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Judge Demands Lawyers Prove Not in Cahoots to Divide Case Fees
Daily Business Review
February 10, 2009
Attorney Jay Wingate, who specialized in representing cruise line crew members in personal injury lawsuits, walked away from a robust portfolio of liability cases a year ago after Royal Caribbean Cruise Lines accused him of bribing one of its employees.
Now, Wingate faces allegations that he violated a court order by conspiring with a former associate to cut themselves in for a percentage of the 77 cases he dropped.
Miami-Dade Circuit Judge Herbert Stettin issued a show cause order demanding Wingate, former associate Peter Sotolongo and Brett Rivkind of Rivkind Pedraza & Margulies in Miami prove they shouldn't be held in contempt of court for violating an omnibus court order issued in January 2008 setting the ground rules for the future handling of the cases.
Wingate's voluntary withdrawal meant he and his firm "forfeited any right to compensation" on the contingency fee cases, according to Stettin's order issued Jan. 23. He was allowed to submit charging liens for fees and costs to be determined at the discretion of the court.
But Wingate and Sotolongo agreed with Rivkind, as new counsel in the cruise injury cases, "to secretly receive a portion of any fees recovered in these cases," Stettin's order said. He said it appears Wingate and Sotolongo "intentionally subverted" the order, and Rivkind and his firm "appear to have conspired to subvert the order."
The judge was irate at a Jan. 15 hearing after receiving a copy of the agreement.
"Mr. Wingate just deliberately turned around and tried to get through the back door what he couldn't get in the front," Stettin said, according to a hearing transcript. "He went behind everyone's back, mine particularly, and went to Mr. Rivkind's firm, and he cut a deal."
The transcript was cited by Royal Caribbean in support of its motion to expand the scope of the judge's show cause order.
In the agreement attached to Stettin's order, Rivkind and his firm agreed to evenly split 40 percent of the legal fees generated by the cases with Wingate and Sotolongo. The contract was signed by all three lawyers about two weeks after Wingate announced he was dropping the Royal Caribbean cases.
Rivkind attorney Herman Russomanno of Russomanno & Borrello in Miami said his client was unaware of any restrictions on fees collected in Wingate's old cases. He said Rivkind did not do anything wrong.
"At no point did anybody indicate to him that there was anything Brett was doing that in any way raised any issues," he said. "He did not solicit any cases. He was approached because we had such a serious situation."
Rivkind said the agreement was presented to him by Wingate and Sotolongo as a "cleared" agreement that was known to all the parties, including Royal Caribbean, from its inception.
"As far as we were told, there were no findings of any improper conduct" aside from the cruise line's original bribery allegations, Rivkind said, adding the agreement was confidential outside the parties because it dealt with attorney-client relationships.
Royal Caribbean attorney Curtis Mase of Mase Lara & Eversole in Miami agreed with those descriptions of Rivkind's role in the fee arrangement.
"He was not present at any of the underlying hearings concerning [Wingate's] disqualification and future fee participation, nor did he receive a copy of the order to our knowledge," Mase wrote in an e-mail in answer to questions from the Daily Business Review. "The same day that the fee agreement's terms were made known to us and the court, he contacted us and expressed concern."
Wingate's attorney, Miles McGrane of McGrane Nosich & Ganz in Coral Gables, declined comment on Stettin's order until he could get in touch with Wingate, who has moved to South Africa. McGrane said he saw the fee agreement for the first time when Stettin filed the order.
Messages left at a Miami number listed by Wingate on The Florida Bar Web site were not returned.
Sotolongo did not return calls seeking comment by deadline.
Royal Caribbean had filed its motion to expand the scope of the show cause order Friday and is pushing for Wingate and Sotolongo to be held in contempt plus additional sanctions. The judge has scheduled a hearing for Feb. 18.
If the latest allegations against Wingate, Sotolongo and Rivkind are true, they could have run afoul of Florida Bar rules governing deceit, knowingly violating a court order and knowingly assisting another lawyer in such activity.
"These types of rules exist to protect the justice system," said Barbara Moore, assistant ethics counsel with the Bar. She spoke generally, citing a prohibition against Bar attorneys commenting on specific cases. "The attorneys as officers of the court have an obligation to comply with court orders."
Stettin's order offered another reason why Sotolongo is not entitled to fees -- at the time Wingate dropped the cases, Sotolongo was a salaried employee of Wingate's firm.
"He was not counsel of record in any of the 77 cases. Hence he had no right to fees from the cases," Stettin wrote.
In January 2008 Wingate went into semi-retirement at the height of his legal career after Royal Caribbean claimed a Wingate paralegal and investigator paid kickbacks to a corrupt claims adjuster with the cruise line in exchange for inside information on acceptable settlement amounts.
Former Royal Caribbean claims supervisor Wanda Ballestas acknowledged in an affidavit that she accepted a series of $500 payments for the company's confidential settlement projections and a $2,000 Christmas bonus. She admitted passing information on 20 plaintiffs to Wingate paralegal Maria Elena Parilla and investigator Nelson Ayala.
Separately, the cruise line is seeking to recoup about $1 million attorney fees in 23 other cases, where Wingate represented plaintiffs against Royal Caribbean.
Wingate's turbulent career had its genesis with prominent cruise attorney William Huggett. Wingate was Huggett's associate when he died in 2004 and took over the practice.
Huggett's widow, Jacqueline, filed two lawsuits against Wingate and his firm in 2004 and 2005. The case against Wingate ended with a confidential settlement in 2006. The suit against the firm and 10 employees was resolved with settlements by all except bookkeeper Sara San Martin. She pleaded guilty to federal bank fraud for writing checks on Huggett's personal accounts and served a one-year sentence.
Billy Shields can be reached at (305) 347-6649.
