Copy of Class Action Complaint Filed Against Holland & Knight
Plaintiff Contact:
Guy M. Burns
Johnson, Pope, Bokor, Ruppel, & Burns
P.O. Box 1100
Tampa FL 33601
813-225-2500
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The Bar's rules of professional conduct dealing with communications about lawyer services contain a section dealing with advertising prohibitions. Rule 4-7.2 (c) says that lawyers "shall not make or permit to be made a false misleading or deceptive communication about the lawyer or the lawyer's services" and that a communication violates the rule if it is deceptive or "contains a material misrepresentation of fact or law."
The rules, under "prohibited visual and verbal portrayals and illustrations," say that lawyers shall not include in their ads "any visual or verbal descriptions, depictions, illustrations or portrayals of persons, things or events that are deceptive, misleading, manipulative or likely to confuse the viewer."
"Holland & Knight is in the process of redesigning the firm's marketing materials," Alltop said in the statement. "The look and feel of our Web site will be compatible with the new marketing materials, which will not incorporate the use of models as a design element. When our existing Web site was redesigned in 2007, firm management decided to use models rather than our own lawyers so as not to divert our lawyers' time from serving our clients."
Well, that was ugly. In case you missed it, or you need a summary, here's what happened on a day (yesterday) that the ABA Journal called Black Thursday and Above The Law readers have decided should be named (a little early) the Valentine's Day Massacre:
This doesn't include announcements of other cost-saving measures, like more salary freezes and Luce Forward rescinding its offers to new graduates and cancelling its 2009 summer program. If there's one certainty you can take from this very unhappy day, is that this is just a sampling of what's to come. (This morning, Peter Zeughauser agreed: "There will be more. Materially more. I'm aware of some big ones coming up.") We're at the beginning of this process, not the end.
And what process is this? Well, as previously noted here, it's of course the marked decrease in client engagements; but it's also the fallout from the 2008 financials finally becoming clear and the dire need for firms to keep partnership revenue and marketplace confidence as steady as possible. But I'm also coming to think it's about something else: a serious, gut-check re-evaluation of the whole purpose of law firm associates. I count 297 lawyer firings in that list above; so far as I know, not one of them was a partner.
It's becoming more evident that we're not just looking at a normal recession with the usual coping tools (layoffs, salary freezes) from law firms. We're looking at an extreme recession (or worse) that happens to be occurring at a time of particular vulnerability for law firms and an unprecedented willingness or necessity to reconsider traditional approaches. With every brutal update, the good folks at Citi and Hildebrandt are speaking more plainly:
[T]he current economic downturn can be viewed as an opportunity to make some fundamental changes in the way law firms are structured and do their business – changes that are not only long overdue but that will also serve the profession well as it emerges from the current recession. …
Among the measures that Citi and Hildebrandt strongly urge is the abandonment of lockstep compensation for associates:
In the current economic climate, it is irrational to have half or more of a firm's highly compensated lawyers on largely seniority-based salaries…. Firms that have not already done so should seriously consider modifying their associate compensation structures to allow a substantial portion of compensation to be tied to individual performance in support of the firm's goals and strategy. Firms should also be willing to consider moving away from locked-step associate advancement (and compensation) toward competency-based models. The legal profession is one of the last industries still to cling to this outmoded seniority-based method.
This would not be an unprecedented measure, of course. But as sensible a move as this would be for many firms, events are overtaking it. Some firms are already in the uncomfortable position of having clients refuse to pay for work billed by first- or second-year associates, on the premise that these novice lawyers add inconsequential value to the task at hand and that the client is not going to pay the law firm's on-the-job training costs. A few others are facing up to the reality that Indian firms can and will complete associate-level tasks for dimes on the dollar, or that new software can streamline and automate the due diligence and document review process on which so many associate hours have been billed.
What we're looking at here is the real possibility that the law firm associate, in its current form, will not survive this crisis. As the number of associate billable hours clients are willing to pay declines, so too does the need to develop and maintain these vast grazing herds of associates within firms. Partners are going to have to start thinking seriously about what purpose associates serve when they no longer constitute the bottom two-thirds of the profitability pyramid. If you can't sell the billable hours they've been churning out, what do you do with them? What, exactly, is the law firm associate for?
The standard answer, of course, is that associates are future partners in training — that's what the recruitment brochures maintain. That might be more convincing if attrition — natural and otherwise — didn't slice off about three-quarters of all lawyers between first year and the partnership committee. It might be more convincing if more firms had a rational system for identifying, assessing and hiring associates, actively trained those associates from day one in the firm's financial and culture realities, and had a strategy setting forth how many future partners are expected to come up through their own ranks as opposed to through lateral hiring.
Since all of these things are true at very few firms, and none of them are true at many, we're left to conclude that as a general rule, associates are hired to be billing machines. If that machine stops working, then we have a serious problem.
Paul Lippe of Legal OnRamp noted in an American Lawyer piece:
[T]he recession will last through 2010. Law firms will use this period to substantially restructure, and beginning in 2011, things will start growing again. While there's a lot of detail and nuance around the form this restructuring will take, it can be described in simple terms. A typical law firm bill in January 2011 will generate the same dollars for partner work as it does today, but it will generate half the revenue for associate work.
Paul's article is titled in part: "The End of Leverage." "Leverage" in law firm terms means associates. It's not hard to see where this is taking us.
And in truth, not every law firm has been slow to figure this out. Calgary energy law boutique Thackray Burgess has 29 partners and 0 associates. The firm employs more than 20 "consultants," independent contractors who look like associates but are paid by the hour, work however many hours per year they feel like, pay the firm a fee to cover their overheads costs and a percentage of the hourly rate they charge their clients, and keep the rest themselves. I don't love the hourly billing aspects of this setup, but the idea of associates as independent contractors, retained for what the client requires and no more, makes perfect sense. Axiom Legal and Virtual Law Partners have also re-engineered the traditional associate position. I'm sure there are other examples, and more will come.
By the time this recession runs its course — and no one really knows when that will be — both client expectations about the manner in which rote legal work is done, as well as the technological and offshore solutions available to do that work, will be so different from today that there'll no be going back. The idea that a firm can employ dozens if not hundreds of inexperienced lawyers primarily to generate revenue on low-value work will eventually be seen as a relic of the 20th century. Firms will still hire and retain associates — new partners, even laterals, have to come from somewhere — but there'll be far fewer of them, they'll be selected, evaluated and trained far more systematically, and they'll be engaged, billed and compensated much differently than they are today.
We should make no mistake about how profound a change this will be, nor believe that its ramifications will be limited to big law firms. To a growing degree over the last decade or two, large multi-service law firms in urban locations have been completing the job of legal education that law schools and governing bodies have been haphazardly starting. We can complain all we want about overpriced, underskilled associates in firms; the fact is that these firms and their clients have been subsidizing the bar admissions process, providing the last three years of what amounts to a seven-year law degree. When modern marketplace economics finally puts an end to this practice, who will pay new lawyers with few skills and massive law school debts while introducing them to law practice? Who will be responsible for completing lawyers' education and training them? We're going to need answers to those questions, and fast.
Like I said, we're at the start of this process, not the end. The fundamental restructuring of the law firm business model that Citi and Hildebrandt are calling for is at hand, and the changes we're seeing now stand a very good chance of being permanent. There's a reason I used "fired" instead off "laid off" at the start of this post.
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In client surveys about their concerns about lawyers, excessive fees and dishonesty in billing practices are near the top of the list of client concerns. Empirical studies suggest that a majority of lawyers who bill by the hour engage in dishonest billing practices at least occasionally.
200 During the last decade, we have seen a fairly long list of high-powered lawyers go to prison and get disbarred for billing fraud.201 Even so, the American legal profession has as yet failed to insist that lawyers be truly candid with their clients about matters relating to the lawyers' hourly fees. Most lawyers who mislead clients about billing issues or who withhold information that clients might want to know do so to serve their own and their partners' financial self-interest. We need to draw clear lines that prohibit deception and that require disclosure.
Not only does the disciplinary process fail to provide remedies for most complaints, the remedies that it does provide are demonstrably inadequate. For example, in California fewer than two percent of complaints result in public sanctions.
70 Seldom does the system impose requirements like reimbursement that could benefit clients or impose significant penalties that might antagonize bar leaders, prosecutors, or other powerful officials.71 Only a handful of states authorize permanent disbarment, discipline of law firms, public disclosure of complaints, or sanctions against lawyers who fail to report ethical violations.72 All of these practices must change. If an informed and disinterested agency were designing the process, they undoubtedly would. The challenge lies in finding ways to nudge a self-interested profession in similar directions.The same point could be made about a host of other issues that should be the subject of professionalism initiatives. Many bar ethical standards are insufficiently demanding or overly self-protective. They do too little to prevent overrepresentation for clients who can afford it and underrepresentation of everyone else. Litigation and fee abuses are too frequently unremedied, and non-client interests are too seldom protected.
73 Obfuscation and obstruction are common features of trial practice,74 and money often matters more than merits.75 Yet despite the cottage industry of commentary identifying these problems, judicial, administrative and legislative officials encounter significant disincentives to address them. Judges depend on the bar for their reputation, advancement, and sometimes campaign support. Constraints of time and resources also work against adequate judicial review of lawyers' performance.76 So too, most elected officials see little to gain from challenging an interest group as powerful as the organized bar on issues of regulatory reform, especially since consumers have not mobilized around these concerns. The same is true of disciplinary agencies, which depend directly or indirectly on bar support.The firm finished 142 out of 175 firms in satisfaction nationwide behind such firms as Greenberg Traurig; Hunton & Williams; Edwards Angell Palmer & Dodge; Morgan, Lewis & Bockius; and White & Case.
The firm finished 73rd of 75 firms in New York, 21st of 22 firms in Chicago and 56th of 59 firms in the District of Columbia.
The bleak numbers were for a firm that takes pride in creating a friendlier working environment than most large law firms. On its Web site, Holland & Knight touts its commitment to pro bono work, diversity and a balanced work-life program.
"We were very disappointed where we ranked nationally," Jimenez said.
The good news came in Miami, where Holland & Knight finished first among six firms in associate satisfaction. Jimenez characterized that as "great news."
A Miami associate wrote on the magazine survey that Holland & Knight's Miami office was characterized by "friendliness and [a] pleasant working environment" and was "a great place to work." The American Lawyer is an ALM Media affiliate of the Daily Business Review.
Jimenez said that there are several factors that make the Miami office stand out.
"We are a dominant player," he said. "We are significant, yet our size allows for a lot of interaction between partners and associates, a lot of opportunity for quality work."
David Shahoulian, an associate in the firm's litigation department in Miami, agreed.
"It doesn't hurt that we have always been one of the busiest offices," he said. "We have a lot of clients. We bring in a lot of money."
Shahoulian said the culture of the Miami office also stands out.
"We seem to have a nice culture here in this office, and that same kind of culture is not in some of the other offices that seem to be dissatisfied," he said.
But associates elsewhere submitted scathing comments about their employer.
"Our office [Tampa] is a miserable place to work," an associate wrote. "There is no leadership, and those in charge are completely unresponsive to associate needs."
Another associate said, "Several partners in Chicago have made disparaging remarks [about] the balanced-life or part-time programs and make it difficult for women to have families."
A New York associate wrote that partners give "lots of lip service to diversity and flexible work schedules without real action to retain these talented lawyers."
An Orlando, Fla., associate said, "Historically, our firm was a large law firm that respected the individual, family and community. Over the past couple of years, our firm has begun to mirror other large firms in terms of profit motives."
Several associates also expressed dissatisfaction with the firm's handling of the situation involving partner Douglas A. Wright, who was promoted to chief operating partner in Tampa in 2005 but resigned that position weeks later after news reports surfaced that nine female lawyers had accused him of sexual harassment.
"He got a slap on the wrist and then got promoted. Brilliant," a Los Angeles associate observed.
In an age of expanding national and international firms, it's not unusual that associates in different places would have different levels of satisfaction, said Joseph E. Ankus, a legal recruiting consultant based in Weston, Fla.
"It's very difficult to stereotype what it's like to be at any particular firm," he said. "These firms, they turn into monoliths, and I think to some extent culture becomes individualized and regionalized to whichever office you tend to be in."
Holland & Knight took the results of the survey seriously, and firm leadership has tried to address some of the issues raised by the associates, Jimenez said.
Holland & Knight has tried to better focus its professional training and improve mentoring and communication in its offices since the survey was issued last August, he said.
"Both in Chicago and New York, the level of communication that's taking place is much greater," he said.
Jimenez said firm leaders also have tried to expand their travel to other offices.
He noted the survey was taken just before Holland & Knight decided to raise the salary of first-year associates to $125,000 in Miami and $145,000 in New York. The firm just finished its best year financially, Jimenez said.
The firm recently announced it was stretching its partnership track from seven to eight years -- a change Jimenez said was unrelated to the survey results.
An Orlando associate wrote in the survey that the firm needs "better communication on how to make partner and once achieved how to make equity partner."
The firm currently has 669 partners, 372 associates and 95 senior counsel.
Most major firms aim to have "less partners and more associates" than Holland & Knight because associates "are getting paid their compensation, and everything else that they return above their cost is profit that gets distributed to the shareholders," Ankus said.
By comparison, Miami powerhouse Greenberg Traurig had 738 partners and 705 associates, New York-based Weil, Gotshal & Manges had 304 partners and 829 associates, and New York-based White & Case had 396 partners and 1,277 associates last September, according to The National Law Journal, another ALM Media publication.
The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court. Source
The Florida Bar v. John L. Scott
The next case for the oral argument this morning is the Florida Bar versus scott. It is my understanding that we have two cases which are consolidated here, and that you all have worked out the manner in which you are going to proceed. Is the florida bar going to proceed first?
Yes, your honor.
Okay. You may proceed.
May i be seated, your honor?
Yes, please.
May it please the court. Good morning, my name is edward iturralde. I am here before this court to ask that the referee's findings of fact be accepted but not his recommended 18-month suspension with reference to mr. Scott's misconduct. Mr. Scott, number one, engaged in sexual misconduct with his client, gloria lee. The record reveals that, on october 22, ms. Lee went to his office to discuss hrs termination of rights proceedings against her son. She went in the morning, with her husband and was asked to return in the afternoon. When she returned in the afternoon with $1,000 that she had borrowed from her mother-in-law, mr. Scott asked the husband to step outside. When the husband stepped outside he asked ms. Lee, how bad do you want to win this case? She said i will do anything f i have to pay $20, $25 for the rest of my life, i will do it. He unzipped his pants, approached her, had he erection, was fondling himself. Grabbed her head, pushed it forward, and got semen on her face and blouse. She left, distraught, after wiping herself, was made to return by her husband, to get a receipt for $1,000 that had been paid. The husband knew something was wrong. She was obviously very upset. She wouldn't tell him why. The young child was in the backseat of the car. Later on that night, she told the husband and he was very upset and they decided to go see the mother, who had given them the money. They eventually went to see another attorney and ended up in law enforcement. Law enforcement, with their consent, asked if they could put a microphone on her and asked if she would go back to mr. Scott's office and she did. On october 28, she went, these conversations were recorded and they were later france kribd. -- transcribed. Here, and i apologize to the court, but i am quoting from the record, amongst other conversations, mr. Scott said "do you want to success my congress", and he implied that doing so might make him work harder. He waxes and wanes, maybe it will help me work harder on your case and said you still have to pay me but i am already giving you a discount. During this october 20 conversation, she said i can't do it. My father repeatedly raped me, and i can't do it. I don't even do it to my husband. I can't do it.
Let me ask you this. I think we know the facts. Why do you think the referee recommended 18 months, instead of disbarment in this case? It is pretty grievous case, as you are making the point. Why do you think there was this particular recommendation?
Yes, your honor. Obviously i could never know. My suspicion is perhaps the mitigating factor he found, of mr. Scott's alcoholism. He did cite several cases that reflect a discipline proportionate to what he imposed here, in somaha, but the facts in somaha, there was mere touching and photographing of seminude. It wasn't personal parts. It wasn't downright sexual, although there were overtones or undertones of sexual content, and in somaha, he did impose a one-year suspension. He had some other cases with life suspensions.
Hasn't the referee, in the past, treated alcohol as a sickness and as mitigating factor in discipline before? Isn't this what the referee was doing in this case, you gather?
Yes yes, sir. I think that is correct, and i think this court has found alcoholism to be a mitigating factor as well. However, while this court has said it is a mitigator, it is not an excuse t doesn't give you free license. It doesn't mean you are beyond discipline. Had this person in the past, although they have demonstrated the mitigating circumstance of alcohol.
What was the disciplinary history of this person?
He had one minor misconduct in 1992. It was a bankruptcy case, and, in which he had not communicated with his client and did not proceed diligently in that matter, and, when asked by the grievance committee to provide certain documents to substantiate the fee that he had earned, he was unable to provide those documents. He stated that it was due to his secretarial staff and he received a minor misconduct with admonishment.
What in this case, if any, of any previous relationship relationship between this lawyer and this client, personal or professional?
There was evidence -- right. She had visited mr. Scott previously, in regard to her other child. Her other, older -- i believe it was the older child, and i could be mistaken, but her other child had significant psychological problems, and she didn't know what to do. He had attempted suicide. He had run away from home. He was shop lasting. -- shoplifting, and she went to see mr. Scott for a $25 consultation. What do you think i should do with my son, and after a conversation, i believe they reached an agreement that, if you can't handle him and he has all these major psychological problems, maybe you should give him duress, and they had the resources to do. That she testified that she thought mr. Scott was her attorney and he made it very clear that it was a one-time $25 representation fee and the representation was over. There was, also, evidence that ms. Lee came back to him. That was sometime after october 1, because it was regard to an automobile accident case and a police report for an automobile accident case, which was introduced into evidence, dated october 1, so she went back to see him about this automobile accident case. He testified that he did not retain her, that he thought it was a sham. She testified that he told her to go get a neck brace and to get estimates and so forth, and she thought, she received the contract. She signed the contract. There was no evidence that mr. Scott had ever signed the contract, and the representation was terminated officially on november 11, when mr. Scott delivered a letter to her, indicating that he was returning her records and wasn't able to proceed with the case. According to mr. Scott, he terminated the -- never initiated an attorney-client relationship. There is, also, testimony by mr. Scott, which was not discussed by the referee and apparently did not believe mr. Scott, that at some point in time between the $25 consultation case and the automobile accident case, that on a date, on a thursday when his office was closed, and the lights were off, that she came and knocked on the window of his office. That he went up to see her, and his words, she offered and i accepted, meaning that they engaged in sex, because she was so appreciative of the advice that he had given her in regard to her son. There was no corroborating evidence to that, other than mr. Scott's testimony. In fact, the time line would seem to indicate that there was very little time for that to have happened. The child was signed over to hrs on september 30, 1997, and that document is in the record.
Excuse me. Go ahead.
Very briefly, you haven't mentioned the contempt of court issue?
No, sir, i have not. Not yet.
And how did that play into this?
Well, of the three things, generally, he has been accused of, the sexual misconduct, the lying about the sexual misconduct and the contempt of court, obviously the contempt of court is the lessee egregious, but i think mounting evidence is building a pyramid upon which this court could, should do nothing else than disbar mr. Scott. I discussed the facts. If you would like me to. I wasn't sure what the question was.
You are in your rebuttal. Thank you, counsel. Mr. Scott.
My turn?
I appreciate you all letting me come here today and this is the first time i have ever appeared before you all. I don't know really know what i am saying or doing, so if i say or do something wrong, please correct me. I was first denied an oral argument. I filed a motion for rehearing, and for some strange reason it was granted, and i appreciate it because i came here to tell the truth. There are two parts to this case. Now, i think i am supposed to look at this clock, right?
Right.
The --
The yellow light will come on and as i understand understand the way we are proceeding, the florida bar is then going to argue --
Ten minutes and then reserve fi. Yes, sir. Thank you. -- five. Yes, sir, thank you. This woman came to me in august. She had been presented a proposal by the department of family and children, to terminate her oldest son's parental rights for her oldest son. Apparently he had psychological problems. We talked about it. I, at that time, had a basic $25 consultation fee. Okay. We discussed it. She decided that she could not take care of the child, and she left, and i explained to her profusely that it was the end of my representation with her. Now, at that time in my life, my secretary at that time, i did a lot of title work, a lot of real estate work respect and on thursday afternoons and some days all day thursday, she would be gone to the court houses, doing title work, but i would go down there and work on the books and everything, so sometime between this august date and approximately august, october 1, this woman knocked on my door. The lights in my office were off. My office was closed. I own my office outright. Okay. When it is closed and the lights were off and the door is locked, it is nobody's business what happens in there but mine, because i own it. Not the florida bar. Not the supreme court. Anyway, this lady knocked on the door. I went to the door, because a lot of my friend there, in town, happened to know that sometimes i am there doing my books or something there, even though the lights are off. This woman came in, and as ms. -- as mr. Ity you are alleged' very gently said -- mr. Iturralde so gently put it, i accepted. I am ashamed of it, because my mother had just died. I had had a stroke and a serious blood clot a couple of years before, and had not, to be honest with you -- i don't know how to put this gently -- had not been with a lady for a while. This woman offered and i accepted, but i was not -- i did not represent her at that time. Okay. Then she came back, about october 1 or a little bit after that. She had had an automobile wreck. An uninsured motorcyclist had bumped into the back of her bumper. She came into my office with a neck brace on. She had somehow talked a doctor into getting one. She took it off and laughed and said, here, we will make some money on this. And i said, you know, i don't do that. I don't handle fraud cases. I said are you hurt? She said, well, i don't know. I don't think so. And i said, well, i don't want to have anything to do with the case. I did do her a courtesy of giving her some medical release forms. I said what you need to do is, you need to go see a doctor, really, and you probably have uninsured motorist coverage. --
Let me get this straight. Up until this point, was she ever a client? Did you ever consider her a client?
No, sir. My secretary, who had worked for me for six years at that time, when she first came in the office, she had called her in advance, in this first part of october, okay, and she had called her and told her what it was about. It was about a automobile case, and my secretary had worked for me for so long -- yes, sir.
In any of your dealings that you ever had with her, did you ever consider her a client?
No, sir. I considered her a client in the last part of august, when i discussed, with her, the termination of her parental rights with her oldest child, and then i considered her a client on the afternoon of october 22. She and her husband, which i didn't find out until then that she was married, but she and her husband came in to see me, on the morning of october 22, and i told them that i would represent them, because the department of family and children were attempting to terminate the parental rights on the second child. But that i would need $1,000 fee. They came back on the afternoon of october 22. There were five people who were there in my office.
Is this the period when it is represented that you toll the husband he would -- you told the husband that he would have to live and she would stay in?
No, sir. There were five people. Four of them testified at the trial, including my secretary at the time. One of them by affidavit at the grievance committee. He was sick in indiana and couldn't appear personally. There were five people in my office at that time, and they all testified, my secretary being the main one, robinted well, that she never -- robin tidwell, that she never left the front of my desk. Bran forward is a town of 4,000 people. I am a country lawyer. I have a little tiny office, and my secretary testified, plus four other people in my office testified, either personally by affidavit or at the trial, that this woman, on the afternoon when she made the complaint and she said this happened, and she testified in her complaint and said this happened in the afternoon of october 22 that i sexually abused her, and my secretary and these other people said that this couldn't have happened, because my secretary and two of these two people were sitting in the front part of my office, and the other two people were sitting in my personal office.
But are you challenging the findings of fact by the referee at this point? Is that what you are challenging?
Yes, sir, and i know, as we say in the country, i am up against it, but i brought a 40-page brief here, and i can't go through that in 15 minutes. But i am asking you all, imploring you all to read it. This is the worst -- this woman is, was an admitted schizophrenic, who did not take her medicine, who refused to take her author a sin, because she -- her thorazine, because she didn't like the way it felt.
Let me put it this way. If we accept the findings of fact of the referee, why is the discipline in this case, why should it not be a more serious --
If you accept the findings of the referee, by god you ought to disbar me, because this referee came out and said, basically, that i had sexually abused this woman and done all these things and lied and done all this stuff. No. This is a case about facts. And like i say, as we say in the country, i know i am up against, because i don't think you all want to really consider facts. I know that that is not really what you all do. You really want to consider law, and i don't have a whole lot of law here, but i have got 40 pages of facts. I have got two police officers and the states attorney that admitted --
Mr. Scott, please. What about the tape?
The tapes? I will be honest with you, sir. Judge wells, i was a drunk then.
I would expect you to be.
I was a drunk then. On december 13, 18999, i -- december 13, 1999, i quit drinking and hadn't had a drink sense. I was drunk then. I had had a previous nonrepresentational sexual relationship with this woman. Two police officers that sent her to my office, tape-recorded, to get me to talk about sex. And she started it, and i did it and i said some filthy things, and some ugly things that i am ashamed of. Not because of you, but like i said a minute ago, because my mother taught me better, and i did wrong on december 13 or a couple of days before that. I looked at myself in the mirror and i said i don't like what i see, and i checked into a rehab center, and i haven't had a drink since. I go to the gym everyday. And i have rehabilitated myself. The bar didn't ask me to do that. The bar didn't help me to do that.
But you were representing her though, during the, in october of 1997, when the tape-recorded conversation --
When the tape-recorded -- yes, ma'am, when the dirty conversations -- i guess.
Is that -- how, in terms of those comments or remarks, are you saying, now, well, i did that, but i asked to be accused, because i was an alcoholic during that time?
I was drunk and i was alcoholic. I was sick, justice pariente. Yes, ma'am. I was a sick man. Alcoholism is a dreadful disease. Okay. I guess i will always be an alcoholic. We learn in aa that you, i guess you probably are always alcoholic. If i went out now and bought a bottle of liquor, it could be that i could again be drunk by tomorrow.
You are in your rebuttal on the cross-respondent's case.
Okay. I finished with my time?
Yes, sir.
Okay. Thank you.
Now, this is going to be your rebuttal and your statement on the other case, is that the way we are proceeding here?
I just thought it was going going to be rebuttal, and i will answer whatever questions the court has for me.
On my, on the sheet that i have, mr. Scott would have some additional rebuttal. Is that the way you are proceeding here?
Yes. That's correct. I filed, first, and then mr. Scott filed petition for review, so we are cross appealing each other. He does get the last word. He has the last five minutes.
Okay.
Mr. Scott just indicated that he voluntarily entered rehab and is going to aa and trying to take care of his problems with alcohol, and to what extent should we take that into consideration, when we are looking at the discipline, if there is to be discipline in this particular case?
I think you should look at it and i think the referee did look at it. But i think, at a certain point there is a line in the sand, where we say that is disbarment activity, and if you have just stepped over the sand, that line in the sand, you can weigh the mitigating factorors and say, well, alcoholism can bring you back, but when you have the sexual misconduct in this case, you double that over with the line about it in this case, and you add a little bit extra for the contempt in this case, the alcohol mitigation just doesn't fit the scales of justice back into line. You have 100 pounds on this side and maybe ten pounds of mitigation, and it just doesn't balance out, and that would be the bar's position. I understand that it is a mitigating factor. I accept that it is a mitigating factor. I agree that it is a mitigating factor, but it has to --
There, in the mitigating factor, and mr. Scott said whatever relationship he had with this lady started when she was not his client, and is that mitigation in this instance?
I do not believe so. I believe that is a fabrication on mr. Scott's part, and i believe that the judge found that to be a fabrication on mr. Scott's part. You find that the referee does not mention that testimony at all. He completely discounted it.
In terms of punishment, we have these acts occurring in 1997.
Yes, ma'am.
We are now in 2001.
Yes, ma'am.
And as far as the bar seeking the ultimate sanction of disbarment, meaning basically that we don't see that it is possible for mr. Scott to be rehabilitated, what is the bar's position that, once finding this out, instead of trying to seek a suspension, i mean, he was apparently practicing for over a three-year period, without any further incident, and the fact that he is now getting active treatment or had gotten treatment, again, sort of supporting this concept that the bar is seeking disbarment for an act that occurred years before. How do you respond to that problem?
With all due respect, your honor --
What i see as a problem. Maybe you don't see it as a problem.
No, your honor. It is a problem, but with all due respect, it is not just 1997. The sexual misconduct certainly was in 1997, but then in 1999, he lied about it to the grievance committee. In 2000 he lied about it to the referee, and in 2000 he got the contempt, so there is ongoing misconduct that is not just an isolated incident back in 1997.
But we have got to accept, for the purpose of our review of this competent, substantial evidence, that i guess ms. Lee testified one way and mr. Scott testified the other. He is telling us, again, as an officer of the court, that this didn't happen the way the referee found t the fact that someone says it didn't happen that way, how do we make the misconduct worse, because he doesn't admit to something that he says didn't occur?
Because it is not just a he said/she said. We have the tapes. We have the billing statement prepared by mr. Scott in response to the state attorney's office, which is exhibit 18 in the record, and in that billing statement, he puts in no charge for the initial consultation, which occurred in the morning of october 22, and he puts in, i forgot the amount of time, about a half-hour, i believe had, in the afternoon portion of it. If it occurred the way he stated why would he not bill her in the morning but bill her a half-hour in the afternoon, when it was such a short conversation that occurred in the vest buell of his office? He prepared that document, himself, on november 5, 1997, just a few days after the, these alleged incidents. He prepared it in response to the state attorneys office, where he was being, in the process of being prosecuted for a serious offense, which could affect not only his license but his reputation in the small community, and you know, there is, also, physical evidence, the receipts, which is exhibit 34 in the record. Those receipts show that the shores, the alibi witnesses, paid $1,000 to mr. Scott before the lease paid. These alibi witnesses, it is my impression and contention, left before the lees. The lees testified that, when they got there, they did see people waiting in the office, and they knew that mr. Scott had clients in the back. They went, with their kid, to get ice cream, and then they returned. That is why these alibi witnesses didn't see the lees. I understand that he has got a dispute with the evidence and the facts, but it is not just a he said/she said. There are physical evidence that dispute what he is saying.
So the state attorney prosecuted this immediately, in 1997?
Yes, ma'am.
The bar waited two more years to do something about it?
I don't remember exactly why that had not been prosecuted. I came into the florida bar in 1998 and inherited this case and we it took it to the grievance committee.
Do you agree that this is the worst of the worst situation? Again, in terms of public trust and confidence, for the bar to let something like this go, if they feel it was as egregious as now presenting, concerns me, but you are now bringing up that this second incident, the jacksonville incident, which you say wouldn't rise to the level of disbarment alone, could you just give us, did that occur after he was in treatment for alcoholism?
No, ma'am. That did not -- that occurred in i believe, 1999. He was scheduled for a trial on monday. He had picked the jury with judge kenon and the state attorney. He was told, along with the jury and the witnesses to return on wednesday, to perform the trial. On tuesday, he called his secretary and asked her to call -- i see that my time is up. May i finish this response?
You may complete your statement.
He told the secretary to call the office, and inform them that he was having a heart attack. He did not go, however, to seek immediate attention. He went to jacksonville for a settlement conference, and then did not seek any medical attention until the following day. Mr. Chief justice: thank you.
Thank you. Thank you, your honors.
Do i have five minutes more?
. Mr. Chief justice: i believe you have got about four minutes more. Four minutes.
Three? Okay. Okay. I am tired of being called a liar. I have got a motto -- mr. Chief justice: mr. Scott, have you joined the florida bar program for alcoholism?
Yes, sir. I quit drinking --
Have you entered into a contract?
I voluntarily entered into a contract with fla in february.
February of what year?
2000. I quit drinking on december 13. I got out of the hospital, the rehab, vista rehab, on december 17. I had an aa sponsor the next sunday. I got out on friday. I had a sponsor that sunday. I started going to aa meetings twice a week, and then i found out about fla, and i joined them in either january the next month or february, the first of february. I can't remember the exact date. And i have called, every single day, to the number, and taken -- sorry -- an urine test, when required, and apparently done okay. I haven't had any complaints. Ill like to make a couple of -- i would like to make a couple of comments, if i could. I drafted -- the states attorney and the fdle agent, and the head of the detective department for the sheriffs department, investigated my case completely. They talked to every woman that i have ever known, probably, in the last 20 years. The best they could come up with was solicitation of prostitution is what i was charged with, and miss johnson admitted, under oath, it is in the trial record, and the fdle agent, mr. Daniel more or less admitted they had a really weak case. I am the one that drafted the pretrial intervention agreement. I am the one that put that part in there about that i would be required to go to a psychiatrist and i hired the most imminent forensic psychologist, dr. Cr
819 F.2d 1002
56 USLW 2013
Jean Ann CONE, as Personal Representative of the Estate of Evelyn M. Glaeser, deceased, and as representative
of a class of all persons similarly situated, Plaintiff-Appellant,
v.
The STATE BAR OF FLORIDA, the Florida Bar Foundation, Inc., and Holland & Knight, Defendants-Appellees.
No. 85-3993. United States Court of Appeals, Eleventh Circuit.
Ms. Glaeser, claiming to represent all persons similarly situated, sued Holland & Knight, the Florida Bar, and the Florida Bar Foundation, to recoup this interest. She claimed that the appropriation of the interest earned on her money constituted an uncompensated taking of private property in violation of the Fifth Amendment (as applied to the states via the Fourteenth Amendment), and deprivation of her property without due process, as well as a breach of fiduciary duty under state law. Her1 argument was simple: any interest earned on her portion of the Holland & Knight IOTA account belonged to her.
IN THE SUPREME COURT OF FLORIDA
CASE NUMBER SCO5-1150
IN RE: PETITION TO AMEND
RULE 4-1.5(0(4)(B) OF THE
RULES OF PROFESSIONAL CONDUCT
/
RESPONSE TO PETITION BY EDWARD H. ZEBERSKY, ESQ.
This is a Response to the Petition filed by former Justice Grimes
seeking to amend the Florida Rules of Professional Conduct Rule
1.15(f)(4)(B). It is with great concern, as will be further discussed, that I
write this Response.
I have had an opportunity to review the petition along with the names
of all the lawyers that have signed the document. What strikes me right off is
that the petition is being filed by a paid lawyer (Former Justice Grimes) and
law firm (Holland & Knight) for the Florida Medical Association (FMA) as
well as other counsel that are directly employed by the FMA. What is even
more troubling is that a majority of the signatures on the Petition are from
either other members of the Holland & Knight firm or from paid lobbyists,
lawyers and consultants for the FMA or their allies. In short, after scratching
the surface of this Petition, it is clear that the document is
nothing more than an attempt by the FMA, through their paid lawyers and
allies, to eliminate any real responsibility for acts of medical malpractice. I
submit that this attempt creates a conflict of interest.
HISTORY BEHIND AMENDMENT 3
To more fully illustrate this point a brief history behind Amendment 3
is necessary. In, 2003, the FMA and its main insurance carrier FPIC launched
an all out assault in the Florida Legislature to effectuate caps on noneconomic
damages in medical malpractice cases. Some of the lawyers listed
on the Petition were either paid lobbyists or volunteers for the position taken
by the FMA during the 2003 sessions.
After the regular session and several special sessions, a cap on noneconomic
damages was eventually passed and signed into law by Governor
Bush. The cap was larger than what was advocated by the FMA and there was
a huge grumbling amongst the doctors that they should go on the ballot in
2004 to effectuate a hard cap on non-economic damages. The doctors
eventually decided that instead of going forward with a non-economic damage
cap, it would attempt to cap the amount of attorney's fees that could be paid in
a medical malpractice action.
The reason for this change is simple; in 1986 and 1988 the doctors had
tried a cap on non-economic damages and lost. As such, rather than
2
fighting an uphill battle with the public by directly capping damages, they
would go forward with a simple notion to cap attorney's fees. By capping fees
the hope was that it would become financially infeasible for a qualified
malpractice lawyer to accept a complex malpractice case on a contingency fee
basis.
The slogan for the Amendment 3 Campaign was "enough is enough"
and their campaign was nothing more that an attempt to smear the legal
profession and especially trial lawyers. Clearly this worked as Amendment 3
passed by almost a 2/3 majority. However, the goal of the campaign was not
to put more money in the client's pocket, but to make it near impossible for a
lawyer to accept a medical malpractice case on a contingency basis. This way
the doctors would achieve their main goal; limit the ability for a person to
seek redress for medical malpractice.
Former Justice Grimes was hired by the FMA as its lawyer throughout
the Amendment 3 process. Indeed, he appeared as counsel of record before
this court with respect to the constitutionality of the amendment language.
Similarly, he was hired as counsel to oppose the constitutionality of two
amendments (Amendments 7 and 8) which effected doctors.
Based on the history of Amendment 3 and the forces behind the
amendment, I submit that this Court should look at the Petition as little more
3
than a thinly veiled attempt to effectuate the purpose behind the FMA's main
goal; eliminate any meaningful access to courts to redress medical malpractice
injuries.
PUBLIC POLICY CONSIDERATIONS
The Florida Bar has an independence that is not shared by many
professions in the State of Florida. The Bar polices its own for violations and
creates its own rules for professional conduct. There is little
dispute that this
type of governance has worked very well for a very long time. This Petition,
which is being pushed by people that have a conflict of interest based on their
or their firm's involvement with Amendment 3, strikes at the very heart of the
independence that the Bar has enjoyed over decades. If this petition is
granted, the FMA will have succeeded in influencing Bar governance and will
surely open the floodgate to future attempts by interested lawyers to
undermine the independence of the bar.
Another policy concern is whether this Court wants to restrict a
persons' ability to waive their constitutional right to contract with
a lawyer of
their choosing. Constitutional rights are waived every day. Miranda warnings
waive certain constitutional rights. The Right to Access to Courts is waived
everyday when arbitration agreements are executed. In fact, outside of life and
death circumstances it is difficult to find a constitutional
4
right that cannot be waived voluntarily. Based on the goals of the FMA, which
is to eliminate medical malpractice lawsuits, it should come as no surprise
that the FMA's lawyers are asking this court to eliminate a persons' right, not
only to contract, but to waive their constitutional right.
CONCLUSION
This Petition process is fraught with conflict of interest. Moreover, it is
little more than an attempt by the FMA to interject itself into Bar governance
to effectuate what it could not in the legislature or through the Amendment
process; eliminate medical malpractice lawsuits. This Court should not
entertain this request which will serve to limit and not enhance the rights of
Florida's citizens and for those reasons and the reasons asserted by numerous
other lawyers the Court should deny the petition.
Respectfully submitted,
EDWARD H. ZEBERSKY, ESQ
Zebersky & Payne, LLP
4000 Hollywood Blvd
Hollywood, FL 33021
Telephone: ~2) 989 .333
Facs' ile: (9 4 /• 89 781
EDWA H. ZEBERSKY, ESQ.
Florida Ba No. 908370
Bv:
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has
been furnished via U.S. regular mail this 23rd day of September, 2005 to: John
Harkness, General Counsel, The Florida Bar, 651 E. Jefferson Street,
Tallahassee, FL 32399-2300 and Stephen H. Grimes, Counsel for Petitioners,
Holland and Knight, LLP, P.O. Box 810, Tallahassee, FL 32302-0810.
EDWARD H. ZEBERSKY, ESQ
Zebersky & Payne, LLP
4000 Hollywood Blvd
Hollywood, FL 33021
Telephone: (95 4) 989-6333
Facsimile: (9 89-771
EDWA ~.b H. Z B ' SKY, ESQ Bar
No. ' i 8370
By:
6
The District of Columbia Bar Counsel is seeking the disbarment of a former partner at Holland & Knight for allegedly forging signatures on an agreement for an easement.
Theodore Silva Jr. is accused of lying to the law firm and a client about the status of the agreement, then forging signatures and presenting the agreement to the client, Legal Times reports. The firm fired Silva in 2006 after the incident and reported him to the bar counsel, the story says.
Silva testified before a hearing committee that he didn't consider himself to be honest and trustworthy, according to the story. "I think that I can get over on everybody and that I can manipulate people, and that is what led me to this, is that I can pull this out of the hat and I did it a thousand times," he testified.
Silva's lawyer, Timothy Battle, is claiming his client's misconduct was caused by alcohol and cocaine addiction, depression and attention deficit hyperactivity disorder. Battle described the incident in a brief as a "single example of stupid conduct in an otherwise impressive and productive 18-year career."
Silva has also received a Jan. 31 reprimand (PDF) from the Virginia State Bar Disciplinary Board for failing to report a guilty plea to cocaine possession. The plea was vacated after Silva complied with court-imposed conditions. He is currently in a drug treatment program, Battle told the publication.
A Johns Hopkins Hospital neurosurgery professor alleges he is out $20 million because the company hired to pay the annual maintenance fee for a Japanese patent of a pain-relieving drug failed to do so.
Dr. James N. Campbell is suing the Channel Island branch of Computer Patent Annuities, which specializes in managing intellectual property rights for its clients, in Baltimore City Circuit Court. The suit also names the law firm of Holland & Knight, which employed the lawyer who hired Computer Patent.
Attorney Steven E. Tiller, who is representing Campbell and his company ARC 1 Inc., estimated that the renewal fee was less than $1,000.
The complaint further alleges that the law firm continued to bill Campbell for maintaining the patent, even after it had been terminated.
Computer Patent spokeswoman Charlotte Presse said yesterday that she was not aware of the lawsuit, while Christina Calhoun, a spokeswoman for Holland & Knight, said she has not had a chance to look over the pleadings.
The complaint refers to the medication invented by Campbell as Clonidine. Tiller said the drug is used to treat neuropathic pain, which is caused by nerve tissue damage.
It is being used in the U.S. and has been very successful [without] the debilitating side effects that sometimes occur in patients with the more traditional treatments, said Tiller.
The complaint explains that Clonidine is unique, because it is applied topically, or to the surface of the skin, thus affecting only the targeted area.
According to the complaint, the medicine can potentially benefit millions of diabetics and cancer patients.
Discovering the drug involved years if not decades of experience on his part, said Tiller in reference to Campbell, who graduated from Yale University School of Medicine in 1973.
A Georgia lawyer obtained patents for Clonidine in the United States, Australia, Canada, Europe and Japan, the complaint alleges.
The Japanese patent, issued in 1998, was valid until 2011, contingent upon the payment of annual maintenance fees, the pleadings state.
Campbell's patent counsel, according to the complaint, hired Computer Patent Annuities to take care of the renewal fees and then joined Holland & Knight in 2001.
In May 2002, Curatek Pharmaceuticals, which acquired an exclusive license to the patents, directed the law firm to pay the Japanese maintenance fee, the complaint alleges.
Holland & Knight instructed Computer Patent to do just that, the lawsuit alleges, but the company failed to do so.
But, when Computer Patent sent a letter to the law firm in June 2002, noting that a payment for the patent was overdue, Holland & Knight responded that the fee was paid and asked the agent to note that in its records, the complaint alleges.
The lawsuit faults Computer Patent for not independently verifying the law firm's claim. Holland & Knight, in turn, is accused of not properly supervising the company it hired to maintain the patent.
Upon information and belief, Holland & Knight was aware of similar incidents, prior to this one, in which [Computer Patent] failed to pay maintenance fees on a patent, the complaint alleges, adding that the law firm did not have an adequate internal tracking system in place to ensure that maintenance fees were in fact timely paid.
Indeed, neither the law firm nor Computer Patent discovered the error within the one-year period Japanese law provides for reviving a patent, the plaintiffs allege.
Campbell, in fact, was billed for the renewal of the patent after it was already abandoned and terminated in 2003 and 2004, the complaint says.
Japan is considered the second-largest pharmaceuticals market behind the United States, Tiller commented.
I don't know what, if any, use the drug has in Japan as of yet, he said.
Curatek no longer holds any rights to Clonidine and the lawsuit states that Campbell is currently negotiating with potential licensees.
The abandonment of the [patent] has dramatically reduced the potential value of this patent portfolio, the complaint alleges.
My point kind of makes itself when the author says 'allegations of bill padding … drew … strong criticism about the practice from legal ethics experts'. Experts say fraud is bad? Well shit Sherlock! The 9th commandment does kind of feature relatively prominently in most systems of law. We're going to have the case one day when someone actually subpoenas a firm's electronic billing system and its metadata, and diaries, analyses when the billing entries were made, and cross-examines lawyers on how they could have billed 180 units in a day and still made it to the client function at 6 p.m., or why, having billed relatively consistently every day, they would suddenly remember on the 30th of the month some comparatively vaguely described units they had forgotten to record mid-month, or why given that they had used a precedent for similar documents three times previously in the same month, they decided to draft the document from scratch, only to end up with — you guessed it — the same document as the precedent. Now, that article:
'Bill Padding, Revisited
Unlike many traditions in the legal profession, it seems that bill padding never goes out of style. Two years ago, allegations of bill padding by a junior partner at Holland and Knight drew national coverage, as well as strong criticism about the practice from legal ethics experts. Now, the Edinburgh Evening News is reporting that an internal memo leaked from the depths of mega-global law firm Clifford Chance "has junior lawyers complaining that they are obliged to 'pad' their clients' bills." Among other things, the memo describes that "junior lawyers have to invent problems so they can bill 2420 hours a year and that 'under-houred' senior lawyers are given extra work to bulk up their hours." Reportedly, Clifford Chance leaders will convene an emergency meeting to make clear that the firm does not have a policy of encouraging bill padding.
I don't know whether Clifford Chance lawyers are really encouraged to pad their bills or not, or whether the memo exaggerated the policy. (Though as an aside, I note that Rees Morrison suspects that most firms with mandatory billing requirements inevitably engage in some type of bill padding.) Instead, I wonder whether those firms that do pad their hours can continue to do so in a declining economy, where clients are scrutinizing their legal costs more closely. At the end of the day, perhaps it's economics, rather than legal ethics, will drive the practice of bill padding into extinction.' Source
William Ross, a professor at Samford University's Cumberland School of Law in Birmingham, Ala., calls it "the perfect crime." NYU legal ethics guru Stephen Gillers says there's a "general consensus" that the practice is on the upswing. The practice? Law-firm billing fraud, and the WSJ's Nathan Koppel takes a look at the issue through the lens of a series of incidents that allegedly took place in Holland & Knight's Chicago office.
After Matthew Farmer, a 42-year old junior partner with the firm, suspected that his own hours on a trial for home builder Pinnacle Corp. had been inflated by the partner in charge of billing, 62-year-old Edward Ryan, he blew the whistle on the firm.
The firm took no action and denies Mr. Ryan or the firm did anything wrong. "The amount billed by Holland & Knight in the litigation was reasonable and appropriate," says L. Kinder Cannon III, the firm's general counsel. Mr. Ryan declines to comment. Last October, Mr. Farmer took a 7% pay cut to join Cohn Baughman & Martin, a 12-lawyer firm. He says he left because he was upset that Holland & Knight wasn't acting against Mr. Ryan.
It's a sensitive issue. But, lawyers out there, we're curious: How prevalent is billing fraud at law firms? Have you seen it? Have you been pressured to pad hours? Have you suspected your colleagues?
Update The St. Petersburg Times on Thursday posted a copy of a letter that Matthew Farmer wrote to a judge earlier this year, detailing the alleged billing fraud that he discovered at Holland & Knight.
This has always been fertile ground for scandal. Lawyers are judged not by the quality of their work but by the number of hours they bill; clients, often huge corporations, blithely pay these invoices without any oversight or parameters as to what is reasonable under the circumstances. So is it any surprise when bills are inflated? But soon, many companies, if they have not already, are going to get sick of being ripped off and start acting toward lawyers the same way they act toward the people they buy paper from.
This happens all the time, every day at law firms around the country.
With the extraordinary hours pressure placed on every lawyer at the big firms, from brand new associates to even mid-level partners (except perhaps (?) the biggest rainmakers), it should come as no surprise to law firm management that overbilling (or just plain over-working) of matters occurs. I've round-tripped from big firms to in house several times in the past 20 years, and the focus on hours seems to have grown significantly in the past few years - in many cases largely crowding out other values such as good lawyering, client management, mentoring, etc. If the big firms don't figure out a way to balance these factors more appropriately, we are going to see more and more cases like H&K - and the big clients will be whistleblowers too.
Hourly billing causes firms to lose clients who fear they are being duped; to lose associates tired of being judged based on hours alone; to lose marketing power because marketing is undervalued when compared to to billables; and to lose efficient production of work product (can you imagine how much a toaster might cost if the people working the assembly line were told they were paid based on the amount of time they spent crafting the toaster, rather than based on the output and number of toaster purchases?).
When will law firms abandon an out-dated model that clearly has little or no relevance in modern times?
…when clients go to some sort of payment for value, not for objectively messured inputs. Some big clients startng doing this some time ago.
Those interested in the likely response of the Illinois Attorney Registration and Disciplinary Commission may wish to review the results of the ARDC's investigation of the Chapman & Cutler attorney who (allegedly) billed 6,000 hours in one year. This was back in the 1990s, and was the subject of an article in, I believe, the WSJ. You can do the math, but to bill this many hours, you have to work 13-14 hours a day, 365 days a year (yes, that includes Thanksgiving, Christmas, Independence Day and New Year's Day). This was reported to the ARDC, but to my knowledge, the ARDC did nothing.
What a surprise, a large firm is reported to the bar and nothing happens.
At most law firm, overworking associates is the problem, rather than overbilling itself; they usually have more than enough work to do. Of course, many lawyers are tempted by personal circumstance (trying to meet a billing quota, trying to make partner, etc.).
Overbilling is probably more typical at smaller firms that bill by the hour, when work becomes scarce and lawyers are tempted to inflate their timesheets.
I have done thousands of write downs, but never a write-up. The problem is that selling hours, like a ditch-digger, is a fundamentally wrong way of valuing legal services. Clients do not benefit from hours, they benefit from trial victories, completed transactions and resolved problems.
I have no problem if a law firm says to me "we only worked 10 hours on your problem, but we saved you a million dollars, so our fee is going to be two times (or three times) our normal amount." But I have a very serious problem if a law firm says to me (through its bill) we worked so many hours on your problem and in fact did not work that many hours. Question: should inside lawyers be imposing on outside lawyers some kind of audit requirement, some check of the bills against the handwritten time sheets (I assume there are still are such things)?
Correction on the math: You'd have to work about 16.3 hours every day of the year to bill 6,000 hours. How the Illinois ARDC failed to find anything wrong with this boggles the mind, at least until one remembers that the attorney in question was one of the legal ubermenschen at a heavy-hitting, white-shoe, old-line Chicago firm. If the same hours had been billed by an untermenschen lawyer doing scutwork in the suburbs, you can rest assured that there would be another pelt nailed to the wall of the ARDC outhouse.
A description of the fraud by the Chapman & Cutler partner (and a similar fraud by his wife), see http://www.hofstra.edu/PDF/law_lerman2.p
The funny thing about the ARDC case is that 6000 hour biller's husband, who was the managing partner at Winston, was also accused of billing fraud. Shades of "Fun with Dick and Jane," no?
See http://www.hofstra.edu/PDF/law_lerman2.p
Anonymous properly mentions the so-called "idiocy of the billable hour," but there is no distinction between a ditch digger and a lawyer. When I hire a ditch digger, I don't benefit from the hours spent, I benefit from the completed ditches. Yet the fact is that internal hourly compensation for employees is usually the norm WITHIN a firm, although when I hire the firm to dig my ditch, it usually bids on a non-hourly basis ($ per foot, whatever). Coase can probably explain why this distinction persists.
Doctors don't charge by the hour. Auto mechanics may apply an "hourly rate" to services, but the disclaimer on the bill says that a certain service has a "flat" hourly fee, even if the actual hours spent are different.
What makes lawyers different? The "inherent uncertainty in the time required?" Sounds like special pleading.
Where is the client? It's all about OPM: Other People's Money. Overbilling (too many real hours, or fake hours) disputes are usually limited to a situation where someone else's money is being spent. The HK dispute is triggered internally. In the late 80's and early 90's, legal auditors were the product of insurance companies: the party benefiting (the insured) was not the party paying (the insurer). Later, fee examiners arose in big bankruptcy cases, where debtor was (really) almost always insolvent, so debtor or trustee was in essence spending the creditors' money–another disconnect between paying and benefiting. The fact that we seldom see a dispute between a real client and its counsel suggests that the market may be more effective than we acknowledge. If IBM balks at a Cravath bill, IBM is able to address it, and we don't read about it in the blawgs.
Where was Pinnacle Corp. during all of this? I hope they were more careful with their other vendors/suppliers, especially in the honest construction business.
I wonder if this is the most comments any item on this blog has ever received? It's clearly a hot button with many inside and outside lawyers. One comment on Anonymous' post: This may be an arena where the bluest of blue chip firms (Cravath, Davis Polk, Sullivan, a few others) have a real advantage, in that they try hard to limit their work (transactional work anyway) to projects where they can bill a "success premium" and simply present a "for services rendered $xxx" bill at the closing - thus no worries about whether anyone padded hours or not. And of course small firms often have smaller, perhaps more vigilant, clients as a check against hours padding. So is it the firms in between those two models that have the most to worry about (and who we GC's should worry about most)?
This has been going on forever and nothing is done because the big firms are in bed with company general counsel who, in turn, are alumni of the big firms. Shareholders of public companies paying the bills should be outraged. Yet, Milberg Weiss gets indicted because it allegedly allowed referring counsel to split legitimately earned attorneys fees (reviewed by the Courts) with clients. What a double standard!
To Inside GC — in our boutique firm with no committees and layers of uninformed review, the practice is to include a verbatim data entry version of the handwritten time sheets in every statement. It sounds a little old fashioned and cumbersome maybe, but no clients object to seeing their lawyers' timekeeping diaries. As for auditing, a starting point or self-audit procedure that's pretty standard among institutional clients is agreeing in advance on lineup card with substitutions made only on GC approval.
To Outraged — I don't think you should assume that just because a court reviews time records that they are "legitmately earned." The court is looking at the same thing the GCs are looking at—who's to say drafting that motion should have taken 14 hours vs. 16? How do you second guess how much legal research was enough? What if you've found nothing after 10 hours, and then, boom, you hit the treasure trove in the 11th hour? You go to a system where you pay for results rather than time? What incentive does someone have to work that 11th hour and save the client millions, when they could just quickly work a settlement, collect the fee, then move on? It's like the old story with real estate agents—they're getting their 3%, why should they put in the extra 20 hours to sell your house for $5000 more when it'll only make them an extra $150?
I have … always marveled at how many lawyers rob their clients by billable hour padding and get away with it. I personally experienced this many times. One of my most painful experiences was being grossly overcharged by my wife's divorce lawyer. My lawyer, a very ethical one, condeded that the pill was padded but advised me to keep quiet about it. He said that all I could do was request the detail on the billable hours and her lawyer would fabricate it and the judge would uphold it. I love the phrase, "the perfect crime". Hopefully this will stick and this chronic problem in many law firms will be brought to the public view.
Pilferring by lawyers is business as usual for many of them. Padding a bill is just one aspect of this. At the state and federal level they write the laws which enrich themselves. At the courtroom level, they only suffer if they expose wrongdoing within the profession, not for doing wrong themselves. That's why you see very few lawyers ever held accountable, whether it's for false billing, false accusations, or such. A profession that encourages specious arguments to advance an agenda is not one that can be trusted. None of this can be fixed as long as lawyers are voted into the legislatures.
. . . Neither the GC nor Ryan ever thought the bills would be seen by anyone else. . . . I will also point out that nobody should believe that Mr. Farmer is the hero here. He could have discharged his duty by reporting Ryan to the Illinois disciplinary committee. The fact that he also went to the press shows pure vindictiveness. He was always a disgruntled employee - the stuff about how he never thought he'd leave is bunk, pure and simple. Last thing - Farmer is now at Berkshire Hathaway's captive law firm, where he need never look for a client again. Most people thought he had traded up when he left.
Has the WSJ Law Blog sought to ask the opinion of the client (Pinnacle Corp.)victimized by the greedy partner? What does Pinnacle think? Are they pissed?
This is precisely why our firm is so passionate about having abandoned the billable hour in favor of a fixed-price model. There are serious ethical concerns with billable hours, clients hate the model, lawyers hate counting their lives in 6 minute increments, and there really is no way for clients to know better if there is fraud. When things like this happen, how can clients ever "trust" their firms that bill by the hour? It is time for a call to action in our industry and among clients! Malcolm X said "If you are not a part of the solution, you are part of the problem." To deny that billing fraud is widespread is to have your head in the sand. To admit it and not speak up and stop this outrageous practice is to be no better than the people who rip off clients and ruin what should be a noble profession. Will the leaders of this profession please stand up? Exemplar has taken its stand to make a difference in this profession and I hope that we inspire more professionals to do the same!
As a follow-up to my previous entry and as an expression of commitnent to solving these problems in our industry, I extend an offer to the attorneys in this country who are business savvy, socially normal, and passionate about making positive change in the legal profession to email me about opportunities to be a part of the solution and join an innovative firm with a fixed-price model. I promise to respond! cmarston@exemplarlaw.com
These types of issues are precisely why we started Exemplar Law Partners, which has abandoned the billable hour model in favor of a fixed-price model. I have interviewed hundreds of attorneys, partners and associates alike, from some of the largest firms in the nation and many of them readily admit that billing fraud and bill padding is a part of "daily business." How can you ever trust a firm that bills by the hour when some of the largest firms engage in this ptactice regularly? Malcolm X said "if you are not a part of the solution, then you are part of the problem." If you think that billing fraud is not widespread then you have your head in the sand. If you know it is happening and are not standing up for ethics in our profession then you are no better than the firms who are ruining an honorable profession by committing fraud on the people they claim to serve. Will the true leaders in this industry please stand up? Let this be a call to action for clients and attorneys alike. I welcome the attorneys who are passionate about positive change to contact me directly about opportunities to be a part of the solution at our innovative firm.
Malcolm X said "If you are not a part of the solution, then you are part of the problem." To deny that billing fraud is widespread is to have your head in the sand. To admit it and not take a stand against a practice that is ruining a noble profession by commiting fraud on the people they claim to serve is no better than committing fraud yourself. Will the leaders in this industry please stand up? It is time for a call to action. I welcome the other leaders in this industry to stand with me in making positive change. . . the beginning of which is the end of the billable hour model!
I suspect junior associates subjected to a billing/bonus minimum have more of an incentive to overbill because, more often than not, a partner discounts their time and the client never gets charged. Of course, the firm gets screwed, I suppose, because they may be awarding bonuses to lawyers who never actually worked the requisite number of hours.
I'm a young attorney in New Orleans, and I am already looking to get out of the practice. I've seen so much game-playing and prattling and asshattery from people who are supposed to be respectable professional business attorneys to make me realize that this is not a place I want to be. And I'm sure that its very similar anywhere else. I wanted to help people, but that isnt happening. So goodbye, Bar Commission, and good riddance.
I had a great experience…represented the husband in a divorce..gave him a detailed bill of hours. After the divorce, wife calls him and asks for his bill to compare to hers. Given the slight difference in hourly, maybe there should have been a small difference in total. He billed twice as many hours for the the same deposition, twice as many hours for the same time we were in court, etc. The wife's bill was double the husband's when I actually did more work! Worse, he just gave a bill for generic services rendered. But he got caught. How? Told the wife's father the day before trial "we have to settle because I didn't prepare for trial," then when she forced an accounting, he billed for 10 hours of trial prep. Dare I say he was promptly grieved and she was refunded the money. He was also in a large firm. I was a solo.
Did Holland & Knight ever deny (or even address) the specific allegations in the letter you link to at the top of this post? Has Martha Barnett, the firm's former ABA president, weighed in on this one?
Even by Washington standards, Aurene Martin's spin through the revolving door was a quick one. On Sept. 10 of last year, the former acting head of the Bureau of Indian Affairs stepped down to become a partner in the Indian law group of Holland & Knight. Within weeks, according to Senate disclosure forms, she was lobbying her former agency on behalf of the Lower Lake Rancheria, a landless, 53-member tribe seeking to build a controversial casino in Oakland, Calif. She also began lobbying Congress on behalf of the National Indian Gaming Association.
Ethics laws ban senior-level government officials from directly lobbying their former agencies for one year. But Martin benefited from a special exemption: Since the 1970s, ex-BIA officials have been able to represent tribes before their former agency without waiting out the one-year cooling-off period. "People on the outside have the perception that it's a huge influence game," says Martin. "[But] I think you have to believe in the good of most people."
The revolving door is swinging as fast as ever: From 1997 to 2004 the 20 largest federal contractors alone hired 224 former high-ranking government officials to serve as lobbyists, board members, or executives, according to a report by the nonprofit Project on Government Oversight.
There are ethical controls in place aimed at restricting the ability of those officials to lobby their former agencies on behalf of industries and special interests. But Martin's move is one of many examples of ways around those controls. And, critics complain, the ones that are in place are largely toothless...Legal Times: Jason McLure - Source
Amendment of CRA By-Laws
Motion
made by Commissioner Moore and seconded by Commissioner Katz to approveamendments to the CRA By-Laws. Roll call showed: YEAS: Commissioners Hutchinson, Katz,
Moore, Smith, and Mayor Naugle. NAYS: none.
CRA Consultant
A motion was presented to approve hiring
Mr. David Cardwell, Holland and KnightRedevelopment Strategies LLC, as the CRA consultant effective as of May 1, 2000 for a period
of 12 months.
Commissioner Hutchinson was uncomfortable with giving away the attorney/client relationship.
She understood Mr. Cardwell was not being hired as an attorney type of consultant, but his law
firm dealt with a lot of development cases in Fort Lauderdale. Commissioner Moore was
unclear on the issue. Commissioner Hutchinson explained that page 2 of the May 1, 2000 letter
distributed in connection with this item indicated that this would not include any legal services,
and no attorney/client relationship would be created by virtue of this agreement.
The City Attorney said the reason the document was so clear in expressing the fact that there
would be no attorney/client relationship was because the firm would not be performing any legal
services for the CRA. Rather, they would provide only consulting services in terms of strategies
to implement the program. He stated that Mr. Cardwell was a recognized expert in that aspect
of CRA work. The City Attorney agreed the law firm of Holland & Knight did occasionally
represent clients making presentations to the DRC, the Planning & Zoning Board, and/or the
City Commission. In order to ensure there was no conflict, the law firm was not being retained
by the City or the CRA for legal services, and Mr. Cardwell would be performing a specific set of
tasks with a "wall" between the two types of services to keep them separate and apart.
Fort Lauderdale CRA 5/16/00 - 2
Commissioner Smith understood the idea was to prevent any collusion between Mr. Cardwell
and the firm. Mayor Naugle believed a situation could arise in which someone disagreeing with
a City decision relating to a development issue in the CRA district, and Mr. Cardwell could end
up testifying against the City. Commissioner Moore believed that would also be true if a
separate consultant was selected. He understood Mr. Cardwell would provide information about
how the CRA could be better operated, but the situation envisioned by Mayor Naugle could
occur even if the consultant had no relationship with a legal firm.
Commissioner Smith asked why Mr. Cardwell was being selected. Ms. Kim Jackson, CRA
Manager, stated that the CRA would be entering into an aggressive, creative type of
redevelopment activity in a very diverse area in terms of a strategic plan and its implementation.
She explained it was very difficult to find anyone who understood how the CRA Statutes worked
and how to implement strategic plans. Ms. Jackson stated that Mr. Cardwell was well respected
in the field and had an enormous amount of experience in tax increment financing and could
provide a Statewide perspective.
Commissioner Moore recalled that when the County had tried to limit the CRA boundaries, Mr.
Cardwell had been asked for his opinion and was well respected by all the CRA directors in the
County. Commissioner Hutchinson was sure Mr. Cardwell was well qualified and could do a
wonderful job, but she was uncomfortable waiving the attorney/client relationship.
Mr. Cardwell explained that the statement pertaining to attorney/client privilege had been
included because he was a consultant. However, even if he was retained as an attorney, the
Supreme Court had indicated that when lawyers were hired by public agencies, with a few
exceptions, attorney/client privilege was waived. Therefore, the statement on page 2 was really
just to confirm the fact that as a consultant, there was not even a hint of an attorney/client
relationship. Thus, the privilege was already gone. Mr. Cardwell stated that as far as conflicts
were concerned, the policy of the firm was to follow the policies of the City. Therefore, his firm
would not be able to represent anyone who came in and submitted a proposal for a project
within the CRA boundaries because that would be a conflict of interest.
Mayor Naugle noted that the City hired a lot of outside counsel. He asked if there was any
policy that these outside counsel could not work against the City if a lawsuit was filed. The City
Attorney replied it did, and there had never been any deviation from that policy. Mayor Naugle
asked if this would be deviation because the City was hiring a subsidiary of a law firm. The City
Attorney replied it would not.
The City Attorney said he had briefly discussed with Mr. Cardwell the possibility that the City's
own consultant might end up as a witness. He advised that a separate letter agreement would
be executed that Mr. Cardwell would maintain confidentiality to a certain extent and not testify
under such circumstances.
Motion
made by Commissioner Moore and seconded by Commissioner Katz to approve thehiring of David Cardwell, Holland & Knight Redevelopment Strategies LLC, as the CRA
Consultant effective as of May 1, 2000 for a period of 12 months. Roll call showed: YEAS:
The Wall Street Journal reported on August 30, 2006 that Matthew Farmer, a 42-year old junior partner in the Chicago office of Holland & Knight, accused the firm of padding its timesheet and billings on a trial for home builder Pinnacle Corp. You can find the article, and the Journal's blog, with comments, here.
You can also read CEO of Exemplar, and VeraSage Fellow, Chris Marston's reaction to the article at his blog.
The article quotes William Ross, Samford University Cumberland School of Law in Birmingham, Alabama, who calls hourly billing "the perfect crime." I wrote about this extensively in my book, Professional's Guide to Value Pricing, where I quoted Ross' conclusion from his book The Honest Hour:
Despite its potential for abuse, time remains the best means for billing clients. Hourly billing therefore ought to be reformed rather than abandoned (Ross, 1996: 263).
He even goes so far as to suggest that lawyers keep track of every single minute of their time in order to keep billing by the hour honest. This reminds me of what George Orwell once wrote: "One has to belong to the intelligentsia to believe things like that: no ordinary man could be such a fool."
Ethical problems arise in hourly billing due to the misalingment of interests created by the system. Attorneys may not have malevolent motives when engaging in padding their hours. Ross says that "much overbilling is the result of attorneys' failure to understand the reals goals and needs of their clients" (Ross, 1996: 53). How sad is that?
The problem is that professionals pad their timesheets because they know that the value of the service they provide is worth more than the time spent. If that is the case, then the solution is not to try to cope with the ethical issues of hourly billing but to scrap hourly billing entirely and reach a price agreement with the customer before the service is provided. What a concept. Just like every other business on the planet!
You can apply make-up to a pig, but you still have a pig. The billable hour is flawed because it is based on the labor theory of value. There is no economically rational or sane way to "reform" it; it must be replaced with superior pricing strategies. One wonders whether two attorneys leaving a movie together would be timid about expressing their opinions on the movie. According to the labor theory of value, the movie should be equally valuable to both because it took the same amount of production time. Obviously, this is bad economic logic, and contradicts the subjective theory of value.
The value of any professional service is that which is agreed upon by the parties to the transaction. If both parties do not feel like they are benefiting from the exchange, it will not take place.
The strategies VeraSage advocates are the following:
The above are the rational alternatives to the ethical quandries raised by the obsolete hourly billing model. Value Pricing requires character, integrity, honest dealings, better communication, and a sense that the firm knows the value of the services it provides. These traits are far less likely to be cultivated with the use of hourly billing.
How many more ethical scandals must be uncovered before the legal profession changes it reigning paradigm from the labor theory of value to the subjective theory of value, and begins offering prices up-front to the customers it is privileged to serve? The billable hour is a Hobson's choice. It's time the profession chose Value Pricing.
Sanctions were imposed because the lawyers engaged in professional misconduct by violating state ethics law, according to the court.
They include:
• John Deangelis of Skokie, whose practice was listed at 8820 Skokie Blvd. Deangelis, who was licensed in 1992, was suspended for one year, beginning Feb. 10. The court ruled he converted $6,582 from a client and $12,500 from his former law firm employer.
• Alan Hanson, whose practice was listed at 7151 W. Gunnison St., Harwood Heights. Hanson, who was licensed in 1979, was disbarred. The court ruled he converted client settlement funds, neglected a workers' compensation matter and abandoned his law practice. Hanson failed to participate in the disciplinary proceeding.
• Raymond Henehan, whose practice was listed at 1603 Burning Oak Trail, Barrington Hills. Henehan, who was licensed in 1976, was disbarred. The court ruled he misappropriated almost $100,000 in client funds and neglected a client's bankruptcy matter.
• Robert Kent, whose practice was listed at 427 Elm St., Deerfield. Kent, who was licensed in 1994, was suspended for 30 days, beginning Feb. 10. The court ruled he failed to preserve the identity of approximately $1,500 in escrow funds in a marriage dissolution case.
• Mark Kipnis, formerly of Northbrook, whose practice was listed at 889 S. Randall Road, Elgin. Kipnis, who was licensed in 1974, was disabarred on consent. While employed as general counsel to Hollinger International, the court ruled he created illusory non-compete agreements as part of a scheme to disguise kickbacks to management employees and Hollinger officers. Kipnis was convicted in federal court of mail fraud, and sentenced to five years of probation, with six months home detention.
• Charles Whelan Jr., whose practice was listed as 190 Old Sutton Road, Barrington. Whelan, who was licensed in 1968, was suspended for two years, provided he makes restitution. The court ruled he assisted his wife, who is a disbarred attorney, in the unauthorized practice of law. He also converted client funds, neglected two client matters, failed to refund unearned fees and did not return client records. Whelan failed to appear at his disciplinary hearing.
The Attorney Registration and Disciiplinary Commission, an agency of the Illinois Supreme Court, investigates alleged wrongdoing by Illinois attorneys, holds hearings on specific charges and recommends discipline where warranted. The Supreme Court is, however, the only authority that can discipline lawyers for misconduct. Source
Two-thirds of lawyers queried in a new survey say they've seen specific instances of bill padding, a figure that hasn't changed much since 1995. On two related questions, the numbers are actually getting worse, as Nathan Koppel notes at the WSJ Law Blog (May 1): "54.6% of the respondents (as compared with 40.3% in 1995) admitted that they had sometimes performed unnecessary tasks just to bump up their billable output", and "the percentage of attorneys who admitted that they had double billed rose from 23% in 1996 to 34.7% in 2007. And only 51.8% regarded the practice as unethical in 2007, as compared with 64.7% in 1995," although most ethical authorities not surprisingly frown on that practice. Ted has some further thoughts at Point of Law; the study data, gathered by Cumberland/Sanford lawprof William Ross, is here (PDF).
A former partner and a former senior counsel of Holland & Knight's Atlanta office have joined Morris, Manning & Martin, LLP. James "Mac" Hunter joined Morris Manning & Martin as a partner and Jason P. Wright will be of counsel; Bruce Strothers will be a contract associate. A senior paralegal of Holland & Knight, Claudette Grooms, also joined them at Morris Manning & Martin.
Last year the Federal Election Commission heard from Holland and Knight, a limited liability law partnership organized under Florida law, that asked whether, having elected tax treatment as a corporation under federal tax law, it could operate its political committee as a corporate PAC and pay without limit for its PAC administrative expenses. The Commission could not then come up with the four votes needed for a decision.
In July, the new Commission did decide the case. It voted, 5-1, that state law, not federal tax law, controlled, and that Holland Knight was not a corporation, and its political committee not a corporate PAC, for federal campaign finance purposes. Under Florida law, the firm remained a partnership, though it is taxed as a corporation in states other than Florida and Massachusetts.
Now few may care—the regulatory status quo was preserved. It is interesting to note, however, that for this new Commission, the choice before it was one between a formalistic and a functional reading: between focusing on state law, which it has been generally the agency's practice to do, and considering the actual character of the entity before it. The Commission chose the formalistic reading.
On the more functional reading, and as the General Counsel noted in one of the alternative drafts, the law firm was in its essential features like a corporation, "putting itself in a position 'to accumulate capital at the corporate level, … to take advantage of favorable tax treatment of corporate losses and dividends received'", and to extend limited liability protection to its owners. OGC Draft, Alternative B, at 4. The Commission has previously taken factors such as these into account in promulgating rules to treat limited liability companies (LLCs) as either corporations or partners, depending on the entity's election of federal tax treatment. 11 C.F.R. § 110.1(g)(2)-(3).
In the case of LLPs such as Holland and Knight, the Commission has now chosen to stay with the formalistic reading, based on how the firm was organized under state law. Since the Holland and Knight PAC is therefore not a corporate PAC of a "connected" corporate sponsor, the firm can contribute to its PAC, up to the lawful limits ($5,000 per calendar year), but it cannot provide unlimited funding for PAC operations. But restricted in one way, it is liberated in another: unlike a corporation or its PAC, a "non-connected" PAC can solicit whomever it pleases for contributions to its PAC.
But, of course, the Holland and Knight political committee is "connected" to the partnership: it has been named "The Holland and Knight Committee for Effective Government." It has been established to carry out the political program, and to effectuate the political will, of the firm. The firm, electing corporate tax treatment, presents as a corporation—"in effect 'telling the IRS that its organizational structure and functions are more akin to a corporation than a partnership'", OGC Draft, Alternative B at 3.
The Holland and Knight Committee for Effective Government is not, however, a corporate PAC. This new Commission approved this result by a decisive margin. These are not much in the way of tea leaves, but some will read into them what they will.
Bob Bauer Source
Seven lawyers at Holland & Knight have announced they are leaving the firm's Miami office to start their own boutique firm.
Six of the lawyers are partners, the Daily Business Review reports. The publication says the partner departure is the largest since the firm experienced financial problems several years ago. The firm took several steps to get back on good financial footing, by downsizing, cutting expenses and reconsidering its extensive pro bono work.
"I don't think money was the driving force for [the six partners leaving] at all," said partner Jose Sirven, who will replace departing partner Alcides Avila as head of the firm's banking and finance group.
The career of Matthew Farmer, a junior partner in the Chicago law offices of Holland & Knight LLP, was on the upswing in December 2004. He had just won a monthlong trial for Pinnacle Corp., a Midwestern home builder accused of copyright infringement, and gotten kudos from many of his partners.
But weeks later, after reviewing billing records in the Pinnacle matter, he decided to leave the 1,200-lawyer firm. Mr. Farmer, 42 years old, believed his own hours on the case had been inflated by the partner in charge of billing, 62-year-old Edward Ryan. Fearing he would violate state ethics rules if he kept quiet, Mr. Farmer blew the whistle to Holland & Knight lawyers.
The firm, which has 24 offices in the U.S. and abroad, took no action and denies Mr. Ryan or the firm did anything wrong. "The amount billed by Holland & Knight in the litigation was reasonable and appropriate," says L. Kinder Cannon III, the firm's general counsel. Mr. Ryan declines to comment.
Last October, Mr. Farmer took a 7% pay cut to join Cohn Baughman & Martin, a 12-lawyer firm. He says he moved of his own accord because he was upset that Holland & Knight wasn't acting against Mr. Ryan.
While the facts of the case are still in dispute, Mr. Farmer's billing allegations offer a rare window into the tricky and emotional issue of inflated billing by law firms. It's difficult to know how widespread billing fraud is, but Stephen Gillers, an ethics professor at New York University School of Law, says "there is a general consensus that billing fraud has increased" as law firms seek to increase profits and attract top lawyers.
"Bill-padding is the perfect crime," adds William Ross, a professor at Samford University's Cumberland School of Law in Birmingham, Ala. It is seldom detected because it is almost impossible for clients to know whether "an attorney really spent three hours doing research instead of five hours," he says. He says that in a billing survey he conducted in 1996, two-thirds of the attorneys (and three-fourths of the clients) reported knowledge of bill padding. Earlier this year, a partner at Willkie Farr & Gallagher LLP left the firm and was suspended from practicing law due to bill fraud.
Meanwhile, Mr. Farmer is still pressing his claims against Holland & Knight. In February, he sent a letter detailing his charges to a Minnesota state court judge, Janet Poston, accompanied by internal Holland & Knight billing records. Mr. Farmer's letter led Pinnacle's insurer, Connecticut Specialty Insurance Co., to file claims against Holland in May, stating that "Ryan and Holland & Knight inflated and falsified legal bills." Last month, the insurer reached a confidential settlement with Holland & Knight, withdrawing the fraud claims. But Connecticut Specialty's outside counsel, Robert Haugen, believes the original motion was credible. "I have a standard to live up to in [Minnesota] when I file pleadings," he says.
Mr. Farmer, who joined Holland & Knight in 2000, became involved in the Pinnacle case in the summer of 2002. A competitor had filed suit in Minneapolis federal court, claiming Pinnacle built homes that infringed on copyrighted designs and seeking more than $30 million in damages. (The jury's finding in favor of the defendant was later reversed due to an evidentiary ruling at trial; the case may be retried in the future by someone other than Mr. Farmer.)
After the trial, Mr. Farmer reviewed the firm's bills. The first invoice struck him as odd, he says. It claimed he worked 6.5 hours on Aug. 7, 2002, the day he learned of the suit. Mr. Farmer says he distinctly recalls hearing about the case late that day and spending only 15 minutes on it.
Over the next two days, Mr. Farmer says, he checked further to see if the first entry was an aberration. He finally quit probing, he says, after discovering some 60 instances of bill padding. Mr. Farmer believes that from August 2002 through September 2003, Mr. Ryan inflated his time -- and that of three other lawyers in the case -- by more than 450 hours, an overcharge that Mr. Farmer says exceeded $100,000. Mr. Farmer believes his discovery may have been the tip of the iceberg, for he says he analyzed only a "sampling" of the more than $3.5 million of Pinnacle bills.
In one instance, Mr. Farmer says, Mr. Ryan sent a bill to Pinnacle claiming that partner Scott Petersen had worked 89.8 hours over a 17-day period in March 2003. Mr. Farmer says internal firm records show the lawyer didn't work on the case at all during that time. Mr. Farmer also accuses Mr. Ryan of creating "fictitious" narratives using such phrases as "review key documents" and "analyze defense strategy" to describe work that Mr. Petersen never performed. Mr. Peterson didn't return calls seeking comment. The two other lawyers on the case declined to comment.
Mr. Farmer reported his findings in early 2005 to Colin Smith, a firm partner charged with ethics oversight, suggesting that Holland & Knight file a report with the state's attorney-ethics commission. "Don't go there," he says Mr. Smith warned him. "Why would you want to do this to Ed Ryan?" Mr. Smith declines to comment.
Colleagues describe the tall, white-haired Mr. Ryan as a genteel litigator. "I always found Ed to be an excellent lawyer and a gentleman of the highest character," says Michael Kanute, a former Holland & Knight partner. Another former partner, Julie Shelton, says she "can't imagine that he would do anything unethical." At Chicago office functions, another former partner recalls, Mr. Ryan liked to offer positive messages to lawyers. "He would use the sort of catch words that were expected by headquarters, like, 'We are so glad to gather together as the Holland & Knight family.' "
Soon after the meeting with Mr. Smith, Mr. Farmer says he had a "very awkward" 10-minute meeting with Mr. Ryan. He says Mr. Ryan told him that he himself had billed time internally to Pinnacle for which he hadn't charged the client and that he therefore inflated other lawyers' hours on the case to compensate for his uncharged time. In the final tally, Mr. Farmer says Mr. Ryan told him, Pinnacle's total bill reflected the actual time the firm worked on the case.
But Mr. Farmer says he found the explanation "unpersuasive." He says Mr. Ryan occasionally offered strategic advice and edited briefs for the case but never performed routine tasks. "He never stepped foot in a courtroom, never drafted any legal papers, never deposed a witness," says Mr. Farmer, who worked full-time on the matter from the start.
"The amount billed was consistent with the value of the time worked," Mr. Cannon, Holland & Knight's general counsel, said in response to questions about Mr. Farmer's allegations.
Early last year, Pinnacle was acquired by home-builder Hovnanian Enterprises Inc. "These issues occurred well before we were associated with" Pinnacle, a Hovnanian spokesman said. "We have no independent knowledge of the facts."
After his meeting with Mr. Ryan, Mr. Farmer waited for an investigation into his allegations. "I figured at some point, someone would register disbelief or disgust," he says. When that didn't happen, Mr. Farmer moved to the less prestigious Cohn Baughman. "If you look at Matt's résumé, you realize this was not a lateral move," says William Elward, a former classmate of Mr. Farmer's at Loyola University Chicago School of Law.
Late last year, still convinced it was his ethical responsibility, Mr. Farmer reported his bill-padding claims to the Illinois Attorney Registration & Disciplinary Commission. (The commission's chief counsel, James Grogan, won't comment on the pending investigation.) Then, Mr. Farmer sent the seven-page letter and billing records to Judge Poston. "Edward F. Ryan . . . frequently inflated far beyond the hours that the timekeeping attorneys had actually recorded," he wrote the judge, who was then presiding over a lawsuit brought by Connecticut Specialty against Pinnacle regarding the legal bills.
Though Mr. Farmer says he is happy in his new job, he concedes he is dazed by the turn his life has taken. Before that, "if you told me I would be out of my firm in a handful of months, I'd never have believed it," he says.
Write to Nathan Koppel at nathan.koppel@wsj.com
Printed in The Wall Street Journal, page B1 Source Thousands of counterfeit designer purses crowded the shelves of a Revere storage facility unit. |
By Shelley Murphy, Globe Staff | November 4, 2005
Three sisters from Chelsea, and the boyfriend of one, were allegedly running a brisk business selling knockoff handbags of designers like Gucci, Kate Spade, and Louis Vuitton for $40 apiece at ''purse parties" hosted by suburban moms and at a weekly flea market.
Then last November, after more than 200 purse parties over 16 months, one of the sisters, Katherine Luong, 26, reported to police that a locker she rented at Extra Space Storage in Revere had been broken into by another renter who stole 75 handbags, valued at $1,500.
The alleged thief struck back.
He tipped off the Suffolk district attorney's office that he suspected Luong was running a counterfeit handbag ring at the storage facility.
When State Police raided 13 units that Luong rented there in January, they found cartons stacked to the ceiling, stuffed with counterfeit handbags and wallets bearing labels from Louis Vuitton, Prada, Kate Spade, Coach, Burberry, Gucci, and Fendi. The inventory totaled 46,000 bags and wallets, worth an estimated $1.4 million, according to police.
The real designer purses can cost from $200 to more than $1,000 apiece.
The raid, touted as one of the biggest counterfeit seizures in New England, drew the attention of the US Department of Justice, which has made cracking down on counterfeit goods a national priority in the same category as pirated software and CDs.
And yesterday, Luong, her sisters Camphung Luong, 24, of Chelsea, and Kim Luong, 22, now of Quincy, along with Katherine's boyfriend, Minh Vu, 25, of Chelsea, were charged in a sweeping federal indictment with money laundering and trafficking in counterfeit goods. Federal authorities have seized their cars and homes in Chelsea and Texas.
Katherine and Camphung Luong and Vu had been arrested in April on state charges of selling counterfeit goods but those charges will now be dropped.
Defense lawyers said yesterday the Luongs and Vu are hardworking young people who weren't hurting anybody with their business and shouldn't be charged in federal court.
Boston attorney Francisco Napolitano, who represents Vu, said, ''I don't think Mr. Gucci or Mr. de la Renta have anything to fear from somebody who is selling a $30 or $40 bag. It's not the same product."
Napolitano said that anybody who bought a purse from the Luongs or Vu knew they were buying a knockoff. He also said the sellers weren't attempting to hide anything; they sold their goods openly and accepted checks.
''This is a waste of the government's time and money to prosecute these people in the federal court," said Dorchester attorney Michael Doolin, who represents Camphung Luong and described her as a college student. ''These allegations against her are completely ridiculous. She isn't involved in any money-laundering or anything like that."
The indictment handed down yesterday by a grand jury in US District Court in Boston alleges that the Luong sisters and Vu ran a ring that bought counterfeit bags in New York, then peddled them weekly at the Revere flea market for two years and at some 230 purse parties -- where people gathered to eat, drink, and shop -- between July 2003 and last December.
The indictment details parties last year in Lowell and West Bridgewater, at which the hostesses were given free knockoff bags. When one recipient complained that her purse quickly ''fell apart," it was promptly replaced the indictment said.
''The public needs to know that when they buy a counterfeit purse at a house party or on the street, their dollars are ultimately helping to finance large-scale counterfeiting organizations," said Matthew J. Etre, the acting special agent in charge of the US Immigration and Customs Enforcement in Boston. ''And every time they buy a knockoff purse, they are contributing to legitimate companies losing billions of dollars in revenue to counterfeiting every year."
Affidavits filed in federal court in Boston in July, when the government initially moved to forfeit homes, cars, and cash belonging to the Luongs and Vu, disclosed additional details about the alleged operation. The papers say that Vu, who worked for two years as a clerk at the Boston law firm of Holland & Knight, told co-workers he was resigning last November because he could no longer handle both that job and his ''retail business."
The Luongs and Vu have yet to appear in federal court and will be summonsed for arraignment at a date yet to be set. None of them could be reached for comment yesterday.
US Attorney Michael J. Sullivan said the public can expect to see more cases like yesterday's indictment because John Ashcroft, the former US attorney general, formed task forces around the country to go after intellectual property violations, and his successor, Attorney General Alberto Gonzales, recently affirmed that commitment.
Counterfeit goods, including designer bag knockoffs, fall under the category of intellectual property because they represent stolen trademarks, Sullivan said.
''It's probably tens of billions of dollars a year that legitimate businesses have lost and oftentimes consumers have been defrauded by the purchase of what they think is a legitimate product, only later to find out it's counterfeit."
Andrea Powers, of Powers & Associates, a Sandwich-based private investigative firm that represents Gucci, Louis Vuitton, and all of the other trademark owners whose products were counterfeited, said they want the public to know that if you buy counterfeit bags ''you are funding criminal activity."
But David Procopio, a spokesman for Suffolk District Attorney Daniel F. Conley, said the state decided to hand the case over to federal authorities for prosecution because the ring was allegedly funneling money to Texas and appeared to be large in scope.
The federal indictment and documents filed in federal court suggest the operation was a huge money maker.
Some 600 e-mails that Vu generated while at Holland & Knight, which were subpoenaed by federal prosecutors, reveal that he was scheduling purse parties every week and sending large sums of money to his sister in Texas, according to an affidavit.
In one e-mail, Vu's sister asked him to send $100,000, in addition to the $50,000 he had already sent, so she could purchase a dry cleaning business, according to an affidavit.
The affidavits also allege that Katherine Luong deposited $236,784 into one bank account between August 2003 and January 2005.
February 8, 2008 by Robby Scott Hill
The Secret Service's Preisdential Advance Team ran across Atta in Orlando while preparing for a visit by President Bush and the US Customs Service knew that Osama Bin Laden's brother Khalil who lived in West Orange County had provided Atta and his friends with financial assistance including sham marriages to American women, so they could maintain their residence in the United States. Further, we knew that he had been radicalized by the untimely death and possible assasination of his distant cousin Egyptian businessman Dodi Al Fayed, the boyfriend of Princess Diana, in 1997 among other incidents. The private law firm of Holland and Knight whose attorneys also worked for Florida East Coast Industries would later help Khalil wrap up his business interests in the US and help sell his mansion before leaving the country at about the same time that the 9/11 Commission began to formally look into his activities in the US.
Holland & Knight will coordinate directly with members of ISBE and the Governor's Office to assist with the management and implementation of policy change. Holland & Knight will provide semiannual detailed reports to the Governor, State Board, and State Superintendent on the status of the partnership's initiatives and anticipated activities during the next six months, providing an opportunity for the State's leadership to evaluate outcomes and future policy directions. More frequent reports on specific issues will be provided upon request.
The services provided by Holland & Knight within the scope of this partnership will be at no cost to the State.
The Governor's Office and ISBE agree that the state-specific policy planning arising out of the partnership can be shared with Foundation staff, other states, and other core partners assisting the Foundation on its national college and work readiness initiatives.
The partnership formed under this Memorandum of Understanding will extend until June 30, 2008, with an option for renewal by all parties dependent on a review of the services performed, State needs, and policy outcomes.
I do not recall asking her to "feel my pipes' numerous times or even asking her to do so at all, but I may have done so because I've done it before. - from the April 15, 2004, statement of Doug Wright, the No. 3 partner at Holland & Knight in Tampa.
A former college football player with a frat-boy personality offensive to more than a few female attorneys has nevertheless climbed the corporate ladder and this month became the chief operating partner of the prominent Holland & Knight law firm in Tampa.
Douglas A. Wright, 44, is a successful lawyer catering to wealthy and pro sports clients. He is also known for his locker-room humor, a burly physique and a bullying style - intimidating at least to a number of young female lawyers at the firm's Tampa office.
Confidential company documents obtained this week and first reported Tuesday by the St. Petersburg Times reveal Wright was the subject last year of an internal Holland & Knight investigation and a reprimand for violating the firm's sexual harassment policy.
The documents, which normally never would see the light of day in a newspaper, offer a glimpse of the behind-closed-doors treatment of sexual harassment complaints and the abuse of power that occurs far too often in U.S. businesses.
The story told by the Holland & Knight documents is shameful. Even if only half of the allegations are true, here is a major U.S. law firm with a blind eye to a good ol' boy way of doing things. Young female lawyers, some on their very first jobs, are tyrannized by an older, bigger, richer and more powerful male lawyer who can make or break a career.
It's doubly disturbing because the same female lawyers who should be praised for standing up to Wright - and whose names are now public - may very well end up branded as troublemakers by the close-knit legal world.
Since 2000, the Equal Employment Opportunity Commission has investigated and attempted to resolve more than 25,000 sexual discrimination claims each year. In this Holland & Knight case, the female associates apparently never took their claims to the EEOC.
An estimated 90 percent of sexual harassment victims decide the cost of fighting back would be higher than giving in or getting out, says Catharine A. MacKinnon, professor of law at the University of Michigan and author of the recently published book Women's Lives, Men's Laws.
"This is a common set of affairs, including these confidentiality agreements," MacKinnon said Tuesday. "Often, if women are to get any relief from sexual harassment, they are silenced in the process."
What is most disturbing in this Holland & Knight tale is that Wright was promoted this month to chief operating partner, the No. 3 position of power, at Holland & Knight. The firm once headed by former managing partner Bill McBride is not just a major Tampa Bay law firm or simply the No. 2 firm in the state. It ranks among the 15 largest law firms in the world and - ironically, it seems today - has long touted its social awareness and advocacy of women's issues.
Complaints allege Wright routinely asked some of the firm's young associate women to "feel his pipes" or "feel his guns" - sexually suggestive slang for feeling his biceps. Complaints also allege Wright repeatedly questioned, taunted or ridiculed female employees about their clothing, sexual habits and sex partners, and periodically threatened to fire them.
One young female associate joined Holland & Knight in 2002 right out of law school only to become one of Wright's favorite targets. Sarah Pellenbarg recalled how Wright pestered her relentlessly about her boyfriend, spending 30 to 40 minutes in her office three to four times a week. He regularly talked of firing her, according to Pellenbarg's statement.
"Doug Wright is the stereotypical schoolyard bully with an obsessive-compulsive twist," she stated. "He bullied and bullied and bullied me, and finally one day, he broke me. I got to the point where I dreaded going to work and cried at night. He was relentless."
In his defense during the investigation, Wright said he did not target women, and this week denied the harassment allegations to this newspaper.
"I joke and tease with everyone," he stated last year. "I suppose some might think that makes me an indiscriminate jerk."
Holland & Knight's investigative team, known as the "fair employment practices committee," concluded "jerk" did not go far enough. Wright violated the firm's sexual harassment policy, the committee decided.
"The majority of the committee found it baffling that (Wright) could believe that such a statement ("feel my pipes") was an icebreaker" to help start a conversation, the group concluded.
It made 13 recommendations to Holland & Knight managing partner Howell Melton Jr. Among those recommendations, Wright should: be reprimanded; be instructed not to ask or require employees to "feel his muscles, guns and/or pipes, and similar types of touching of his body"; refrain from personally monitoring the attire of employees; stop asking associates about their sexual lives and undergo sexual harassment counseling or management training; and not engage in any retaliation against anyone who complained.
To its credit, the committee also urged that Wright's behavior be monitored, especially because the attorney "has been entrusted with leadership positions" and "has made questionable use of the power inherent in those positions."
That's an understatement.
Wright has some fans at the big law firm. One of his peers suggested Wright has a "strong personality" combined with an ex-football player's imposing presence. Partner Stacy Blank, a woman, stated that Wright's "feel my pipes" line was just a "self-deprecating "shtick' that he adopted."
Thirteen days ago, on March 17, managing partner Melton sent a companywide e-mail announcing Wright had been promoted.
The e-mail also sends a troubling message. Man wins. Women lose.
Holland & Knight needs a higher standard.
February 1, 2008
Theodore Scott Silva Jr., Holland & Knight, LLP, Suite 400, 2100 Pennsylvania Avenue, NW, Washington, DC 20034-3202
VSB Docket No. 08-000-073253
On January 23, 2008, the Virginia State Bar Disciplinary Board issued a public reprimand with terms to Theodore Scott Silva Jr., who pled guilty in December 2002 in the Arlington County Circuit Court to a charge of possession of cocaine. The court dismissed the criminal charge after Mr. Silva complied with its conditions. Mr. Silva also currently faces terms imposed by a District of Columbia disciplinary tribunal in another matter. The Virginia board ordered him to comply with those terms. This is an agreed disposition of disciplinary charges against Mr. Silva, who is an associate member of the Virginia State Bar.
view Silva order (pdf posted 02/07/2008)*
Missing investor kept N.Y. disbarment a secret, Sarasota's Art Nadel Paid $50,000 to Mob Loan Sharks From Clients Escrow Account. Susan Taylor Martin, Times Senior Correspondent In Print: Wednesday, January 21, 2009. HOW NYC MOB LOAN SHARKS OPERATE...November 10, 2006 -- Three alleged Bonanno crime-family loan sharks threatened to put a woman "in the trunk of a car" - mob code for being killed - for not repaying a loan, unaware that her mobster husband was cooperating with the feds, prosecutors revealed yesterday. Alleged Bonanno soldier Michael "Mike the Butcher" Virtuoso and alleged Bonanno associates Agostino Accardo and Michael Cassese were arraigned in Brooklyn federal court yesterday and held at the Metropolitan Detention Center on the extortion charges. According to court papers, Virtuoso and Accardo loaned the unidentified woman $100,000 last year. When she failed to pay up, Cassese allegedly began threatening her husband - another Bonanno associate who was cooperating with the feds.
It was supposed to be a networking breakfast for young, female lawyers at the Tampa office of Holland & Knight.
But when an organizer of the December 2003 get-together said she thought the law firm offered excellent opportunities for women, there was dead silence. Then a number of junior lawyers began sharing stories of alleged harassment and intimidation as far back as 1999 by Tampa partner Douglas A. Wright.
An inquiry followed, first by an outside law firm, then by an internal committee. Every participant was sworn to secrecy. By May, most of Holland's investigating committee found the complaints against Wright, 44, credible. Punishments were recommended. Case closed.
But it wasn't.
Four of the young accusers raised their voices, dissatisfied with the outcome. Wright had been reprimanded, but not to the extent suggested. In a memo, they expressed anger at the managing partner of the 1,250-lawyer firm, Howell Melton Jr. He held his ground.
Six months later, Melton announced to the firm that he was promoting Wright to third in command. Then someone leaked the internal committee's report to local newspapers. Wright surrendered his promotion but remains a partner in the firm.
And what was once securely private offers a rare glimpse into the secret world of sexual harassment claims.
Selected excerpts from those documents follow.
Statement of female accuser #1Within my first week as a summer associate in 2002, Doug Wright started coming into my office daily or every other day ... He told me to "Stand up. Turn around in a circle. You look like the hostess in a Chinese restaurant." He then walked out. I was very upset by his behavior and cried ...
... Right before I was set to join the firm as an associate, my rooming plans fell through ... I called (a male associate at the firm) ... to see if he could help me find a roommate. He offered me a room in his 3-bedroom, 2-bathroom house ... Doug Wright became merciless in teasing me about it. He would ask or say things like: "Did you know (he) has a camera in your shower? Did you know (he) lays in your bed? Did you know (he) puts your panties on his head? ... What does (he) look like in boxers? ...
On at least one occasion I overheard Doug Wright say something like, "I wonder if (the roommate) is banging (her) yet" ... I decided to move out in the fall of 2003 ... ... In early fall of 2003, I got fed up and talked to several people about Doug Wright's power and pervasive influence ... I am upset that no one at the firm stood up for me to stop Doug Wright's harassment.
Statement of female accuser #2Doug Wright asked me to "feel (his) guns" or to "feel (his) pipe" on countless occasions. As a young associate, you feel as if you cannot say no. ... He also asked you to "feel (his) pipes" in front of other attorneys ...
... I was walking down the hall and Doug Wright asked me to feel his thigh. I initially said no, but he persisted that I should feel his thigh. Finally, I felt his thigh ... As he walked away, he patted his bottom and told me that it was much harder ...
... I quickly learned that the best way to deal with Doug Wright was to simply avoid him. If I heard his voice in the hall, I would pretend I was on a phone call so he would not come into my office. If I saw him in the hall, I would change the way I was walking ... I would avoid monthly socials or other office social events if he was there...
... The worst part of the situation, however, is that there is a feeling in this office that everyone knows about his behavior and that it is accepted ... that Doug Wright is very powerful and untouchable. ...
Statement of female accuser #3... My negative experience with Doug Wright began as soon as I started and continued daily until I was able to move off of his floor (in the company's office building) ... I was just out of law school and this was my first job as a lawyer ...
... At first, he would just stop by and we would have harmless conversations. It very quickly escalated from there. Within a short time, Doug Wright was spending between 30 and 45 minutes in my office, three to four times per week. We did not have normal "conversations." I was simply barraged with questions and ridiculed until Doug got bored and left my office.
Doug Wright would constantly ask me questions about my boyfriend ... When (my boyfriend) went out of town ... Doug would always insist that (he) was having an affair or visiting strip clubs ...
I would have been able to deal with this sort of conversation in and of itself, except that it happened EVERY DAY for weeks and weeks ...
... My worst experience with Doug came one day when I refused to come to his office ... An hour or so later, Doug came into my office and said, "Did you get the message that I wanted to see you?" I responded, "Yes, I got the message," and looked back down at my work. This sent Doug into a rage. He turned bright red and I have never seen him so mad since. He asked me if I wanted to be fired. He told me that he knew everybody in town and that the only place I would be able to get a job would be the public defender's office.
... Ever since that incident, the topic of me getting "fired" has been a favorite of Doug's.
... Doug Wright probably asked me to feel his "guns" about 4 or 5 times. Recently ... Doug Wright ordered me to fix his tie in front of (another male lawyer). ... ... By July of 2002, I became desperate to move (my office) ... eventually I was moved to a different floor and the daily harassment stopped ...
Statement of female accuser #4...My first encounter with Doug Wright was at cocktail happy hour at the firm. He came up to me and said, "What is your name? Who do you work with?"
Doug Wright proceeded to ask me to "feel his pipes" in front of an entire room of attorneys. I felt extremely offended and humiliated ... I said, "Are you kidding?" and I walked away. ... My next encounter with Doug Wright was in the fall of 2003, at a recruiting cocktail reception in Gainesville, Florida. Doug Wright ... asked me what I was doing at the recruiting event. ... (He told) me that I was completely ineffective and that my days were numbered at Holland & Knight. I was mortified. There was not a hint of sarcasm in his voice...
... Doug Wright has poisoned the working environment in the Tampa office. When I hear his voice in the hallway I either pretend I am on the phone or just hold my breath and hope to God that he does not come into my office ...
Statement of Douglas A. Wright... I have been at Holland & Knight my entire career, and it's an important place for me.
Regarding Female Accuser #2, I do not recall asking her to "feel my pipes" ... but I may have done so because I've done it to others ... I do not recall asking her to feel my thigh. I do not recall telling her that my butt was harder than my thigh, but it's possible that I did that ...
... Regarding Female Accuser #1, I recall that she had an outfit that reminded me of a hostess in a Chinese restaurant, but I cannot recall an incident in which I told her so ... I do not recall being in her office and telling her to stand up and turn around. I have lots of work to do, and I can't spend 20 minutes in her office.
I deny that I made any inappropriate comments to her about (renting a room from a male associate) ... I may have jokingly asked her what (her roommate) looks like in the morning ... I never asked (the roommate), "Are you banging (her) yet?" I do not use the term "bang."
I may have asked him if he was sleeping with her, but I don't really recall asking anything of the sort ... Perhaps I was standing in a group when a statement was made and she assumed it was me. For example, (another male associate) is more likely to use the term "banging" than I am ...
... It is possible that I touched her suit skirt in the Fall of 2003, but it would not have been sexual touching. I sometimes touch men's clothing. I recall criticizing people's clothing a lot a couple of years ago because the firm had gone to year-round business casual, and I thought people began dressing too casually and not like we work at a premier law firm.
... I do, however, ask people to feel my pipes. I do not have a typical physique, and a client once introduced me by telling someone to feel my pipes. I adopted it as sort of an icebreaker with new people. ... If a person declined to do so, sometimes I'd back off and sometimes I would ask again ... ...Regarding Female Accuser #3 ...I probably dropped by about three days out of the week. ... She was a litigator sitting on a corporate floor and I was concerned that she would be ignored. I would have talked to her about her boyfriend, but not any sexual questions ...
...I recall teasing her when (her boyfriend) was away about whether he called her to check in and then went back out. I probably said that he was out but not that he was cheating. I probably implied that he was out at bars with women. ... I recall jokingly threatening to fire her. I have threatened hundreds of people with firing and they all know that it is a joke. I even joke about myself ending up at the public defender's office. ... I thought I was being her friend. I was trying to get to know her and to help her get integrated into the office. I guess I did an ineffective job of communicating with her ...
... I do not target women. I joke and tease with everyone. I suppose some might think that makes me an indiscriminate jerk. ...
Investigating committee's findings, May 25, 2004... The majority of the members found the allegations to be generally credible, and found it difficult to find the allegations less credible simply because of a series of general denials of recollection by several witnesses, including (Wright).
... In regard to (Doug Wright's) admitted habit of asking people to feel his pipes/guns/muscles, the majority of the committee found it baffling that (he) could believe that such a statement was an "icebreaker" ...
After a thorough investigation and careful consideration ... a majority of the Committee believed that...(Wright's) actions were of a sexual nature ... these actions of a sexual nature, combined with other taunting behavior by (Wright), constitute a violation of the (firm's sexual harassment) policy. A majority ... further found that the violation was exacerbated by the position of power acquired by (Wright), and his extremely close ties to others in the office who hold positions of power ...
In light of the (committee's) confirmation of violation of the policy, it is recommended that the Managing Partner consider the following courses of action:
Issue to (Wright) a private and personal reprimand ...
... Direct Wright to refrain from asking and/or requiring Firm attorneys, staff or others in the offices of the Firm to feel his muscles, guns, and/or pipes
... refrain from asking questions of or making comments to associates and summer associates concerning their sexual lives
... refrain from participating, for an extended period, in summer associate hiring
... refrain from serving, for an extended period, on any associate hiring or evaluation committees
... refrain from taking upon himself the task of monitoring the attire of Firm attorneys and staff...
... Require Wright to engage a professional counselor and/or trainer for sexual harassment awareness training and management training ...
... Wright has been entrusted with leadership positions within the Firm, and he has made questionable use of the power inherent to those positions ...
Memo from Holland & Knight managing partner Howell Melton Jr. to Investigating Committee (July 27, 2004)... I am not persuaded by all of the findings articulated in the Report, but I am persuaded that, when viewed as a whole, (Wright's) actions were inappropriate and unacceptable. I find the reported conduct particularly objectionable in view of (his) position of leadership within the firm.
Therefore, I accept and will implement each of the (committee's) recommended sanctions as set forth in the Report, except the two that would bar (Wright) from participation in summer associate and associate hiring ...
Memo from four female accusers to Melton (August 2, 2004)...We are very disappointed at your failure to adopt the recommendations set forth by the FEPC committee with regard to Doug Wright.
This is not a case of 4 lone females making isolated complaints. When this situation first developed, there were between ten and fifteen female attorneys, including at least one female partner, who met with (an outside) law firm to discuss the complaint against Doug Wright...
... The message that you have sent us by your memorandum is that cruel behavior is tolerated, so long as the perpetrator is in a position of power. Despite the "hell" that we have all been through, we have received no apology, no words of sympathy, only repeated orders of "keep quiet," "don't talk about this with anyone" and "this process is confidential." ... The system protects Doug, not us.
Memo from Melton to four female accusers (August 16, 2004)... As the FEPC's report makes clear, the findings and, presumably, the recommendations of that committee were not unanimous.
Contrary to the concerns you expressed about my relationship with Doug Wright, he and I are not social friends. I assure you I was in no way biased in his favor ... I continue to believe that the sanctions I imposed in this case are both reasonable and appropriate under the circumstances. ... ... It is my earnest desire that our Tampa office will be a supportive environment for you to work and grow professionally.
Hypocrisy can afford to be magnificent in its promises;
for never intending to go beyond promises; it cost nothing.
Edmund Burke
1729-1797
Magnificent indeed are promises of the Florida Bar. Published
standards for imposing attorney sanctions decrees in part:
6.11 Disbarment is appropriate when a lawyer:
with the intent to deceive the court, knowingly makes a false
statement or submits a false document; or
improperly withholds material information, and causes serious or
potentially serious injury to a party, or causes a significant or
potentially significant adverse effect on the legal proceeding.
An arm of the Florida Supreme Court, the bar promises to discipline
attorneys that violate rules of professional conduct. In return for
this grand promise the bar is permitted to self regulate without audit
or oversight by elected officials.
Does the Bar back its magnificent words with action? Not even close.
When faced with overwhelming and indisputable proof of multiple acts
of misconduct, the bar turns a blind eye. Measure for yourself the
depth of deceit by following a pattern of attorney misconduct as it
was submitted to the abyss of the bar. Contrast the inert acquiescence
with the magnificent promise.
Make crime pay.
Become a Lawyer
Will Rogers
1879-1935
With the assistance of a former Florida Prosecutor and a former United
States Attorney, a fully documented complaint was submitted to the
Florida Bar detailing clear, compelling, and indisputable evidence
that three Florida attorneys, "with intent to deceive the court"
knowingly made or elicited multiple false statements and withheld
material information. Three bar files were opened. The attorneys were
provided a copy of the complaint and required to respond. Three
documented rebuttals to the responses were submitted to the bar.
Oh What a tangled web we weave,
Once we practice to deceive.
Sir Walter Scott
1771-1832
Once false statements to a federal court were documented in the
complaint, options narrowed for the respondents. Follow the scenario
by reading their responses and see how the rebuttals evidence each web
of deceit. Decide if you concur with the opinion offered herein that
the three identified attorneys repeatedly and blatantly violated rules
of conduct calling for disbarment and continued to weave their webs in
the documents submitted to the bar.
Frederick Dyer Page, Bar file 2008-00,042 (4D)
Arrogance and self-righteous condescension punctuate the response of
attorney Page. No defense was offered to the undisputed fact that he
knowingly made no less than five false statements to a federal
tribunal. Stating that he was proud of his conduct, Mr. Page made no
apologies and seemed annoyed that he should be bothered with such
mundane matters as truth and ethics. He went so far as to include an
exhibit not identified in the original complaint that was fabricated
and tampered with during the trial. This opened the door for rebuttal
to Page to document the reprehensible slight of hand employed by Mr.
Page and his co-counsel in deploying this artifice.
Richard Roemheld Thames, Bar file 2008-00,041 (4B)
Thames response lacked the hubris of Pompous Page but one does wonder
if he consumed cheese with his whine. He offered no defense or denial
to the allegation that he elicited false testimony from his client in
federal court and that he personally offered contradicting sworn
testimony. The rebuttal to Thames also documented that he made an
additional false statement in his response to the bar, an arm of the
Florida Supreme Court.
Bradley Robert Markey, Bar file 2008-00,043 (4B)
The inept and marijuana mellow response of Markey admitted that he and
his co-counsel had no regard for authenticity or source of evidence as
long as it served their purpose. This cavalier disregard for the law,
the facts, and the rules of discovery exhibited by these attorneys is
detailed and documented in the rebuttal to Markey.
Crime is contagious.
If the government becomes the law breaker,
It breeds contempt for the law.
Louis D Brandeis
Supreme Court justice 1916-1939
Did the bar approve this pattern of misconduct? Absolutely. The duty
of keeping the promise fell to Bar Counsel, Shanell M. Schuyler.
Perfectly suited for this job, she did exactly what her collogues
expected her to do. She betrayed the public trust and closed all three
files. Her letter closing the three bar files rained rhetoric about
not second-guessing the court and not retrying the underlying civil
case but failed to offer any analysis of the facts or to justify her
decision.
Conspicuously missing from Ms. Schuyler's letter is any comment
regarding the undisputed evidence that Mr. Page, a partner in the
politically potent Holland and Knight law firm, offered multiple false
statements to the Federal Court of Appeals. No comment on the proven
fact that Mr. Thames offered contradicting sworn statements. No
comment on the false statement made to the bar in Mr. Thames'
response. No comment on the fact that Mr. Thames did not deny that he
allowed his client to offer false testimony. No analysis of the facts.
Simply close the file and move on. Hear no evil; see no evil.
Convenient for the corrupt, a decision of bar counsel to close any
file is not subject to appeal. This caveat trumps truth. Catch 22; get
out of jail free; a cheap bar trick.
There is however an appeal to the court of public opinion. Decide for
yourself if the bar is a protector of public integrity or a purveyor
of perversion? Is the bar a trustworthy arm of the Florida Supreme
Court or a fraternity of fraud? Visitors to this site are encouraged
to read the complaint, the responses, and the rebuttals and decide if
the bar ignored the truth and encouraged false statements in Federal
Court.
During times of universal deceit,
telling the truth becomes a revolutionary act.
George Orwell
1903-1950
Why do attorneys violate rules of conduct that call for disbarment?
They lie and deceive because it is expected. This is business as usual
for the Florida Bar. One could certainly argue that rule of law has
been supplanted with conduct of universal deceit in Florida Courtrooms
and that the Florida Bar is a breeding ground for universal deceit.
As our country spans the globe spending national treasure and spilling
American blood in an attempt to impose concepts of the rule of law on
others, we fail to hold accountable those subversive individuals and
institutions that undermine the judicial process in this country.
Ignoring imminent danger paves the path to a place where differences
are settled with IEDs and RPGs rather than in a court of law. First we
slide down the slippery slope to tyranny where corrupt judges and
amoral attorneys distort and ignore the law. Then we continue the
downward spiral to anarchy. Where are we on this continuum and how
much further can we afford to slide?
It is not the 81,000 attorneys that comprise the Florida Bar that
perpetuate universal deceit. It is the institution. If the courts and
the Bar are held accountable and made to keep the promise the
individual attorneys will follow deserving leaders. Radical change
needs to take place in the courts and at the bar.
Source: http://lyinglawyers-flordia.com/
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