Attorney Battles To Keep Millions He Left Himself In Client’s Will

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Attorney Battles For Millions He Left Himself In Client's Will

Editor’s note: this post was originally published on 03/24/2016. It was updated on 02/24/17, 07/10/17, and 12/14/17 to reflect new developments.

The Michigan Supreme Court will decide if an attorney who was retained to plan the estate of his dying friend, and left $14 million of his friend’s $17 million estate to himself and his children, must give up his windfall.

Background

The Detroit Free Press reported that Attorney Mark Papazian prepared a will and trust that named himself as Bobby Mardigian’s personal representative, awarded Papazian all of Mardigian’s personal property, created a $5-million trust for each of Papazian’s two children, and left Papazian the residual value of the estate, after expenses and gifts to other beneficiaries[1].

Mardigian died of lung cancer in January, 2012, at age 59. He was divorced and had no children.

Heirs Sue To Overturn the Will and Trust

When Papazian tried to introduce the will and trust he had prepared into probate, along with a petition to be appointed as Bobby Mardigian’s personal representative, Mardig-ian’s brother Ed Mardigian, Ed’s two sons, and Bobby’s girlfriend and two of his nieces, sued in county probate court to disallow the will and trust.

Ed Mardigian and his sons claimed they were Bobby Mardigian’s lawful heirs, and con-tended that a letter Bobby wrote after he had executed the will and trust prepared by Papazian, should instead be submitted into probate as his will and an amendment to his trust.

After discovery, Ed Mardigian moved for partial summary disposition, and asked the probate court to void all gifts to Papazian and his children contained in Bobby Mardig-ian’s will and trust, because they violated public policy, and were thus unenforceable.

Mardigian cited Michigan Rules of Professional Conduct 1.8(c): “A lawyer shall not pre-pare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.” His attorney argued, “for over 100 years, the Supreme Court has ‘bluntly warned’ lawyers not to receive gifts from clients under wills they themselves have drafted…Mark Papazian did it anyway…in flagrant disregard of his ethical duties…“[2].

The probate court denied Ed Mardigian’s motion.

Attorney Defends His Actions

Papazian claims that if the Michigan Legislature wanted to prohibit attorneys who draft wills from leaving bequests to themselves, it would pass a statute to that effect, as some states have done.

Further, Papazian said that even if he committed misconduct, he and his children shouldn’t be prevented from receiving bequests from a client he says was also his dear friend for 30 years.

He claims the will should be nullified only if he exerted “undue influence” on Bobby Mar-digian, but there’s no evidence of that.

As proof, Papazian claims “Bobby consulted repeatedly with both an independent attor-ney and Comerica Bank wealth management officials, about his estate documents in the six months after he executed the contested will and trust…Even after consulting these independent professionals, Bobby made no changes to the documents which Mr. Papazian had participated in drafting.“[3]

However, Papazian also first asserted that Roy Luttman, his then law partner, had drafted the trust documents, but when deposed, Luttman testified: “absolutely not, une-quivocally no, never, did not do it…”[4]

Probate Court Ruling 

In November, 2013, days before the case was to be tried in probate court, Papazian ad-mitted he had prepared both the will and trust. The judge ruled that this violated public policy, and declared both documents unenforceable. He also approved Ed Mardigian’s motion for summary disposition, reversing his earlier denial.[5]

On the scheduled trial date, the judge denied Papazian’s motion for a stay. He chose not to participate in the proceedings. The other parties – Ed Mardigian and his two sons, Bobby Mardigian’s girlfriend and two nieces, and J.P. Morgan bank – reached a settle-ment regarding the distribution of funds, and the jury was excused. The judge denied Papazian’s motion for reconsideration.

Appeal

Papazian then appealed the probate court’s approval of Ed Mardigian’s motion for sum-mary disposition to the Court of Appeals, which overturned it in a 2-1 decision last Octo-ber.[6]

The Court based its ruling on In re Powers Estate, 375 Mich 150, 156, 176, 179; 134 NW2d 148 (1965): “our Supreme Court held that a will, (leaving) the bulk of the estate to a member of the family of the attorney who drafted the will, and also naming the attorney as an additional beneficiary, was not necessarily invalid. Rather… a question of undue influence exists…undue influence arising from the relationship is presumed to have been exerted as the means to secure the testamentary gift…Powers is directly on point to the facts presented in the instant case, and as such is binding on this Court.”[7]

The court concluded that Papazian “benefited from the transaction,” and “as the drafter of the documents, he had an opportunity to influence (Bobby Mardigian’s) decision…It is presumed he exerted undue influence,” but “case law and existing statutes afford (Papazian) the opportunity to attempt to prove by competent evidence that the presump-tion of undue influence should be set aside… we reverse and remand to the…Probate Court for (further) proceedings.”[8]

Supreme Court

Ed Mardigian and the other plaintiffs applied to the Michigan Supreme Court for leave to appeal the Court of Appeals’ ruling.

The Supreme Court heard oral arguments in the matter on 01/10/2017.

Mardigian’s attorney again argued that Papazian violated Michigan Rules of Professional Conduct 1.8(c) by drafting the will and benefiting from it, and the gifts he left to himself and his children should thus be set aside. Papazian’s attorney again relied on In re Powers Estate, to argue that Papazian should be allowed to prove that he didn’t unduly influence Bobby Mardigian.

On 07/07/17, the Court issued an order granting plaintiffs’ application, and ordering both sides to submit briefs. The order states:

“On January 10, 2017, the Court heard oral argument on the application for leave to appeal the October 8, 2015 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is GRANTED. The parties shall include among the issues to be briefed: (1) whether the rebuttable presumption of undue influence set forth in In re Powers Estate, 375 Mich 150 (1965), when used as a means to determine the testator’s intent, is a workable rule that sufficiently protects the testator when the testator’s lawyer violates MRPC 1.8(c); (2) whether this Court’s adoption of MRPC 1.8(c) warrants overruling In re Powers Estate; and (3) if In re Powers Estate is overruled, whether a violation of MRPC 1.8(c) should bear on the validity of the gift provided to the testator’s lawyer under the testamentary instrument; and if so, how?

The Attorney Grievance Commission, the Probate Section and the Elder Law and Disability Rights Section of the State Bar of Michigan are invited to file briefs amicus curiae. In addition, the State Bar of Michigan, or an appropriate committee of the State Bar authorized in accordance with the State Bar’s bylaws, is invited to file a brief amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.”

Amicus Briefs

Michigan’s Attorney Grievance Commission submitted an amicus brief on 10/27/17.

The brief’s arguments are:

  • I. A rebuttable presumption of undue influence is not a workable rule that sufficiently protects the testator when the testator’s attorney violates MRPC 1.8(c).
  • II. The Court’s adoption of MRPC 1.8(c) warrants overruling Powers.
  • III.A violation of MRPC 1.8(c) should invalidate the gift provided to the testator’s attorney under the will.

The Probate and Estate Planning Section of the State Bar of Michigan submitted an amicus brief on 11/3/17.

Its three main arguments are:

  • I. THE REBUTTABLE PRESUMPTION OF UNDUE INFLUENCE IS NOT
    A WORKABLE RULE TO SUFFICIENTLY PROTECT THE TESTATOR
    WHEN A LAWYER IS BOTH THE DRAFTING ATTORNEY AND A
    SUBSTANTIAL BENEFICIARY
  • II. THIS COURT’S ADDOPTION OF MRPC 1.8(C) DOES NOT WARRANT OVERRULING IN RE POWERS ESTATE BECAUSE THE APPLICABLE STATEMENTS SHOULD BE TREATED AS DICTA
  • III. A VIOLATION OF MRPC 1.8(C) SHOULD BEAR ON THE VALIDITY OF
    THE GIFT. THE PROBATE SECTION PRESENTS THREE OPTIONS FOR
    HOW IT SHOULD DO SO

The three options are:

(1) apply the rebuttable presumption approach established by Kar v. Hogan, 399 Mich 529 (1976), treating the drafting lawyer the same as any other fiduciary, and defer the issue to the Legislature to change existing law; (Note: this is Papazian’s argument.)
(2) create and apply a modified version of the rebuttable presumption approach established in Kar v Hogan, such that the presumption can only be overcome if the drafting lawyer establishes by clear and convincing evidence that the gift was not procured because of undue influence, with this determination being a question of fact;
(3) rule that any substantial gift, including a testamentary gift, is void, as a matter of law, as against public policy pursuant to MCL 700.2705, 700.7404, and 700.7410, where the gift was made from a client to a drafting lawyer or the lawyer’s parent, child, sibling, or spouse, unless the lawyer is related to the client. (Note: this is Mardigian’s argument.)

Further:

“The Probate Section does not condone the actions of the drafting attorney in this case and believes that all attorneys should strictly comply with MRPC 1.8(c). Attorneys presented with this situation in the future should be cautioned to refer the client to an independent attorney to draft the requested instrument. Despite that simple premise, resolution of this issue is complex because of the competing principles involved. As discussed above in the Introduction, this issue necessitates balancing the rights of a decedent to bequeath property as he or she wants against  the danger involved in a drafting attorney using his or her unique position of confidence and trust to bring about a self-interested gift. The Section is very mindful of the public perception of the integrity of attorneys, particularly in the estate planning field where it is essential that clients have complete faith and trust in their attorneys. Otherwise, many individuals may forgo retaining attorneys for estate planning or may do no planning at all. The Section requests that the Court consider, discuss and apply these considerations in determining what rule of law should apply.”

It concludes:

“This case has the potential to impact many more attorneys and the public at large than just the parties to this appeal. The Probate Section respectfully requests that this Court determine that In re Powers Estate did not sufficiently address the issue, although overruling of that decision by virtue of MRPC 1.8(c) is neither necessary nor warranted. Instead, this Court should carefully weigh the competing interests and apply a rule of law to provide guidance to members of the State Bar and ensure that public confidence in estate planning attorneys is not adversely affected.”

Oral Argument

Oral argument was held on 12/07/17 (watch on YouTube).

Ruling

The Supreme Court is expected to issue its ruling during its 2017-18 session.

Further Reading

Appellants’ Mardigian, et al., Brief on Appeal

Appellee Mark Papazian’s Brief

Appellant’s Reply Brief

About the author

Curtis Cooper is principal of Lawyers Insurance Group, a legal malpractice insurance brokerage that aggressively comparison shops on attorneys’ behalf to find them the best terms available in the market. Contact him by phone: (202) 802-6415, or email: ccooper “at” lawyersinsurer.com.

To obtain the best possible terms on your firm’s malpractice insurance, complete our on-line application.

End notes

  1. Egan, Paul, “Family Fights Attorney Getting Millions From Client’s Will”, DETROIT FREE PRESS, April 10, 2015, http://www.freep.com/story/news/local/michigan/2015/04/10/attorney-receiving-millions-will-drafted-wealthy-client/25611217/

 

  1. Ibid.

 

  1. Ibid

 

  1. Ibid

 

  1. See MARK S. PAPAZIAN, Executor for the Estate of ROBERT DOUGLAS MARDIGIAN, Appellant, v MELISSA GOLDBERG, SUSAN V. LUCKEN, NANCY VARBEDIAN, EDWARD MARDIGIAN, GRANT MARDIGIAN, MATTHEW MARDIGIAN, and JP MORGAN CHASE BANK, NA, Appellees, No. 319023, Charlevoix Probate Court, LC No. 12-011738-DE;12-011765-TV

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20151008_c319023(137)_rptr_136o-319023-final.pdf

  1. Egan, Paul, “Court: Lawyer’s $14M Inheritance Unethical, Not Invalid”, DETROIT FREE PRESS, October 9, 2015, http://www.freep.com/story/news/local/michigan/2015/10/09/court-lawyers-14m-inheritance-unethical-not-invalid/73643866/

 

  1. See note 5 above.

 

  1. See note 5 above.

 

Filed Under: Legal Ethics Tagged With: ,

Client Trumps Kasowitz Benson Suit For Fees With Claim For Billing Fraud

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National Law Journal reported that Kasowitz Benson Torres, best known for name partner Marc Kasowitz’s representation of Donald Trump, has been sued by a corporate client for billing fraud, after the firm sued the client for over $1 million in unpaid fees.

Representation and Fee Suit

Patriot National, Inc., which is publicly-traded, and claims to be “one of the largest private employers in Broward County”, Florida, provides back-office functions to insurance companies. It hired the Kasowitz firm in 2016 to defend it against three federal court suits pertaining to stock sales. The firm also represented some of Patriot’s defendant directors in a shareholder derivative case in Delaware state court.

However, in February, 2017, Patriot informed Kasowitz Benson that it was going to hire different counsel, which would be approved by its insurance carrier, so that it could be reimbursed for attorney fees. The Kasowitz firm had never sought such approval.

The firm claims that it began working with new counsel, but also informed Patriot that it had placed a lien on the file for the federal court actions, because Patriot still owed it about $1 million for work it did in December 2016. Kasowitz Benson also stated that it had never agreed to condition payment for its services on an insurer’s reimbursement.

Patriot then paid that bill, and Kasowitz Benson waived its retaining lien and turned over its file, relying on Patriot to pay its remaining bills, which totaled $1.097 million.

However, Patriot didn’t pay, so Kasowitz Benson filed a collection lawsuit against it in May, 2017 for the $1.097 million.

The fee suit stated that its work for Patriot included opposing applications for temporary restraining orders and preliminary injunctions, conducting expedited discovery and reviewing tens of thousands of documents.

Malpractice Suit

Patriot countered by filing a suit against Kasowitz Benson on 6/30/17 in Broward County, Florida, alleging fraud, malpractice, breach of fiduciary duty, and breach of contract. It seeks “recoupment” of “approximately $2 million” that it paid the firm, plus expenses and damages.

The filing opens with a flourish, claiming that “Instead of receiving legal services commensurate with a law firm that represents the President of the United States, (Patriot) was subjected to fraudulent billings, malpractice and other egregious misconduct that has caused millions of dollars in damages.”

Patriot alleges that the firm’s invoices showed that that the amount of time the firm spent on tasks were unnecessary, duplicative, non-billable activities or “grossly excessive (and in some instances appear to be beyond what would be humanly possible).”
Among the examples it cites:

  • Kasowitz Benson spent “an inordinate and unreasonable amount of time researching basic hornbook legal principles” and drafting affirmative defenses that “were stricken in large part by the court…as being factually and legally deficient”, which prejudiced Patriot.
  • Kasowitz Benson billed 2.7 hours for an e-filing, which was a non-billable activity, five hours to “assist filing”, and an attorney charged more than 13 hours on one day for “cite-checking” and general help with filing”. (Note: per the engagement letter, hourly billing rates for attorneys ranged from $290 to $1,250.)
  • One biller brazenly claimed he billed 24 hours, i.e. every waking moment, to Patriot National on drafting tasks. Together, he and his like-minded Kasowitz colleagues billed Patriot National 154.4 hours for a single, non-trial, day.”
  • The firm billed more than 83 hours to assemble binders.
  • “One Kasowitz biller would routinely bill…for hours beyond that which is possible”, for example, “272.8 hours over a 17-day period (an average of 16 hours per day)”.

The suit claims that “given these fraudulent billing practices, it is no surprise that the law firm managed to bill its…client more than $3.4 million in attorneys’ fees and costs in less than a year.”

Patriot also alleges  that “by failing to become approved counsel for the inusrer providing coverage” to Patriot, “the law firm created a situation where replacement counsel was forced to redo substantial work, causing the client to incur significant—but entirely unnecessary—costs.”

Further, Patriot claims that when it “was required” to replace Kasowitz Benson with insurer-approved counsel to defend it in the securities suits (Cahill Gordon and Greenberg Traurig), the firm “improperly threatened to impose a lien on the files in an attempt to extract even more money from Patriot…despite the pendency of multiple cases in litigation with sensitive, court-imposed deadlines…”

Patriot accuses Kasowitz of “fraud, greed, extortion and other blatant misconduct”, which “represents everything that is wrong with the legal profession”.

Law Firm’s Response

Kasowitz Benson said in a statement:

“All of our billing was entirely appropriate, covering expedited motion practice and discovery in three cases in which we represented the company. Further, Patriot National never objected to any of our bills or work throughout our representation of it.”

It intends to fight the “frivolous” lawsuit:

Filed Under: Legal Ethics, Legal Malpractice Tagged With:

Lawyers Disbarred For Setting Up Adversary’s DUI Bust

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Lawyers Disbarred DUI SetupThree Tampa, FL attorneys have been permanently disbarred for enlisting a paralegal and a police officer to set up opposing counsel for a drunk-driving arrest during a prominent civil trial.

Background

In a feud between Todd “MJ” Schnitt and Bubba “The Love Sponge” Clem[1], “two of Tampa Bay’s most notorious radio shock jocks”, Charles Phillip Campbell represented Schnitt in a multi-million dol-lar defamation suit that alleged that Clem had broadcast disparaging remarks about Schnitt’s wife and children. Clem was represented by Stephen Diaco and Adam Filthaut of Adams & Diaco. The case was covered extensively by local media.

According to court filings, on November, 29, 2012, Filthaut contacted his friend, Sgt. Ray Fernandez, Commander of the Tampa Police Department’s Traffic Enforcement Unit, a/k/a/ The DUI Squad, and told him that Campbell “gets drunk all the time. He goes to Malio’s (Steakhouse) and drinks it up and then he drives home drunk.”

Fernandez assigned an officer to stake out Malio’s, but he didn’t see Campbell, and left after about 45 minutes.

On January 23, 2013, during the trial in Schnitt v. Clem, Adams & Diaco paralegal Mel-issa Personius went to Malio’s, and saw Campbell at the bar as she was leaving. She called attorney Robert Adams to let him know. Adams told his partner, Diaco, and then called Personius, who returned to Malio’s. Adams also told attorney Filthaut that Camp-bell was at Malio’s, and he in turn told Sgt. Fernandez, who sent a patrol car to wait outside of Malio’s for Cambell to drive away.

During the next few hours, from roughly 6:30 PM – 9:30 PM, Personius “openly and ob-viously flirted with Mr. Campbell, encouraged him to drink, and bought him drinks her-self.” She also exchanged nearly 50 text messages and phone calls with Adams, Diaco, and Filthaut, who in turn exchanged texts and phone calls. Further, Filthaut sent texts to Sgt. Fernandez, who texted the officer who was outside of Malio’s.

However, during the evening, Personius found out that Campbell had walked to Malio’s, and was going to walk home.

As they left Malio’s at around 9:30 PM, Campbell offered to call Personius a cab, be-cause he thought she was intoxicated, but Personius said she needed her car, which was in valet parking. Campbell walked her there, and after confirming with the attendant that she could leave her car overnight, urged her to do so. However, Personius insisted that her car had to be left in a secure public lot where she could easily access it. Camp-bell agreed to park it in a lot near his home, and call her a cab, but “almost immediately” after driving Personius’ car away from Malio’s, Fernandez pulled him over, and he was arrested and jailed for a possible DUI[2].

Campbell was released from jail at 6:30 the next morning, January 24th, several hours before testimony was due to resume in Schnitt v. Clem. He had left his trial bag in Per-sonius’ car, and thus called the firm that Personius had told him she worked for, Trenan Kemker. When that firm denied employing her, he went to court without it, and was granted a one-day recess by the judge. Diaco then addressed the media, complaining about Campbell’s behavior.

Later that day, Ellis, Campbell’s co-counsel in Schnitt v. Clem, called Diaco and said they had discovered that Personius worked for Adams & Diaco, and demanded that Campbell’s trial bag be returned immediately.

Ellis and Campbell also moved for a mistrial in Schnitt v. Clem, based on Diaco’s “in-flammatory” comments to the media about Campbell’s arrest, and his firm’s possession of Campbell’s trial bag after the arrest. However, the judge wanted to complete the trial, and once he was satisfied that none of the jurors had been prejudiced by the publicity surrounding Campbell’s arrest, didn’t rule on the Motion for Mistrial.

He did question Diaco about his involvement in Campbell’s arrest at a continuation hearing for the motion the next day, but Diaco, who had ignored a subpoena Ellis had served on him to appear at a hearing that morning, with his cell phone, variously refused to answer, claimed he didn’t know or remember, and denied any active participation. However, a few weeks later, Diaco filed an affidavit in which he stated that his only involvement in the events that led to Campbell’s arrest was “responding to requests for information made by the Tampa Police Department.”

The Judge froze discovery pertaining to the Motion for Mistrial in order to complete the trial, which prevented Campbell, Ellis, and their firm from obtaining phone records and other information from Diaco, Adams, and the others about their involvement in Camp-bell’s arrest.

Schnitt v. Clem was tried, and the jury returned a verdict in favor of Adams & Diaco’s client, Bubbba Clem. Campbell and Ellis then converted their motion for a mistrial into a motion for a new trial, and the judge lifted the stay on discovery.

A mediation was held, and the case was settled, “before an evidentiary hearing was held on the alleged misconduct of Defendant’s counsel.”

After the settlement, Schnitt fired Campbell and his firm, and the parties engaged in a fee dispute.

Sgt. Fernandez, who was unaware that Campbell was opposing counsel to Adams & Di-aco in the ongoing trial, was fired by the Tampa Police Department.

Campbell wasn’t prosecuted for DUI, and his arrest was later expunged.

Adams & Diaco attempted to “rebrand” itself as an insurance defense firm, under the leadership of its other partner, Joseph Diaco, Jr., brother of Stephen Diaco, however, he appears to be currently operating a solo personal injury law practice.

Bar Investigation and Trial

The Florida Bar investigated the incident, and filed separate Complaints against Adams, Filthaut, and Diaco, in June, 2014. The cases were later consolidated.

The attorneys filed a motion for partial summary judgment, but it was denied in May, 2015.

The case was then tried on a bifurcated basis in May (the guilt phase) and August (the sanctions phase), 2015, before Judge Baird, who was appointed as Referee.

At the start of the trial, Diaco volunteered to surrender his law license, if he could apply for reinstatement in five years, but his petition was denied by Florida’s Supreme Court.

He refused to testify at trial or in depositions, under the protections against self-incrim-ination.

Filthaut also refused to testify at trial or in depositions, under the protections against self-incrimination.

Adams refused to answer questions at a deposition under the same protections, but testified at trial.

Personius, the paralegal, answered investigators’ questions, but said she had no recol-lection of many of the events. She refused to testify at trial, under the protections a-
gainst self-incrimination.

However, Kristopher Personius, her ex-husband, who she was still living with on the night Campbell was arrested, testified that he had “recorded a video that night on his cell phone that included his wife’s admissions regarding the plan to set up and arrest Mr. Campbell”. It was turned over to the FBI, and not admitted at trial, but his testimony was deemed to be “credible.”

Attorney Lyann Goudie, who Adams & Diaco retained to represent Mr. Personius, also testified at trial, after her client waived attorney-client privilege.

Sgt. Fernandez refused to testify at trial, but answered questions at depositions taken by the Bar’s investigators.

Attorney Charles Phillip Campbell, Adams’, Diaco’s, and Filthaut’s target, testified ex-tensively, including narrating a video of Malio’s parking lot area that ran from 9:40 PM, shortly after he and Personius arrived there after leaving the restaurant, until 9:57 PM, when he drove out of the parking lot in her car.

Findings and Ruling

Among the Referee’s findings:

  • “Diaco, Adams, and Filthaut…conspired among themselves and with others to de-liberately and maliciously effect the arrest of Mr. Campbell, an opposing attorney.” Their “active participation” is “beyond dispute.”
  • Diaco’s affidavit stating that his involvement was limited to responding to requests for information made by the Tampa Police Department “is so far from the truth…that it amounts to a deliberate falsehood.”
  • “All of the participants in the conspiracy to arrest Mr. Campbell have destroyed or secreted the cell phones and/or the…evidence they contained…Adams, Ms. Per-sonius, and Fernandez all admitted erasure or destruction directly…Diaco and Fil-thaut refused to answer any questions about the destruction of their cell phone messages and are subject to the adverse inference that they too have deliberately destroyed them.”
  • The recorded Tampa Police text messages between patrol vehicles that evening showed that “Ms. Personius was providing Respondent Filthaus with regular up-dates. He passed (them) onto Sergeant Fernandez, who in turn communicated them to (his) officers…”. For example: At “9:28 PM, Ms. Personius” texted Diaco, who “immediately” called Filthaut, who “immediately” texted Fernandez. At “9:29 PM”, Fernandez texted one of his officers outside of Malio’s that Campbell was “leaving bar now”.
  • “No competent evidence (was presented) that would support any credible motive, except that Respondents sought to gain advantage in Schnitt v. Clem… Respond-ents intent was…a deliberate and malicious intent to place a heavy finger on the scale of justice for the sole benefit of Respondents and their client.”

The Referee recommended that Adams, Diaco, and Filthaut be found guilty of multiple violations of the Rules of Discipline of The Florida Bar, including “misconduct and minor misconduct”, “unlawfully (obstructing) another party’s access to evidence”, “(presenting)…criminal charges solely to gain advantage in a civil matter”, “conduct intended to dis-rupt a tribunal”, and “Violating or Promoting Violation of the Rules of Professional Con-duct; Engaging in conduct involving dishonesty, fraud or deceit…”

The Referee’s recommended discipline was that all three attorneys be permanently dis-barred, and reimburse the Florida Bar over $14,000 apiece in costs.

Appeal

All three attorneys appealed the Referee’s decision to the Florida Supreme Court. How-ever, Diaco dropped his appeal before the Court heard the matter, and was permanently disbarred in January, 2016. He was also ordered to reimburse the bar $14,178 for costs.

Adams and Filthaut’s lawyers didn’t contest the Referee’s factual findings. However, they argued that the punishment was disproportionate to the misdeeds, and both should be disbarred with a chance to regain their licenses.

The court acknowledged that it had a history of imposing permanent disbarment only in cases where “patterns of continuing egregious and unrepentant misconduct” show the attorney “is not amenable to rehabilitation and is beyond redemption.”

According to the Referee’s report, neither Adams nor Filthaut had a prior disciplinary record. However, the court ruled that “the misconduct in this case is unique and essen-tially unprecedented”, and “among the most shocking, unethical and unprofessional as has ever been brought before this court.”

It approved the Referee’s recommendations that Adams and Filthaut be permanently disbarred, and reimburse the Florida Bar over $14,000 apiece in costs.

Campbell’s attorney said “the opinion is simply blistering and condemns in no uncertain terms the despicable conduct of Diaco, Adams and Filthaut. Their legal careers are now officially over and deservedly so.”

Filthaut’s lawyer said he wasn’t surprised by the court’s decision. “It was a very difficult case from the very beginning.”

He added that his client was “very disappointed, but he has moved on and is actually very happy” in his current endeavor, operating an auto-glass business.

Notes

[1] Clem, Daico & Adams’ client, is the same Clem whose ex-wife was videotaped hav-ing sex with wrestler Hulk Hogan. Gawker posted the videotape on its website, which led Hogan to sue it and its parent, Gawker Media. A jury awarded him $140M, which result-ed in Gawker ceasing publication, and Gawker Media declaring bankruptcy. Broadcast-er Univision bought Gawker Media in a bankruptcy auction.

[2] In No Setup In Adams & Diaco DUI Case, the writer claims that “Campbell reportedly consumed five vodka on the rocks (which is a shot and a half of vodka in each drink be-cause there is no mixer added to the cocktail. This is shown as an upcharge on his re-ceipts for each vodka drink he consumed) and one shot on his own.”

Filed Under: Legal Ethics Tagged With: , , ,

What Do You Call 1,000 Dead Lawyers? A Chance to Teach Legal Ethics

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ethicsBrooklyn College professors James Lynch and Hershey Friedman decry a worldwide breakdown in ethics, citing financial scandals in the US, such as Enron and AIG, the contaminated milk scandal in China, etc., and “a race to the bottom (by) accounting firms, law firms, banks, Wall Street firms, schools, Congress, and corporations…all trying to prove that they can bend the rules and get away with it”.

They then wonder what has happened to the legal profession, which “is supposed to believe in pursuing the lofty ideals of integrity, equity, and justice?” They answer their own question: “The Bible may state (Deuteronomy 16:20): ‘Justice, and only justice shalt thou pursue’; the legal profession seems to believe that correct version of this quote should be, ‘Wealth, and only wealth shalt thou pursue.’” They blame the billable hour, “a flawed system that encourages lawyers to bill clients for time not worked. It also results in sloppy results because of fatigue and overwork.”

They want lawyers to act as “mediators, conciliators, and peacemakers—as counselors for what is right, not merely advocates for what is legally possible”.

To accomplish this, they recommend that law professors use lawyer jokes to teach legal ethics: “(lawyer) jokes…can be used to illustrate to students what happens when a profession has such a negative image…No one should want their profession to be synonymous with dishonesty”.

They conclude by stating that if their recommendation isn’t followed, then all lawyers should be executed.

Wait a minute. They absolutely did not state that. 

They did, however cite some lawyer jokes that express that sentiment:

What can you say about 1,500 lawyers buried up to their necks in cement?
Not enough cement.

How do you stop a lawyer from drowning?
Shoot him before he hits the water.

What do you do if you run over a Lawyer?
Back over him to make sure.

How do you get a lawyer out of a tree?
Cut the rope.

If a lawyer and an IRS agent were both drowning, and you could only save one of them, would you go to lunch or read the paper?

What is the ideal weight for a lawyer?
About three pounds, including the urn.

What’s the definition of “flagrant waste”?
A busload of lawyers going off the edge of a cliff with a vacant seat.

What do you call 5000 dead lawyers at the bottom of the ocean?
A good start!

 
About the author:
 Curtis Cooper is principal of Lawyers Insurance Group‘–‘Legal Malpractice Insurance Brokers, which procures comprehensive legal malpractice insurance at the lowest possible cost.

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Filed Under: Legal Ethics

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