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cases in the Kersting project, whether or not they signed
piggyback agreements.
D. Burden of Proof
In our Dixon III opinion, we noted several factors that
impelled us to impose the burden of proof on respondent with
respect to whether the misconduct of respondent’s attorneys
resulted in a fundamental defect or in harmless error. Those
same factors apply to the present proceedings concerning the
scope and application of the Thompson settlement. As in Dixon
III, respondent has had direct and immediate access to the
critical witnesses and most of the relevant documents since May
1992, when the misconduct of respondent’s attorneys first came to
light. Further, respondent conducted an internal investigation
of that misconduct, without the participation of outside parties,
soon after discovering the misconduct. Petitioners, on the other
hand, have had to rely on discovery and circumstantial evidence,
plus whatever evidence respondent has revealed voluntarily.
Petitioners have been far less favorably situated than respondent
to produce the factual record needed to decide these cases on
remand. Furthermore, and finally, as we have previously
observed, these cases are not in the normal deficiency posture,
and it is the misconduct of respondent’s attorneys that is under
review. Accordingly, we again conclude that the interests of
justice are better served by placing the ultimate burden of proof
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