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Silly Lawyer Tricks XXIII

Thomas J Donlon

Silly Lawyer Tricks XXIII
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This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers in cases on appeal.

Disciplinary Counsel v. Sarver, ___ N.E.3d ___, 2020 WL 7049817 (Ohio Dec. 2, 2020)

This case arose out of a disciplinary matter in which an attorney became a two-time loser. Two years before, the supreme court had suspended the attorney for two years with 18 months stayed. See Disciplinary Counsel v. Sarver, 155 Ohio St. 100 (2018). In that case, the attorney admitted to having sexual relations with a woman he was representing on multiple felony charges. He also advised her to turn off the GPS in her phone, which allowed her to avoid arrest for a month. When rumors of their relationship surfaced, the attorney twice lied to the presiding judge. After the woman agreed to testify against him, the attorney pleaded guilty to misdemeanors—and agreed to abandon the election campaign he was contemporaneously waging for county prosecutor. Id. at 101–03.

While the first disciplinary case was pending, the attorney was retained to represent the mother of a woman killed in a motor vehicle accident. He negotiated a settlement with the insurance company for the policy limits and obtained an appointment to administer the deceased’s estate. His client also signed an application for the probate court to approve the settlement, but the attorney did not file it. He later claimed that the magistrate told him not to file, which the magistrate denied. Sarver, 2020 WL 7049817, at *1–2.

When the supreme court suspended his law license, the attorney did not inform the mother—and then filed a false affidavit with the court that he had given notice to his clients. Although suspended, he continued to pursue the mother’s claim for victims’ compensation from the state. He also signed her name to the insurance settlement check; deposited it in his account; and began to distribute funds without the probate court’s approval, including paying his own debts with what he calculated as his fee. 

Two months later, the state victims’ compensation representative contacted the mother, telling her for the first time that the attorney could not represent her because his law license had been suspended. When confronted by the mother, the attorney admitted he was suspended but claimed he would be reinstated in a few months.

Before the supreme court, the attorney claimed he attempted to make restitution of $43,000 but was rejected by the mother’s new counsel. The court noted that this offer of partial restitution, only a week before the disciplinary hearing, “can only be described as a ‘Hail Mary’ to attempt to lay the groundwork for at least one mitigating factor”; but since his attempt “was so insincere, we instead conclude that the aggravating factor of failure to make restitution exists in this case.” Id. at *6 (citation omitted).

The court described the attorney’s pattern of deceit: lying to the criminal court, lying to the supreme court, lying to his client, falsely accusing a magistrate, forging his client’s signature, and lying to investigators. “We can only assume that [the attorney’s] ‘pants are charred’ from the number of falsehoods he has perpetrated. . . .” Id. at *10 (emphasis added). The court rejected the attorney’s argument—and the disciplinary board’s recommendation—for indefinite suspension, imposing permanent disbarment instead. 

Toledo Bar Ass’n v. Yoder, ___ N.E.3d ___, 2020 WL 5900579 (Ohio Oct. 6, 2020)

In another Ohio disciplinary case, the attorney initially was hired to represent grandparents in a child custody case. A nurse, a cousin of the children’s father, obtained temporary custody, although the parties later agreed the children could return to the grandparents’ home. The attorney made a series of attacks on the nurse, the magistrate, and later an opposing counsel.

The attorney accused the nurse of kidnapping the children and claimed that she was “out of touch with reality” and had “serious, serious mental problems and needed professional help.” He wrote to the Ohio and Michigan licensing boards, urging them to investigate her mental fitness to be a nurse, claiming she made “wild, insane allegations” that “only exist in her mind.” Id. at *2.

The attorney then turned on the magistrate hearing the custody case. In an affidavit, the attorney claimed that the magistrate’s original custody order “was the most absolutely insane decision [he had] ever encountered in almost 40 years” and not what “a normal competent magistrate would have done.” Id. at *3. The attorney stated that the magistrate’s “lies, incredible arrogance, taunts, threats and lectures, and vendetta against him” were grounds for removal. Id. Although the magistrate agreed to be replaced, the disciplinary board found the magistrate “completely credible” in denying bias and found the attorney’s statements about him “discourteous and degrading to the tribunal.” Id.

In a separate lawsuit, the attorney wrote to opposing counsel, stating, “you are a complete idiot,” “you are to [sic] stupid to know how stupid you are,” and your letter “was so stupid I sent it back to you as I didn’t want it in my file,” and concluding, “No more idiotic letters!!!” Id. After the opposing counsel withdrew, the attorney wrote to new counsel that his client was a “liar” and “an idiot” and that the former counsel was a “mentally ill attorney advising an idiot. . . .” Id. at *4.

While the disciplinary hearing on these charges was pending, the attorney wrote to people scheduled to be witnesses against him, suggesting they talk to a lawyer about liability for lying under oath. The disciplinary board found these letters “served no substantive purpose other than to strike fear in, embarrass, harass or burden the recipients with the cost of hiring counsel to respond to [the attorney’s] inappropriate threats and inuendo.” Id.

In his posthearing brief, the attorney attacked the lawyer presenting the disciplinary case, saying that lawyer “will sink to any depth to trump up anything against me” and “had absolutely no clue as to any of the facts he has alleged in his complaint” because he never read any of the pleadings or looked at the evidence. Id. at *5.

Before the supreme court, the attorney went further. “In 112 pages of rambling objections,” he denied any wrongdoing and argued that the two cases giving rise to the disciplinary complaints were wrongly decided. The supreme court pointed out that the merits of those cases were not the issue but rather how the attorney “conducted himself in contentious litigation and in the face of adverse rulings.” The court stated that the record showed the attorney “has been unable or unwilling to address his frustrations in the underlying cases—be they adverse court rulings, perceived criticism of his own conduct, or his own perceptions that others are performing incompetently. . . .” Id. at *7. Not only did he make numerous false statements about the magistrate, the opposing parties, and their counsel, but he also “continued to levy false and inflammatory accusations with little or no basis in fact against anyone who disagrees with him—including [bar disciplinary] counsel and a member of the board responsible for drafting the report in this disciplinary proceeding.” Id. at *8. Rejecting the board’s suggested lesser sanction, the court suspended him from practice for two years with only the final six months conditionally stayed. 

Yoo v. Hornock, 2020 WL 6791521 (Tex. App. Nov. 19, 2020)

In an initial reading, this opinion seems a restrained denial of the issues raised by appellate counsel. The case reminds one to always read the footnotes (which in both the Westlaw and LEXIS versions do not appear until the end).

The appeal arose out of a car accident. While suit was filed within the statute of limitations, the petition was returned unserved due to a mistake in the address. The plaintiff’s counsel made no further effort at service. The defendant’s counsel moved for summary judgment on the grounds of failure to diligently pursue service. That motion was denied based on the plaintiff’s counsel’s argument that the court waited until the statute of limitations had run to grant his indigency application.

A few months later, defense counsel filed an amended summary judgment motion based on a deposition of the plaintiff’s counsel’s paralegal admitting she knew the attorney could serve after indigency was granted. The plaintiff’s counsel unsuccessfully argued that res judicata and standing barred this motion.

On appeal, counsel again argued the same two issues. The court found both meritless. The court also rejected counsel’s attempt to raise a challenge to the trial court’s ruling regarding diligently pursuing service for the first time in his reply brief.

In a footnote to its denial of the parties’ cross-requests for sanctions, the court dropped the hammer. It directed the clerk to forward the opinion and record on appeal to the Texas State Bar to “investigate several troubling aspects of [counsel’s] representation of [the plaintiff] in this case” because it “fell far below the standard expected of competent counsel both here and in the trial court.” Id. at *2 n.1.

In addition to his original errors regarding service, the attorney “asserted arguments both on appeal and at trial that no lawyer could reasonably believe might succeed.” Id. Further, he “failed to adequately raise and argue the only appellate issue on which his client might potentially find relief,” and he “failed to file a brief complying with our rules even after receiving warning that his failure to do so might subject his client’s appeal to dismissal.” Id. Finally, he “repeatedly made abusive and unprofessional attacks on [opposing] counsel, both in briefing before this Court and in the trial court.” Id. While the court stated that “the record objectively demonstrated [counsel’s] misconduct,” it believed the state bar was the most appropriate forum for sanctions. Id. The footnote concluded by noting that the court did not hold counsel’s actions against the plaintiff, as counsel “has punished” his client enough. Id. “Unfortunately for [the plaintiff], who may have been entitled to some compensation based on the accident, none of the issues presented by his counsel entitle him to relief.” Id.

Hopefully, someone who reads the footnote will suggest that the plaintiff hire a good malpractice lawyer.

AntennaSys, Inc. v. AQYR Techs., Inc., 976 F.3d 1374 (Fed. Cir. 2020)

The Federal Circuit did not wait until an endnote to express its dissatisfaction with the parties’ performance but made it clear in the opening paragraph.

The appeal arose out of a patent case with a complicated fact pattern involving two inventors, who assigned their two interests to two different employers that in turn entered into a licensing agreement, creating a third LLC entity in the process.

The decision begins, “There is little more frustrating for a district court judge than to have the parties jointly lead you down a wrong, and possibly unnecessary, path,” but “[t]hat is what occurred here.” Id. at 1376.

The district court had granted summary judgment to the plaintiff for patent infringement based on a claim construction that the defendant challenged on appeal. The Federal Circuit identified other foundational issues that had not been addressed by either side. “In advancing their confusing and potentially meritless theories, the parties make certain critical omissions,” which led the court to observe that “neither sides’ [sic] arguments help resolve the dispute.” Id. at 1380.

The parties’ failures, and lack of a complete factual record, caused the Federal Circuit to reverse and remand. The opinion concludes in the same vein it began: “This exercise has been an extremely frustrating one for the court. We suspect the district court will feel the same way. But just as bad facts can make bad law, misdirected lawyering can do the same.” Id. at 1382.