The Louisiana Attorney Disciplinary Board’s charges against attorney John M. Sharp, formerly managing partner in the firm Sharp Henry Cerniglia Colvin Weaver & Davis, may possibly recall the old joke: lawyer finds satchel of someone’s misplaced cash, followed by wrenching dilemma of legal ethics: should he tell the partners? (Karina Donica, “Attorney involved in city-Cleco case faces possible disbarment”, Town Talk (Alexandria, La.), Aug. 22)(via ABA Journal).

• Lawyers’ contingency fee is temptation to ethical corner-cutting in consumer debt collection, too [Miami Daily Business Review, Popehat; Orlando's Palmer Reifler & Associates, mass mailing of demand letters to accused shoplifters]
• Discussion continues on loser-pays with me and many others at NewTalk, and note comment from Ontario lawyer [through today]
• Age bias suit by Hollywood writers gains traction. Next, actors? [Ink Slingers via Class Action Blawg weekly review]
• Class action against Quebec lottery on behalf of problem gamblers finally set for trial [CP/Yahoo, Lee Distad via Class Action Blawg, earlier]
• Should we and other commentators avoid mentioning litigants’ real names so as not to intrude on their Google legacy? [comments at Ron Miller/Md. Injury]
• California lawmakers OK feel-good “Donda West Law” but it won’t do much to keep impulsive clients from rushing into plastic surgery [GruntDoc, Cameron Turner/EURWeb, Truth in Cosmetic Surgery Blog]
• Probably not a swift career move for lawyer to tell bar disciplinary panel “Go to hell.” [ABA Journal]
• Class action forces HUD to allocate more to some Indian recipients, so it cuts other programs, bad news for North Carolina’s Lumbee tribe [Fayetteville, N.C. Observer courtesy US Chamber]
• Environmental authorities won’t press charges against man who shot protected rattlesnake that had just attacked and bitten him [eight years ago on Overlawyered]

Updating our previous story, the South Florida Sun-Sentinel reports that the Florida Bar has taken action against the law firm that may have ripped off millions of dollars from consumers.

State documents filed in Broward County Circuit Court claim that in 2006 and 2007 the law firm run by Laura Hess and an affiliated company managed by Edward Cherry paid $12 million to friends and relatives, and to businesses run by former employees or associates of Hess and Cherry.

In the meantime, the firm did not negotiate with clients’ creditors or review credit records as promised, resulting in some consumers being sued for their debts or having to file bankruptcy, records showed.

Hess Kennedy Chartered LLC and The Consumer Law Center collected “exorbitant” upfront fees, usually up to 15 percent of the client’s unsecured debt, according to the Florida Bar’s Tuesday filing with the Florida Supreme Court.

Melbourne Mills’s defense that he was too drunk to know what was going on when he and two other attorneys stole tens of millions of dollars appears to have created reasonable doubt in the mind of a Kentucky jury.  Mills may have been helped by the revelation that his two co-counsel tried to hide $50 million from him, too, permitting his attorney to more plausibly blame the scheme on others.   Or the jury may have believed the argument of Mills’s attorney that the three attorneys were too stupid to understand the settlement agreement and didn’t intend to steal any money (though they transferred a lot of money from their personal account to their clients when they learned the bar was investigating, and lied to the bar about how much money their clients received).  (Jim Hannah, “One cleared in diet drug case”, Cincinnati Enquirer, Jul. 2; Beth Musgrave, “Fen-phen lawyer Mills is found not guilty”, Lexington Herald-Leader, Jul. 2; Beth Musgrave, “Jury hears closing arguments in fen-phen trial”, Lexington Herald-Leader, Jun. 24; AP/Kentucky Post, Jun. 23).  The jury, today in its seventh day of deliberations, claims a deadlock on the other two attorneys, no doubt confused by why Judge Jay Bamberger and co-counsel and Democratic bigwig Stanley Chesley have not also been indicted. Defendants Cunningham and Gallion have sought to blame the tens of millions they stole on the fact that Bamberger (who was indirectly paid millions) judicially approved the settlement and Chesley (who was directly paid tens of millions) was allegedly the architect of the settlement that ensured lawyers would get far more than their contracts with their clients provided. Since there is no dispute that those two were indeed intimately involved in the scheme, the jury isn’t the only one confused why the Kentucky fen-phen three are being treated differently than the judge, the judge’s former law partner, and Stan Chesley, who all profited mightily.

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As we noted, it was a foregone conclusion under Local Rule 83 after the District of Columbia suspended Sibley, but we now have written confirmation (see Exhibit A at pp. 6-7).

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• Are plaintiffs’ attorneys judge-shopping by filing and dismissing and refiling identical class-action complaints in the highly-publicized restaurant menu case against Applebee’s? [Cal Biz Lit]

• You won’t be surprised that most of the nine worst business stories picked by BMI involve spoon-feeding by plaintiffs’ attorneys to a credulous press. [Business & Media Institute]
• “There’s no justification whatsoever for the agency to take any kind of action,” said Julie Vallese, a spokeswoman for the Consumer Product Safety Commission. “The claims being made about the dangers of shower curtains are phantasmagorical. It’s ridiculous.” Yeah, but the lawsuits are bound to happen anyway. [NY Daily News]
• Jack Thompson stays in the news when U.S. Marshals pay him a visit after a letter to a judge. [GamePolitics (h/t J.L.)]
• “A City lawyer who is demanding £19 million in compensation for work-place bullying faked a nervous breakdown to secure a larger payout, an employment tribunal was told.” [London Times via ATL]
• Did defensive medicine almost kill a patient when doctor worries more about potential lawsuit than whether nurse could save patient’s life? Heck if I know, but the underlying medicine is debated in the comments. [EM Physician blog]
• Hair-stylist fined £4,000 for “hurt feelings” after refusing to hire a Muslim stylist who wouldn’t show her hair at work. [Daily Mail (h/t Slim); earlier on Overlawyered]
• Disturbing turn in the Adam Reposa disciplinary hearing over his obscene gesture in court: state bar introduces satirical magazine as evidence because they “thought it was indicative of Reposa’s lack of respect for the law and the court system.” [Texas Lawyer/law.com] Mind you, this is the same Texas legal discipline system that refused to take action against Fred Baron and gave a slap on the wrist to the lawyers who tried to fake evidence in a product liability suit against Chrysler. As long as your priorities are straight.

As Patterico reports, Cyrus Sanai is shopping around a CD that he claims consists of downloaded material from Judge Alex Kozinski’s web site server.

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The furor over the Kozinski web site pseudo-scandal over what Wonkette calls “the sort of naughtiness you’d find in the dirty birthday cards section at Spencer Gifts” has caused Judge Alex Kozinski to recuse himself from the obscenity trial, resulting in a mistrial. Kozinski is known for his ethical rectitude, which is perhaps why he did so, but one wishes that he didn’t permit the appalling LA Times coverage to create a perception of a perception of a bias, much less agree that that provides grounds for recusal. But with some implausibly calling for his resignation, discretion is perhaps the better part of valor. Still, as Jesse Walker notes, “There has been no shortage of free-speech trials in which the presiding judges had a moral objection to essentially innocuous material. I don’t see any reason why such a case shouldn’t be heard by a jurist with a history of tolerance.” And one wishes that the conservatives calling for Kozinski’s resignation would use that powder for Ninth Circuit judges who act ultra vires rather than for the jokes judges share in their own time.

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The FBI undercover crash-fraud investigation netted 35 defendants, including 31 patients faking injury supposedly arising from car crashes and three “runners”. It also caught lawyer Jordan Luber (Luber & Cataldi) of Philadelphia. Per the Philadelphia Business Journal:

The sting included a fake chiropractic clinic the FBI set up in Northeast Philadelphia called Injury Associates. Instead of providing care it generated paperwork to make it appear patients received treatment so they could file fake claims.

According to prosecutors: Two agents posing as cleaning women told Luber they went to Injury Associates and wanted to pursue claims. They admitted on audio and video recordings to Luber that they had not received any treatment and had created fake medical records. Luber still pursued the claims, telling an insurer they were in an accident and received treatment. He negotiated a settlement of $7,500 each.

Luber, who is reported to have kept $6,000 of the $15,000 or 40% as his fee, drew a sentence of two months plus a year of supervised release and 100 hours of community service. He is “also prohibited from practicing law for a year.” The Philadelphia Daily News account says he’s surrendered his license, although the only report I could find online is of a suspension (PDF). So it sounds as if, assuming equal luck in any bar disciplinary process, he might reapply for the license and be back practicing law before too long. Won’t that bolster confidence in our court system? (IFA Webnews via P&S weekly roundup).

Overlawyered will have a little less to write about when the Florida Supreme Court implements the recommendation from the Florida Bar. The Daily Business Review (via Above the Law) has full coverage, including audio of the hearing; in the comments to the DBR story, Thompson is once again promising law enforcement will come to his rescue. Jack Thompson, of course, was a regular subject of Overlawyered coverage; click on the tag to remember his greatest hits.

We’ve had a lot of Montgomery Blair Sibley coverage over the years:

• His meritless suit against the DC Circuit (followed by a self-defeating appeal to the Supreme Court, where there was no quorum because he had sued seven of the justices)
• his follies in the Palfrey case and in an earlier 2006 Florida prostitution case; and
• his vexatious pro se work in family court.

And we didn’t even mention his work representing Larry Sinclair (the fellow who unsuccessfully sued Barack Obama for denying Sinclair’s implausible claim that he had engaged in a homosexual tryst with him) in a lawsuit against three anonymous bloggers. (DBKP blog, Mar. 14.)

After years of over-the-top abusive litigation, the state bar finally took action, and he has been suspended by the Florida bar for three years. No doubt, this will result in a new round of frivolous pro se collateral litigation. It took a contempt-of-court citation for failure to pay child support before the Florida bar took action, so this can hardly be considered a rousing success of the bar in policing its own, even for someone as over-the-top as Sibley. (Florida Bar v. Sibley; ABA Journal, Apr. 25; MPGS blog, May 14; h/t S.G.).

Update: Two commenters (who never appeared on Overlawyered before) implausibly defend Sibley, both posting from BellSouth accounts in Atlanta, GA. Nothing about a divorce requires one to sue seven Supreme Court justices for “judicial treason” for denying a (frivolous) certiorari petition from a frivolous lawsuit. He should have been disbarred a long time ago; that he is only being suspended, and then only because of failure to obey court orders, is appalling. He’s been a hazard to his clients and to taxpayers; so, no, I don’t think he’s a “damn good lawyer.”

Update, May 16, 2:45 AM: We originally repeated a second-hand report sent to us that Sibley had also been suspended in DC as part of reciprocal discipline. It is possible that our correspondent confused a Rule 8.1 report, made by the DC Bar counsel recommending reciprocal suspension, with an actual suspension. If a Rule 8.1 report was filed, Sibley is entitled to file a response; no oral argument is scheduled at this time (though none is required to be scheduled) and no DC Board on Professional Responsibility report is listed as having issued with respect to Sibley. Rule 8.4 of the DC Board on Professional Responsibility Rules of Procedure is titled “Conclusive Effect of Adjudication in Other Jurisdiction,” which would appear to give Sibley nothing to argue in DC, and would likely make discipline inevitable, but the District of Columbia, in its typical competence, has posted the wrong text for 8.4 on its website, so I cannot say that for certain. Montgomery Sibley is, as of May 16, still listed on the DC Bar’s website as a member in good standing. If the error is ours, rather than that of the DC Bar website, we regret the error. Without written confirmation of the suspension, we retract the original statement that the DC Bar has suspended Sibley in response to the Florida bar’s three-year suspension of Sibley.

Update, May 20: We were right the first time.

“The Massachusetts Commission on Judicial Conduct recommended a $25,000 fine, a 30-day suspension without pay and a public censure for state court Judge Ernest B. Murphy for sending improper letters to Boston Herald publisher Patrick J. Purcell that demanded settlement of Murphy’s libel lawsuit against the newspaper.” (Sheri Qualters, “Suspension, Fine Recommended for Boston Judge Who Sent Improper Letters to Newspaper”, National Law Journal, Apr. 2). For more on Judge Murphy’s “fascinatingly repellent” letters and their “‘Surrender, Dorothy’ flavor”, see Dec. 23 and Dec. 8, 2005.

Not so fast, he says — the Mississippi Bar didn’t file a “certified copy” of his guilty plea. (Patsy R. Brumfield, “Dickie Scruggs files to dismiss attempt to have him disbarred”, Northeast Mississippi Daily Journal, Apr. 1).

David Rossmiller has ten unanswered questions about loose ends in the Scruggs scandal (Mar. 24) which elicit responses in turn (and more unanswered questions) from NMC and Lotus at Folo (plus an NMC update). These latter bloggers, by the way, have shed their anonymity and stand revealed as Oxford, Miss. lawyer Tom Freeland (NMC) and retired lawyer Jan Goodrich, now of New Smyrna Beach, Fla. (Lotus), now also joined by Jane Tucker.

Is it okay for the University of Mississippi (Ole Miss) to take Scruggs’s money? “It depends on what the felony is…” Chancellor Robert Khayat is quoted as saying (Folo/NMC, Apr. 1; more). Gulfport M.D. Bill Hemeter, in a letter to the editor printed in the Biloxi Sun-Herald (Mar. 19), is claiming prescience: “I sent Chancellor Khayat the book ‘The Rule of Lawyers’ by Walter Olson several years ago, with a warning not to take money from plaintiff attorneys.” Earlier, when Scruggs pled guilty, another university official was heard from:

“My initial reaction is one of sadness,” said Samuel Davis, dean of the University of Mississippi Law School, Scruggs’ alma mater. “I’ve known and been friends with Dick and Diane Scruggs almost 50 years now going back to our days in Pascagoula, and I feel a great sense of compassion for him and his family. And that’s just a very personal reaction. I haven’t really thought about the implications for the legal community or the legal profession.”

Davis, who also directs the Ole Miss Law Center, said not everybody who pleads guilty is guilty and that Scruggs might have had other reasons for the move. If that were the case, Davis said, the reasons likely were good ones.

(emphasis added by an understandably astonished Lotus @ Folo; many, many comments follow).

And from Sid Salter of the Jackson Clarion-Ledger (Mar. 19): “In spite of their insistence that there were no ethical lapses in their behavior on the tobacco suit, [former attorney general Michael] Moore and Scruggs still owe the taxpayers of Mississippi an accounting of the lawyers’ fees and expenses that accrued from that litigation.”

You guessed it: it’s the Jack Thompson Florida folly discussed here a couple of weeks ago (Bonnie Goldstein, Slate, Mar. 7). Bonus: the court includes a reference to the precedents set by Montgomery Blair Sibley in his struggles with the Florida bar (earlier). P.S. More from Dennis McCauley at GamePolitics who exchanges emails with Thompson regarding his use of a photo of burned-out Hiroshima to presage what may “figuratively” happen to the Florida bar if he gets sanctioned.

This week, Roy Pearson, the Judge With the Missing Pants, has replaced Duke Lacrosse prosecutor Mike Nifong as the symbol of lawyers run amok in the United States. And after hearing the story of Pearson’s lawsuit, approximately 65 million people — one for every dollar Pearson is demanding — have asked me in exasperation what it takes for a lawyer to get disciplined in this country. Well, perhaps one reason it’s so difficult to discipline an attorney can be illustrated by a case handed down on Thursday in the Ninth Circuit, involving an attorney named Richard Canatella. Mr. Canatella has a rather… spotty disciplinary history. As described by the California State Bar:

Canatella stipulated to filing numerous frivolous actions in courts in San Mateo, San Francisco, and Santa Clara county courts, as well as in the California Court of Appeal and federal district and appeals courts.

[...]

Canatella’s involvement in nine other matters also was the subject of discipline.

Sanctions were ordered against him or his clients 37 times. Courts repeatedly found him responsible for frivolous, meritless and vexatious actions. Sanctions totalled more than $18,000 in one matter, and the opposing parties were granted all fees and costs in another.

In one case, a federal judge said, “This complaint is a paradigm for ‘frivolous.’” Wrote another federal jurist: “Plaintiff’s repeated attempt to challenge the sanctions and judgments . . . in the face of clear authority that his claim is frivolous evidences his bad faith and wrongful purpose.”

So what did Canatella do? You guessed it: he sued the California Bar and various Bar officials for publishing this disciplinary record online, claiming that it violated his civil rights. The California Appellate Report elaborates:

You’d probably freak out too if that’s what they said about you. Mind you, Cantanella offers the following defense (?) of his conduct in his second amended complaint, and alleges that he was not actually sanctioned 37 times, but was instead “investigated” for 47 “purported sanction orders” over a nine year period and was sanctioned on at least 26 “separate” occasions by federal and state courts between 1989 and 1998. Once you hear that, by the way, do you think the judges have a pretty good sense regarding whether Cantanella’s a particularly sympathetic figure? Or, perhaps, think — shockingly — that a person sanctioned this pervasively is precisely the type of person who would file the present action?

Not surprisingly, Canatella lost his suit. So, showing the same level of sense that got him sanctioned all those times, he appealed. He lost again, in the decision handed down yesterday.

This wasn’t the first suit he filed against the Bar, by the way.

So, it’s not hard to see why state bar officials may be a little cautious in disciplining attorneys.

Hey, I just write the American.com column about the Kentucky fen-phen fraud, not the headlines. Earlier on Overlawyered: Mar. 26 and links therein. (Cross-posted at Point of Law.)

The Legal Times has a great deal more about the litigiousness of Mr. Sibley:

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Readers who follow the phenomenon of ADA filing mills (Dec. 7, etc.) may recall the case of West Coast attorney Theodore Omholt, who has filed hundreds of legal complaints against businesses for violations (trivial or otherwise) of disabled-access laws, which he then settles for cash. In Honolulu, according to one news report, Omholt pushed his elderly mother around in a wheelchair to one business after another to establish the basis for filing 574 lawsuits. (Carolyn Said, “Controversial disability rights lawyer”, San Francisco Chronicle, Apr. 21, 2002.) Omholt then refocused his practice on California where he sent out the following letter, quoted in my article three years ago in City Journal:

I am the attorney (age 48) who for the past three years has had the privilege to represent a small action group of six wonderful individuals who use wheelchairs age 37 to 66. . . . Their shopping at inaccessible stores in San Francisco and then filing lawsuits as clients of mine against those inaccessible stores nets them each an income which makes them financially independent. For each of them, the lack of funds which used to limit them to life’s bare necessities and which plagues so many disabled individuals today has become only an unpleasant memory from the past. As a reward for implementing the law and making stores more accessible for other disabled shoppers, group members now use their stream of income to eat out at good restaurants when they want to, buy new clothes and computers and televisions and gifts for family members, travel and take vacations wherever and whenever they want to go, and live a lifestyle they could only imagine prior to joining the group. . . . The group has room for a small number of additional members. Once that small number of additional members has been selected, the group will again close to new members.

Alas, even the most thoughtfully devised business plans sometimes meet with a hitch. Reader W.R. alerts us to this copy of Supreme Court minutes (PDF) from San Francisco, dated May 10 of last year, which at page 51 reports the following:

S143253 OMHOLT ON RESIGNATION — The voluntary resignation of TED OMHOLT, State Bar No. 92979, as a member of the State Bar of California is accepted without prejudice to further proceedings in any disciplinary proceeding pending against respondent should he hereafter seek reinstatement. It is ordered that he comply with rule 955 of the California Rules of Court and that he perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 days, respectively, after the date this order is filed.* Costs are awarded to the State Bar. *(See Bus. and Prof. Code, §6126, subd. (c).)

It’s too bad the minutes aren’t more informative about the circumstances surrounding Mr. Omholt’s voluntary resignation from the California bar. Readers familiar with the details are welcome to illuminate matters.