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Talk about having a tough row to hoe. Try getting a stipulated reversal from the justice who risked his reputation — and possible discipline — to get the practice all but banned. On Wednesday, that justice, J. Anthony Kline, and two of his companions on San Francisco’s First District Court of Appeal not only rejected a stipulated reversal requested by four Contra Costa County lawyers, but accused them of trying to cover up possible misconduct. “In essence,” Kline wrote, “the parties ask us to blind ourselves to explicit findings incorporated in the judgment they ask us to vacate — that defendant Hinton & Alfert misled a judge by making a false statement of fact and that plaintiff John Peterson ‘accepted representation of two parties with adverse interests and did not have a signed waiver of conflict.’” Justices Paul Haerle and James Lambden concurred. Long & Levit partner Joseph McMonigle, who represents the Walnut Creek firm now called Hinton, Alfert & Sumner, said Thursday he was “shocked” that the court would issue a published ruling on a motion stipulated by all parties. He also said the ruling seemed to have “political undertones.” There was no argument or briefing before the panel, he said. “It’s pure speculation,” he said, “that the firm was trying to cover something up.” The underlying facts of the case are complicated. Pleasant Hill lawyer George Hardisty referred James Gracey, whose incompetent brother Todd Larsen had sustained injuries in a car accident, to Walnut Creek attorney John Peterson, who agreed to share fees with Hardisty. Peterson, however, also represented the driver of the van in which Larsen was injured, so attorneys of other passengers moved to disqualify him. To resolve the conflict, Peterson referred Larsen to Hinton & Alfert, which failed to obtain a written fee agreement from Larsen or his brother as the guardian ad litem. After a three-day jury trial in Alameda County, the accident case settled for $950,000, and Hilton & Alfert was awarded nearly $182,000 in fees. Peterson and Hardisty eventually sued Hinton & Alfert, claiming the firm was obligated to share one-third of its fee. In the fees case, Contra Costa County Superior Court Judge Joyce Cram found that Peterson should get nothing because he had accepted representation of two parties with adverse interests, but she awarded Hardisty a referral fee of about $60,500. Cram ruled in favor of Hinton & Alfert even though she found that the firm had falsely represented to the Alameda County Superior Court that it had a written contract with its clients. Had the court known that there was no contract, Cram observed, it would have granted only quantum meruit fees, far less than Hinton and Alfert’s 20 percent contingency fee. Dissatisfied, the lawyers all stipulated to vacate the judgment. Unfortunately for them, they landed in front of Kline, who got into hot water in 1997 for refusing to follow a California Supreme Court ruling that permitted stipulated reversals, which can be used to erase judicial determinations as part of a settlement. In that dissent, Kline had explained that he objected to such reversals as “a matter of conscience” since they allowed rich defendants to eradicate judicial opinions. The state’s Commission on Judicial Performance charged Kline with willful misconduct in 1998, but dropped the case a year later — one week before the state Legislature banned most stipulated reversals. Thursday’s ruling by Kline held that the stipulation by the Contra Costa lawyers failed to meet any of the exceptions that would have allowed it to be approved. The panelists also made it quite clear that they felt the attorneys were trying to conceal that Peterson had represented two adverse parties and that Hinton & Alfert had falsely represented to the Alameda County trial court that it had written fee agreements with its clients — both violations of State Bar Rules of Professional Conduct. The justices said they couldn’t annul the judgment “without being satisfied that the conduct of any party found by the trial court would not be reportable to licensing and disciplinary agencies.” Peterson couldn’t be reached Thursday, and attorneys at Hinton, Alfert & Sumner referred calls to McMonigle, who said the stipulation motion arose out of a mediation “ordered and supervised” by the appeal court itself. He said he will ask the state Supreme Court to depublish the ruling in Hardisty v. Hinton & Alfert, 04 C.D.O.S 10788. McMonigle also said his clients have “absolutely no concern” about the possibility of facing disciplinary action by the State Bar. “It’s inconceivable,” he said, “that there would be any kind of proceeding.” N.J. BAR PRESIDENT VOWS TO FIGHT TAX NEWARK, N.J. — The New Jersey State Bar Association is preparing a constitutional challenge to the $75-a-year “medical malpractice” assessment, and it insists it has better grounds for repeal than 12 years ago when it failed to stop a tax on the profession to ease the car insurance crunch. The announcement of the suit came just as dunning letters from the Division of Taxation, demanding payment in 30 days, were landing on the desks of 55,000 New Jersey lawyers — the few who sue doctors and the many who don’t. The state enacted the fee on June 7 to fund a reserve to help pay school loans for some doctors and premiums for physicians hit hardest by the rise in premiums — obstetricians and gynecologists. Lawyers and doctors will pay $75 for three years. Employers subject to the unemployment compensation system also will contribute. State Bar President Edwin McCreedy says that after the organization announced the suit in e-mails to members, responses poured in “and not one said we were barking up the wrong tree.” Instead of taxing lawyers, he says, the state should address what he calls the real cause of the mess: the licensing of bad doctors, questionable investments and management by insurance companies and the woes of the state’s largest doctors’ carrier, MIIX. The bar wanted the state to form a commission to study the insurance squeeze on doctors but “that suggestion was ignored,” McCreedy says. — New Jersey Law Journal

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