONCLUSION

It is the recommendation of the Trial Commissioner that the Respondent, David L.

Helmers, be found GUILTY of Counts One, Two, Three, Four, Six and Seven set forth in

Charge No. 9341 and NOT GUILTY of Counts Five and Eight. Having considered all the

evidence, including the aggravating and mitigating factors, the Trial Commissioner

recommends that the Respondent be suspended from the practice of law for a period of FIVE

(5) YEARS from the date of this report, and that at the end of the recommended suspension

the Respondent shall be required to reapply for admission to the Kentucky Bar Association.

This the 12th day of August, 2010.

RODERICK MESSER
TRIAL COMMISSIONER

Certificate of Service

I certify that the original of this Report of Trial Commissioner was filed with the
Disciplinary Clerk of the Kentucky Bar Association, 514 West Main Street, Frankfort,
Kentucky 40601-1883 this 12th day of August, 2010.

RODERICK MESSER
TRIAL COMMISSIONER

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