A special master has already recommended that attorneys Thomas Girardi and Walter Lack pay hundreds of thousands of dollars in sanctions, but the 9th U.S. Circuit Court of Appeals isn't done with them yet.
On Monday, a three-judge panel appointed a special prosecutor to determine the proper discipline for the Los Angeles-based plaintiffs attorneys in connection with a string of errors in a toxic-tort case against Dow Chemical Co. and other companies.
The appointment of a special prosecutor was "extremely unusual," said Richard Zitrin, a San Francisco attorney and writer on legal ethics. "Why the court chose to do this, I can't speculate, but to me it speaks to the seriousness of the allegations," said Zitrin, of Zitrin & Frasetto.
Yet Thomas Nolan, Girardi's attorney, said his client and Lack actually requested an independent prosecutor to assure they'd be treated fairly as the court mulls the discipline issue.
"We did not feel that it was appropriate that the lawyers representing [the companies] should be, in essence, pursuing this case on behalf of their clients, in a disciplinary hearing," said Nolan, a Los Angeles-based partner at Skadden, Arps, Slate, Meagher & Flom.
He said he didn't know who the court would appoint as the prosecutor, or when, but that he plans on presenting "mitigating evidence" for Girardi in the disciplinary hearing.
Nolan added that he wants to present expert testimony on the level of responsibility Girardi held in a case that relied on co-counsel in Nicaragua to play a primary role.
Lack, of Engstrom, Lipscomb & Lack, and Girardi, of Girardi & Keese, began organizing the class action in 2000. They agreed to join up with a Nicaraguan firm to sue several major American businesses for their use of the pesticide Dibromochloropropane, which is banned in the United States and alleged to cause sterility and cancer.
A Nicaraguan judge awarded the plaintiffs a roughly $489.4 million judgment against five defendants, which were supposed to include Dole Food Co. and Shell Chemical Co. But the complaint instead named the Dole Food Corp. and Shell Oil Co., seemingly superficial errors that have become one enormous problem for Girardi, Lack and some of their subordinates.
In March, acting as a special master, Senior 9th Circuit Judge A. Wallace Tashima recommended sanctioning the two a combined $375,000 for making false statements about their case and filing a frivolous appeal. Tashima also made disciplinary recommendations in a separate, sealed filing.
In his 65-page report, Tashima said Lack had a personal role in asserting repeatedly that a writ of execution made by the Nicaraguan judge to enforce the judgment in America was corrected to name Dole Food Co. and Shell Chemical Co. Girardi, meanwhile, allegedly allowed the misstatements to continue on his behalf without becoming directly involved.
Lack's attorney, Robert Baker of Baker Keener & Nahra, could not be reached for comment. An attorney for Shell did not respond to a phone call, and a lawyer for Dole declined to comment.