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6 février, 2008 16:08

Brenda Sapino Jeffreys

Texas Lawyer

08-28-2007

The high-stakes battle over whether Houston lawyer Ronald D. Krist should help defend BP from suits filed over a deadly explosion at the company's Texas City, Texas, refinery took another twist on Aug. 20 when a former client who had hired Krist's firm to sue BP over the explosion filed a professional negligence suit against Krist, the firm and others.

Jose L. Elizondo, who filed Jose L. Elizondo v. Ronald D. Krist, et al. in Texas state court in Harris County on Aug. 20, is one of four individuals who hired the Krist Law Firm to seek damages from BP for the 2005 explosion, which killed 15 people and caused injuries and property damage.

Elizondo is represented by John M. O'Quinn and Michael J. Lowenberg of the O'Quinn Law Firm of Houston.

In early 2006, Elizondo and three other clients accepted settlements -- without filing suits -- that Ronald Krist negotiated with BP, a London-based energy company. Krist subsequently signed on to help defend BP in other litigation related to the explosion.

But in his petition, Elizondo alleges the defendants never asked him to sign a waiver that would allow Krist to defend BP from litigation filed over the refinery explosion, and he wouldn't have done so even if asked. Elizondo also alleges he hired the defendants -- Krist; the Krist Law Firm of Houston; Krist's son, Kevin, now a solo practitioner in Houston; and Houston solo practitioner William T. Wells -- to represent him and his wife in their claims against BP, but the defendants failed to negotiate a settlement of his wife's loss of consortium claim. Elizondo alleges the defendants misrepresented the value of his case and settled it well below its actual value.

Elizondo alleges he was "sold down the river" so Krist could defend BP in the Texas City refinery suits.

Elizondo alleges the defendants violated Rule 1.09(a)(3) of the Texas Disciplinary Rules of Professional Conduct, and other rules, in connection with his BP claims, specifically for conduct "in handling and mishandling" his BP claim and in the "dual representation of Plaintiff and BP by Defendant Ronald Krist and his law firm."

Elizondo brings professional negligence, breach of fiduciary duty, common-law fraud, fraudulent misrepresentations, negligent misrepresentations, fraudulent inducement and gross negligence causes of action against the defendants. He also alleges the defendants violated the Deceptive Trade Practices Act and are liable for employees' acts and omissions. He seeks unspecified actual and punitive damages.

Krist disputes Elizondo's allegations in the petition. Krist says Elizondo's wife never signed a power of attorney, so the defendants never represented her. Also, Krist notes, the defendants took no fee from Elizondo's settlement.

He also maintains that he did not need to ask Elizondo to sign a waiver before he could accept the BP representation.

Krist says that O'Quinn filed Elizondo as "retribution" because Krist represented Kendall Montgomery, a former associate with O'Quinn's firm, in a fee dispute and represents a group of breast implant clients who allege O'Quinn's firm overcharged them for expenses. O'Quinn and Montgomery settled their dispute in 2001. In July, an arbitration panel ordered O'Quinn's firm to pay $35.7 million in damages to a class of 3,450 former breast implant clients.

"John is trying to extract his pound of flesh, and I will look forward to meeting him in a court of law and let him show his stuff," Krist says.

"I don't think there's any question about the fact the suit against me is an outgrowth of two things -- my previous prosecution of John O'Quinn and my current representation of BP," Krist says.

O'Quinn did not return a telephone call seeking comment, but Lowenberg says there's no connection. He notes also that he signed the petition.

"I'm the one that's met with the client. I've done the legwork. I have to report to Mr. O'Quinn because he's my boss, but as far as I know, there's not a link," he says.

A spokesman for BP, Neil Chapman, says BP declines comment.

TRY, TRY AGAIN

Elizondo could make it harder for Krist, who typically represents plaintiffs, to continue to represent BP.

The steering committee of lawyers representing plaintiffs suing BP over the explosion wants Krist disqualified from BP's defense team. They have been unsuccessful so far in that effort. In July, 212th District Judge Susan Criss denied a motion filed by the BP Plaintiffs' Steering Committee asking her to disqualify Krist as counsel for BP on the ground his firm formerly represented the four plaintiffs who sought damages from BP after the 2005 explosion. On Aug. 16 in In Re: BP Plaintiffs' Steering Committee, a three-justice panel of Houston's 1st Court of Appeals denied the writ of mandamus seeking to overturn Criss' ruling.

Krist has said nothing "ethically, morally or otherwise" prevents him from helping to defend BP in the litigation. He also has said he concluded his representation with the four clients many months before accepting representation of BP.

However, the steering committee alleged in its mandamus writ to the 1st Court that Texas Disciplinary Rule of Professional Conduct 1.09(a)(3) prohibits a lawyer from representing a party in a matter adverse to a former client if the matter is the same or substantially related to the earlier representation.

In a response filed with the 1st Court before it denied the mandamus, BP alleged Rule 1.09 would not apply. "The only prohibition is that the lawyer may not represent a new client in a matter in which the new client is currently adverse to his former client," BP alleged.

However, the professional negligence suit Elizondo filed on Aug. 20 could create that adversity, says Kevin Cain, a senior counsel at Martin, Disiere, Jefferson & Wisdom in Houston, who represents the steering committee in the effort to get Krist disqualified.

In the wake of Elizondo, Cain says the steering committee could ask Criss to reconsider her ruling, or take the appeal up to the Texas Supreme Court.

In her order denying the motion to disqualify, Criss wrote in July that she would reconsider her ruling if the plaintiffs' steering committee comes up with additional evidence during discovery that Krist's role could harm the plaintiffs' case in the upcoming trial.

Brent Coon of Brent Coon & Associates in Beaumont, Texas, and a member of the steering committee says he is considering options.

Elizondo alleges in his petition that he was 200 feet from the source of the blast at the refinery and was thrown 25 feet into the air. Cain believes Elizondo could be a material witness at the upcoming BP trials.

The first trial in the BP litigation may begin this month. Voir dire in Miguel Arenazas, et al. v. BP Amoco Chemical Co., et al. is set to begin on Aug. 30 and opening statements on Sept. 4. Suits filed by the plaintiffs in the BP litigation have been consolidated in Arenazas in Criss' court, and the upcoming trial will include the claims of eight plaintiffs.

Joseph Jamail, a partner in Jamail & Kolius of Houston, who is defending Ronald Krist from efforts to disqualify him from the BP defense team, says he has not seen Elizondo's petition and cannot comment.

Kevin Krist, who was a partner in the Krist Law Firm at the time it represented the four BP plaintiffs, did not return a telephone call seeking comment. Neither did Wells, the referring lawyer.