Multiple Conflicts of Interest Before State Supreme Court...Will There Be Enough Judges Left?

As reported in the Chicago Sun Times:

Four Illinois Supreme Court justices have been asked to withdraw from hearing an appeal of a legal-malpractice case against Corboy & Demetrio, one of the nation's top personal-injury firms, because the justices have gotten political contributions from the Chicago firm's attorneys.

The case involves a hotly contested case alleging that Corboy lawyers mishandled a lawsuit brought on behalf of the family of a Georgia woman who was killed and her two daughters who were injured in a car crash in 1995.

The motion seeking the recusal of Supreme Court Chief Justice Thomas Fitzgerald and Justices Anne Burke, Charles Freeman and Robert Thomas comes just after the U.S. Supreme Court agreed to hear arguments in a West Virginia case testing whether elected judges can take part in cases involving campaign contributors.

Because there are seven justices on the Illinois court, the motion sets up the possibility that, should the justices step aside, there would be only three justices left to hear the case -- rendering an appeal meaningless. The Illinois Constitution requires four votes for any Supreme Court ruling to be official, and the constitution has no provision for appointing interim justices should a justice withdraw.

Such a dilemma would be "absurd," attorney Charles Boyle noted in his motion.

The original lawsuit alleged that Corboy lawyer G. Grant Dixon III, who is no longer with the firm, and Robert Bingle, the firm's managing partner, failed to preserve the damaged vehicle and failed to investigate whether the wreck was the result of a manufacturing defect.

The Corboy firm admitted that the car-crash suit was dismissed because the firm failed to follow a court order but denied all other allegations against the firm. A judgment of $100,000 was entered against the law firm, and all other counts of the lawsuit were denied.

In a motion filed Nov. 24, Boyle asked the Illinois Supreme Court for permission to review the lower court's rulings and asked the four justices to step aside from hearing his petition.

The motion states that some members of the Corboy firm and two of the firm's experts in the car crash case have donated $52,000 to Fitzgerald, $33,000 to Thomas and $30,000 to Freeman. It says that while Burke has received $1,500 in contributions, the firm has donated $24,000 to her husband, Ald. Edward Burke (14th).

While federal judges must disqualify themselves from any case in which they have any personal or financial interest, states generally have no specific criteria for campaign contributions.

In the West Virginia case, Justice Brent Benjamin won election after the chief executive of the Massey coal company contributed $3 million to his campaign and raised half a million more -- amounting to 60 percent of the justice's campaign funds. After the election, Benjamin twice cast the deciding vote to set aside a $50 million judgment against the coal company. (Massey Coal has its own problems and its own legal malpractice case against a kentucky law firm, see our previous blog entry)

Attorney Michael Reagan, representing the Corboy firm in the case, said the amounts in the Illinois case are "ordinary campaign contributions" that are a "fact of life in a democracy."

Maurice Possley is a Pulitzer Prize-winning journalist who recently left the Chicago Tribune. He worked for the Chicago Sun-Times from 1978 to 1984.

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.

Louisville Lawyer Suspended from Practice and Criminally Charged For Allegedly Stealing

As reported today in the Courier Journal, Louisville attorney Louis Smith has been accused of stealing money from his clients.  Prosecutors allege that Smith, an estate attorney, began stealing from clients, including Emily Strange, around 1999.

Although Smith pleaded "non-guilty" to the charges, his criminal lawyer Steve Romines has filed court papers indicated they may defend Smith by asserting his diagnosis of dementia. 

On March 20, the Kentucky Supreme Court temporarily suspended Smith from the practice of law for his dealings with Ms. Strange's $1 million estate and stated, "In less than ten years, all of the money seems to have disappeared , and the client is on Medicaid. Even when the circuit court ordered an accounting by the Respondent, he refused to disclose the whereabouts of the assets and the purpose of their transfer. The circuit court has threatened sanctions, including incarceration on the contempt, until such disclosures are made. We have no doubt that the circuit court has quite a task in seeking to trace the assets from the Respondent."

It has been my experience that lawyers that steal money from clients don't usually have any insurance or assets.  This necessarily means that it will be very difficult for any of his victims to recovery in a legal malpractice lawsuit; however, that doesn't mean his victims should sit idly by, they should hire an attorney to investigate if insurance is available and what, if any, assets are available to reimburse the clients and their estates.

hans

Law Firm Sued 22 Times Sues its Own Malpractice Carrier for Not Defending New Legal Malpractice Suit

One of Augusta's best known criminal defense firms has a problem.  It seems they have been sued--23 times.  Their insurance carrier has settled all of them-- but one.  The one suit they refuse to settle, or even pay for the defense, was filed by Wendell A. Jenifer.

So, not only is the Fleming firm having to pay the costs of defending themselves in the Jenifer case, they have also sued their insurance carrier, Clarendon National Insurance Co,

Jenifer sued the Fleming firm, John Fleming and his nephew William Fleming in 2006. Mr. Jenifer hired the firm and the attorneys to represent him in a personal injury case against a local hotel, and he alleges his case was thrown out because the attorneys did nothing to pursue it.

Mr. Jenifer's malpractice case was scheduled for trial last month in U.S. District Court. It was put on hold to give the Fleming firm and the attorneys time to get a legal ruling about their insurance coverage during the time Mr. Jenifer claims he was neglected.

According to the Fleming firm's lawsuit, Clarendon provided its malpractice insurance until it canceled the policy in August 2002.

The firm then obtained coverage through Royal Surplus.  Neither insurance company has provided any defense for the firm or attorneys in the Jenifer case.  According to court documents filed in federal court, Clarendon dropped the Fleming firm and attorneys after it had to settle 22 malpractice claims in the fall of 2002. In order to obtain new insurance, John Fleming and William Fleming had to resign from the firm, although John Fleming returned a month later.

In the Jenifer case, the judge has made a very unusual evidentiary ruling.  U.S. District Magistrate Judge W. Leon Barfield framed what a federal court jury will hear as follows "I have come to the conclusion ... that much of the insurance evidence proffered by the plaintiffs in this case is admissible," Judge Barfield said.

Judge Barfield ruled that all of the claims filed within the time period that Mr. Jenifer had dealings with the firm and William Fleming can be used as evidence.

Judge Barfield said it is plausible that the Fleming firm found itself in "a firestorm" in 2002. The insurance company canceled the firm's policy, and it was re-instated only when John and William Fleming resigned. John Fleming returned a month later.

It is plausible, Judge Barfield said, that the firm's attorneys realized that any claim Mr. Jenifer might file would not be covered by the insurance. The evidence about the other insurance claims is relevant because the firm admitted to wrongdoing until it came to Mr. Jenifer's case, the judge said.

In another unusual evidentiary ruling, Judge Barfield ruled the Fleming firm cannot call other attorneys as witnesses to give opinions about the merits of Mr. Jenifer's case against the hotel. That will be a decision the jury must make in determining whether there was legal malpractice, Judge Barfield said.

FYI, this is not the first time the Fleming firm has been under fire.  A couple of years ago, they were accused of "client dumping."

Hans

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

Fen Phen Judge Says He Won't Participate in Re-trial

In the continuing saga of the Fen Phen Fiasco...

As if the acquital of Melbourne Mills and the subsequent mistrial of the case against William Gallion and Shirley Cunningham wasn't weird enough.  Now, Judge William Bertelsman refuses to hear the re-trial.  Yesterday, Judge Bertelsman indicated that, not only will he not be the judge on the re-trial of the Fen Phen defendants, he won't hear any more criminal cases at all. 
Because Judge Bertelsman is a senior judge, he has the option of limiting his case load. 
While Bertelsman did not comment further on the reasons why he no longer wants to participate in judging criminal cases, one has to assume that this case (and presumably the result) is the reason.
One must also assume that the re-trial will be presided over by Federal Judge Danny Reeves.
Judge Reeves was appointed to the federal bench in 2001.  Prior to being appointed to the bench, Judge Reeves was an attorney at Greenbaum Doll McDonald's Lexington, Kentucky office from 1983-2001. 
Although none of the lawyers have been convicted criminal, they are still the subject of a $45 million civil judgment for breach of fiduciary duty and they have all been suspended from the practice of law in Kentucky.
Hans

Is A Negligent Attorney Entitled To A Fee in Kentucky

One of the questions I am often asked about by potenial clients that are exploring legal malpractice actions against their current or former attorneys is whether the current attorney will still be entitled to a fee if they fire the attorney.  This situation generally arises when an attorney has not handled a personal injury case properly, but the client still recovers some money (although not as much as they would have received had the attorney not been negligent) or, they attorney is hired on an hourly basis but performs negligently and the client wants to know if they are entitled to a refund of the fees they paid the negligent lawyer.
The law in most states, including Kentucky, is that a negligent lawyer is not entitled to the contractual fee if he or she is fired for cause.  In fact, Kentucky has a specific statute that entitles a client to a refund if the lawyer is negligent.  Or, to put it another way, if a lawyer is negligent, they can be sued and the fee they received becomes another element of damages.
Hans

Thirty Year Old Medical Malpractice Case is Now Legal Malpractice Case

An appellate court in New York has allowed a client to sue her lawyers over her her 30 year old medical malpractice case even though the lawyers say they fired the client 3 years before she fild her legal malpractice suit.  Generally, the statute of limitations bars a person from pursuing a claim if the suit is not timely filed.  In some states, like Kentucky, the statute doesn't start to run when the malpractice occurs, but when the attorney-client relationship terminates.  So, for example, if a lawyer failed to file your car accident case but didn't tell you for three years, the statute would be "tolled" until you learned of the malpractice (the discovery rule) and then terminated the relationship. 
They New York court determined that even though the claim was three years old, the lawyers never clearly indicated to the client that they were not going to be pursing the case.  Because the relationship was never clearly terminated, the court held that the client could go forward with her lawsuit for the lawyers failing to properly file her medical negligence suit.