88th Installment. Did chief trial counsel take a bribe from Girardi and Lack?
For those who missed it, here’s the story, set in exotic Nicaragua:
Attorneys for plaintiff agricultural workers complaining of injury from Dole Food Company’s pesticides retained the highly successful law firms Girardi/Keese and Engstrom, Lipscomb & Lack, but the Nicaraguans sued Dole Food Corporation. Lack discovered the discrepancy and entreated the Nicaraguans to correct the name. They didn’t, and reminders of the omission constantly refreshed Lack’s memory, leaving no question that he approved a deceitful cover up of the error.
Lack and Girardi contracted to collect from the intended defendant in the United States and Venezuela, and in pursuit, Lack maintained an appeal where he argued falsely that the judgment named Company. His office doctored and misrepresented documents to prove the point. Lack balked at ending the frivolous litigation even after an appellate expert convinced Girardi.
The 9th Circuit U.S. Court of Appeals suspended Lack for six months and reprimanded Girardi—the penalties seem light because judicial sanctions are scaled down—after the court appointed respected ethicist Judge A. Wallace Tashima as Special Master. The high-stakes-gamble characterization in the first sentence of Judge Tashima’s summary provides the most insight: Girardi and Lack stood to profit immensely, but nobody—not even Judge Tashima—is telling the measure of the immensity.
In a high-stakes gamble to enforce a foreign Judgment of nearly a half billion dollars, Respondents initiated and directed years of litigation against Defendants. Respondents efforts went beyond the use of "questionable tactics" - they crossed the line to include the persistent use of known falsehoods. This litigation was based on three falsehoods: that Dole Food Company was named as a judgment debtor by a Nicaraguan court, that the Nicaraguan court corrected any mistakes it might have made regarding Dole Food Company in its judgment by the Writ of Execution, and that Respondents had submitted the corrected Writ of Execution to the state court and the federal district court. Respondents made these false representations knowingly, intentionally, and recklessly. Their actions vexatiously multiplied the proceedings at great expense to Defendants and required the Ninth Circuit to deal with a frivolous appeal.The California State Bar refrained from its usual thuggery. It dismissed all charges, claiming that the 9th Circuit had sufficiently punished respondents, who were, in any event, innocent of intentional misconduct. Extreme differences from regular state-bar practices uniquely distinguish these matters:
First, deceiving the 9th Circuit is unquestionably “moral turpitude.” Lying to a tribunal, particularly for personal gain, is disbarrable, as Richard Fine discovered when disbarred for moral turpitude because of a single, trivial, and defensible technical misrepresentation.
Second, disciplinary tribunals mutually defer. Respondents thoroughly litigated their state of mind in proceedings presided over by the Special Master, famed ethicist A. Wallace Tashima; and Girardi and Lack’s lawyers were more skilled than the state-bar-defense establishment’s offerings. Is the tin-pot “chief trial counsel” conceited enough to reach a different conclusion?
Third, the state bar never ordinarily describes a respondent’s state of mind as intentional. The operative term is willful, stretched beyond recognition.
Fourth, punishment imposed by another tribunal never discharges respondent’s culpability. A felony conviction results in disbarment without ado, and the state bar doesn't subtract a contempt of court.
Nonpecuniary ties, connections, and favoritism can’t explain discrepancies so extreme, but some disagree. One contrary theory speculates that Girardi’s associate Howard B. Miller, last year’s state-bar president, pulled strings for his boss. But a past occupant of that ceremonial office—even a current president—influencing the chief trial counsel is the tail wagging the dog.
Descent into thievery is the fate of blundering cops who are law unto themselves. For let’s be clear: nobody blames Lack and Girardi for using every resource to avoid the State Bar’s grip. Unlike the judges of the 9th Circuit, I don't grieve for the super-exploitative Dole Food Company, which, despite actual service, refused to appear as defendant and manipulatively complained for its due-process rights.
Let’s also be clear: the intelligent perspective isn’t for “disciplining” Girardi and Lack. Rather, the state bar should extend the courtesies afforded Girardi and Lack to all respondents.