Chapter 89 – The Judge Says “Lets get a trial for this guilty bastard.”

I want to credit the Yale Law Journal and author Stratos Pahis for his article “Corruption in Our Courts: What It Looks Like and Where It Is Hidden.” You can find that article here Stratos-Pahis-Yale-2009.

However, the brazen abuses identified by Pahis is not what I want to address here today. Yes they are serious. Yes we need more oversight. No, the BAR Association will not play a role in protecting your interests in a credible judiciary. All true.

Exposure is necessary as is a call for recourse. The opportunity for judicial abuse is real.

What I want to address today are issues of bias and in particular bias by the judiciary against business. Why is it more frequent? Because most of our Judges do not ascend to judiciary positions through private practice. Most ascend through government service and most of these candidates through a District Attorney’s or U.S. Attorneys office. They have little experience with how difficult it is to build and sustain a business. They are not learned in economics, marketing, sales and finance.

While the DA office experience may be particularly relevant and in deed helpful in criminal trials, it does little to prepare the Judge for adjudicating business contract and wrongful termination lawsuits. In fact Judges coming through a DA’s office often see business executives as unjustly enriched through their business relationship and a worthy target to redistribute the wealth to those less fortunate. Not only is the enrichment assumption often invalid, but is patently irrelevant. And yet irrelevant is alive and well.

I was in a court room one time observing a case and heard one of my county Judges take a position contrary to the way a statute was interpreted and applied by the department of justice. The Judge claimed she knew the legislator who sponsored the bill and his intent in writing it. Now a lot happens to a bill before it becomes law. It is revised in committee, passed with testimony as to its meaning and intent, regulations issued on how to implement and case law on how to interpret it. This Judge set all of that aside to assist someone with whom she identified. That was 20 years ago and I have seen it many times since.

The American Bar Association Canon on Judicial Ethics can be found here. Consider this Canon that “Courts exist to promote justice, and thus to serve the public interest. Their administration should be speedy and careful. Every judge should at all times be alert in his rulings and in the conduct of the business of the court, so far as he can, to make it useful to litigants and to the community. He should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts instead of the courts for the litigants. ”

Judges are human. They do not always filter their own bias and prejudices. Unexposed and given our attention to other threats to our society, we forget to look at our courts history of bias. As a layman it is difficult to get to know the historical bias of a Judge or arbitrator. Your attorney will not be helpful. You’ll need professional help and its out there. See here.

Business is under attack. And the trial has not started. Be active in your community. Judges run for re-election in most of our states. It’s a political process and as business owners we need to support candidates that have business experience. We aren’t looking for our own version of bias, but rather looking for balance.

This blog is an ongoing, revised and edited account of an arbitration experience this author had over a period of seven years. The arbitrator referred the defendant to his former partner. Neither disclosed this. The arbitrator, then a partner with Schwabe, is a former Oregon State Bar President and former Chairman of the Ethics Committee. His former partner and the defendant’s attorney is Linda Marshall.

Although the defendant destroyed a number of computer programs resulting in the companies shutdown, and layoff of 175 employees a week before thanksgiving. he prevailed.

Although the defendant was terminated a month before he fabricated a complaint, and that evidence was validated through forensic evaluation and witness testimony, he prevailed.

Although the defendant’s fabricated claim was based on a spreadsheet he claimed to have received in an email, he did not provide the email. His evidence was not corroborated. He destroyed his email account. He destroyed his computer. He prevailed.

Although the defendant asked us to investigate the evidence, he would not identify who sent the email to him. No evidence was found. He prevailed.

Although the defendant reformatted a hard drive on which computer programs were maintained, destruction constituting a Computer Fraud and Abuse Act Crime, law enforcement was reticent to pursue because litigation was initiated by both parties. The statute expired before the litigation ended. The defendant prevailed.

Although the defendant committed 13 counts of perjury, destroyed thousands of documents and dozens of computer programs, he prevailed.

I have been sued for bringing this story to you. What’s wrong with you Portland?

Chapter 88 – Why Can’t The Oregon State Bar Be Civil?

Over the course of  my thirty plus years in business as an owner of several companies, having been engaged in litigation defending those companies, I thought that the unethical behavior and decisions of some attorneys with whom I came in contact was their separate and unique behavior. It is not.

Moreover I believed that the written body of a code of ethics by the Oregon State Bar and the American Bar Association, would curtail the brazen violation of honestly in court. But it does not.

I believed that the BAR having a committee dedicated to evaluating complaints and removing those unethical ingrates from practicing law in our state would by way of exposure curtail common and material breaches of the same code of ethics. But it does not.

I believed that the Professional Liability Fund, a separate corporation owned by the BAR, would necessarily require that those law firms hired by the PLF to defend attorneys engaged in malpractice represent the highest ideals of the professional as outlined in the code of ethics. But it does not.

In my appeal of the dismissal of he defamation case against Marshall and Christiansen, a new reality is apparent…at least to me. The foremost is that in representing an attorney the PLF is willing to play in the gutter. While we are indoctrinated to believe that unrelated facts, both personal and transactional, should be excluded from consideration in a case, it is not so.

Consider this for example. I found out that Christiansen and Marshall contacted a Judge that I had applauded for his adeptness and concern for fairness some 15 years ago and in a case involving one of my companies. These two knuckleheads claimed I intended to hurt this Judge. As support for that position these two claimed I had been arrested for domestic violence and was otherwise unstable. The inference being that the Judge was in danger.

It’s bad enough that frick and frack did this. What has disappointed me beyond belief is that the PLF has picked up the torch and essentially took the same tactic. They accused me just as their clients did citing grossly misleading  intimations of behavior some 15 years ago. Presumably this is for bringing the lawsuit.

But there is a greater reason to be alarmed. While frick and frack may just be idiot practitioners, the PLF attorneys are not. Counsel’s decision to pursue this strategy simply means that they too believe the average Judge will retaliate if one of his colleagues is challenged. They believe that we have already lost the battle of good sense, of morality and that the expectation of sound judgment can be displaced with the right emotional rhetoric.

Fake news is often lauded as targeting the uneducated, to exploit emotional weaknesses and to discourage thoughtful consideration. When the Bar lies, we all lose. When the Bar places winning above civil behavior it’s time to acknowledge that we are as a society spiraling now to the floor, to the baseness of our existence.

I don’t know how we defeat it except through exposure. And if exposure does not work then its simply time to acknowledge that a once noble profession has been reduced to being employment as a carpetbagger.

The partner leading the PLF defense is Matt Kalmanson . He’s good and for those that do not care about the way a case is won, he might be the right lawyer for you. He just won a big case for Portland Adventist, which you can find here. But knowing your clients are engaging in perjury and doing nothing about it, when the ethical rues requires notifying the court of that dishonesty, is endemic now it would seem. I’ve let the PLF know through many an email to PLF president  Carol Bernick. She does not care. The Board does not care.

The Oregon Department of Justice wont process a complaint against an attorney. They refer to the Oregon State Bar. But in this case the Oregon State Bar owns the PLF. The circle allows attorneys representing other attorneys and the PLF to be fairly certain they wont lose an investigation on an ethics complaint. You can file a complain against an attorney here.

My Appeal Reply is Rote Amended Appeals Court Reply Brief.

The actions taken by Marshall and Christiansen were designed to discredit me, to promulgate defamatory misinformation about me because I had published a 70,000 word analysis of an arbitration corrupted by cronyism, perjury and the destruction of evidence. My attack was on the attorney, and her client, who manipulated an arbitrator, namely Bill Crow.

In 2010 William B. Crow was the Mult. County Chairman of the disciplinary board. He had been president of the BAR. In 2011 he was the state Chairman. dbr24. In 2009 Bill Crow referred the defendant in the arbitration to one of his former partners, who ( Linda Marshall) was then engaged to represent the defendant. It was an ethical violation to do so. Linda Marshall and her client then engaged in 13 counts of perjury and destruction of thousands of documentary evidence. In a movie, book or TV the perpetrators of this crime would have been caught, exposed and action would have been taken to right the wrong. In real life, too often that is not true. In real life, the Bar, Judges who review the case and the media are often helpless to right the wrong.

Under the American Bar’s Code of Ethics, “The obligation to disclose interests or relationships described in paragraph A is a continuing duty which requires a person who accepts appointment as an arbitrator to disclose, as soon as practicable, at any stage of the arbitration, any such interests or relationships which may arise, or which are recalled or discovered.” That was not done. Moreover, it made Bill mad when he was challenged on this. I blame Marshall for this. She soft pedaled her past relationship with Bill even saying that they crossed paths only. Actually she was a partner when Bill was a partner. The fact that neither Marshall nor Bill Crow informed us accurately is important, because we did not endorse it. See ABA rules here Code_Annotated_Final_Jan_2014_update.authcheckdam.

Now, I would be remiss if I left you with the impression that I think Bill Crow is inherently evil, dishonest or unethical. I do not. In fact I like Bill a lot. I think it is far more likely that his cognitive skills were deteriorating  and he was manipulated by Linda Marshall. It’s a shame that there is no recourse for this. It could have been avoided had he not referred the case to Linda Marshall, his first violation. And the truth is that there is no value to hiding this. I’m sure his friends would like to sweep this under the rug.

The value to the public lies in revealing it. The caring part of me reveals it with empathy for the attorneys, arbitrators and Judges who continue to practice well into their senior years. You still have your moments of great clarity and insight, but lack the stamina and discernment to eliminate the irrelevant information designed to influence you…which leads to very bad decisions and a violation of the public trust.