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Suspending two Phoenix lawyers for six months each, the Arizona Supreme Court ruled Jan. 9 that a secret agreement to go through with a sham trial, at the end of which the plaintiffs had the case dismissed with prejudice, was fraudulent and prejudicial to the administration of justice. In re Alcorn, No. SB-01-0075-D. The state Disciplinary Commission had recommended a 30-day suspension for the defense counsel, Richard A. Alcorn and his supervisor, Smith & Feola partner Steven Feola. But the state’s highest court reviewed the case sua sponte and increased the punishment. The underlying matter was an obstetrics malpractice suit filed by a father and his child against Dr. James R. Bair and Scottsdale Memorial Health Services. Bair faced trial alone, however, because his insurer was insolvent and the trial court had granted summary judgment to the hospital. According to the Arizona Supreme Court opinion, in an attempt to persuade the trial judge to reverse his summary judgment ruling, the plaintiffs entered into a covert deal with Bair. In exchange for a covenant not to enforce a judgment against him, Bair and his counsel agreed to allow the plaintiffs to put on a case highlighting the hospital’s culpability, the high court said. At the end of the plaintiffs’ case-in-chief, their lawyers, Timothy J. Hmielewski and Rodney G. Johnson, moved for a dismissal with prejudice. The judge agreed, provided he was told of all “sweetheart deals.” The lawyers assured him none existed. Alcorn, who was Bair’s lead trial attorney, then told the judge there was “no payment of any consideration from either side in connection with the settlement.” In a telephone interview, Alcorn said the hospital filed a motion for a new trial because it had heard rumors of a pretrial agreement. At a hearing on the motion, the lawyers disclosed the details of their agreement to the judge, who then vacated the dismissal and fined all four attorneys $15,000 each. Because Hmielewski was a Florida attorney, he received only censure and revocation of his pro hac vice status in Arizona. The Florida bar waived its authority to discipline him for this matter, Alcorn said. Johnson entered into a consent agreement with the bar, resulting in censure. Only Bair’s attorneys, Alcorn and Feola, were suspended. Alcorn and Feola told the state supreme court that they did not tell any lies, because the judge did not ask the right questions. But the supreme court said the lawyers affirmatively misled the judge and eroded public confidence by wasting the jurors’ and witnesses’ time in a “farce.” The doctor himself was damaged, the court said, because he was left facing trial again as the sole defendant, despite having already incurred $45,000 in attorney fees. “I have to express some frustration, because out of the eight lawyers who heard this case — the hearing officers and the Disciplinary Commission — four concluded that there was wrongdoing and four concluded there was not. That shows you the debatability of the issue,” Alcorn said.

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