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When Alvin F. Lindsay first started doing research for a lawsuit against First Union National Bank, he turned to a treatise by Barkley Clark. Titled “The Law of Bank Deposits,” the treatise is considered a leading authority on banking law. But to Lindsay’s dismay and despite case law to the contrary, Clark’s assertions in the treatise supported the very arguments being made by First Union. Then, in December, just three days before trial, Lindsay made a startling discovery: Clark, after being hired by First Union, had amended his treatise. In court papers seeking sanctions against First Union’s attorneys, Lindsay charged that Clark, a highly regarded legal authority on banking law and the chairman of the banking and commercial law practice at Shook Hardy & Bacon in Washington, D.C., had doctored his treatise “in an epic fraud” after being hired by First Union. “While ‘co-counsel,’ and under a duty to zealously represent First Union, Mr. Clark revised two major sections of his treatise to reflect the legal analysis he advocated for First Union. … The purpose of Mr. Clark’s stealth was to create a new interpretation of the law based on the facts of this case,” wrote Lindsay, a partner in the Miami office of Steel Hector & Davis who is representing France-based pharmaceutical distributor Scadif in its lawsuit against First Union Attorneys for First Union have dismissed the claims. In court filings, they argue that “the charges are groundless.” The case dates back to 1998, when Scadif sued First Union for allegedly failing to meet the so-called “Midnight deadline rule.” Under Florida law, banks are required to pay or provide notice that a check has been returned by midnight of the banking day following presentation of the check. In 1998, First Union returned a $3.1 million check written to Scadif by a customer. Scadif argued that because First Union failed to notify it by the required deadline, the bank was liable for the $3.1 million. After three years of combative discovery, on Dec. 6, 2001, a six-day bench trial began before Senior U.S. District Judge William M. Hoeveler of the Southern District of Florida. A ruling has yet to be handed down by the judge. On Monday, Hoeveler held a hearing on Scadif’s motion for sanctions. Included among a host of charges levied by Scadif, Lindsay claimed that First Union hired Clark as an expert witness but did not disclose that Clark was also serving as co-counsel in the case. “While a lawyer wears many hats in serving a client, one hat a lawyer may not wear is that of a witness testifying in a case in which he represents a party,” Lindsay wrote. “There is a stench about how First Union handled this case,” said Joseph P. Klock Jr., chairman and managing partner for Steel Hector & Davis, who argued Monday on behalf of Scadif before Hoeveler. Scadif is seeking sanctions including attorney fees and the striking of Clark’s testimony. Three days before trial last December, Lindsay realized from the page numbers in the treatise and the texture of the paper that pages had been added. The next day he telephoned the publisher and learned that Clark had indeed amended the treatise after being hired by First Union. At Monday’s hearing, Virginia B. Townes, the attorney for First Union, acknowledged that the changes were made, but argued that Clark revised the two sections because they were not well organized. “There was no change in substance,” said Townes. In addition, Townes, a partner with Akerman Senterfitt in Orlando, argued that even though the defense used Clark as an expert witness, it nevertheless did not rely on his treatise. At trial, First Union was represented by Stephen B. Gillman, a partner with Gallwey Gillman Curtis Vento & Horn in Miami, and Scadif was represented by Lindsay and Robin Lea, an associate at Steel Hector. Gillman declined to comment for this story and Clark did not return several phone calls to his Washington, D.C., office. Throughout Monday’s hearing, Townes’ theme was that any mistakes by First Union were well-intentioned and deserving of the court’s forgiveness. “We agree that we did wrong,” she said at one point. “We are very, very embarrassed.” Klock responded saying that the two portions Clark amended were cited by Clark during his testimony at trial. “He amended the book and then referred to it in court,” said Klock. “At trial you had to be careful with his treatise because the ink was not even dry.” Clark, by any measure, is a formidable target. A graduate of Harvard Law School, Clark was a law professor for 20 years at the University of Kansas and the George Washington University Law Center. He has authored or co-authored six different treatises, has written eight books and has published 30 law review articles. He currently teaches a course on the Uniform Commercial Code at Georgetown University, is on the board of editors of the Banking Law Journal and is special adviser to the Federal Reserve Board. He is listed in “The Best Lawyers in America.” Judge Hoeveler said he would likely rule on the case and on the motion for sanctions at the same time, although he did not say when.

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