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Our take: Jeffrey Kessler currently has a conflict of interest

Typically, lawyers acquire a conflict of interest when the interests of one client conflict with the interests of another client.  Having a conflict of interest isn’t per se wrong.  But it’s important for the lawyer to acknowledge the conflict of interest and act accordingly.

It’s also important for the client(s) to understand the dynamics of the situation, and act accordingly.

As the negotiations between the NFL and the players’ union approach critical mass, we believe that the union’s chief outside counsel, Jeffrey Kessler, has a conflict of interest.  Getting a deal done diminishes Kessler’s influence and revenue, since it would short-circuit the carefully-crafted (and for Kessler’s firm highly lucrative) litigation strategy over which Kessler would be presiding.  It also could set the stage for NFLPA executive director DeMaurice Smith to hire a new firm to handle grievances and other legal issues arising under the new CBA.  (Indeed, it’s widely believed that Smith has kept Kessler around because of his institutional knowledge, and because of the fact that the owners don’t care for him.)

In contrast, the failure to get a deal done would result in a significant income and influence boost for Kessler.  If, as we assume, Kessler’s firm will handle all litigation arising from the decertification petition (i.e., the fight over whether decertification is a “sham,” the injunction aimed at preventing the league from locking out a non-union workforce, and the ultimate antitrust action), Kessler will become the de facto head of the union.

Kessler also has a somewhat smaller conflict of interest in light of the fact that his son, Andrew, is a player agent.  To the extent that the adoption of a rookie wage scale will hurt the agents, Kessler the father-lawyer may be inclined to try to protect Kessler the son-agent.  Even if a rookie wage scale that hurts agents is in the best interests of the players.

Kessler surely will deny the existence of any conflict, probably since he knows there’s no graceful way out of it.  But we think it’s there, we think it’s real, and we urge the players to consider every piece of advice from Kessler through the prism of what he stands to gain if there’s a fight, and what he stands to lose if there isn’t.

The only way to deal with a conflict of interest is to shine a light on it — and someone within the NFLPA’s Executive Committee needs to unleash a solar beam on the reality that Kessler could be in position to stage a coup this week, intentionally or not.

NFL outside counsel Bob Batterman occupies a somewhat similar position, but only if his firm would end up handling the litany of legal actions that will be filed as soon as Friday.  Even then, the NFL’s structure would remain in place, and Commissioner Roger Goodell’s authority would in no way be usurped.  For the union, De Smith necessarily would have to step aside; otherwise, the decertification would never stick.

We’re not saying Kessler should step aside.  We’re only saying that everyone on the union’s side of the table needs to realize the precarious position that Kessler occupies.  Kessler needs to be certain that the upside isn’t clouding his advice, and the players need to be certain that they trust him to be able to do so.

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29 Responses to “Our take: Jeffrey Kessler currently has a conflict of interest”
  1. FoozieGrooler says: Mar 7, 2011 10:49 AM

    “In contrast, the failure to get a deal done would result in a significant income and influence boost for Kessler.”

    Isn’t it in the best interests of ANY lawyer to drag things out longer than necessary?
    Why single him out?

  2. waitingguilty says: Mar 7, 2011 10:53 AM

    Could you not make the same assertion against EVERY SINGLE LAWYER working a case for which he/she is being paid by a client?

    Reaching a settlement usually ends the work for a lawyer right? So under your logic then every lawyer in every case that could be ended via settlement is operating under a conflict of interest?

    Leave it to an attorney to come up with some nonsensical conclusion like this!


  3. dontouchmyjunk says: Mar 7, 2011 11:02 AM

    One could argue that lawyers and law firms stand to earn more billable hours in any case if the proceedings go on and on. Therefore, by definition, all lawyers and law firms face conflict of interest issues every time they take on a case.

    “Lawyer = Conflict of Interest” works for me in every scenario imaginable.

  4. clintonportisheadd says: Mar 7, 2011 11:03 AM

    What a bunch of baloney. There is no conflict in the scenario above.

    By the standard you just set, EVERY lawyer who represents a client faced with the choice to settle or litigate has an inherent built in conflict since EVERY lawyer and law firm will make more money if any case drags out.

    By your definition, EVERY lawyer who is offered a plea bargain for his client has a conflict of interest since you presume the lawyer would generate higher fees by going to trial rather than taking the deal (irregardless of the merits or strength of the case).

    Too much caffeine this morning MF?

  5. blackqbwhiterb says: Mar 7, 2011 11:04 AM

    I felt the need to step in and comment here because probably nobody else will read that article. They want to hear dirty gossip, not legalese.
    Me, I’m fascinated and I think you are right on the money. unfortunately, this happens in all sorts of legal proceedings throughout America. Let’s hope Mr. Kessler does things right, and the sharp-minded pro football players see what you’re pointing out to them.

  6. dwinsgames says: Mar 7, 2011 11:05 AM

    That is certainly a bizarre take. Based on your analysis, every lawyer who works on an hourly rate would be guilty of a conflict, since they benefit the longer a case goes on and therefore would supposedly avoid resolution. The only lawyers thus not guilty of a conflict are those who work on a contingency and want to settle to get their share of the loot. Really???!!!

  7. jrc007 says: Mar 7, 2011 11:13 AM

    Please tell me this is a parody piece as you cannot possibly be this stupid.

    If this is a conflict of interest then every single case is a conflict of interest. Attorneys are normally paid by the hour. Thus, it is always in the attorney’s best financial interests to have protracted litigation or case involvement. Nevertheless, attorneys are obligated to act in the best interests of the client and this client in particular is quite obviously knowledgeable enough to know what’s in its best interests. Moreover, attorneys who unnecessarily drag out cases or bill excessively are unlikely to see furture work from that client or any other client so the attorney’s long term financial interests are served by handling a case as efficiently and productively as possible. In other words, if the union wants to get a deal done and Kessler fails to do that, Kessler is unlikely to get future work as he would not be considered effective.

    Furthermore, conflict of interest is defined in the ethics rules of nearly every-if not every-state. I guarantee that you would not find a single juridiction that believes what you have described constitutes a conflict.

    This is a pathetic attempt by you to drum up a controversy where none exists. This is nonsense on stilts and NBC should really consider whether its best interets are served by being associated with such strong yet baseless allegations.

  8. medialovesthecowboys says: Mar 7, 2011 11:16 AM

    blackqbwhiterb says: Mar 7, 2011 11:04 AM

    I felt the need to step in and comment here because probably nobody else will read that article. They want to hear dirty gossip, not legalese.

    Get off your high horse, you’re still on PFT when you should be working.

  9. rojones82 says: Mar 7, 2011 11:17 AM

    While you are all correct if you want to be that cynical i think that’s why Mike mentions in his article about his son being a player agent.

    Also if you read what Mike has stated its plain to see the considerable difference between a CBA being done and not being done for Mr.Kessler than a standard Lawyer Client case.

  10. jrc007 says: Mar 7, 2011 11:23 AM

    I should add to my prior comment that if I were Kessler I would demand an apology and retraction from NBC as this piece frivolously accuses him of having a conflict of interest when no such conflict exists. Moreover, it insinuates that Kessler will act unethically and against his client’s interests for financial gain.

    If you would have made such an allegation in court, you would have been sanctioned. If you would have answered a first year ethics exam question this way you would have failed. If you would have answered a bar examination question this way you would have failed.

  11. skoobyfl says: Mar 7, 2011 11:27 AM

    If dragging things out are conflicts of interest, it should be standard procedure for all attorneys.

    So, find something real to write about.

  12. clintonportisheadd says: Mar 7, 2011 11:42 AM

    It could well be that his take on what a “conflict of interest” constitutes explains why he he producing a blog and not practicing law….

  13. hooterdawg says: Mar 7, 2011 12:04 PM

    The use of the term ” our take” clearly exposes the meaning as ” my take” – I doubt the other writers/contributors to PFT are qualified to have have any knowledge or opinion on legal ” conflict of interest” allegations.

  14. chatham10 says: Mar 7, 2011 12:08 PM

    The comments regarding the lawyers making more money as the case drags on makes my saying correct, ” you are innocent till proven broke”. When the day arrives you cannot continue to pay your lawyer fees the case is settled.

  15. jjarvis says: Mar 7, 2011 12:26 PM

    “Having a conflict of interest isn’t per se wrong.”

    Yes it is. An actual conflict of interest is per se wrong. The fact it can be waived does not make it not per se.

    The ABA’s Model Rules of Professional Conduct, Rule 1.7 states:

    “Rule 1.7 Conflict Of Interest: Current Clients
    (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

    (1) the representation of one client will be directly adverse to another client; or

    (2) 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.”

    Subsection (b) allows for a knowing waiver if the attorney reasonably believes the representation is appropriate.

    What you’re talking about, however, as others have noted, is not even an apparent conflict.

  16. habsman says: Mar 7, 2011 12:41 PM

    I see nothing wrong with lawyers taking pot shots at othere lawyers. Have at it guys!

  17. holdthemayo123 says: Mar 7, 2011 12:58 PM

    I used to work for a lawyer who had a cartoon up in his office that sums this up – A young eager lawyer settles one of the biggest cases the firm is working on, to the satisfaction of the client. The boss calls him in, and the young lawyer waits for praise, only to be reprimanded for settling their biggest money maker.

  18. patpatriotagain says: Mar 7, 2011 12:59 PM

    clintonportisheadd says:
    fail on two counts. your post is idiotic from start to finish

  19. vetdana says: Mar 7, 2011 1:13 PM

    Of course you can try to make a case for a conflict of interest… but…..for many of the reasons listed above,…The BEST interests of the client come FIRST….and anyone who is paying attorney fees are going to scrutinize closely the work of their attorney and also have the authority to replace him if necessary !

  20. 420fan says: Mar 7, 2011 1:22 PM

    All lawyers have a conflict of interest when it comes to litigation. They ALWAYS want it to keep going so they can charge you $125 per phone call, $75 per text message, $75 per email, $500 per hour, etc,

    Lawyers are scum and have BASTERDIZED our constitution for the wealthy.

    It’s no longer an even playing field….

  21. hobartbaker says: Mar 7, 2011 1:23 PM

    Just to simplify things in matters like this you need to find one individual to place the blame on. An “escape goat” as some would say.

    I nominate Kessler. I mean look at him. He was the kid you pushed inside his own locker at school. The guy walking around with the funny notes stuck to his back all the time. He can take it.

  22. hobartbaker says: Mar 7, 2011 1:31 PM

    Despised, reviled, and ridiculed in public, Kessler represents all the “Jeffrey”s of this world. Too easy, PFT.

  23. hobartbaker says: Mar 7, 2011 1:38 PM

    Bud Adams pushed Jeffrey from behind, knocking his glasses to the floor, where Jim Irsey stepped on them. Then Stan Kroenke pointed near sighted Jeffrey to the girl’s washroom to deal with his nosebleed. Meanwhile, Bob Kraft notified security that a weird guy with blood all over his face was stalking females in the building.

  24. benh999 says: Mar 7, 2011 1:51 PM

    “Having a conflict of interest isn’t per se wrong. But it’s important for the lawyer to acknowledge the conflict of interest and act accordingly.”

    Wow, you’re taking a big step here. You used to claim there were laws against attorneys having conflicts of interest. Now, if only you could bring yourself to realize tacit collusion isn’t illegal either.

  25. anarchopurplism says: Mar 7, 2011 1:56 PM

    This is true of most legal proceedings: when there is a fight…..lawyers make money.

    However, often lawyers get a better MARGIN (less money, but also less time) if they are selling contracted flat fees on menu-based services. So, often a lawyer will estimate time, charge a flat fee + expenses and if that drags out……..they eat some of the time.

    In Kessler’s case…… is good to point this out in the event that he foolishly makes points that favor him, not his client. This is not as yellow as the PFT feedback indicates.

    BTW- per lawyers making money over fighting. I had a lawyer give me an article about a $80K judgment he won. His client spent $260K to get that 80K = -$180K net net. I was like….? I’m not fighting, so I basically negotiated a settlement that only cost me $10K, although I was 100% in the right. The defendant probably gambled the money away anyway.

  26. hawk22207 says: Mar 7, 2011 2:19 PM

    If not for Peter King’s column today, I would say this post is the single dumbest thing on the internet right now. A lawyer’s motivation is to satisfy his client to engender repeat business. This is especially so with with a client as sophisticated as the NFLPA.

    Kessler, an accomplished lawyer, surely realizes this and would not steer his client toward litigation if it was not in his client’s interest. To do so is short-sighted.

  27. darthvincent says: Mar 7, 2011 2:30 PM

    so most of you missed the point about Kessler basically being in-charge of the Players Union after it de-certifies…

    that conflict is a little more than dragging out billable hours.

  28. lawyermalloy says: Mar 7, 2011 3:44 PM

    What a stupid blog entry. Under your theory every attorney in settlement negotiations would have the same conflict.
    I’m beginning to understand why you gave up the practice of law to be a professional blogger!

  29. mrnumbe says: Mar 8, 2011 11:50 AM

    Could you not make the same assertion against EVERY SINGLE LAWYER working a case for which he/she is being paid by a client?

    Reaching a settlement usually ends the work for a lawyer right? So under your logic then every lawyer in every case that could be ended via settlement is operating under a conflict of interest?

    Leave it to an attorney to come up with some nonsensical conclusion like this!



    You do realise that MF actually used to be a lawyer right?

    Please everyone, quit the whining and stop reading his posts if you hate him so much.

    “A guy who’s happy that MF and co. keeps up the good work!”

    Keep going!

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