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The Barish Law Offices has filed suit against an investigator formerly employed by the firm, alleging that he has been stealing clients to take to his new firm.

But the investigator has now made some allegations of his own, claiming in court papers that attorney Marvin I. Barish has failed to tell his clients that he is not currently allowed to practice law because he opted to go on “inactive” status in order to avoid a disciplinary hearing.

Investigator Michael Kelly claimed in court papers that Barish formed a new firm with his daughter, attorney Stacey Barish, because he wanted to transfer his cases to a firm with a similar sounding name in order “not to alert the clients that there was a change in representation.”

The Barish firm’s lawyer, Henry E. Hockeimer Jr. of Hangley Aronchick Segal & Pudlin, said in an interview that Kelly’s allegations are “not only false, but irrelevant.”

Hockeimer said he considered the allegations “a red herring” and an attempt to change the subject from the charges in the complaint.

The dispute began last week when the Barish firm filed suit in the Philadelphia Court of Common Pleas against Kelly and his new employers – attorneys Steven M. Lafferty (a former Barish firm attorney) and William L. Myers. The case is Barish Law Offices v. Kelly.

In a motion for a preliminary injunction, attorneys Mark A. Aronchick, Hockeimer, and Lubna Mian of the Hangley firm said that the Barish firm had learned on April 23 that Kelly was planning to leave to join Lafferty and Myers, who share office space, and that Kelly “plans to contact, and has already contacted existing clients of Barish in an attempt to have those clients represented by his new employers.”

The suit includes claims for breach of contract, breach of fiduciary duty, conversion, and tortious interference with contractual relations.

Now Kelly, Lafferty and Myers have filed a response that makes it own allegations against the Barish firm and Marvin Barish.

Their lawyer, Mark S. Haltzman of Bala Cynwyd, argues in his brief that the Barish firm’s request for an injunction should be rejected under the doctrine of “unclean hands” because attorney Marvin Barish has misled many of the firm’s clients by failing to notify them that he is no longer practicing law.

Haltzman says in his brief that Marvin Barish went on “inactive” status in June 2003 by invoking Disciplinary Rule 301(e), which allows a lawyer facing disciplinary proceedings to be transferred to inactive status due to a disability that would make it impossible to prepare a defense. At the time, Haltzman says, Barish was facing a disciplinary hearing relating to an incident in which Barish was sanctioned by Senior U.S. District Judge Herbert J. Hutton.

Hutton hit Barish with a $13,000 sanction for an angry outburst during a trial recess in which he threatened to kill an opposing lawyer and called him a “fat pig.”

In a hearing before Hutton, Barish had admitted that during a recess in the January 1999 trial of Comuso v. Amtrak, he screamed at defense attorney Paul F.X. Gallagher and said, “I will kill you with my bare hands.”

Although Barish apologized and said that he “should have been able to control myself,” Hutton found that an apology was not enough. Instead, the judge found that Barish’s conduct was “outrageous” and part of a larger pattern of misconduct by Barish that other federal judges have been complaining about for years.

As a result, Hutton found it was necessary to invoke the “inherent powers” of the court to hit Barish with a monetary sanction, disqualify him from the case and refer the matter to the state attorney discipline board.

But the disciplinary hearing never occurred, Haltzman says, because Barish opted to take inactive status after suffering a heart attack.

Before going inactive, Haltzman says in his brief, Barish “arranged” for his daughter to incorporate a new law firm, the Barish Law Offices, and to transfer to it the client files from Marvin I. Barish Law Offices. The new firm was in the same offices and had the same phone numbers and employees as Marvin Barish’s firm, Haltzman says.

Haltzman says in his brief the new firm “did not write to Marvin Barish’s clients to inform them that Marvin Barish would no longer be their attorney . . . or that Barish Law Offices was not the same entity as Marvin I. Barish Law Offices.”

In the brief, Haltzman says Kelly, a longtime employee of Barish’s, “watched with great discomfort . . . while the quality of advocacy being accorded . . . [to] former clients deteriorated.”

When Lafferty left in February 2004, Haltzman says in the brief, the firm lost its only experienced trial attorney. The firm was also “floundering financially,” Haltzman says, and Kelly and other firm employees sometimes were not paid on time.

Haltzman also stated in his brief that Barish concocted a “plan of misleading the clients to keep their cases” and that he “surreptitiously continued the active practice of law” by meeting and speaking with clients – even though he was no longer licensed to enter a courtroom on their behalf.

In a sworn statement filed in court, Kelly said that in the months after Barish went on inactive status, “Marvin and Stacey Barish told me that potential clients wanted Marvin Barish himself and that clients were not to find out that Mr. Barish was not practicing law.”

After the new firm was formed, Kelly said in his statement, Barish “continued the active practice of law, meeting and speaking with clients in the office, preparing them for trial and deposition, dictating briefs and giving me weekly if not daily instructions.”

The statement says Kelly decided to leave the firm because he felt a strain between his loyalty to the clients and to the firm.

“The firm’s interest in keeping as many cases as it can is at odds with the interests of the clients in good representation,” Kelly said in the statement.

Haltzman said an injunction hearing has been scheduled for May 4.

While the Barish firm will be pressing for an injunction, Haltzman said he will be arguing that the request should be rejected due to the Barish firm’s “unclean hands.”

In his brief, Haltzman argues that the Barish firm “has conducted itself in bad faith toward its putative clients by deceiving them as to the real identity and qualifications of counsel. . . . Plaintiff’s misbehavior should bar it from a court of equity.”

An injunction, he argues, “will effectively serve to continue the veil of secrecy constructed by plaintiff, a result that is wholly undesirable.”

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