Wednesday, December 15, 2010

3d DCA Watch -- All Lawyers as Litigants Edition.



It's an frosty blistery day outside, but inside the bunker the robes are resplendently heated, the air smells like fresh gingerbread (Judge Emas has a new cologne!), and the coffee.....well it's cold, dark and bitter -- just how I like it!

Let's jump in:

Sotolongo v. Celebrity:

Do you want the good news or the bad news?

Anthony v. Perez-Abreu:

Oh boy, did I just read a fact pattern or the script from a Law & Order episode?

Married couple in law office getting divorced, financial records allegedly taken from office and given to one party's divorce lawyer, suit later brought against divorce lawyer receiving docs.....oy.

Apparently the suit against the lawyers lives on, though Judge Salter in concurrence advises Mr. Anthony against continuing to pursue it:
I write only to note several indicia of a terminally ill lawsuit that, while it may have survived a first and second brush with death, has no apparent cure in sight.
Those indicia are:
1. The appellant is an attorney who signed his own complaint and amended complaint (though later memoranda and the briefs here were signed by a junior lawyer in the small firm wholly owned by the appellant). “The old adage that ‘a lawyer who represents himself has a fool for a client’ is the product of years of experience by seasoned litigators.” Kay v. Ehrler, 499 U.S. 432, 438 (1991).

2. The cases arose out of (a) a dissolution of marriage proceeding brought by the former wife in 2004 and (b) the appellant’s subsequent claims against the former wife’s attorneys for allegedly counseling her to copy records from the appellant’s law office before the dissolution petition was filed. The emotional aspect of dissolution cases (particularly, as here, involving minor children) amplifies the possibility of professional misjudgment by anattorney/party. To compound the emotional aspect of the dissolution of marriage proceeding, the former wife had exploited her position as an employee in the small law office to clandestinely copy the otherwise confidential documents. She thus simultaneously sundered not only a longstanding marriage, but also a successful business relationship.

3. On the face of the amended complaint, however, there is no discernible claim of actual harm to a client of the law office or to the ongoing business activities of the law office. The alleged damages principally consist of increased legal expenses alleged to have been incurred by the appellant because of his need to litigate these matters against the former wife and her attorneys. Any such damages were under the appellant’s control—no litigation, no expenses. Many of the allegedly-photocopied records—appellant’s law office tax returns, for example—would have been subject to production as part of the parties’ financial disclosure to one another in any event.
 The Judge strongly counsels Mr. Anthony against continuing the litigation and even recommends that he show his suit to an experienced litigator:
[F]or the sake of the trial court’s docket, the ability of the appellant to devote his considerable experience to more productive endeavors, and “closure” for the parties and the two minor children, I will simply recommend that the appellant share the facts and his amended complaint with a detached, experienced trial lawyer before deciding whether to resume hostilities in the trial court after remand.
It's also interesting to note that in the 2007 appeal of the underlying divorce action (which overturned language in the dissolution agreement that would have released the law firm subject to the current suit), Judge Schwartz vigorously dissented, arguing that the possible suit against the lawyers is purely hypothetical:
First, the most basic requirement for judicial activity does not exist in this case. This is because no one has been able to explain how the purported releasors can, let alone will, ever be the subject of a claim against them so that the extent or existence of any release is nothing more than academic. Thus, there is simply no "case or controversy" between the parties presented by this appeal.
Not anymore, apparently.

2 comments:

  1. Fun song. Catchy tune.

    Man, you are a prolific blogger. Do you type 300 words per minute?

    ReplyDelete
  2. Windsurfing. Lots of Windsurfing.

    ReplyDelete