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A San Francisco Superior Court judge may hit a local lawyer with a $43,000 sanction for a suit against Baker & McKenzie that he said didn’t have “a prayer of getting off the ground.” Last year, Douglas Akay accused the global firm of stealing two of his clients –worth more than $1 million in business. Months after tossing the complaint as “frivolous,” Judge James Warren contemplated Friday just how much Akay should be sanctioned. Warren said at the outset he was leaning toward $43,392 in attorneys fees — much less than the nearly $100,000 Baker & McKenzie wants, but much more than Akay claims his small firm can weather. But the judge put off a final decision. Though clearly troubled by the case, it appeared he might be swayed by last-minute pleas from Akay and his new attorney. The war between the two firms stems from a shareholder lawsuit Akay filed in 2002 against the directors of a local chain of noodle eateries. Akay’s clients turned to Baker & McKenzie to help serve defendants in Taiwan, a task Akay had acknowledged was proving “exceedingly difficult.” But the team effort didn’t last long. By August 2002, Akay has said, two of his three clients had dumped him in favor of the bigger firm. Akay accused Baker & McKenzie of seducing them away. Warren decided to throw the case out in December, and scolded Akay for ignoring repeated letters from Baker & McKenzie, replete with case law, warning him the bigger firm would seek sanctions if he didn’t drop the suit. Instead, Warren noted, Akay filed an amended complaint adding more claims. Though the judge had cited a variety of legal doctrines and case law, his analysis seemed to particularly hinge on the contract the clients had signed with Baker & McKenzie to serve the Taiwanese defendants. None of the case law Akay cited involved a preexisting relationship between a firm and a client it allegedly stole, Warren said. Concluding Akay and Baker & McKenzie were essentially co-counsel, he said that, absent extraordinary circumstances, Baker & McKenzie could tell their clients “whatever they want, which includes, ‘Come with me and leave the other one behind.’” At Friday’s hearing, Warren said the nearly $100,000 the big firm had asked for would be too harsh. “I don’t think this case had a prayer of getting off the ground,” the judge reiterated. Still, Akay’s career had so far been unmarred by sanctions or any other frivolous lawsuits, the judge added, “and I find that compelling.” “This is a very unhappy situation for the court to be in,” Warren added, before announcing his tentative decision. Akay made a contrite plea to the court, and he brought a specialist in legal ethics to help him make his case for lower, or no, sanctions. “The whole process has been a learning process for me,” Akay said, adding that with hindsight, he would have pleaded his case differently. Akay’s lawyer, Richard Zitrin, asserted that there were legal subtleties. Akay and the bigger firm “were not, in my mind, co-counsel,” said the Zitrin & Mastromonaco attorney. “They were being consulted in a narrow capacity.” Warren again noted the engagement letter that Baker & McKenzie had with the clients, but said he’d take another look at the case law. “Obviously, this is serious,” the judge said. To illustrate how serious, he mentioned that his vacation had started at the same time as the noon hearing, and a number of people were already seated and waiting for him to show up at his birthday lunch.

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