Faced with the prospect of harsh discipline from the 9th U.S. Circuit Court of Appeals, well-known plaintiffs lawyer Walter Lack attempted the following play on Thursday: Convince three judges that his misconduct wasn't intentional, even though he signed a document admitting it was.
Lack, of Los Angeles' Engstrom, Lipscomb & Lack, filed fraudulent briefs seeking to enforce a judgment against Dole Food Co. on behalf of Nicaraguan banana workers. Speaking in public about the case for the first time, Lack said he hadn't been fully aware of the problematic documents underlying the appeal.
Under questioning, Lack said he disagreed with Judge A. Wallace Tashima's earlier finding of intentional misconduct.
"This is the mystery of my life. I don't know how he could have concluded that," Lack told the judges.
Judge William Fletcher then asked him to explain why he signed a deal with an independent prosecutor admitting he acted intentionally.
"I signed it. I'm living with it," Lack said.
"But you don't agree with it?" Fletcher asked.
"There's a big difference negotiating over a word, and what I'm saying from my heart," Lack responded.
Rather than help his cause, though, the panel appeared to think Lack was dodging responsibility. Lack may have actually aggravated his situation by appearing in person, said Judge N. Randy Smith.
"I don't find any, if you will, remorse," Smith said.
"No one could be more sorry about what happened," Lack replied.
Lack and co-counsel Thomas Girardi of L.A.'s Girardi & Keese represented hundreds of plaintiffs who claim to have been sickened by pesticides. 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 attempting to enforce 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 Tashima, who acted as a special master in earlier sanctions proceedings against the plaintiff lawyers.
Tashima recommended sanctions of up to $150,000 for Lack, depending on defense costs, and $100,000 for Girardi.
After Tashima weighed in, the three-judge panel appointed Hastings College of the Law professor Rory Little to serve as an independent prosecutor in a disciplinary proceeding. In a report submitted under seal but referenced in court, Little recommended an admonishment for Girardi; Lack and two other lawyers at his firm -- Paul Traina and Sean Topp -- would get a stayed suspension.
Yet earlier this month the three-judge panel appeared to be angling for a stiffer penalty. Through their lawyers, Lack and Traina asked for an opportunity to be heard before a more serious punishment was levied. The two asked for the courtroom to be closed for Thursday's hearing, but the court turned them down.
Traina, who followed Lack, voiced much more personal responsibility about what had happened. He said he relied on counsel from lawyers in Nicaragua, and that he should have done much more to investigate the underlying problems at several different stages of the litigation, saying that was his "failure" as a lawyer.
The 9th Circuit can only bar lawyers from appearing before it, but a harsh order would probably spur a discipline investigation by the California State Bar.
Traina noted that he had never been disciplined before. "I don't think I'm a harm to the court," he said.