Former Louisville Lawyer Has More Problems...

Anyone familiar with this blog is probably familiar with Louisville attorney Fred Radolovich (see previous posts).  Radolovich resigned from the bar under terms of disbarment rather than risk being prosecuted for perjury charges arising out of misrepresentations he made to a judge about his experience handling death penalty cases (he said he had tried 4 when he hand actually tried 0). 

Here is why he is relevant today.  Because a large portion of my practice is representing people in claims against their former attorney (a.k.a. legal malpractice or legal negligence), I am frequently asked to review cases where a potential client believes their former lawyer mishandled a criminal matter and, as a result, the person was convicted of a crime the didn't commit.  I have never taken a case involving malpractice in a criminal case and there is a good reason.  Kentucky law requires that a criminal conviction be overturned before you can so the lawyer for malpractice.  That's right.  Basically, your lawyer could fall asleep in trial, refuse to cross exam any witnesses or present any proof.  But unless you won on appeal, you could not sue the lawyer for malpractice.  A very high burden indeed.

Well, it seems someone may have a good criminal malpractice claim against Fred.  Here is the opening paragraph from Andrew Wolfson's article in the Courier Journal:

"Fifteen years old and charged with two murders in 1995, Michael Jennings thought he had no choice but to plead guilty in exchange for a life sentence. He saw his efforts rewarded Wednesday, June 17, when U.S. Magistrate Judge Dave Whalin in Louisville ruled that Radolovich gave Jennings such bad advice that his conviction should be thrown out and the state of Kentucky should try him or release him." 

It's not a slam dunk, and Radolovich might not have any insurance or assets to cover a judgment, but it does go to show that not all lawyers are equal.

hans
ps be sure to check out our video explaining "What is Legal Malpractice"

More Problems for Fen Phen Lawyers- Gallion's Lawyer Suspended from Practice for 5 Years

According to the Courier-Journal, William Gallion's lawyer has been suspended from the practice of law in Tennessee federal court.  As a result, he has had to notify the federal court judge in Kentucky of his suspension. 
William Gallion, Melbourne Mills and Shirley Cunningham Jr. are charged with one count each of conspiracy to commit wire fraud for allegedly bilking 440 clients out of $46 million in the fen-phen settlement. The ex-clients already have won a $42 million civil judgment against the lawyers for legal malpractice and breach of fiduciary duty to their clients.
"Herbert Moncier of Knoxville, who was to represent William Gallion, disclosed in court papers this week that he has been suspended from practicing in federal court in eastern Tennessee for five years after being found in contempt of court."
It's not yet clear if this will delay the upcoming trial since Gallion is represented by at least two other lawyers, O. Hale Almand Jr. of Macon, Ga., and W. Robert Lotz of Covington. 
Moncier was suspended for interrupting the Tennessee judge several times after being warned not to.  Based on the length of the suspension (5 years) and the amount of the fine ($5,000) and the fact he is orderd to take anger management classes, I have to believe this was something more than simply a few interruptions.
Entering criminal contempt sanction against an attorney is extremely rare.  We'll see if we can find out exactly what happened.

Hans
Addendum: Just as we suspected, this was MUCH MUCH more than simply interrupting a federal judge.  In an eighty page opinion, the court stated "Unfortunately, the Court is now confronted with one of those rare instances where an attorney admitted to the bar of the Eastern District of Tennessee has failed to “demean [himself] as an attorney, proctor and solicitor of this Court, uprightly and according to law,” as required by his oath; has engaged in unethical conduct tending to bring the court and the bar of the Eastern District
of Tennessee into disrepute; and has engaged in professional misconduct of a nature that violated the Tennessee Rules of Professional Conduct as interpreted and applied by this Court."  The federal court goes on to say This case involves an attorney who refused to obey a court order, threatened to abandon a client during a court proceeding, and displayed disrespectful and contemptuous behavior toward the institutional rule of the judge. The gravity of this attorney’s misconduct is exacerbated by his inability to recognize and apologize for his wrongdoings, his frivolous filings with this Court, and other aggravating factors."
Wow.

The Latest in the Fen Phen Fiasco

Well, according to the Courier Journal, William (Bill) Gallion is the first of the three fen phen lawyers to take the stand to try to defend their actions in the federal criminal action.  According to the article, Mr. Gallion has justified the actions of the lawyers in taking more in fee than their contracts entitled them to because clients who may have gotten nothing in the national case, collected as much as $1.4million. "I thought that was a great result," Gallion said.  All three lawyers already have been sued for breach of fiduciary duty and legal malpractice and lost a $40 million verdict.

Gallion also attempted to defend the lawyer's decision to divide the client's money without using a neutral third-party (as required by ethics rules) because, ""We wanted to use our own knowledge."  He went on to explain that it would have taken too long to get a third party up to speed on the facts of each individual case. 

Hogwash.  I was personally involved in the settlement of the Roman Catholic Archdiocese of Louisville settlement in Louisville, Kentucky where we represented over 240 individual plaintiffs in a $25.7 million class action settlement.  We hired a neutral third party, Matthew Garretson, to review and analyze each individual's damage claim.  Matt reviewed the depositions (of those that had been deposed), as well as their interrogatory responses (answers to written questions asked by the Diocese's attorneys), our client notes on each individual plaintiff, and any additional written damage materal or medical records in our possession (or later supplied by our client) as well as voluntary video damage statements made by clients.  Once Matt came up with his damage award for each individual plaintiff, the client could accept the award or "appeal" the award.  We hired retired Kentucky Supreme Court Judge Nick King to act as the "appellate judge" to hear any challenges to Matt's initial damage award.  Judge King then review all the materials and any additional materials supplied by the client, including an interview if necessary and he could confirm, increase, or decrease the award as he saw fit.

I think the entire process of damage allocation by Matt and Judge King took two months.  It was honest, ethical, effect, and quick. 

So what's their real excuse?

Hans

The Fen Phen Criminal Case Jury Has A Shocking Verdict....

Well, they don't have a complete verdict, but what the Northern Kentucky Fen Phen jury has returned is a shocking "not guilty" verdict for Melbourne Mills, Jr. The jury indicated they could not agree on a verdict for the other two defendants yet, Shirley Cunningham and William Gallion.  Judge Bertelsman has given the jury an Allen charge and sent them back to continue deliberating.  Many lawyers I have spoken to wonder if the jury instructions were too complicated and, perhaps, confused the jury.  No one I have talked to expected the jury to deliberate 5 days, and NO ONE expected any aquitals.  Stay tuned.

Hans

Why haven't we been blogging...

Sorry we haven't blogged in a few days, especially considering all of the recent Kentucky legal events, like the bombshells attorney Stan Chesley has been dropping in the Fen Phen trial and the two teenage girls asking to join the suit against Kentucky Kingdom for the tragedy that severed a Louisville girl's legs.
Not to mention the raging dispute at the Kentucky Bar Association's annual convention about whether Kentucky should adopt a "squeal rule" that would require lawyers to report each other to the bar association for suspected unethical behavior (I'm against it by the way, but that's fodder for another post).

But we have been working on our video section.  Let us know what you think of the videos we added on Legal Malpractice and Insurance Bad Faith.  Coming soon are videos on nursing home negligence and automobile and truck wrecks.

Hans