September 25, 2019 ADVENTURES IN THE LAW

Tenacity in Advocacy Award

By Norman G. Tabler Jr.

This month’s Tenacity in Advocacy Award goes to California attorney Steven Pabros. Steven represented a landlord in a lawsuit brought against him by his tenants. When the landlord died, Steven—like the Energizer Bunny--kept right on litigating, without informing the court or the opposing lawyer of the death.

Al and Leann Mattei, leased space to tenants who ran an antiques shop. They also leased adjacent space to a tenant who sold the contents of storage units. When a fire started in the latter space, it spread to the antique shop and damaged it. The antique shop tenants sued the Matteis on the theory that they knew the adjacent business was a fire hazard but did nothing about it. The Matteis countersued, claiming that the lease required the tenants to indemnify them.

The jury found that the Matteis were passively negligent. But the judge enterer a judgment notwithstanding the verdict, ruling that they were actively—not passively--negligent.

Steven filed an appeal in 2014. Al Mattei died in January 2016, while the appeal was pending. Steven didn’t inform the court or the tenants’ lawyer. In June, five months after the death, Steven won the appeal. A new trial was set for April 2017. Steven still didn’t disclose Al’s death.

When the tenants moved for summary judgment, Steven opposed the motion, claiming there was a triable issue of fact—namely, what the parties intended when they signed the lease. The only one who could have testified about the landlord’s intent was Al because his wife hadn’t been involved in the negotiations. But, of course, Al had now been dead for over a year. Nevertheless, Steven still didn’t reveal the death to the court or the tenants’ lawyer.

On the first day of trial, the tenants’ lawyer asked Steven why Al wasn’t on the witness list. Steven ignored the question. On the third day, in the presence of the judge, the tenants’ lawyer asked Steven if Al was going to testify. Again, Steven ignored the question.

Sensing that something was amiss, the tenants’ lawyer used his lunch break to conduct an internet search, which revealed that Al was indeed dead and had been that way for some 15 months.

The court was unhappy with Steven. He had not only violated the local rule requiring notification of opposing counsel and the court upon the death of a litigant; he had continued to litigate on behalf of the dead man. Steven was ordered to pay the plaintiffs $31,000 in sanctions.

Steven may have been sobered by the court’s order, but he wasn’t sobered enough to report the sanction to the state bar as required of California attorneys. His inaction got him nowhere because the court itself promptly reported the sanction.

The State Bar Court found that Steven had violated (1) the local rule requiring notification of a litigant’s death, (2) a rule of professional conduct by suppressing evidence that he was legally obligated to reveal, and (3) the rule requiring him to notify the state bar of a sanction. The court suspended him from practice for 30 days and ordered him to pay discipline costs of $3,300.

Postscript: In February 2018, over two years after his client’s death, Steven appealed the granting of summary judgment to the tenants. As of this writing the appeal is still pending.

The case is In the Matter of Steven Pabros, State Bar Court of California.

Author

Norman  G. Tabler, Jr. is a retired lawyer in Indianapolis. He serves on the editorial advisory boards of the ABA Senior Lawyers Division’s Voice of Experience and the ABA Health Law Section’s The Health Lawyer and is host of the American Health Lawyers Association’s podcast, The Lighter Side of Health Law. Email Norm .