Chapter 72 – Counterclaim for Defamation Dismissed

In the latest case involving former employee M, Marshall and Christiansen claim, I filed a counterclaim for defamation based on a belief that Marshall and Christiansen represented the contents of one of my blog posts as a veiled threat to Judge Jones. Nothing could be further from the truth but as a reult of their intentional acts, I am now on the watch list. My efforts to have the U.S. Marshals Service tell me why I’m on the watch list have been met with great resistance. Its the kind of silent, lets not talk about it behavior, you’d expect of child molestors. Not the US Marshals. Not the Department of Justice. The U.S. Marshals service has not for example responded to my subpoena for documents.

When evaluating the efficay of actors like Marshall and Christiansen and whether they indeed felt that there was a real threat to Judge Jones, it is imperative that a judge consider the motivations of those two knuckleheads. Joel provided a limited declaration and admission of what contact Joel and Linda had with the judges clerk (WHO THEY HAVE NOT IDENTIFIED). But we do know this. Ethical complaints were filed against them before they took this action. Like child molestors that rely on secrets to keep their victims from notifying law enforcement, L and J are desparate to keep me from revealing the facts of the arbitration and are seeking backroom judicial intervention to help.

The Honorable Marco Hernandez has dimissed my counterclaim for defamation and IIED and not as yet permitted me to file a motion for summary judgment on this case, but has allowed me the opportunity to amend. I disagree with his conclusions but like his body of work and understand his reasoning. By and large he wants to protect anyone who raises any issue or concern about a threat to a judge. I understand his thinking, to stand on the side of safety. But on the other hand, its not what the law requires.

We have to evaluate whether the J&L interaction with Judge Jones was simply advancing the interests of this group of abusive attorneys in a conversation they intended to remain private and strategic, in contrast to a serious concern about Judge Jones’ welfare. What did J, L and Judge Jones really talk about I wonder? Did they simply use the blog post, the one liner, to try to turn the attention back to me as a threat. I represent a threat of exposing their surreptious behavior. That’s all. It’s kind of Clintonesque. And its beyond Linda and Joel’s intellectual reasoning. Judge Jones, I have to admit this is a bit of enlightened litigation politics. Lets see what the subpoena produces.

Judge Hernandez opinion is attached here as doc-68. The Judge went well beyond what Joel called on him to do, but I do advocate that. I strongly support a judge going to distance to the right decision, not simply responding to poorly prepared briefs. He did that. we had a chance to brief it.

At a very minimum it means that this case filed against me must be dismissed under the same theory. It is interesting that we find ourselves in a case where my counterclaims have been dismissed on the same theory that Joel’s complaint would be dismissed (for First Amendment speech), and yet the Judge has not yet allowed me to file that motion. Why is that I wonder?

I have asked more than 20 people if they believe that a paragraph in my blog posts represents any possible interpretation of a threat and no one does. And my statement was “Perhaps more often than not our legacies are not what we inteded them to be.” Do you consider that threatening? 

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Chapter 71 – My Motion For Sanctions Against Marshall

I am often appalled by the craziness and complete inapplicability of a legal complaint to the actual facts. In my case involving my former employee, it is clear that they are seeking damages they have no right to seek by contract or law.

Frivolous litigation may be based on absurd legal theories, may involve a superabundance or repetition of motions or additional suits, may be uncivil or harassing to the court, or may claim extreme remedies. A claim or defense may be frivolous because it had no underlying justification in fact, or because it was not presented with an argument for a reasonable extension or reinterpretation of thelaw. A claim may be deemed frivolous because existing laws unequivocally prohibit such a claim, such as a so-called Good Samaritan law.

In the United States, Rule 11 of the Federal Rules of Civil Procedure and similar state rules require that an attorney perform a due diligence investigation concerning the factual basis for any claim or defense. Jurisdictions differ on whether a claim or defense can be frivolous if the attorney acted in good faith. Because such a defense or claim wastes the court’s and the other parties’ time, resources and legal fees, sanctions may be imposed by a court upon the party or the lawyer who presents the frivolous defense or claim. The law firm may also be sanctioned, or even held in contempt.

See my motion for sanctions as follows. doc-152.

Soon I’ll be filing a motion for sanctions against Joel Christiansen for the new lawsuit filed on Christmas Eve 2015. I wonder if the filing of the lawsuit means Joel is an Atheist. I know my former employee and his attorney financee are atheist. I suppose that makes the immoral decisions they frequestly make so much easier.

And as you my readers know, I have filed numerous ethics complaints against Joel and Linda. The BAR does not care.

Chapter 70 – THE BAR’S MOTIONS TO DISMISS…THE LIES

The Oregon State Bar Professional Liability Fund hired a firm called Hart Wagner to try to dismiss the complaint I filed against the defamers Linda Marshall and Joel Christiansen. One of the points I made to the Bar early on was that I really would like to focus on the merits of the case instead of casting aspersions. WIth Matt Kalmanson at the helm for the Bar, that commitment of keeping things clean did not last long.

My complaint about the PLF’s behavior in this litigation is that they aren’t any cleaner than Marshall and Christiansen. The truth is they are all pretty dirty players.

The issue with Christiansen and Marshall is that they have taken action to try to enlist a Fedral Judge to influence litigation being considered by one of his colleagues. And they are using fabricated and false information to cast me in a false light. Specifically they are alleging that one of my blog posts (Chapter 19) was a veiled threat that I intended to attend Judge Jones lifetime achievement award dinner and cause him some harm. By making this claim they are conveying in no uncertain terms that I am about to engage in a crime. Nothing could be further from the truth.

First and certainly foremost, this is not new. Marshall asked arbitrator Crow to set aside the facts of the arbitration and find in her clients favor because Judge Jones through me out of his chambers and specifically went on record that he had “utter contempt for me.” Judge Jones went on record in his chambers with an audience to say that after I asked him to step away from a case after the trial. I did so in writing. I did so because I had been contacted by someone not a fan of the Judge telling me that the plaintiff in the very case Judge Jones adjudicated was a family member. Same last name. Judge Jones did a very good job during the trial, but the trial was over. Now he was trying to help that family member collect the judgment. Today, if Judge Jones wanted me to come to his chamber to yell at me I would go. I have no disdain for him, nor was I under the impression that he had any remnants of disdain for me.

But then, we started to hear a few things about a more active interest. When the Marshall’s of the BAR reach out to ask a Federal Judge to intervene surreptitiously and leaves a trail of contact, I can only imagine the judge would be upset and for many reasons. First, its an attack on the judges character. Second, its an attack on his legacy. Third, it may be criminal.

So when Marshall instigates and draws someone like Christiansen in, it is because she has convinced him that it worked at least once in the past. Remember the ex parte contact and submitting off the record and behind close doors a transcript of my time in Judge Jones’ chamber. Now in many respects this is intended to tell me that the fix is in, that Judge Jones already intervened. Perhaps he was instrumental in convincing Marshall to take the case of my former employee. I have to treat as credible the actions Marshall and Christiansen take. so when they contact Judge Jones about a very self reflecting comment I make in a blog, you have to measure not just the stupidity of the act but the fact that Marshall was comfortable contacting Judge Jones chamber with something as silly as this. That suggest familiarity.

The first of the Bar’s motions attacks my character on numerous fronts. The purpose of those attacks is to justify Marshal’s contact with Judge Jones. One of the attacks claims that my brother contacted my former employee in 2006 and conveyed I had talked to him about flying to New Jersey to scare him. I am publishing this now because the BAR intentionally published this commentary knowing that it is now public, for all to read. My brother and I have reconciled now, but back then I had to sue him to collect $50,000 and he let his drunken state to get the best of him and he lashed out. My former employee did not take it seriously then, but now, when they can use it, they are. And by the way the BAR published that attack knowing it was false, as I had already provided to them a retraction. By the way, although I won a judgment against my brother, I have made no effort to collect it and allowed him to offset it for money spent on my nephews and niece for college, sports, music and other extra curricular activities as well as braces, etc. I never intended to see a penny of this. And further, that same brother got me into a real estate deal wherein I lost $500,000. The best way for me to let the BAR know that I am not embarrassed by these false allegations is simply to revel them to you. SO bring it on BAR. Attack me, my family, accuse me of all imaginable things, etc., because Marshall and Christiansen still accused me of a crime and I want a piece of them until they stop it. See the Anti-Slapp Motion here.defs-anti-slapp-motion.

The second piece of work was a reply to my comments on their motion, but in that reply they at least spent alot more of their effort not attacking me as much, although it appears the message to me is that I should not write letters to judges. Why not? We should all write letters if we dont like something. Its the least intrusive way to share how silly some of this tremendous waste of money is. For example, the case against my former employee was based on a complaint that the former employee made to the ODJ claiming in essence that one of my employees was going 55.25 miles per hour in a 55 mph zone and his complaint to me was the reason he was fired. Well that’s just silly, but an attorney looks at that and say hey I can make $150,000 on that stupid claim if I get in front of a judge whose a friend or an arbitrator that’s an idiot. My position is that few judges are stupid but a lot of arbitrators are. You can find the second response from the bar here. def-reply-iso-anti-slapp-motion.

The fundamental point to the lawsuit is that Marshall and Christiansen do not want me to publish to you the facts of the arbitration. The arbitrator compromises, corruption, stupidity, whatever it all is, including perhaps judicial intervention, once exposed represents a risk. After all Marshall put on false evidence. She should have been disbarred. The BAR does not do that. They might have an awards ceremony. And like child molesters, they can only get away with it when its not exposed, when its in the dark,  when few know.

But now the BAR has shown us that they are wanting to keep it in the dark as well, promoting all of the bad behavior that they are suppose to discipline and remove.

Until next time.

 

 

Chapter 69 – When THE BAR LIES, Part III

TORT LAW REMEDIES IN THE EVENT OF ATTORNEY DECEIT. Republished content from “Attorney Deceit Statutes: Promoting Professionalism Through Criminal Prosecutions and Treble Damages.” By Alex B. Long.

Tort Claims Involving Deceit in Motion Practice

Theoretically, there are any number of tort claims a party might bring against an attorney who has engaged in deceptive conduct connected to a pleading or the filing of a motion. This is true of traditional and well-established tort claims, such as defamation and misrepresentation, as well as less common claims, such as malicious defense. For a variety of reasons, however, litigants asserting such claims face a difficult road.

1. Defamation
The tort of defamation is a logical choice for a party defamed by false allegations contained in a pleading or motion. However, because the absolute litigator’s privilege applies to all statements made in the institution of a judicial proceeding (including pleadings and affidavits), defamatory statements contained in pleadings or motions are likely to be privileged.101 Thus, individuals who have been the subject of false and defamatory allegations made in pleadings or motions have had little success in pursuing defamation claims.

2. Misrepresentation
A misrepresentation claim might be another theoretical possibility. However, the rule that a lawyer does not owe a duty of care to a non client would dispense with a negligent misrepresentation claim. An aggrieved party might also attempt to bring a fraudulent
misrepresentation claim. However, such a claim would likely fail on the merits. In order to prevail on a fraudulent misrepresentation claim, a plaintiff must establish not only that the defendant made a false statement of fact, but that the plaintiff justifiably relied on the misrepresentation to his or her detriment. If anyone is likely to be deceived by false allegations contained in a court filing, it is the court, not the victim of the false allegations. Thus, the fraud that is perpetrated is perpetrated (if at all) upon the court, not the subject of the misrepresentation.

3. Malicious Prosecution and Abuse of Process
Another possibility might be a malicious prosecution claim. To prevail on this theory, a plaintiff must establish that the defendant initiated or continued civil proceedings without probable cause and primarily for a purpose other than that of securing the proper adjudication of the claim. To have probable cause, a defendant must at least reasonably believe in the existence of the facts as alleged. Thus, alleging facts in the course of initiating or continuing civil proceedings without probable cause may amount to a form of deceit in some instances.
Given the potential for malicious prosecution claims to deter a party’s willingness to file suit in an attempt to vindicate his or her rights, courts sometimes remark that such actions are disfavored in the law. To that end, a substantial number of courts require that a plaintiff must demonstrate the existence of a “special injury” — “arrest, seizure of property, or ‘injury which would not necessarily result from suits to recover for like causes of action’ ” — as part of the prima facie case. Excluded from this definition is the expense incurred in defending against a baseless claim.

Another possibility for the subject of false allegations in connection with a court filing is an abuse of process claim. One court has explained that “[g]enerally, abuse of process consists of the willful or malicious misuse or misapplication of lawfully issued process to accomplish some purpose not intended or warranted by that process.” As the Restatement (Second) of Torts notes, “The usual case of abuse of process is one of some form of extortion, using the process to put pressure upon the other to compel him to pay a different debt or to take some other action or refrain from it.” Although conceptually similar to the malicious prosecution tort, abuse of process is broader in the sense that it covers various processes (such as the filing of an appeal or even the filing of notice of an intent to take a deposition that are not covered under the former. At the same time, however, some jurisdictions have extended the absolute litigator’s privilege developed in the defamation context to abuse of process claims against lawyers, thereby limiting lawyers’ liability.

4. Malicious Defense
Another potentially relevant theory in the case of a lawyer who knowingly makes false assertions in connection with a motion is the tort of malicious defense. Where recognized, the tort parallels the malicious prosecution tort, but, as its name implies, from the defense perspective. Thus, one who initiates or continues a defense in a civil proceeding without probable cause primarily for an improper purpose (such as to delay or harass) and who causes damages may be liable under a malicious defense theory where the tort is recognized. As is the case with the majority approach to malicious prosecution claims, damages in this context would include emotional distress and the expense incurred in defending oneself in the proceeding.
In theory, the tort could be broad enough to cover a variety of litigation tactics, ranging from denying, in bad faith, a valid claim while adopting a scorched-earth approach to litigation to making false assertions or introducing fabricated evidence in support of a motion during litigation. The first jurisdiction to recognize such claims was the New Hampshire Supreme Court in Aranson v. Schroeder in 1995. In recognizing the existence of the tort, the court noted the inconsistency in permitting a plaintiff to recover when a groundless claim was asserted offensively, but not defensively. In addition, the court suggested that sanctions against the offending party were not, standing alone, a sufficient remedy for a plaintiff.

C. Tort Claims Involving Deceit in the Discovery Process and in the
Presentation of Evidence

The victims of deceitful conduct occurring during the discovery process or as a result of deceitful conduct involving the presentation of false evidence face many of the same obstacles as the victims of dishonest motion practice. Most courts do not recognize malicious defense claims and often construe the abuse of process tort narrowly. Plaintiffs seeking recovery for discovery abuses also frequently bump against many of the same concerns courts have expressed in other contexts about permitting civil liability stemming from litigation-related misconduct. As a result, plaintiffs have tried to advance new theories of liability, with only limited success.

1. No Civil Remedy for Perjury
Virtually every jurisdiction has concluded that there is no civil cause of action for perjury. Because a witness’s false statements amount to a fraud upon the court or jury, rather than a litigant, there is no reliance on the part of the litigant; thus, a common law fraudulent
misrepresentation claim would not cover perjurious testimony. This has left courts to consider whether a separate cause of action should exist in the case of perjured testimony.

2. Spoliation of Evidence
Another possibility in the case of deceit in the discovery process or in the presentation of evidence is a tort claim of interference with the litigation process through the spoliation of evidence. In addition to judicial sanctions and the adverse evidentiary inference against the offending party, one possible solution to the problem of intentional destruction, alteration, or concealment of evidence would be the recognition of an independent spoliation of evidence tort. However, the majority of courts have refused to recognize such a theory. In refusing to recognize spoliation tort claims, courts frequently assert that the existence of professional discipline and the availability of judicial sanctions are adequate to deter spoliation. Ultimately, the majority of courts thus far have concluded that the costs of recognizing an independent spoliation tort in terms of the uncertain nature of the tort and increased litigation outweigh the benefits.

If you plan on moving to Oregon, beware. The Oregon State Bar has a war chest and it is used to exploit citizens for the benefit of Bar members, not to protect the citizens of this state. There is no violation of an attorneys code of ethics that the Bar will not ignore. The way we change that is to set up a separate state agency to manage admissions, discipline, etc.

When the Oregon State Bar hires outside counsel to intentionally lie, to do whatever is necessary to win a case that if lost would require the OSB Professional Liability Fund to pay damages, then its time to separate the citizen protection functions from THE BAR. The PLF may be independently run, but it is not a separate organization with adverse interests to the BAR.

Reporting to the BAR does nothing unfortunately. It’s more than sad. It’s a crime, but a crime that enjoys absolute immunity.

Chapter 68 – When THE BAR LIES, Part II

Lets spend a little time addressing Tort law remedies in the event of attorney deceit. Republished from Attorney Deceit Statutes:Promoting Professionalism Through Criminal Prosecutions and Treble Damages, by Alex B. Long.deceitful-attorneys

TORT LAW REMEDIES IN THE EVENT OF ATTORNEY DECEIT
In addition to facing professional discipline and judicial sanctions for engaging in deceit during the course of representing a client, there is always the possibility of civil liability for lawyers. There are a variety of tort theories that might potentially apply to a lawyer’s deceptive conduct. However, in addition to the restrictive nature of some of these torts, courts have devised a number of special rules that tend to shield lawyers from liability.

A. Special Tort Rules that Apply to the Legal Profession
Before examining how general tort theories apply to situations involving attorney deceit, it is important first to note some of the special tort rules for lawyers. These are rules that cast a long shadow over the tort law governing lawyers. Specifically, these are the black letter rules pertaining to the absence of any duty on the part of a lawyer to an opposing party and the absolute litigator’s privilege.

The general rule, repeated by numerous courts, is that a lawyer owes no duty of care to an opposing party. Thus, absent unusual circumstances, a lawyer who negligently makes a false statement of material fact to the opposing side does not face liability under a negligent misrepresentation theory. And although courts often state the rule in terms of liability under a negligence theory, courts sometimes reference the rule when dealing with intentional fraud claims against attorneys. Courts have cited the rule in shielding lawyers from liability where the lawyers have been accused of fraud resulting from the failure to disclose material information, including the failure to disclose the fact that the lawyer’s client has made a fraudulent statement.  Thus, the no-duty rule, although phrased in terms of negligence, has influence in the world of intentional torts as well.

The no-duty to non clients rule is merely the black-letter expression of one of the most pervasive themes involving the legal profession: the system of resolving legal disputes is an adversarial one. Each side is best served by having a lawyer looking out for its own interests.

Because a lawyer’s duties of confidentiality and loyalty run to the client, the threat of liability stemming from the failure voluntarily to disclose every potentially relevant fact would diminish the vigor andquality of representation.

A similar sentiment underlies the second reoccurring special tort rule for lawyers: the litigator’s privilege. As stated in section 586 of the Restatement (Second) of Torts, “[a]n attorney . . . is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” Thus, for example, an attorney who makes false and defamatory allegations in a complaint and attaches a supporting affidavit containing another’s false and defamatory statements would enjoy an absolute privilege in a defamation action. It is important to note that the privilege is absolute in nature. The fact that a lawyer has good reason to suspect or has actual knowledge that allegations contained in a court filing are untrue does not deprive the lawyer of the privilege.  The policy underlying the decision to make the privilege absolute in nature is one “of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.”

Although developed in the defamation context, some jurisdictions have extended the privilege to other intentional torts, including tortious interference with contractual relations and abuse of process.

In a few cases, it has even been applied to claims of deceit or fraudulent misrepresentation involving lawyers. Thus, like the no duty to non clients rule, the litigator’s privilege reach extends beyond the confines of the area of its origin.

Next time we will address Tort claims in motion practice. Until next time.

Chapter 67 – Schwabe Williamson

I have long wondered what inferences I can draw on the Schwabe law firm overall based on the arbitrators opinion. On the one hand if the arbitrator became confused and was manipulated into confusion, an award for someone claiming retaliation is predictable given the progressive nature of the Portland community. You see it is just not about the fact that the award to M required the arbitrator to set aside virtually all of our evidence, which included the witness testimony of 10 people and a thousand pages of forensic data and reports, but it also required him to actually ignore that 175 employees were laid off a week before thanksgiving as a result of M’s destruction of our software. We provided so much evidence that the other side was lying, almost compulsively.

The arbitrator was at that time a partner at Schwabe Williamson and Wyatt. My companies use to be clients of that firm. It’s a good firm and represents a lot of businesses. And so I have often wondered was this act of ignoring our evidence something that was just a mistake, something out of anger, cognitive issues….or was there some benefit for Schwabe? Did the arbitrator actually garner some benefit for Schwabe? It would be nice to not have to evaluate this question. But the relationship between the arbitrator and Marshall remained undisclosed and Marshall sought Judge Jones intervention twice. Moreover, at the time the post hearing brief was filed the arbitrator quickly identified facts not in evidence. This showed at that moment a great amount of acuity.

And remember, we had overwhelming, iron clad evidence to defend against the claims made by Marshall. In fact the claims should have been dismissed early on by the arbitrator and were not. And we were therefore forced to pay for forensic experts, more legal fees, etc. Moreover we offered M an opportunity for a walk away settlement multiple times; so any suggestion that we were a bully in this litigation is misplaced. Plus the respondent, M, Marshall’s client, attempted on multiple occasions to extort a settlement, threatening exposure of knowing false claims against my company.

I’ve never asked Schwabe’s managing partner if he is concerned about his partners arbitrating or acting as a protem Judge, but I should. And the reason I should is because as I have pointed out many times, the arbitrator’s arbitration award shows an abundant contempt for business overall. That contempt may have been for me, taken out on my company. Schwabe represents a lot of businesses, including Columbia Sportswear.

Consider the following:

(1) We produced eight forensic reports and more than a thousand pages of forensic data. Each of the reports showed that our former employee M was terminated before his complaint or that he had struck out at us and stopped his claims on his last day.

(2) We retained our computers showing that M was fired before he filed his complaint.

(3) M destroyed all of his computers and forensics evidence after his attorney told us place a litigation hold.

(4) M’s own forensic expert agreed that the forensic data confirmed that M had been fired before he filed his complaint.

(5) Ten (10) witnesses testified, 9 for us and 1 for M (he testified for himself).

(6) M never turned over the email from which he claimed to have received his excel spreadsheet evidence.

(7) No one was able to corroborate his evidence. No one testified that the document was ours and it was not.

(8) The document did not show fraud. There was nothing for us to want to hide or care about.

(9) The Oregon Department of Justice thought the complaint by M was so weak that the complaint file was open for only a few days. M refused to provide evidence.

The claim by M was that he was fired because he reported a crime to the ODJ. But the forensics report and witnesses confirmed that he had been terminated weeks before he filed his complaint. See our summary judgment motion memorandum.

And his complaint was that we had over billed clients in an amount that was by comparison claiming that we were going 55.25 miles per hour in a 55 mile per hour zone. Seriously.

The arbitrator was given the chance to allow us out of the case four times. M had not filed his claims timely, but he allowed it. Our evidence proved that he was fired before and it was irrefutable. But he allowed the arbitration to move forward. Our evidence proved that M had destroyed our software costing us more than $100,000 and this happened on his final day, eliminating his claims, but still the arbitrator allowed it. And finally, M destroyed his computers and one of our hard drives and his claims should have been dismissed because that behavior was so egregious, but they were not dismissed.

The arbitrator’s opinion noted that I at times was harsh to M. Yes, anyone trying to destroy a business that employs hundreds can only be treated warmly for so long and eventually you have to be demanding. If those demands were too harsh for the arbitrator, then I have but this to say…too bad. It’s not what the arbitration is about. It’s suppose to be about the facts. It’s not suppose to be an attack on small or medium size business.

Now a note of compassion. Having met with the arbitrator I know that there was considerable distance in his mind from the days in which he was a partner with Marshall. In fact he was far closer to my former attorney than to Marshall, which may have accounted for his comfort in referring the case to her.

But I also have to expect that an attorney skilled in intellectual property law should have understood easily that we could not process 100,000 bits of data daily without the programming to do so. Our evidence showed that the programs were destroyed and or missing immediately after M’s termination. Our evidence also showed that it took nearly a week to rewrite the programs, coding, that allowed us to generate the reports nightly. B contrast M claimed that there was no executable file, no stored procedures and that he would simply write the code nightly to generate reports. We found the programs on a hard drive the former employee M had reformatted. Three database experts testified, all confirming that the daily reports could not be done without the benefit of code written, tested and stored for use when needed. On this point alone I am most critical.

When an employee on his last day burns down the business, when there is video evidence of him doing so and witnesses corroborating that evidence, what else is necessary? The employee said he didn’t do it. The 10 witnesses, the video and the smoldering barn told a different story. In spite of my respect for the arbitrator, I cannot respect the decision. And I cannot respect Schwabe turning a blind eye. I don;t know what duty they had, if any.

I am equally critical of my former attorneys, one from the Markowitz firm and one a sole practitioner, for not filing a motion for summary judgment on M destroying our software and shutting us down. There is of course something more than mildly compelling about 175 employees being laid off while we repair the damage caused by M.

A partner from Schwabe should have known this case was meritless as to M’s claims 5 years earlier. It is hard to reconcile the acuity necessary to notice small facts not in evidence and miss the big facts that were.

 

Chapter 66 – When THE BAR LIES, Part I

There is a difference between lying to the court and advocating for your client. That issue, that conflict may arise when the BAR is represented on a matter or when the BAR has hired counsel to represent attorneys being sued for malpractice or even, as in my case, for defamation.

So what happens when the BAR counsel lies for the benefit of the BAR?  And what happens to a Judge who knows the BAR is lying in their complaint or answer but embraces the argument with a wink to the BAR? Lets Explore what might just happen. This is a three part analysis and in all cases we will rely heavily in material cited from Alex B. Long, “Attorney Deceit Statutes Promoting Professionalism Through Criminal Prosecutions and Treble Damages.”

“There can be little doubt that the legal profession has a problem in terms of the public’s perception of lawyers’ honesty and the profession’s ability and willingness to police its members. Although there may be dispute within the legal profession as to just how widespread attorney deceit is within the practice of law, surveys consistently reveal that the public has a low opinion of lawyers’ honesty. When discussing the lawyer disciplinary process, commentators also frequently make note of the public’s skepticism regarding whether the legal profession is willing to draft and enforce professional ethics rules in the public’s interest, rather than the interest of the profession itself.

For some time now, those who closely watch the legal profession have warned that if the legal profession does not do a better job of addressing the public’s concerns over dishonest and unethical behavior among lawyers, legislators and external agencies may step in and take away some or all of the legal profession’s traditional authority to regulate itself.

One of the difficulties in regulating dishonest conduct by attorneys is that it is often difficult to draw the line between engaging in prohibited dishonesty and fulfilling one’s ethical obligations to a client. And this is where this story must begin.

“Deceit” is not a word typically used in connection with the initiation of a legal action or the filing of a motion. However, knowingly making false allegations in a complaint or motion certainly meets the definition of deceptive conduct in that it represents an attempt to mislead a court. Thus, at least in the general sense of the term, it is a form of fraud upon the court.

Deceit in Motion Practice, deceit in discovery, deceit in negotiations, and more will be addressed in remaining parts of this analysis, focusing on the torts and remedies against attorneys who lie to achieve an acceptable end. The lie is the means. The win is the end. But our judicial system is built on the expectation of truth. I can tell you that it is uncommon for my opponents to be telling the truth let alone predominantly telling the truth.

In my most recent experience, while I found the BAR’s attorneys representing Linda Marshall and Joel Christiansen, to be friendly and professional, one of those particular attorneys did not hesitate to engage in the same muckraking that Marshall typically engages in. I’ve always considered it a statement of weakness with respect to the merits when an attorney engages in muckraking or character attacks, but it seems to work. More importantly though, I was saddened by the misrepresentation of the meaning of the anti-slapp statutes here in Oregon. When Judges don’t actually read the briefs or don’t understand them, they are drawn to the people they believe have more credibility. Pro Se litigants do not come with that credibility but members of the Bar do and its this opportunity that entices an attorney to mislead the court.

The BAR LIES. Lets explore more.