Lowering the Bar

"Bulletproof" Attorney Jailed After "Obscene Gesture" in Court

Okay, if you had to vote right now, would you vote to sanction this guy?

"For what?" -- does it matter?

Okay, what if I told you he is an attorney -- wait, I'm not finished -- who is actually registered with the Texas State Bar under the nickname "Bulletproof"?

You are one tough customer.  Okay, how about this:  What if I also told you that during a recent court appearance he made "simulated masturbatory gestures" in response to an objection by opposing counsel "while making eye contact with the Court"?

Now how much would you make him pay?

This is Adam "Bulletproof" Reposa, who spent the night in jail a couple of weeks ago after gesturing in the aforementioned manner in the presence of Travis County Judge Jan Breland.  (Judge Breland wrote at the bottom of the order, "No bond without my approval," but approved a $1,000 bond the next morning.)  Reposa was representing a client on a DWI charge at the time.  He apparently made the gesture while looking at the judge and simultaneously rolling his eyes, in the internationally recognized symbol for "I strongly disagree with what my opponent is saying and in fact find it so lacking in merit that I think you will agree it is unworthy of response."

According to a reporter for KEYE-TV who tried to reach Reposa for comment, "the person answering said she was instructed by Reposa to tell the media a vulgarity, which won't be printed here."

You can actually find Mr. Reposa's contact information by searching for the term "Bulletproof" on the Texas State Bar's website.

Link: KEYEtv.com (Austin)
Link: Austin-American Statesman

Florida Attorney Sanctioned for Insulting Court with "Children's Picture Book"

On Friday, March 7, Bonnie Goldstein of Slate.com wrote about a furious battle going on between a Florida attorney on one side and the Florida Bar and Florida Supreme Court on the other.

Any bets on how this one comes out?

The attorney is Jack Thompson, who has a long history of trying to police violent and sexual content in the media.  You can reasonably take the position that at least some examples of that are a problem, but Thompson's thinking has evolved way beyond reasonable positions.

According to the Wikipedia article on Thompson, which is heavily documented (132 footnotes), Thompson has been involved in decency crusades since the 1980s, pushing for boycotts of, among others, 2 Live Crew, N.W.A., and Madonna.  Eventually, he took on video games, claiming for example that vibrating PlayStation 2 controllers are designed to encourage violence because the "pleasurable buzz [delivered] with each kill" is a form of behavior-modification conditioning.

Last April, he claimed the Virginia Tech killer had been driven to kill, and trained to do so, by playing the game "Counter-Strike."  "[T]his is not rocket science," Thompson said.  "When a kid who has never killed anyone in his life goes on a rampage . . . he's a video gamer."  That does seem pretty conclusive, although the official report on the Virginia Tech shooting found that none of the games the shooter played "were war games or had violent themes," although he did play "Sonic the Hedgehog."

There is no evidence that any rocket scientists contributed to that report, however.

Thompson has also taken on the Florida Bar, saying that ethics complaints against him are frivolous.  Some of the complaints involve attacks Thompson has made on other attorneys and judges in Florida, and that's what got Thompson in trouble recently.  In what he said was an effort to prove that an opposing attorney's website contains links to pornographic images, Thompson filed pleadings in federal court that included the same images he said he was complaining about.  The court was not amused.

In February, the Florida Supreme Court issued an order to show cause why Thompson should not be sanctioned.  That was prompted by a pleading Thompson filed that he described as a "children's picture book for adults," which he said was necessary because the court couldn't seem to understand his arguments without pictures.  The pictures included swastikas, cartoon squirrels, a judge with the head of a donkey, and an album cover used to argue that the validity of Thompson's position "should now be so clear with this filing that even could see it."

On March 20 -- after Thompson filed a response that called the order "bizarre" and "idiotic" and asking the court to "make [his] day" -- the court sanctioned him.  As a result, Thompson cannot file any more pleadings unless they are "signed by a member in good standing of The Florida Bar other than himself."  Further insulting pleadings, which are almost certainly forthcoming, may lead to contempt charges.

Link: Slate Magazine
Link: Wikipedia article on Thompson

Deponent and Counsel Jointly Sanctioned $367 Per F-Bomb

"Few depositions warrant sanctions more than this one," wrote Judge Eduardo Robreno (E.D. Pa.), in this opinion dated February 29, before embarking on an "extended discussion" of the conduct to show why.  The story and a PDF of the opinion were posted on the Wall Street Journal's Law Blog.

Generally speaking, the deponent, Aaron Wider of HTFC Corp., was taken to task for:

          1.  engaging in hostile, uncivil, and vulgar conduct;
          2.  impeding, delaying, and frustrating fair examination; and
          3.  failing to answer and providing intentionally evasive answers to deposition questions.

To be more specific, the court noted that, during his two-day deposition in this breach-of-contract case, Wider used the F-word "and variants thereof" 73 times (9.86/hour, or about one every six minutes), while using the word "contract" just 14 times.  And the F-word and its variants were by no means the only expletives being used, which gives you some sense of what the deposition was like.

The court concluded that the abusive language could only have been chosen "to intimidate and demean opposing counsel."  Apart from the obvious, the court noted that Wider repeatedly referred to opposing counsel as a "clown," and suggested that a later reference to "clown" verged on a physical threat:

Q.  My question is where are you currently employed?
A.  I'm not.  I just told you I work for free.
Q.  Okay.  You're not employed by HTFC Corporation?
A.  No, I own HTFC Corporation.  Be specific.
Q.  Okay.  And what do the initials HTFC mean?
A.  Hit That [Expletive] Clown.  That's what it means.  It's an acronym.

Maybe it does actually stand for that -- the details aren't provided on the company's website.  I notice that there is a state agency in New York called the "Housing Trust Fund Corporation," but this isn't it.  Wider's company, "HTFC Corp." (the Housing Trust Fund Corporation Corporation?), is a sub-prime mortgage lender, so the similarity to the state agency's name is surely just a remarkable coincidence.

The court also found that Wider "proudly expressed his intent to frustrate his examination," made his own legal objections, and usually provided intentionally unhelpful answers when he did answer, all of which was frequently delivered with "a gleeful smirk" at the camera.  (Personally, I think smirking alone should be actionable, let alone doing it gleefully.)

Wider's counsel took a shot at defending this conduct.  Among other things, counsel argued that it was justified because Wider was just reacting to "provocative and accusatory" questions.  "This argument is simply astonishing," said the judge, pointing to this exchange as an example:

Q.  This is your loan file.  What do Mr. and Mrs. Fitzgerald do for a living?
A.  I don't know.  Open it up and find it.
Q.  Look at your loan file and tell me.
A.  Open it up and find it.  I'm not your [expletive] [expletive]. . . . [S]hut the [expletive] up. . . You want me to look at something, you get the document out.  Earn your [expletive] money [expletive].  Isn't the law wonderful?  Better get used to it.  You'll retire when I'm done.

The court also criticized the attorney who represented Wider at the deposition, for failing to intervene or suggest an adjournment, and for actually tending to endorse Wider's conduct by "chuckling" at it and daring opposing counsel to file a motion to compel.

Which he did, of course.  Wider and the attorney were sanctioned and ordered to pay $29,322.61, for which they are jointly and severally liable.  As the WSJ calculated, that is approximately $367 per F-word or variant thereof.

Link: Law Blog - WSJ.com

"Heavy Hitter" On the Ropes

The Nevada Bar Association said earlier this month that it had received a complaint against personal-injury lawyer Glen Lerner, and that it was investigating.  Lerner is extremely well-known in Nevada, largely because of his ridiculous TV commercials, which have shown him (among other things) spinning like the Tasmanian Devil and dropping a giant phone on litigation opponents.

He was featured here some time ago after the state bar told him to stop calling himself "The Heavy Hitter," saying it implied a guarantee of success, and he threatened to sue.

The bar seems to have backed off on that one -- the Nevada Supreme Court changed the state rules last year, saying that the First Amendment precluded rules against "bad taste" -- but Lerner may have a bigger problem with this complaint, which involves his failure to show up for a client's trial date.  Lerner was scheduled to represent his pool cleaner, Mario Lino, in a trial that was supposed to start on January 22.  Lerner did not show up, saying he was out of state on "sabbatical."

Lino is charged with murder.

Lerner had told the prosecutor that he would not be returning for the trial, and said "if the judge wants to sanction me, she can sanction me."  (She does in fact want to sanction him.)  Lerner told a reporter he had tried to work out a deal with the prosecutor, or at least a continuance, but did not get either.  Solution: don't show up.  "The judge is probably fuming," he admitted.  "But what could I do?"  Well, "you get on a plane and you fly back," suggested the judge (in Lerner's absence), but could only re-assign the case to the public defender.  Lino (right), who faces life in prison for murder, plus a possible concurrent sentence for that haircut, said that no one from Lerner's office would return his phone calls.

Lerner told the reporter that he's been on "sabbatical" for several months, during which he has been writing a book and "re-examining" his life.  "I've been living the life of a rock star for so long," he said, that it was time to unwind and think about things a bit.  That's why he had not had time to prepare for the murder case.  He claimed that by not appearing for the trial, he was acting in his client's best interests.  That is probably a true statement, but not the way he meant it.

This Nevada law blog (which has a separate category devoted to Lerner), has a clip of his most recent ad, which depicted a young Glen Lerner representing the victim of a bully in a schoolyard dispute.  In the "dramatization," the young Lerner forced the bully to hand over his shirt and bike as compensation for a bloody nose.  In real life, of course, the adult Lerner did not show up for his client's murder trial.

Link: Las Vegas Review-Journal (Feb. 6 story on the bar complaint)
Link: LVRJ (Feb. 11 story on the Super Bowl ad)

Practice Tip: Probably Okay to End Deposition Early if Other Side Brings a Gun

On February 12, an attorney representing a man suing NFL running back Reggie Bush said he and his client chose to end a deposition early after noticing that the other side was armed.

"I knew they weren't going to like what they were going to hear, but I never thought they'd bring a gun," said Brian Watkins, an attorney for sports marketer Lloyd Lake.  Lake is apparently suing to recover $300,000 in payments and gifts that he gave Bush while Bush was at USC.  (The fact that these gifts were illegal may be a bit of an obstacle to recovering them.)

The report did not say who was being deposed, but it wasn't Bush, who is scheduled for February 25.  But it wasn't the deponent who had the gun anyway -- it was the bodyguard for Bush's attorney.  The attorney, David Cornwell, claimed later that he felt he needed a guard because Lake, who has a criminal background, has allegedly threatened him and Bush before.  Cornwell said the bodyguard had a permit to carry a concealed weapon, but Watkins said he didn't keep it concealed.

"He made sure we saw it," Watkins said.  Watkins' client said the bodyguard flashed the gun at him in the lobby, and that he opened his jacket later during the deposition.  When Watkins objected, Cornwell agreed to have the bodyguard sit outside the deposition room.  "So then," Watkins said, "he was sitting eight to 10 feet away from Lloyd, outside a glass door with his arms folded, staring in at my client."

Outrageous, Watkins called it twice.  "It's outrageous that he shows up strapped for a deposition," he said.  "That's outrageous conduct in the lawyer world.  Come on, we're lawyers.  I don't threaten people [with guns], I sue them."  Watkins suggested that the handgun was evidence that Bush has a weak case.  "They know the day of reckoning is coming," he said.  "They are panicking."

Cornwell, who has represented many other sports figures including dog lover Michael Vick, did not sound panicky.  Given Lake's background and the alleged threats, he said, "we were advised to take appropriate security precautions when in Lake's presence."  He dismissed the intimidation claims as unprofessional.  "This lawsuit stuff is for grown folks.  Obviously, this crew ain't ready."

The deposition was held at the San Diego office of grown folks Pillsbury Winthrop Shaw Pittman, though Pillsbury said none of its crew was present (it was just hosting).  In a statement, the firm also emphasized that it has a "zero-tolerance" policy for firearms at a deposition.

Link:  AP via NBC Sports
Link:  USA Today

Judge Halverson Suspended by Nevada State Commission

The Nevada Commission on Judicial Discipline issued an interim order today (July 25) suspending Judge Elizabeth Halverson pending a final determination in the disciplinary proceeding against her.  The order means that after reviewing evidence and holding a hearing, the Commission has concluded that Judge Halverson "poses a substantial threat of serious harm to the public and to the administration of justice."  More specifically, it found substantial evidence to believe that she:

1. is "without sufficient legal abilities to conduct trials in criminal cases without threat of serious harm to the public or the administration of justice;"
2. "has not treated staff and litigants with patience, dignity or courtesy," and created a hostile work environment for her staff;
3. failed to diligently perform her duties "by falling asleep on at least one occasion and possibly more while on the bench during a jury trial;" and
4. failed to cooperate with other judges and court administrators.

If you've been following this story -- and it's gotten enough attention outside of Nevada to have shown up in the ABA Journal -- this will not come as any surprise to you at all.  The order, which was posted today and which you can find here, is 26 pages of goodness about Judge Halverson's badness.

First, the suspicion that the judge doesn't have the ability to conduct a trial stems in part from incidents in which she met with juries when the lawyers were not present, including during deliberations, and at least once "decided to dine with the jurors in the courtroom during the course of the trial -- an event unheard of as far as the commissioners participating in this case are aware."  The Commission also noted that Halverson was removed from cases by one or both parties (exercising a "peremptory challenge" to get another judge) about twice as often overall as all other judges combined.

Second, the Commission found credible the testimony of Johnny Jordan, who was Halverson's bailiff, at least for a while.  He seems to have understood at the outset that he would have to help her with her shoes, for reasons apparent from this picture.  But she also made him, among other things:

• maintain the correct ice/water ratio in her glass at all times;
• make her lunch every day;
• cover her with a blanket when she was resting (in chambers and not on the bench, I guess);
• pick things up after she threw them on the floor; and
• work 12-hour days even when trial was not in session.

There was also some touching and inappropriate commenting, but you get the picture.  Also testifying was Ileen Spoor, a staff member who said she was mistreated, and also said that Halverson  would put people under oath and make them answer her own personal questions.  This included Halverson's husband (who by the way is a convicted felon), who was sworn in to answer certain questions about their marital relationship that weren't specified and which I don't even want to think about.

Witnesses testified that Halverson had indeed snoozed on the bench, the best detail about this being that poor Johnny Jordan had to try to wake her up without also pissing her off, which he would try to do by slamming a door.  (It didn't work.)  The Commission concluded here that "sleeping in court, whether there is a jury present or not, is not appropriate behavior for any judge."  Seems fair.

Finally, Halverson did not "cooperate."  She did not cooperate to the extent that after she no longer had a bailiff, she showed up with her own private armed bodyguards without telling the courthouse staff in advance.  This caused concern (and got her barred from the courthouse temporarily earlier this year).

The upshot is that Halverson is now suspended, and the state supreme court immediately unsealed the Commission's order (which does not bode well for the future of her judgeship, probably).  Those of you who are not required to maintain the correct ice/water ratio in anyone's glass might want to read it, and feel better about your current work situation.

Link: Harmless Error (a Nevada law blog)
Link: ABA Journal

Bar Association: Lawyer-Administered Beatings May Be Unethical

In India on Wednesday, the Agra Bar Association said it would be looking into the details of an attack by several lawyers on a litigant there.  According to reports, the lawyers claim that the man refused to marry the niece of one of the lawyers, a dispute that (for reasons that were not clear to me) ended up in court.  Actually, I guess it ended up out of court, because when the man arrived to discuss settlement, the lawyers instead grabbed him, tied him to a tree, tore off his shirt and cut various bald patches into his hair.

For a closing argument, they also beat him up.

Indian TV channels have been running video of the lawyer gang's assault on the stubborn bachelor, and a local official says he has ordered police to file a case.  According to the report, the local bar association has said it is also "investigating the attack."  This tells me that a spokesperson for a bar association, presented with video of lawyers actually abducting a litigant, tying him to a tree, embaldening him and beating him up, refused to make a call as to whether this was unprofessional conduct or not.  But he did promise they will "look into it."

I look forward to the report of the committee of experts they convene for that investigation.

Link: Reuters

Note to Self: Saying "With Respect" Just Before Insulting Judge Does Not Confer Immunity

"Legal tabloid" Above the Law reports today on an unfortunate comment made to a federal bankruptcy judge by a partner in a Chicago law firm.  The issue seems to have been a disagreement over whether a particular transaction was likely to close -- the judge thought it would and Mr. Smith strongly believed it would not.  Finally, evidently frustrated, he told the court, "I suggest to you with respect, Your Honor, that you're a few French fries short of a Happy Meal in terms of what's likely to take place."

The delivery of this insult "with respect" does not seem to have helped, since Judge Isicoff responded with a frosty "Proceed, counsel,' and later that day with an even frostier Order to Show Cause, with transcript attached, and a copy sent to all court personnel.

Likely to result in a supersized apology, probably.

Link: Abovethelaw.com
Link: Law.com (May 31, 2007)

Bar Complaint Charges Judge and Prosecutor With Repeated "Ethical Lapses," If You Know What I Mean

The article did not mention the phrase "conflict of interest," but it probably is one if a judge is having an affair with a prosecutor, especially if she also appears before that judge with her clothes on.

A judge in Douglas County, Colorado, has resigned after being accused of having an affair with a prosecutor that seems to have lasted about six months and included numerous in camera hearings.  (Veteran readers will know where to put the air quotes in that sentence.  One has also filed a motion asking me to create a joke using the word "debriefing," and I have taken that under advisement.)  The prosecutor also prosecuted at least two cases before the same judge without disclosing the relationship.  It was later disclosed, likely with a vengeance, by the judge's wife when she learned about the matter in December.

The disciplinary complaint could result in punishment up to and including disbarment, for, as the complaint puts it, "degrad[ing] the sanctity of the courtroom" on numerous occasions.

Link: Rocky Mountain News

German Lawyer Ends Brief With Punchy National Socialist Conclusion

I occasionally teach writing seminars for associates in our firm, and there are two or three rules I try to emphasize about the concluding section of a brief.

• First, always end a brief with a real conclusion and not just something lame like "For the reasons stated above, we should win."
• Second, the conclusion should be short, compelling and persuasive.
• Third, and most importantly, it should not include the phrase "Heil Hitler."

Admittedly, you rarely see a brief that ends that way, but it does happen, as we learned from charges filed this week against German lawyer Sylvia Stolz.  Stolz has defended Ernst Zundel against charges of incitement that stemmed from Zundel's insistence on denying that the Holocaust took place.  Zundel was convicted last month and sentenced to five years in prison, and this week prosecutors said they were going after Stolz too for her conduct in the first case.  Stolz is charged with incitement, obstruction of justice and using symbols of a banned organization (the Nazi Party).

Zundel had to be tried twice because Stolz got banned from the first trial for trying to sabotage the proceedings.   Her disfavored acts included repeated provocations, such as denouncing the court as a "tool of foreign domination" and describing the Jews as an "enemy people."  Though Stolz was banned, she refused to leave and had to be picked up and carried out of the courtroom, shouting, "Resistance!  The German people are rising up!"

Apparently, though, Stolz was the only German person who was rising up, and that was only because somebody picked her up and carried her out of the courtroom.

That case was also the one in which she added "Heil Hitler" to the conclusion of a legal document.  Stolz does not deny doing that or any of the other things she is charged with, but insists that they were legitimate tactics in her fight against an illegitimate government and occupying power (us, I guess).  "We are under foreign occupation," she said, "and this foreign occupation has portrayed Adolf Hitler as a devil for 60 years, but that is not true."  Actually, it's more like 68 years -- these Holocaust deniers can never get their facts straight.

Prosecutors said they hoped to prevent Stolz from working as a lawyer in the future.

Link: AP via FindLaw.com

N.Y. Attorney Disbarred Based on 14 Trumped-Up So-Called Ethics Charges

Carlos Perez-Olivo's disbarment was approved by New York's Appellate Division last week.  The approval came even though the only charges against Perez-Olivo were:

• Taking $20,500 from a client to appeal a conviction and then doing nothing (or not enough) to perfect the appeal, and then refusing to return the money after the appeal was dismissed.
• Refusing to return $10,000 he had been given to post bail for a client arrested in Pennsylvania, and agreeing to represent the client in that state, where he was not licensed to practice law.
• Similarly refusing to return bail money in another case.
• Asking a client to sign a retainer agreement stating that his $10,000 "deposit fee" was non-refundable, "regardless of the time that I spent on this case or if for whatever reason I am removed from the case."
• Being removed from that case for a disqualifying conflict of interest because he sought to represent an alleged co-conspirator in the same matter.
• Refusing to return the $10,000 "deposit fee" in that same case on the grounds that he had spent 23 hours researching the issue of conflicts of interest (and reaching the wrong conclusion, evidently).
• Neglecting a variety of other cases.
• Previously being admonished for similar misconduct in New York, which served as an aggravating factor.
• Previously losing his license to practice in Puerto Rico, which served as an aggravating factor.
• There is more, but I've forgotten it.

That is, "There is more, but I've forgotten it," the exciting conclusion to Perez-Olivo's closing argument in the defense of Elio Cruz, a waiter who was on trial in 2004 for shooting his wife's lover.  That's exactly what somebody on trial for murder wants to hear from his attorney -- winding up with the compelling statement, "There is more, ladies and gentlemen of the jury, but I've forgotten it.  Thank you."  This was also disturbing to the jurors, one of whom wrote a note to the judge prior to deliberations to complain about Perez-Olivo and to say that she feared "for anyone else [he] is hired to defend."  She was replaced, but Cruz was still convicted.

The Cruz matter was, for some reason, not at issue in the disciplinary proceeding, but apparently the court found sufficient evidence to disbar Perez-Olivo anyway.

Link: New York Law Journal via Yahoo! News