Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘ethics’

More Chesley follies with Judge Bamberger in Kentucky?

Prominent Cincinnati attorney Stan Chesley said he wanted to file the Diocese of Covington priest-abuse case in Boone County because “we have a real friendly judge there,” a lawyer testified this week.

“He winked at me” and said “we need to file this in Boone County,” testified Covington lawyer Barbara Bonar, who is suing Chesley in a dispute over attorneys fees in the $84.5 million case.

“He said we already have hired a trial consultant, and he is real friendly with the judge,” Bonar said, describing a conversation she claimed to have had with Chesley in January 2003. “And he winked at me again.”

Chesley denies the allegations, but the fact remains that the Boone Circuit judge, Joseph Bamberger, of Kentucky fen-phen scandal fame, made an unprecedented ruling certifying a class action over priest abuse that forced the diocese into a $84.5 million settlement given that the church could not hope to defend itself against anonymous unnamed class members.

Bonar, who was briefly co-counsel for the class in the priest-abuse case, testified that Chesley’s partner Robert Steinberg told her in August 2003 that the Chesley firm had to turn down an early $3 million settlement offer from the diocese because it already had paid $400,000 in expenses to Modlin as a fee “to get the class certified.”

The diocese had sought Bamberger’s recusal. Modlin was also hired as a $2 million “trial consultant” in the fen-phen case, and went on to buy a house in Florida with Judge Bamberger. Chesley denies paying Modlin $400,000, and Bonar has her own motivation to fib, as she’s suing for a share of the Chesley fees from the class action, and claims she left the case only because of her fear of being involved in a fraud on the court. Bonar has already earned $2 million in fees out of the $4.7 million she settled for in individual cases outside the class action. Somewhere in here, a crime has been committed, whether it be bribery or perjury, but there’s work for a grand jury to be done. (Andrew Wolfson, “Lawyers clash in dispute over fees”, Louisville Courier-Journal, May 10; see also Jeanne Houck, “Claims tangle diocese lawsuit”, Kentucky Post, Nov. 26, 2003).

Update: the Kentucky Bar Association is investigating. (Paul A. Long, “Bar: Probe attorneys’ conduct”, Cincinnati Post, May 10.)

Filed under: , , , , , , ,

Pants fallout?

This is still speculative, but Judge Roy Pearson, the judge who is now-infamous for suing his dry cleaners for $65 million for a pair of pants, may be facing some repercussions for his abusive lawsuit. We don’t know at this time if it’s significant, but his employee biography page at the Washington DC Office of Administrative Hearings now results in the terse message The requested article is no longer published.

Previous Pearson coverage: Apr. 26, May 1, May 4.

(Hat tip: The Conservative Voice.)

Update: And his name is not listed in the OAH Directory of judges.

Filed under: ,

U.K.: “Teachers say greedy lawyers promote false abuse claims”

Great Britain continues to grapple with the repercussions of its decision to join the U.S. in permitting contingent-fee legal representation:

Lawyers who encourage parents and pupils to make speculative allegations of abuse against teachers in the hope of winning financial compensation risk are destroying the reputation of thousands of teachers, a teaching union has said.

The National Association of Head Teachers (NAHT) said that lawyers working on a “no win, no fee” basis were fuelling a rise in malicious allegations against teachers, made in the knowledge that local authorities would often pay complainants without even investigating their allegations.

(Alexandra Frean, Times Online, May 5).

Filed under: ,

Yet another Montgomery Blair Sibley profile

In today’s Washington Post:

John Wesley Hall Jr., a vice president of the National Association of Criminal Defense Attorneys and author of the standard text on defense ethics, calls [Sibley’s tactics in the Palfrey case] “spiteful” and “over the line,” and says it “doesn’t serve any purpose but to harass and embarrass people.”

Earlier: Mar. 27. The ABC News report on Sibley and Palfrey airs tonight.

Filed under:

“A paradigm for ‘frivolous'”

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.

Filed under: , ,

Mom: I never authorized lawyer to sue school over football injury

Curious doings in Camden, N.J.:

Nita Lawrence, whose son Shykem was paralyzed in a scrimmage football game between Woodrow Wilson and Eastern Regional high schools on Aug. 25, said Monday she never gave a Michigan lawyer authorization to file paperwork naming both high schools in a potential $10 million lawsuit.

In fact, Lawrence said she fired [Ronald R.] Gilbert in early March after he tried to receive advance payment from Bollinger Insurance, the company that provides coverage for student athletes in the Camden School District.

“We didn’t say we were suing nobody,” Lawrence said. “All we wanted was the insurance company to pay for my son’s medical bills. That’s all we wanted.

“We don’t want no $10 million. We’re living fine. Whatever the insurance company doesn’t pay, Medicaid pays. We don’t need a lawsuit. Now, we’ve got all these people against us and it’s not fair because it’s not true.”

A $10 million notice of claim dated Mar. 20 names 18 people, including football coaches, principals and superintendents, as possible defendants. (Chuck Gormley, “Mom: No suit authorized over son’s injury”, Camden Courier-Post, May 1; “Michigan lawyer confirms he’s off Lawrence case”, May 2).

Further information on Fenton, Michigan attorney Ronald R. Gilbert can be found here. Gilbert appears to be the guiding spirit behind two seemingly philanthropic outfits, the Foundation for Spinal Cord Injury Prevention, Care & Cure and the Foundation for Aquatic Injury Prevention. Visitors to the two groups’ websites rather quickly run into discussions of liability and legal options which would seem helpful, no doubt unintentionally, to attorney Gilbert’s client intake efforts.

Filed under: , , , ,

Bill padding, and lots of it

Two-thirds of lawyers queried in a new survey say they’ve seen specific instances of bill padding, a figure that hasn’t changed much since 1995. On two related questions, the numbers are actually getting worse, as Nathan Koppel notes at the WSJ Law Blog (May 1): “54.6% of the respondents (as compared with 40.3% in 1995) admitted that they had sometimes performed unnecessary tasks just to bump up their billable output”, and “the percentage of attorneys who admitted that they had double billed rose from 23% in 1996 to 34.7% in 2007. And only 51.8% regarded the practice as unethical in 2007, as compared with 64.7% in 1995,” although most ethical authorities not surprisingly frown on that practice. Ted has some further thoughts at Point of Law; the study data, gathered by Cumberland/Sanford lawprof William Ross, is here (PDF). More: Jun. 24.

Filed under:

More on Redwood v. Dobson

We earlier covered Judge Easterbrook’s opinion in the Redwood v. Dobson case. On Evan Schaeffer’s Illinois Trial Practice Blog I commented:

A censure for instructing a witness not to answer seems strict, considering the practicality that most parties would prefer that result to cutting off the deposition, and one unfortunately cannot be assured of a federal district judge who is as familiar with the current rendition of Rule 30 as Judge Easterbrook is. (Indeed, the district court judge in Redwood erroneously applied Rule 30 according to the appellate opinion.)

If one were to walk the tightrope that Redwood presents us, I would recommend objecting as follows: “We find that question objectionable. I would prefer not to suspend the deposition here to seek a protective order, but Rule 30 offers me no other alternative. Can we agree that you will postpone this question until the end of the deposition, and we’ll seek the protective order then?” By doing this, one demonstrates good faith and places the burden on the questioner of choosing to end the deposition early over this question. That’s not complete protection by any means: the questioner can stand her ground, and then still seek sanctions for the costs of a second day of deposition if the protective order is denied. It’s an elaborate game of chicken, to be sure, and I’ve been on both sides of intimidating junior attorneys and having senior attorneys try to intimidate me in that game.

Now, in the American Lawyer, Northwestern Professor Steven Lubet stakes a similar position (via Civ Pro Prof Blog):

The Seventh Circuit might have thought the Redwood decision would “defuse . . . the heated feelings” at depositions, but it may well have the reverse effect of making litigation more contentious, potentially turning every deposition into a high-stakes confrontation. Lawyers already play enough chicken, and now they’re going to have to learn a new game-truth or dare.

Lubet complains that Redwood leaves attorneys with only the nuclear option of the expense of seeking a protective order; this isn’t quite the case, as my February comment above shows. But Lubet is correct that there is a problem in treating the victim the same as the originally misbehaving attorney.

Of course, the problem is less with the Seventh Circuit decision as much as with the very clear instruction of Fed. R. Civ. Proc. 30(d)(1) combined with the unwillingness of courts to enforce sanctions or provide adequate protective orders for over-aggressive discovery. If district courts were doing their jobs, that Seventh Circuit opinion wouldn’t look so frightening to practitioners, because attorneys would be behaving in the first place.

Filed under: , , ,

The $65 million pants: Judge Roy Pearson update

(Earlier.) Commenter Becky points us to this Sherman Joyce letter in the Examiner, to which we have added hyperlinks:

Dear Judge Butler and Commissioners Rigsby, Levine and Wilner:

On behalf of the American Tort Reform Association, which works to combat lawsuit abuse, I urge you to carefully reconsider the reappointment of Administrative Law Judge Roy Pearson Jr. to a 10-year term, scheduled to commence in three days on May 2.

As you are almost surely aware by now, thanks to extensive local and national media coverage, Judge Pearson has chosen to exploit the District’s well-intentioned but loosely worded Consumer Protection and Procedures Act in suing a family-owned D.C. dry cleaner for more than $65 million — over a lost pair of suit pants.

Though the pants have long since been found and made available to him, Judge Pearson has stubbornly continued to waste precious Superior Court resources in a clearly misguided effort to extort a hardworking family that provides a service to its community and tax revenue to the District government.

In a letter to the editor in today’s Washington Post, former National Labors Relations Board chief administrative law judge Melvin Welles urged “any bar to which Mr. Pearson belongs to immediately disbar him and the District to remove him from his position as an administrative law judge.”

To those of us who carefully study the litigation industry’s growing abuse of consumer protection laws around the country (see ATRA general counsel Victor Schwartz’s recent article from Executive Counsel magazine, “Consumer Protection Acts Are a Springboard for Lawsuit Abuse,” enclosed) and to everyday D.C. taxpayers who collectively provide Pearson with a considerable salary, his persistence in this lawsuit raises serious question about his capacity to serve the city as a “fair, impartial, effective, and efficient” judge, as required by the Office of Administrative Hearings Establishment Act.

If Pearson goes ahead with his lawsuit, any party who comes before him in future administrative hearings could understandably lack confidence in his judgment and judicial temperament. Furthermore, this case will become fodder for late-night comics, various members of Congress and other assorted critics of D.C. government if this case, scheduled for trial June 11, remains in the headlines.

Judicial temperament is a critical characteristic of an outstanding jurist. Any individual who chooses to pursue a case such as Pearson’s, at a minimum, calls into question his or her’s. As you consider his reappointment, we strongly urge you to examine closely his judicial temperament and decide whether it is sufficient to serve the people of the District of Columbia properly as an administrative law judge.

Pearson has a litigation history; commenter Monica points us to this reported opinion stemming from his divorce.

Update, May 2, from ABC News:

[The Chungs] have spent thousands of dollars defending themselves against Pearson’s lawsuit.

“It’s not humorous, not funny and nobody would have thought that something like this would have happened,” Soo Chung told ABC News through an interpreter.

Her husband agreed.

“It’s affecting us first of all financially, because of all the lawyers’ fees,” Jin Chung said. “For two years, we’ve been paying lawyer fees… we’ve gotten bad credit as well, and secondly, it’s been difficult mentally and physically because of the level of stress.”

Filed under: , , ,

Working the system overtime

It made news a few weeks ago when attorney Willie Gary (many entries) requested that a court award fees of $11,000 per hour for his work on a lawsuit against Motorola; the $24 million total demand may have been outrageous, but at least it was part of a $10 billion lawsuit.

But what about a lawyer who requests $150,000 in fees on a case that was only worth $11,000? A magistrate judge actually granted the award, but fortunately the federal judge overturned that insanity, awarding just $4,900 in fees:

Zloch said the case, which lasted nearly three years and produced thousands of pages of court files, should have been resolved with 19 hours of legal work. Legal experts not involved in the case say a six-figure attorney fee request in a simple overtime case is extraordinary.

In 2004, Trina Carlson, formerly of Weston, Fla., sued her former employer, Dr. Marc Bosem, a Weston ophthalmologist, for $11,000 in unpaid overtime wages. Bosem, who acknowledged he owed Carlson overtime pay, was represented by Plantation, Fla., lawyer Jeffrey Norkin. The case was settled in January 2006 for $11,000.

On the attorney fee request, Zloch this month overturned U.S. Magistrate Judge Lurana Snow’s award of $142,000 in fees for 455 hours of work at $300 an hour, plus paralegal fees and costs.

The actual saga would be humorous if it weren’t so wasteful; it involves allegations of name calling, bad faith, assaults on court reporters (!), claims of destruction of evidence, and ethics charges.

Readers of Overlawyered will not be surprised to find out that this practice is not unusual.

For several years, defense attorneys have complained that plaintiffs attorneys are filing overtime claims under the federal Fair Labor Standards Act for small dollar amounts that require little litigation, then claiming attorney fees in the tens of thousands of dollars. They complain these cases are clogging the federal courts and angering judges.

In 2003, Judge Federico A. Moreno rejected attorney Donald Jaret’s request for $16,000 in fees on a $315 claim that was settled weeks after the claim was filed. In his order, Moreno wrote that the claim “shocks the conscience of the court. … This strategy of ‘shaking down’ defendants with nightmarishly expensive litigation in pursuit of attorney fees must not be rewarded.”

If only more judges felt that way.

Filed under: ,