Posts Tagged ‘ethics’

Lawrence v. Graubard Miller

Alice Lawrence had timely paid $18 million over 22 years to Graubard Miller in a lengthy dispute over her husband’s estate. The law firm had billed her on an hourly basis—until there was a $60 million settlement offer on the table, at which point it suddenly renegotiated its retainer agreement to be a 40% “contingent fee”, though there was obviously nothing contingent about the award, and the firm wasn’t offering to repay the money it had already billed. Five months later, there was a $105 million settlement—and Graubard Miller claimed as its fee for the five months of work $42 million of the $45 million additional money that it had negotiated, for a total of $60 million for the case. Lawrence asked the New York courts to protect her, but a 4-1 majority of the Appellate Division upheld the decision (via Lattman). The New York Times article (not to mention Bizarro-Overlawyered, which unsurprisingly doesn’t care much about fraud and rip-offs when they’re occasioned by attorneys against widows) doesn’t even begin to mention the fact that the “contingent fee” didn’t provide any risk for the law firm: the retainer agreement had a floor whereby Graubard Miller got to charge an hourly rate for the first year of trial even if it didn’t collect anything, guaranteeing it another $1.2 million on top of the $18 million it had already collected. The best coverage in the New York Law Journal, which notes that Graubard Miller schnorred another $7.8 million in gifts and gift taxes from Lawrence, whose total payment thus totaled nearly $68 million. (Anthony Lin, “Late 40 Percent Retainer Pact Survives Widow’s Dismissal Bid”, Nov. 29; Anthony Lin, “Widow’s Suit Seeks Return of $50M in ‘Excessive’ Fees and Gifts”, Sep. 16, 2005).

Unfortunately for Lawrence’s case, she did negotiate the Graubard Miller firm down from its original 50% (!) contingent-fee proposal, so in one sense she wasn’t completely the unwitting pawn of the firm, even though Graubard Miller failed to suggest that she consult independent counsel about the multi-million dollar negotiation. The question becomes whether the attorney-client relationship is at all fiduciary, or whether it’s purely contractual—in which case, one wonders why there is such an elaborate screening mechanism to permit prospective attorneys to participate in the guild in the first place.

It’s nice that the New York courts are so respectful of contracts that they dismiss cases at an early stage of the litigation. One hopes that they do that in situations other than those involving the fiduciary duties of attorneys.

Read On…

Update: Stephen Yagman draws three-year sentence

The high-profile Los Angeles attorney, who’s made frequent appearances in these pages, is headed to federal prison following his conviction for tax evasion, money laundering and bankruptcy fraud (see Jun. 24). U.S. District Judge Stephen V. Wilson chided Yagman for testimony “so transparently untrue in so many areas.” (Scott Glover, “Attorney Yagman sentenced to 3 years for tax evasion, fraud”, Los Angeles Times, Nov. 28). Best known for his lawsuits against police departments, the much-criticized Yagman has also represented the principals in a famous Americans with Disabilities Act filing mill that launches mass complaints against small businesses and settles them for cash (Mar. 18, 2005; Nov. 4, 2006). According to the L.A. Times account, he “twice was suspended by the state bar for charging clients ‘unconscionable’ fees.” When a retired police sergeant sent him a letter expressing “glee” over his indictment, Yagman promptly sued him (Jan. 5, 2006). Norm Pattis (Nov. 29) reflects: “I wonder whether Yagman became a Leona Helmsley-type figure. The law is for little people, he appears to have thought.”

Must have been a typo

That’s what San Francisco lawyer Waukeen McCoy says of a revelation that his firm billed Federal Express for 23.5 hours of one of its attorneys’ time over a single day. The fees were requested, and disputed, after McCoy’s firm and others beat FedEx in an employment discrimination case. (Dan Levine, “Former Co-Counsel Turn on Each Other in FedEx Fee Fight”, The Recorder, Oct. 26). P.S. Australian lawyer Stumblng Tumblr writes, “of course it was; it was supposed to be 24.5 hours”.

“US says it’s blowing whistle on lawyer’s fee”

For reporting on unlawful dumping of sludge into US waters, twelve ship workers are getting whistleblower payments of $437,500 apiece, in what one of their lawyers describes as an “amazing and unexpected windfall that the government essentially arranged for them”. Lawyers for all but two of the workers are charging them fees of $10,000 or less apiece, and one charged no fee at all. However, attorney Zachary Hawthorn of Beaumont, Texas, who represents two clients, says he’s entitled to a 33 percent contingency from their share, amounting to nearly $300,000. Federal prosecutors in Boston “suggest Hawthorn took advantage of unsophisticated ship hands who are not native English speakers and who had little familiarity with the American legal system. They also contend his work was ‘materially indistinguishable’ from that of the other lawyers, who were paid 90 percent less than his requested fee.” On the other hand, the clients have signed statements asking that the fees be approved. Prevailing law restricts lawyers from charging excessive fees and does not make client consent a defense if unreasonable fees are charged, but in practice “judges are typically reluctant to interfere with lawyer-client fee arrangements, especially when a client has not complained”. (Sacha Pfeiffer, Boston Globe, Nov. 10).

Lawyers: no harm in botching suit since it had no merit anyway

“A New York judge has permitted a legal malpractice suit to proceed against a group of personal injury lawyers who tried to argue that the medical malpractice suit they allegedly botched had no merit in the first place.” Morelli Ratner (of Benedict Morelli fame) and Schapiro & Reich had filed a suit on behalf of Victoria Kremen alleging failure to diagnose cancer. The suit was thrown out on statute-of-limitations grounds, but in her later action against the lawyers Kremen argued that they might have avoided the usual time limits by invoking certain exceptions to the statute. The lawyers proceeded to argue that Kremen’s suit was doomed anyway, but Manhattan Supreme Court Justice Emily Goodman was not impressed: “[S]uch arguments fly in the face of the fact that Defendants represented Plaintiffs for almost three years, presumably because they believed that the lawsuit had merit.” (Anthony Lin, Legal Malpractice Suit Against Personal Injury Lawyers Permitted to Go Forward”, New York Law Journal, Oct. 31).

Don’t

Another bunch of things not to do if you’re a member of the legal profession, all courtesy Law.com:

  • Don’t forge a judge’s name to a judicial order to lull your clients into thinking you’re properly pursuing their case [Laurence S. Jurman of Dix Hills, N.Y., who’s pleaded not guilty to the above allegations; NYLJ]
  • Don’t fail to inform your client in a criminal-defense trial that you yourself are facing criminal charges on charges of stalking in the same court [Steven Olitsky of Irvington, N.J., whose convicted client is arguing ineffectiveness of counsel on the grounds that the eventually-disbarred Olitsky was in no position to negotiate effectively with prosecutors; NJLJ]
  • Don’t read golf magazines during depositions or leave your client alone and unrepresented by walking out of an important deposition [Jonathan D. Herbst of Philadelphia’s Margolis Edelstein; client’s loss of $11 million defamation case led to professional liability award recently reinstated by Pa. high court; Legal Intelligencer]
Earlier entries in this series: Jun. 4, etc.

Latest Montgomery Blair Sibley follies

SCOTUSblog reports:

In an unusual order, with seven of the nine Justices not taking part, the Court summarily upheld a D.C. Circuit Court ruling that those Justices had immunity to a civil damages claim of $75,000 by a Washington, D.C., attorney who has challenged the Court for an earlier refusal to hear his case. Since those seven members of the Court were directly sued, they were recused; under federal law, when the Court does not have a quorum (six Justices minimum), the effect is to affirm the lower court ruling. The attorney, Montgomery Blair Sibley, had sued the Justices after they had denied review of a case involving a domestic relations and child custody dispute. In Monday’s order, no Justice made any comment on the Circuit Court ruling being affirmed.

Earlier on Overlawyered.

Bogus claims in Chevron-Ecuador suit

I’ve got a post at Point of Law detailing a judge’s ruling chastising, and imposing sanctions on, three lawyers (including one who’s fairly famous) who sued the oil company on behalf of supposed cancer victims in Ecuador; it turned out some of the victims 1) didn’t have cancer and 2) weren’t aware a suit was being filed in the U.S. in their name. (Oct. 25; and see Roger Parloff’s excellent post on the episode at Fortune “Legal Pad”).

“Disrespectful cockalorum…mordaciously sarcastic”

It would appear U.S. District Judge Robert Blackburn has reached the end of his patience with attorney Mark E. Brennan, and then some. Throwing out a $1.2 million verdict obtained by Brennan against the city of Denver on a claim of age discrimination against a firefighter, Judge Blackburn condemned Brennan’s courtroom antics as “disgraceful” as well as “boorish and unprofessional”:

“In over 19 years on the bench, I have seen nothing comparable,” the judge wrote. “Such disrespectful cockalorum, grandstanding, bombast, bullying and hyperbole as Mr. Brennan exhibited throughout the trial are quite beyond my experience as a jurist, and, I fervently hope, will remain an aberration during the remainder of my time on the bench.”

(Daniel J. Chacon, “Judge points to lawyer’s antics in junking $1.2 million ruling”, Rocky Mountain News, Oct. 6). No response from Mr. Brennan is recorded yet in the news coverage assembled by Google. The dictionary, incidentally, defines “cockalorum” as “boastful talk; crowing”. P.S. Brennan’s response, as reported in the Rocky Mountain News (via ABA Journal); also more details at On Point News.

Contingent-fee tax collection in Mississippi, cont’d

Mississippi state auditor Phil Bryant “has issued a demand letter for recovery of the $14 million in legal fees paid by MCI to two law firms in the wake of the state’s $110 million settlement with MCI in a 2005 tax fraud case.” The Langston and Lundy & Davis law firms “were hired as outside counsel to represent the state by current Attorney General [Jim] Hood. Langston has been identified as one of Hood’s largest campaign contributors, a reality that Langston doesn’t deny.” The two firms were then cut into the $14 million as part of the negotiated settlement, but Bryant says the money belonged to the public and should have gone through the appropriations process. The twist: to enforce the state’s rights in the matter, Bryant will apparently have to call on legal support from the office of AG Hood himself, and you have to wonder how cooperative he’ll be. (Sid Salter, “Langston: State asks recovery of legal fees”, Jackson Clarion-Ledger, Sept. 23; “State parties bring smack down”, Biloxi Sun-Herald, Sept. 23). More on the furor: Point of Law, May 13 and May 23, 2005.