If an independent prosecutor has his way, one of the state's leading plaintiffs lawyers would face an admonishment, but no suspension, for signing fraudulent appellate briefs.
Thomas Girardi of Girardi & Keese in Los Angeles is in trouble over his representation of Nicaraguan banana workers in a case over pesticide exposure. His lawyer, Tom Nolan of Skadden Arps, told a 9th U.S. Circuit Court of Appeals panel Friday afternoon that Girardi didn't read the briefs before they were submitted.
Girardi's co-counsel in the pesticide case, Walter Lack, was much more involved in their drafting. But under a proposal submitted by special prosecutor Rory Little -- sealed but sketched out in court Friday -- Lack and his colleagues from Engstrom, Lipscomb and Lack would receive a suspension from the 9th Circuit, "stayed" pending a probationary period.
The 9th Circuit panel clearly hoped for tougher disinfectant.
"You're asking me to believe they're practicing law with their eyes closed," Judge William Fletcher told Lack's attorney, Robert Baker of Baker Keener & Nahra.
Fletcher cited other yearlong suspensions the court has handed to lawyers in the past, whom the judge described as "basically poor schlumps" who couldn't make it out of bed in the morning. In this case, Fletcher said, the attorneys are "extremely sophisticated" practitioners going after a half-billion dollar judgment, from which they stood to personally profit.
"How could we justify not treating them as harshly?" Judge Marsha Berzon asked.
Baker replied that his clients "aren't a threat to anyone." Under Little's proposal, Lack's firm would make fundamental changes in its operations, and an auditor would review the firm in a year to ensure no further transgressions, Baker said.
"The fundamental change seems to be to educate your lawyers as to the ethical standards that everyone and their dog knows they ought to have," Fletcher said.
Girardi and Lack represented hundreds of plaintiffs who claim to have been sickened. But lawyers in Central America mistakenly filed a complaint against Dole Food Corp. -- which doesn't exist -- instead of Dole Food Co. They then secured a $489 million judgment against the wrong corporate entity.
Lack's firm took the lead in enforcing the judgment in the United States, and lawyers there relied on a series of documents and representations they knew to be false to mask the error and prosecute the claim against Dole Food Co., according to findings from 9th Circuit Judge Wallace Tashima, who acted as a special master in sanctions proceedings against the plaintiffs lawyers.
After U.S. District Judge Nora Manella dismissed the complaint and flagged the problems, Engstrom attorneys Sean Topp and Paul Traina filed 9th Circuit briefs over Girardi's signature, Tashima found. Topp, a recent law school graduate, tried to talk his bosses out of continuing the appeal once Dole's response briefs came in, but Lack and Traina overruled him, Tashima found.
