As a refresher, I met with Bill Crow (arbitrator) just over a year ago in February 2017. And lets give credit where credit is due. Bill did not need to meet with me. He did so in response to my repeated requests to interview him, wanting to form a character like him for a screen play Therefore, I want to honor the courage and character he displayed in meeting with me.
At the outset, Bill and I talked about his tenure in the profession, his days before he became a lawyer, his time in practice and ultimately his time as Chairman of the Oregon State Bar Disciplinary Board. I found Bill alert, engaged, humorous, insightful and many other things a compliment to his profession.
Eventually, some of my question elicited responses that were directed to the NDT v Zweizig arbitration. My questions were more generic on a broader spectrum of the issues I faced in that arbitration. Bill had told me that he did not remember much of the arbitration, which I accepted as probable.
Prior to the arbitration hearing and four years into the arbitration process, I removed one of my attorneys. We had filed a summary judgment motion and we should have prevailed. But we did not and subsequent to Bill denying our Motion and to the attorneys removal, I was told by my attorney that Bill’s legal secretary talked to him and had some concern over Bill’s ability to track the evidence, especially as the opposing party was trying to make the issues more difficult to understand.
In 2006 when this arbitration was initiated, Bill was about 75 years old. By the time we were noticed of Bill’s failing cognitive skills, Bill was about 79 and at the hearing he was about 80.
Given the notice from Kristi, his legal secretary, I felt fairly comfortable that the issues were clear enough that Bill would have no challenge understanding the evidence. That was certainly the opinion of Jeff Edelson, my attorney who had the conversation with Kristi. Bill was still identified as a partner at Schwabe, he was ascending to Chairman of the Disciplinary Board and I felt the profession would be monitoring his health and ensure that the public was protected.
I was wrong. Worse, his former partner Linda Marshall identified that loss of cognitive skill and took advantage of it at every turn. Lets explore the signs.
Before doing so, however, I want to explain what Bill admitted to. First, that most of the time he was doing one day mediations, not extended arbitrations. Two, that during any given day of the hearing he was tracking just fine, but his memory of the testimony was not tracking with the transcripts. Three, that he did not and would not seek assistance from other colleagues to understand the technical issues, like spoliation. Four, that he just did not have the stamina to dive into the evidence post-hearing.
He did not admit to being mad about being challenged on his failure to disclose the past relationship with Linda Marshall. His emails indicated that he was angry about it and he certainly lashed out after his recusal. To his credit he admitted to having much more recent contact with Jeff Edeslon than Linda Marshall and by that time it had been 13 years since working with Linda. He did not remember to disclose it and was somewhat embarrassed by it.
Looking back, there were lots of signs. First, he repeatedly asked Linda Marshall where we left off, even after a break. Second, we were about 70% way through the hearings when he wanted confirmation on the causation standard for Zweizig’s claims. Third, he was relying on the computer forensic experts reports and testimony, which while in total agreement, he interpreted to be in dispute. Fourth, the acceptance of a mountain of irrelevant evidence offered by Zweizig, designed by Marshall to influence and confuse Bill.
In doing my research on this topic, someone like Bill can hide these cognitive skill challenges because they have by experience and rehearsal developed the skill to engage as if comprehending, when in fact they are not comprehending. You have to dig deeper.
One of the areas we objected to early on was a hearing where Judge Jones recused himself. Ex 567 Recusal. The Jones v. Rote case was not in any way related to this case with Max Zweizig. The issues were not similar in any way. The case was not relevant in any way. OEC 401 defines “relevant” evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Marshall introduced the recusal hearing transcript under an umbrella of “bias,” claiming that I had challenged other Judges on issues of undisclosed bias or undisclosed relationships. By then, neither Marshall nor Crow had revealed that they had worked together at Miller Nash. In retrospect, Marshall introduced this to counter what we were about to discover…that they had worked together as partners.
An arbitrator has a duty to disclose these past relationships. It can, as it did in this arbitration, effect the outcome of the litigation. In fact it brought a prejudice and stench that permeated the entire proceeding.
When someone is struggling to understand or comprehend, as Bill was at material times, there is a natural human tendency to place faith in the one known better. Had Jeff Edelson still been representing my company, we would probably have prevailed on these issues because Marshall’s influence would have muted by Bill’s faith in Jeff’s skill and integrity. But he had been removed and so had Scott Cliff. In a battle for credibility, I lost to Marshall simply because Bill knew and trusted her, whereas he hardly knew me.
That led to Marshall’s abuses of evidence, including 17 counts of perjury and the destruction of evidence. Exhibit 1 CHAPTER 90v5. Marshall certainly had deduced that she had this opportunity or she would not have offered the Recusal Hearing transcript over our objections.
I remain surprised that a Judge would not act harshly to an attorney trying to introduce irrelevant evidence designed to play to a perception that the Judge is biased. It would offend me if I were a Judge. In better days, I believe it would have offended Bill.
When Bill rejoined the arbitration after recusing himself, and at the demand of Marshall, he summarily dismissed all of the testimony of our Eight (8) witnesses and the reports and testimony of the three (3) forensics experts. He adopted in totality the position espoused by Marshall.
Zweizig withheld and destroyed our computer programming leading to the shut down of the company. Five (5) witnesses and three (3) computer forensic experts confirmed the shutdown and destruction of the programming. The destruction of the programming is a felony under the Computer Fraud and Abuse Act.
Awarding Zweizig anything for causing the layoff of 150 people is travesty and an offense to justice. But the bigger issue and the subject of this blog is that process of justice was compromised. Even more importantly there was a cover up.
During the same interview Bill conveyed that he had referred Marshall to Zweizig. He later retracted that in a declaration filed in this case. According to Marshall it was Bill’s declaration, but then again it was not signed or notarized. I’ve checked the tapes and my notes and find my conclusion as to this referral issue to be a correct conclusion. If not Bill, I apologize.
Who determines that a judge is no longer capable to sit on the bench? In Oregon, Judges must retire at age 75. Not so on the Federal Bench. Not so for an arbitrator or partner in a law firm…or owner of a law firm. The Oregon State Bar does not monitor. The PLF does not monitor. No one does.
Just over a year after issuing his Opinion in this case, Bill Crow retired from the Bar, no longer permitted to practice Law. I know he attributes some of this at least to me. I filed a complaint against Bill after the arbitration. I did not want to. It gave me no pleasure. It was necessary to protect the public. Frankly, the US District of Oregon should have done that.
What I find with great consistency is that members of the Bar like to sue but don’t like to be sued. They like to Judge but don’t liked to be Judged. They are critical of the breach of duties of other professions–doctors, engineers, architects, cpas, etc.–but circle the wagons to conceal their own malpractice. They are critical of insurance companies that don’t pay claims, suing them at every turn, but our Oregon malpractice carrier does not pay claims (See my PLF Chapter). They are quick to call out the perjury of the other party but engage in massive perjury and other misconduct on their own.
They could in their own right be cyber-criminals, white collar criminals, breaching all manner of ethical mandates and decorum. This is perhaps too broad a point, but this is a profession that polices itself…if it chooses to.
I am so disappointed in the Oregon State Bar. I am not necessarily surprised by the conduct of Zweizig’s attorneys. Most of them are poor and have been sanctioned by the Bar.
Calling on a Judge to find in a clients favor over a recusal or a complaint or an ethics complaint seems to be prima facie evidence of misconduct by that attorney, but some of our judges seem to be influenced by this behavior.
I leave you with Ex 569 Marshall Declaration to Judge Papak in the confirmation of the arbitrators award. Judge Papak performed the duty or role of an appellate court. Marshall noted in the last paragraph of her declaration that I had filed a complaint against Bill Crow. How did she know?
At that time I did not know Bill was the Chairman of Disciplinary Board. My complaint went to him and no further.
One can only presume that Marshall made the statement about my complaint against Crow knowing that it was not going to back fire, but was rather going to help her in this sordid pursuit. Does it always work? Does it work for some but not all Judges? Does she know which ones? Is the endorsement of Crow’s opinion by Judge Papak intended to mitigate the importance of the complaint, so that BAR can say “look it is confirmed.” Therefore no harm? Was she telling Judge Papak to hurry up and decide in her favor so Crow would not be sanctioned….although how could he be sanctioned when he was controlling the Disciplinary Board?
The checks and balances of the process either failed or are non-existent.
Bill Crow liked being a lawyer. Shortly after the arbitration he won the Owen Panner award, for recognition as representing the highest ideals of the profession. I’m not questioning that he deserved to win the award. He knew that during and after this arbitration his days were numbered, that his inability to discern was material in performing his role as Partner, Arbitrator and Chairman. He did nothing to correct his own bad behavior.
Time catches up with all of us. The Oregon State Bar is not well prepared to handle the issue of dementia. We are all living longer. And most of us will need to work longer. Most have not saved enough to last 25 years after retirement. I empathize with Bill and challenge the BAR to monitor for dementia so that practitioners like Bill can work longer…even if not certified to be an arbitrator, for example. There’s no reason why Bill could not continue to do a lot of mediation. As a party I would have found him highly credible in bringing parties together. I’d hire him to mediate.
I’d like to thank Bill for meeting with me. Not all that I write here will be comfortable for him or for me. We need to acknowledge that the role of appeal is not to ignore the failures of men and women practicing law (young or old) when they should not be. The role is to reverse the bad for the safety of the public and to restore public trust in litigation. Thus and ultimately the greater failure is by Judge Papak.
Attorneys knowingly exploiting the dementia of a trier should be sanctioned.
And Bill would agree. He acknowledged that the arbitration should have been vacated, that he was being exploited by Marshall. The USDC in Oregon should have vacated. The BAR should have intervened. Schwabe should have intervened. The PLF should have covered the damage to both parties.
No one did anything.
Note: I accidentally published a rough draft a few days ago. Sorry, it was very rough.