Tuesday, April 10, 2018

Candor to the Tribunal and Misrepresentation

A recent column, Dead Men Tell no Tales, detailed the findings of Florida's First District Court of Appeal regarding 73 Engle-Related Cases. It was an outcome, dismissal, which the plaintiffs in the case lamented. But, that 73 cases is an introduction, and as Paul Harvey was wont to say, this is "the rest of the story."

Federal judges in Jacksonville wrote a 148 page order in 2016 titled In Re: Engle Cases, Case 3:09-cv-10000-J-WGY-JBT. It it, the judges imposed a $9.1 million penalty against two law firms involved in the "Engle actions." The order was to hold the two firms and the attorneys 
to account for the immense waste of judicial resources and contempt shown for the judicial process occasioned by maintaining over a thousand non-viable claims
And so, the volume of cases implicated with case investigation and management is far higher than the 73 discussed by the Florida court. The Federal court concluded that 
Counsel evinced a conscious disregard of [1] their professional obligation to properly investigate such claims, [2] obtain authorizations to file from clients, and—most importantly— [3] communicate honestly with this Court. (numbers added). 
In baseball, three strikes has consequences. Perhaps so too in legal practice? 

The story starts in 2008 when the two law firms filed "3,700 Engle-progeny complaints in the Florida state and federal courts." However, "many of the plaintiffs never authorized" the firms to sue. Of those filed, "dozens did not meet the basic requirements" (some never smoked), and "over 500" of the plaintiffs "had died well before counsel filed the complaints." 

The court describes how it "sent questionnaires directly to the named plaintiffs" in 2012. Notably, the attorneys objected to the court having that contact. The court found arguments made by counsel at that time were "obstructive, deceptive, and recalcitrant behavior." Following the revelation, over 500 cases were dismissed. Similarly to the 73 Engle-Related Cases opinion of the Florida appellate court, the Eleventh Circuit Court of Appeal affirmed dismissal, noting that
Over and over, plaintiffs’ counsel explained that these problems were the result of the unique logistical difficulties involved in managing so many individual lawsuits. And over and over the District Court reminded counsel that a lawyer’s responsibilities to the court are not diluted even by an ocean of claims.
and that counsel had "established a pattern of acting on behalf of “clients” they have dubious authority to represent" and proceeded "as they see fit, with scant contact with or input from the individuals they purport to represent." 

After a lengthy recitation of the history of "the Engle class," and the filing of the 3,700 lawsuits, the sanction order takes issue with various representations by the plaintiff's counsel. Following a survey of the plaintiffs and further efforts to refine the population of plaintiffs, a special master for the federal court concluded there were a variety of errors including (1) 521 plaintiffs were deceased when their cases were filed, (2) counsel filed "wrongful death" claims for 66 plaintiffs that were alive. (3) 64 of those who were deceased had no survivors, and (4) 39 of the filed cases were "barred by the statute of limitations." 

Some cases were dismissed, and others not. One of the lawyers made attempts at explaining how the sheer volume of cases made management and communication difficult. And, a hearing was held in 2012. Portions of that hearing are recited in the sanctions order. The presiding judge asked questions about an affidavit (a document sworn to in the same way testimony is sworn) in which one of the plaintiff's attorneys made representations and attestations with which the court found doubt or question. 

In a striking illustration of the lack of information shared, the sanction order notes that "a sitting juror" in one Engle case was identified as being a plaintiff in another Engle case filed by the same lawyers. And, when informed of that fact, the juror was surprised. This, it seems, was the first this person knew that she was a plaintiff in a lawsuit. Before imposing sanctions, the federal court discussed at length the legal authority for sanctions and the plaintiff's counsel arguments regarding their due process. 

The sanction court provides details on various cases and situations. It notes the non-smoker plaintiffs  and some others who could not be Engle-plaintiffs because they did not live in Florida, did not suffer from diseases that were included in Engle, or were barred by the statute of limitations. 

The court then concluded that the attorney "knowingly, or at least with reckless disregard for the truth, made material misrepresentations for the purpose of preserving meritless cases." The court concluded that the actions of plaintiff's counsel "violated Rule 11" (Fed.R.Civ.P), and that "monetary sanctions are necessary to impress upon" plaintiff's counsel "and all others who litigate in this Court, that the Court cannot tolerate the type of conduct" that was "displayed in these cases."

The court agreed with the findings and recommendations of the special master, save one. The master recommended as sanction "total disgorgement of attorney’s fees and costs" in all of the cases. The court concluded the actions were "so egregious that disgorgement could be justified as necessary," but concluded that there were "1,250 frivolous suits" and that each cost the court system "6,983.42," which equaled $8,729,275.  To that, the court added the expense of the special master's "labor in carrying out this extensive investigation," another $435,129.12. 

Thus, the total sanction was $9,164,404.12. The court also referred the matter to The Florida Bar for an investigation of the representations that were made by counsel. And, the court administered a "public reprimand" by way of publication of the sanction order. 

Since that order was entered in 2017, there has been significant commentary. There have been articles in the Daily Business Review, Law 360, Forbes ("sordid tale of Ethically-Challenged Lawyering"), and more. And, according to the Jacksonville Daily Record, the attorneys have sought to "alter or amend the sanction order." The story may not be over yet. However, there are lessons:

(1) the volume of litigation does not excuse following the rules.
(2) the appropriate response when a judge asks a question is either the truth or "I don't know."
(3) you cannot represent a deceased person.
(4) the time to deal with new information (client deceased) is as soon as the information is known. 




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