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Clifford Van Syoc is known for, and boasts of, his zealotry in pursuing plaintiffs’ employment discrimination claims. But now a federal judge, comparing the Cherry Hill, N.J., solo practitioner to Rambo, says he’s gone over the line. In an opinion issued Aug. 27, Judge Stephen Orlofsky of the U.S. District Court for the District of New Jersey excoriated Van Syoc for being unreasonable in pushing a meritless complaint and assessed him personally for $59,216 in fees and expenses. “Once again, this Court is confronted with the spectacle of an attorney who has callously disregarded his professional obligations to this Court, his adversary, and his clients,” Orlofsky wrote in Murphy v. Housing Authority and Urban Redevelopment Agency of the City of Atlantic City, No. 97-1558. “While Rambo may be a success at the box office, lawyers who appear in this Court and adopt Rambo as a role model do so at their own peril,” wrote Orlofsky. He ordered Van Syoc to pay his adversary for fees and expenses incurred after it had become clear that Van Syoc had no case in the reverse-bias claim he filed for a housing-authority accountant. Orlofsky said Van Syoc “in bad faith turned a blind eye to the facts and law and has vexatiously multiplied the proceedings. …” The judge concluded that Van Syoc’s only interest in filing an appeal — after the judge dismissed the case on summary judgment on Aug. 17, 1998 — was to recover his counsel fees. Van Syoc calls the fee ruling unfair and says he is appealing it. “People come to me because I’m not a wimp and I don’t fold,” says Van Syoc. “If I’m not zealous, my clients could sue me.” Van Syoc points to an October 1999 letter from his adversary, Charles Ercole, to a claim examiner for the housing authority’s carrier. In that letter Ercole estimates that “there is a 25 percent to 35 percent chance that the case will be remanded [by the 3rd U.S. Circuit Court of Appeals] to the District Court which will deny the motion for summary judgment and require the parties to proceed to trial.” Says Van Syoc, “Does that sound like a frivolous case if my adversary is saying I have a one-in-three chance of getting to trial?” Despite the warning to his carrier, Ercole maintained that the claim lacked merit. “This is a significant sanction. Judges are reluctant to assess fees, but clients do ask, ‘Can I get my money back?’ ” says Ercole, a partner with the Cherry Hill office of Philadelphia’s Klehr, Harrison, Harvey, Branzburg & Ellers. REVERSE-DISCRIMINATION CLAIM Todd Murphy sued his employer, the Atlantic City Housing Authority, in federal court in March 1997, alleging reverse discrimination on the basis of race and sex, in violation of Title VII, 42 U.S.C., and the state’s Law Against Discrimination. Murphy, who is white, started at $16,040 in February 1991. With raises and promotions, he had reached a salary of $30,824 and a position as a senior accountant by September 1995. He then sought a promotion to supervising accountant. Though the housing authority usually gave a 10 percent raise to promoted employees, Murphy requested an exception, and asked for a 63.43 percent increase, to $50,375. Such a raise, Orlofsky noted, would have given him a higher salary than his boss, the authority’s comptroller. The board denied the request, based on recommendations by the authority’s administrator and executive director. But Murphy got the promotion and the standard 10 percent raise, bringing his salary to $33,906. Murphy argued for an exception under a formula allowing the authority to give additional money to an employee with more than the requisite qualifications for the post. But the authority lawyers argued, and the judge agreed, that such an exception applied only to new employees. Murphy further contended he was discriminated against in 1994 when his bosses denied his request to pay for a course on municipal finance administration. Administrator John Glowacki testified that he told Murphy that the course was unnecessary because municipal accounting was not needed at a housing authority. Orlofsky said he found a dearth of evidence to support a reverse-discrimination claim. He noted that Glowacki and Executive Director John McAvaddy Jr. were white males who hired Murphy, promoted him, gave him raises and were eyeing him to take over as comptroller because the current comptroller had health problems. On Feb. 10, 1999, two weeks after Orlofsky tossed the case, Ercole moved for the fee award. Orlofsky said August 27 that in March 1998 Van Syoc was demanding $650,000 and reminding his adversaries that he had been awarded fees of $450,000 and $550,000 on behalf of two plaintiffs who successfully sued the Atlantic City Police Department in the mid-1990s. Ercole, then an associate with the Cherry Hill office of Philadelphia’s Montgomery, McCracken, Walker & Rhoads, made a counteroffer in April 1998. Saying the suit had no merit, Ercole offered to not pursue fees against the plaintiff under Title VII if Murphy agreed to voluntarily drop the case. Two weeks later, calling Ercole’s efforts “posturing” and “baseless threats,” Van Syoc urged him to settle to “avoid what will be a torrent of litigation by other disgruntled employees. …” On July 6, 1998, Van Syoc wrote Ercole to say that the “case can be solved for a reasonable figure” but must be more than five figures “since Mr. Murphy’s counsel fees already exceed that number.” On Aug. 17, 1998, Ercole filed his motion for summary judgment. “From the tenor of this correspondence I conclude that Mr. Van Syoc’s only interest … was in obtaining his attorney’s fees, as opposed to reaching an equitable result for his client,” Orlofsky wrote Aug. 27. Orlofsky declined to award fees to the defense, based on �1988 of Title VII, the fee-shifting section. Under �1988, fees are awarded to a prevailing plaintiff almost automatically. But while the section and case law also allow fees to be awarded to a prevailing defendant when the plaintiff’s actions are frivolous, unreasonable or without foundation, the assessment must be against the losing party and not the losing plaintiff’s attorney. Orlofsky said Murphy should not be punished because he was following Van Syoc’s advice. However, Ercole had also requested fees under �1927 of Title VII. Under that section, a court can assess the lawyer if it finds that the lawyer’s actions were vexatious and unreasonable. Under 3rd Circuit case law from 1985 and 1991, a judge needs a showing of bad faith on the part of the attorney, plus a finding that he or she acted willfully. Bad faith is shown when a lawyer pushes a baseless contention for an ulterior purpose, such as harassment, delay or, in this case, an effort purely to gain a fee. The strictures are to ensure that lawyers are not chilled in their ethical obligation to represent their clients zealously. Orlofsky called Van Syoc’s pursuit of the case frivolous and in bad faith, offering as one example Van Syoc’s per quod claim on behalf of Murphy’s wife. Orlofsky said such a claim was not cognizable under Title VII or the LAD and that another federal judge tossed a similar claim in the cases against Atlantic City’s police department in which Van Syoc was counsel. Moreover, the 3rd Circuit approved the per quod claim dismissal. Van Syoc’s aggressiveness is well-known. In his sexual harassment suit on behalf of former state Deputy Attorney General Barbara Davis in 1994, he alleged, in and outside of the courtroom, that officials of the state Division of Criminal Justice groped female staffers and had extramarital affairs. He raised those contentions to show a pattern and environment of harassment. He won a $700,000 judgment at trial in 1998, and ultimately settled in 1999, receiving a fee of just under $715,000. He also represented Carl Williams, the former state police superintendent, in his reverse-discrimination suit after Gov. Christine Todd Whitman fired him for what she said were racially divisive comments to The Star-Ledger. A state court judge rejected Van Syoc’s argument that Williams was late filing under the Tort Claims Act because of what an expert described as “cognitive malaise.” Ultimately, all of the plaintiff’s claims were dismissed in the summer of 2000. In a wrongful-discharge case, Van Syoc represents one of two police officers suing the Hamilton Township Police Department and its chief, Richard Taylor. In his opening to a mixed-race jury last January, Van Syoc accused Taylor, who, like the plaintiffs, is white, of using a racial slur. When the jury was sent out, Van Syoc said that Taylor repeatedly used the word “nigger” and bragged of putting a notch on his gun for killing a black teen-ager. The racial accusations had not been made in the plaintiff’s complaint or pretrial documents. After newspapers published the story, the defense succeeded in getting a mistrial. And in March, Michael Herbert of Princeton, N.J.’s Herbert Van Ness Cayci & Goodell, Taylor’s attorney, moved for sanctions against Van Syoc and for fees of more than $50,000. The motion is pending. In the cases against the Atlantic City Police Department — claiming retaliation under the state’s whistle-blower statute — Van Syoc won more than $3 million for his clients. SUIT AGAINST ADVERSARIES After Orlofsky dismissed Murphy’s case in August 1998 and the 3rd Circuit affirmed in January 2000 — finding not a “scintilla” of evidence supporting Murphy’s claims — Van Syoc filed a new suit in state court on behalf of Murphy against the housing authority. In that suit, Murphy v. Housing Authority of the City of Atlantic City, ATL-L-1646-01, Van Syoc named not just authority officials, but four outside counsel who represent the authority, including Ercole. The suit was filed this past May, as Orlofsky was deciding the defense motion for fees in the federal case. On July 6, Atlantic County Superior Court Judge Daryl Todd Sr. dismissed the complaints against the four lawyers who do outside employment work for the housing agency. He concluded that Van Syoc’s claim that they conspired to discriminate against his client was baseless. Todd characterized Van Syoc’s papers against the lawyers as “a shotgun complaint firing shots in all directions” designed to deprive the authority of the counsel of its choice. Todd left the door open for Van Syoc to amend his complaint to name the lawyers if he finds a bona fide cause of action, but he threatened sanctions if Van Syoc named lawyers with the same or similar allegations. Van Syoc says he’s unfazed by the criticism. He says he expects the 3rd Circuit to overturn Orlofsky. If it doesn’t, “I’m a big boy and I handle it.” He predicts that if he has to pay the $59,216 ordered by Orlofsky, he’ll get it back in fees in the state case. “I’m battered, but unbowed.”

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