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A federal judge has levied sanctions of more than $13,000 on Philadelphia attorney Marvin Barish to punish him for an angry outburst during a trial recess in which he threatened to kill an opposing lawyer and called him a “fat pig.” Barish admitted at a hearing in March 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,” U.S. District Judge Herbert J. Hutton found that an apology was not enough. In a prior opinion, Hutton 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. Barish’s lawyers, James E. Beasley and David A. Yanoff of Philadelphia-based Beasley Casey & Erbstein, argued that Barish should not be hit with any sanction because Gallagher had “instigated” the incident. Because Gallagher became a witness in the case, he withdrew, and Amtrak’s motion for sanctions was handled by Landman Corsi Ballaine & Ford of Newark, N.J. In June, Landman Corsi attorney John A. Bonventre asked Hutton to hit Barish with a sanction of $39,791.33 in attorney fees and costs. About half of the bill, $20,164.93, was for the Landman firm’s fees and costs in filing the sanctions motion against Barish. The other half, $19,618.60, was for the work done by Gallagher’s firm in handling the mistried trial. But Hutton rejected the petition and ruled that Barish should pay only for the work that Landman Corsi performed in seeking the sanctions. In a later petition, Bonventre asked for $18,384 in fees and $2,042 in costs. The bill said that Bonventre had logged 11 hours on the case at $175 per hour; senior partners Mark S. Landman and William G. Ballaine logged 7.2 and 3.7 hours, respectively, at $190 per hour; Landman logged another 8.4 hours after his rate swelled to $210; associate Amy K. Impellizzeri logged 81 hours at $120; and associate Christopher S. Kozak logged 19.8 hours at $130 per hour. But Barish’s lawyers argued that the Landman Corsi lawyers should be paid no more than the $120 rate that Gallagher, now of Gallagher Rowan & Egbert, charges Amtrak for all of his work. Court awards of fees, they said, must take account of the local market and the type of work performed. Since Gallagher has 28 years of experience — more than any of the Landman firm’s lawyers — his $120 rate should act as a cap, they argued. But the Landman firm argued that Gallagher’s rate reflects a discount for the high volume of work he does for Amtrak. They also insisted that the rates they included in their petition are the rates they always charge Amtrak. In a hearing on the issue, Yanoff argued that courts have routinely said that fee awards for sanctions should be calculated on the rate appropriate for the underlying litigation. Hutton asked Yanoff what he believed the Landman firm should be paid for the work of its associates who had charged rates the same or slightly higher than Gallagher’s. The exchange grew humorous when Hutton pressed Yanoff, who has been an associate for 10 years, to name a rate. “Associates at law firms now make more than federal judges,” Hutton said. “So what do you think an associate should be billing at per hour?” Yanoff said that he personally does not bill by the hour since the Beasley firm does mostly plaintiffs’ work and that his rate would be irrelevant since he does not work on Federal Employers’ Liability Act cases. Since Gallagher’s rate is the only evidence of the reasonable rate, he said, the associates should be paid no more than $80 to $90. In a 13-page opinion handed down this week, Hutton rejected the argument that the rates should be capped at $120 and found that the Landman firm’s rates were “reasonable.” But Hutton trimmed the bill considerably, cutting out hours that he deemed were not necessary in seeking the sanctions. In the end, Hutton awarded the firm fees of $11,243 and $2,042.61 in costs for a total sanction of $13,285.61 against Barish. Barish declined to comment and referred questions to the Beasley firm. Yanoff also declined to comment on the judge’s ruling but said that an appeal will be filed. In the appeal, Barish is likely to challenge not only Hutton’s monetary sanction, but also his decision to disqualify Barish from any further work on the case, which has yet to be tried.

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