Until recent years, the survivor/victims of clergy abuse in the Twin Cities and elsewhere have suffered greatly, usually for decades, without support or even recognition. Many hundreds in the metro area alone have courageously come forward, revealed their histories of abuse and made rightful claim for justice, reform and restitution.
Their courage, along with landmark criminal and civil charges brought by the Ramsey County Attorney’s Office against the Archdiocese of St. Paul and Minneapolis, began the resolution process. Just settlements were achieved. New church leadership was put in place and has made substantial progress in establishing the reforms necessary to ensure a safe environment for all.
However, the victims’ restitution claims remain mired in bankruptcy after more than three years of litigation. This represents the sole impediment to beginning a reconciliation and healing process for survivors, the archdiocese and church members, and the entire community.
Justice delayed has become justice denied, producing continued pain and unaddressed harms for survivors and the archdiocese, including mounting legal expenses in the bankruptcy proceedings.
Observing all this has been frustrating for those of us in the legal profession with the responsibility of educating the next generation of lawyers. We teach our students that practicing law is about more than making a good living, that it must be about serving others, solving problems and acting ethically in pursuit of justice and fairness. We also teach them that this responsibility sometimes requires courage and personal sacrifice.
So, how does the bankruptcy litigation get resolved? The archdiocese represents that, through sale of all its properties, some parish contributions and funds from insurance coverages, it will provide $156 million for victim compensation. Attorneys for the victims view this amount to be very inadequate and are seeking many tens of millions of dollars more for their clients. Further negotiations and compromise will be necessary. But where could the parties start to make up the difference?
I propose that the answer lies with the lawyers and their firms. Lawyers representing the archdiocese and its parishes, and the plaintiffs’ lawyers representing the victims, hold the key to resolving the ongoing bankruptcy proceedings. It will depend on their willingness to make an extraordinary sacrifice of part of their fees for the good of all concerned.
The archdiocese reportedly has incurred $17 million to $18 million in legal fees and expenses in connection with the bankruptcy. However, less than half of that has been paid to date. The roughly $9 million still due typically would be ordered paid at the end of the case out of the $156 million settlement fund that the archdiocese has amassed.
As a crucial first step toward resolution, lawyers representing the archdiocese and its parishes could waive collection of one-third of any unpaid fees and expenses, and further waive all future fees and expenses. This would produce at least an additional $3 million for victim restitution aimed at bringing the case to a close.
This extraordinary example of ethical leadership would require substantial financial sacrifice by these lawyers and their firms. It would never be forgotten.
But more would be needed. I ask Jeff Anderson, who represents the vast majority of victims with claims against the archdiocese, to join this effort.
Anderson recently has expressed a willingness to reduce his fees in the bankruptcy case, which is admirable. Assuming his clients will be awarded about $135 million, he and his associates apparently will collect some $45 million in fees. Other plaintiffs’ lawyers will collect roughly another $7 million. If Anderson and the other plaintiff lawyers would waive one-third of their fees, this would produce at least an additional $17 million in compensation for survivors.
Would an additional $20 million for compensation be enough to get everyone to the finish line? Only the lawyers for all parties and the survivors can say.
Some inevitably will criticize this commentary for expecting too much from the lawyers. They may note that some lawyers representing the archdiocese and parishes already have discounted their standard fees. Regardless, after the discounts there remain at least nine lawyers charging more than $450 per hour for their services. As for the victims’ lawyers, only they can determine how much for them is enough. But, as U.S. bankruptcy Judge Robert Kressel already has noted, their “hefty” fees are another source of funds for their clients.
Some may say that the focus should be on obtaining more funds from the insurance companies or the archdiocese and parishes. But right now, from my standpoint, it is up to the lawyers to be the first to step forward and to make the legal profession proud by sacrificing to achieve a just settlement for their clients.
I wager that, at the end of their careers, those lawyers and their firms would say it represented their finest hour.
Hank Shea is a senior distinguished fellow at the University of St. Thomas School of Law. He also serves as a fellow at its Holloran Center for Ethical Leadership in the Professions. A longer version of this article can be found at https://www.stthomas.edu/media/schooloflaw/pdf/lawlibrary/SeekingResolution.pdf.