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It’s Not You…It’s Us

February 23, 2015

By: Stephen Waguespack

Relationships can be easy to start but difficult to end.

The trepidation that comes with breaking a heart or hurting a friend can incentivize a person to stay in a relationship that is clearly not working. In the younger years, these moments deliver some strong life lessons as we move from adolescence to adulthood. In the later part of our lives, the ending of a relationship can more likely come in the form of losing a family member or dear friend to sickness, a painful life lesson we all will experience at some point.

In between youth and end of life, our relationships can be plentiful and take many different forms with our friends, family, neighbors and business relationships. How these all begin, and whether or not they grow, stagnate or end, can be some of our most challenging decisions to make throughout our lives.

Our laws sometime govern the legality of these relationships. One example is the fact that Louisiana is one of three states in the country to offer a Covenant Marriage to its residents. This option requires pre-marital counseling, an agreement to live together as husband and wife forever and a commitment to pursue counseling should a significant disagreement arise before seeking to terminate the marriage. No one in Louisiana is required to enter into this type of union, but it is available for those who have discussed the option, debated the merits and feel strongly about the longevity of their relationship.

In short, this voluntary, elevated level of commitment calls for additional steps before a relationship is ended without some specific steps and significant cause. While no similar law exists for lawyer/client relationships, the members of the New Orleans area Southeast Louisiana Flood Protection Authority-East (SLFPA-E) appeared to have inadvertently entered into a “Covenant Lawsuit” relationship that they are finding very difficult to terminate on their own.

Two years ago, these members decided to enter into a relationship behind closed doors with an aggressive trial attorney on a big contingency fee basis to file a lawsuit against numerous employers around the state. Just like many relationships, at first it seemed too good to be true for these members. Unlike many relationships, this one drew national publicity for its unorthodox legal basis and breathtaking disregard for working within the existing master plan approach and cavalier disinterest in protecting Louisiana’s improving business climate.

Last week, this relationship was dealt a big blow thanks to U.S. District Judge Nanette Jolivette Brown’s ruling to dismiss the suit for failure to state a valid claim. The writing is now on the wall for this relationship and it sure seems that SLFPA-E members are looking for a way to break up.

These members could cite several significant pieces of the ruling as justification for this breakup, such as when the court stated that there isn’t any specific law creating a duty to these employers, or the even SLFPA-E themselves, to protect the public from the results of coastal erosion allegedly caused by operators. 

Other worthwhile points to make would be the court again clarifying that a permit or license is not a contract or when it said that, “Plaintiff fails to present any authority suggesting that a dredging permit issued by the federal government is a contract. Nor does he state the authority for the proposition that the third party beneficiary doctrine applies outside of a contractual relationship.”

If that doesn’t work, the members could possibly remind the attorneys that the court said, “Plaintiff essentially urges this Court to expand Louisiana law by finding that a natural servitude of drain may exist between non-adjacent estates with respect to coastal storm surge. However, neither the codal articles nor the case law supports such a finding.”

It would seem citing this language to reveal the clear position by this federal court would be enough to terminate the relationship, but if not, the extremely poor odds of success on appeal should be enough to deliver the knockout blow.

Enter the fine print.

The contract that originally consummated this relationship had the following poison pill provision:  “In the event of a judgment unfavorable to client or the levee districts in said court, JSHG will, in consultation with client, and if in JSHG's sole opinion good grounds exist, appeal said cause to the appropriate court of appeals and prosecute same to a final determination therein.”

Despite the obvious irreconcilable differences brewing between members of SLFPA-E and their legal counsel, this attorney is citing this poison pill and threatening to charge SLFPA-E millions of dollars if they refuse to continue the relationship by agreeing to his demand to appeal. The message is clear:  leave me now and you will pay handsomely.

Normally, the rule of thumb for lawyers is that the client comes first, but I guess we now know who wears the pants in this family. You don’t typically see prenups more one-sided than this one.

In a relationship, tempers can flare and emotions run hot. It happens from time to time, but cooler heads must prevail. 

It is time for the attorney in this case to take a step back and do the right thing. Let the relationship go. The spark is gone. It’s over. It is time to move on to other things. We can still be friends. It’s not you… It’s us.