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'Defense Lawyer's Dream' Becomes Malpractice NightmareA decade of messy litigation involving sex tourism charges against a Bay Area businessman has spawned a bizarre malpractice suit against a pair of elite defense lawyers
2013-07-19 03:12:38 PM
SAN FRANCISCO — A decade of messy litigation involving sex tourism charges against a Bay Area businessman has spawned a bizarre malpractice suit against a pair of elite defense lawyers.
From a Puerto Vallarta prison cell, disgraced financier Thomas White is suing his former attorneys, Nanci Clarence and Kate Dyer, claiming they failed to adequately investigate his case and placed "outrageous pressure" on him to settle with plaintiffs who accused him of traveling to Mexico for sex with teenage boys. Clarence and Dyer represented White from roughly 2002 to 2005.
The history of the dispute is a long and sordid drama that has involved a veritable who's who of the Bay Area white-collar bar over the years. Now it has become a major headache for two Northern District insiders.
White, once known for his philanthropy, is seeking to recoup more than $3 million in legal fees paid to their law firm, now called Clarence, Dyer & Cohen, and the $10 million settlement payment, plus attorney fees incurred in his lengthy court fight, and punitive damages.
White's attorney, Diane Deckard of the Deckard Law Firm in San Jose, said she doesn't know why Clarence and Dyer pushed White to settle. But she's convinced that's what happened. At the time, White was imprisoned in Thailand and particularly vulnerable to strong-arming from his lawyers, Deckard said.
"They could have tried these cases and won them or could have settled for significantly less than Tom wound up paying," Deckard said. "The settlement was coerced."
Stan Roman of Keller, Sloan, Roman & Holland, who represents Clarence and Dyer, said "nothing could be further from the truth."
When he settled, White also faced child sex abuse charges in Mexico and the United States, a factor which made it complicated to defend the civil cases, according to Roman.
"He was a sophisticated businessman. He had a global team of excellent attorneys representing him concerning these matters," Roman said. "When he ultimately decided to settle the civil litigation, he did so being fully informed by all his counsel and made his own decision."
White, now in his 70s and a Cambodian citizen, was a prisoner in Bangkok from 2003 to 2005 and subsequently extradited to Mexico to face trial on charges of child rape and child endangerment. White was ultimately convicted on a single drug-related charge and has completed his sentence, according to his legal team. However, he remains in Mexican custody while the United States pursues his extradition to face sex tourism and child pornography charges in the Northern District of California.
Clarence and Dyer represented White on the civil side, defending sex abuse claims in two cases, the first filed in 2002 in San Francisco Superior Court on behalf of one accuser and a 2003 federal case filed on behalf of 22 others who claimed White had lured them to his Puerto Vallarta home and forced them into sexual acts.
Both matters settled for $10 million, in a deal brokered with help from former U.S. District Judge Eugene Lynch and U.S. Magistrate Judge Joseph Spero. The agreement was approved by U.S. District Judge Charles Breyer, who presided over the federal action, Roe v. White, 03-4035.
In the malpractice suit, White claims Dyer came to Thailand and over two days "cajoled, browbeat, threatened, and intimidated and bullied" him until he agreed to the settlement. Afterwards, he instructed Clarence and Dyer to withdraw from the agreement, White claims, but the court was never notified.
Roman disputes that account. Dyer "had no reason to coerce him into anything," he said. "She was simply giving him the very best advice she was capable of."
Breyer dismissed the civil suit in August 2005 and White hired S.F. solo Geoffrey Rotwein to replace Clarence and Dyer. His petitions to vacate the settlement have been rejected repeatedly by Breyer and twice by the U.S. Court of Appeals for the Ninth Circuit.
And yet, subsequent events have raised questions about the lurid case. Most notably, White's first accuser, Daniel Garcia, and California attorney David Replogle, who brought both suits, are now serving life sentences for murder. White may have underplayed that in one brief: Replogle, the filing notes, "has been suspended by the bar as a result of the conviction, nonpayment of fees and MCLE compliance."
The Mexican government is seeking the convicts' extradition on extortion charges related to White's case.
That's just one strange turn in a saga that has wrapped many bar luminaries in its tentacles over the years. Cristina Arguedas of Oakland's Arguedas, Cassman & Headley, defense lawyer to S.F. slugger Barry Bonds, represented White through 2002, bringing in Keker & Van Nest partner Jan Nielsen Little when Replogle's team tried to subpoena her firm's bank records. Robert Feldman, a partner at Quinn Emanuel Urquhart & Sullivan, once served as a special master overseeing discovery issues, and James Wagstaffe of Kerr & Wagstaffe was named guardian ad litem for four accusers who were minors at the time of the settlement agreement.
Stuart Hanlon of Hanlon & Rief represents White in the U.S. criminal case. Hanlon, who worked closely with Clarence and Dyer, says he can't support his client's malpractice suit.
"In all the cases I've worked on with Nanci and Kate, including this one, I found them to be impressive, exceptionally qualified lawyers," he said.
Clarence, who began her career as a federal defender, went into private practice in 1992 and is widely considered to be one of the Bay Area's top litigators. She served as president of the Bar Association of San Francisco, has weighed in on federal judicial picks, and is a regular at clubby court functions. Dyer, who leads the firm's civil defense practice, became a partner in 2001.
John Keker of Keker & Van Nest is an unabashed booster. He called White's malpractice allegations "a complete fantasy dreamt up in a Mexican jail by a crazy guy."
Deckard, who specializes in legal malpractice claims, knows she's taking on darlings of the Bay Area's legal community. "I take it seriously," she said.
When White hired his defense lawyers, "he looked for the very best and that's what he thought he was getting," Deckard added. "They didn't do what they were hired to do."
In his complaint, White claims Clarence and Dyer called the case a "defense lawyer's dream" when they agreed to represent him and seemed optimistic about beating the civil charges.
Instead, White now contends, his lawyers failed to investigate his accusers or follow evidence suggesting the case was an extortion plot conceived by Garcia and Replogle. Clarence and Dyer never deposed many of his accusers or had them examined by psychologists and physicians, White claims. In addition, White says Clarence and Dyer breached their contract by flying first class at his expense, hid the fact a firm associate had an inappropriate sexual relationship with one of White's accusers, and engaged in elder abuse.
Clarence and Dyer moved the suit, filed May 6, to federal court, where it was assigned to Breyer.
Deckard argues the case should be sent back to S.F. Superior Court and away from Breyer's court, where the matter has so much history.
"It's always best to have a clear, clean, level playing field," she said.
Roman, Clarence and Dyer's attorney, argues the case should stay with Breyer "who has reviewed and dealt" with White's other arguments.
For eight years, White has petitioned to vacate the 2005 settlement on various grounds, all to no avail, Roman said, adding: "Never has he previously suggested that he didn't get the best representation possible."
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