Monday, April 27, 2015

An Allegation of Conflict of Interest in California

There is an interesting workers' compensation claim being litigated in California. There have been a couple of recent news stories that make public some aspects of the case that are curious. One out of San Diego levels charges against an attorney and court reporter. A later story provides some follow-up and reveals an interesting mistake that was apparently made. 

An injured worker, Connie Campbell, alleges that the California workers' compensation system is tilted against employees. Interviewed by ABC 10News in January 2015, she alleges that the system is a "good old boys club." She is dissatisfied with the way her claim was defended. According to ABC 10 News, Ms. Campbell's difficulties allegedly arose several years ago. She claims that she was moving a 200 pound medical device involved in liposuction procedures.

In the January interview, she describes being deposed by an attorney representing her employer. That happens in virtually every workers' compensation case in Florida. The deposition of the injured worker is sometimes among the first things defense counsel will undertake. Ms. Campbell says she was deposed by Avery Chazen, and that the court reporter in that proceeding was Sherry Dietz. 

Ms. Campbell alleges that the resulting deposition transcript was not accurate. She says her words were "misconstrued, there were things left out, there were places she had a 'dot dot dot' and didn't finish my sentence -- didn't finish my thoughts." She claims that her "words and sentences were changed." The fact is that the "dot, dot, dot" happens periodically. Any attorney has seen that, and it usually due to inaudible responses, or technical issues. The accusations of misconstruction and inaccuracy are perhaps more curious. 

Ms. Campbell was disturbed that Mr. Chazen, the attorney conducting the deposition, "works for the law firm Dietz, Gilmore and Chazen." (Emphasis added). She notes that the "senior partner in the firm is Bill Dietz who is married to Sherry Dietz, the court reporter" that transcribed her testimony. She also alleges that at the time of her deposition she did not know of the relationship. Mr. Chazen has been a partner in that firm since 2010 according to WorkCompCentral.

Is that relationship a conflict of interest? The National Court ReportersAssociation Code might suggest so. It appears to be a voluntary organization, not a regulatory one. However, its code may be a good exemplar of what standards should guide. That organizations code says that a member shall:

"2. Be alert to situations that are conflicts of interest or that may give the appearance of a conflict of interest. If a conflict or a potential conflict arises, the Member shall disclose that conflict or potential conflict."

"3. Guard against not only the fact but the appearance of impropriety."

The CaliforniaCourt Reporter's Association has a code also. It includes admonitions that its members "should:"

"Guard against impropriety and/or any appearance of impropriety."

"Fully disclose to the presiding officer and/or all parties present at a proceeding for which verbatim court reporting services are to be provided any conflict of interest of the possibility of a conflict of interest. Following that disclosure, decline to report the proceeding on the request of the presiding officer or any party." 

According to the January report by ABC 10 News, "the Court Reporters Board of California eventually cited Sherry Dietz after Campbell made two attempts to report the Dietzs' marriage to the board. The citation says it's "fraud, dishonesty, corruption, willful violation of duty, gross negligence…." 

ABC 10 says that Sherry Dietz and Mr. Chazen declined to be interviewed for its story. A comment provided by Mr. Chazen explained that Ms. Dietz participation was appropriate; he said that a former attorney representing Ms. Campbell knew of the relationship and allowed Ms. Dietz to "to handle the deposition." 
Her case returned to the airwaves/Internet in March 2015 with another ABC 10News story. Ms. Campbell now alleges that defense attorneys withheld evidence in her case. Apparently, the employer/carrier in her case recently decided that "it was in the best interest of all concerned to hire another firm to represent us in the case."

In the process of a change to a different defense attorney, Mr. Chazen discovered that "the witness interviews she (Ms. Campbell) had requested did exist." These are reportedly "transcripts of four co-workers and the office manager of her (Ms. Campbell's) former employer's office." 

Ms. Campbell has requested sanctions from Mr. Chazen. Mr. Chazen said "our firm acted in accordance with the law and we are confident that this frivolous request for sanctions will be summarily denied." He also added that the "witness statements include support that she (Ms. Campbell) did not have a work injury."

An interesting case on the process of discovery. There are ample stressors to litigation; it is more stressful for the parties involved than for the attorneys. Certainly, it is not free of stress for attorneys, but they experience it daily and become somewhat acclimated. For the parties themselves, it is often their first exposure to litigation.

Giving everyone the benefit of the doubt in the situation described, there are a couple of lessons here. First, attorneys may enter agreements, but they have to keep their clients apprised of those agreements. Second, discovery is a critical process in any case and can bring the stress of litigation to the surface. It may be an ideal time for increased communication between the parties and their attorneys. Finally, the appearance of conflict may be troubling to people and attorneys may wish to strive to avoid any such appearance. 

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