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A prominent attorney and expert on banking law who was accused of doctoring his treatise to suit the arguments of a client has been cleared of any wrongdoing. Senior U.S. District Judge William M. Hoeveler of Florida ruled last week that Barkley Clark had indeed amended his treatise while being paid by First Union as an expert witness, but that he made the changes impartially and in good faith. Furthermore, the judge held that while the amendments created an appearance of impropriety, there was no prejudice because the court did not rely on Clark’s treatise. In a clean sweep for First Union, Hoeveler also ruled in First Union’s favor in the underlying lawsuit. Scadif, a France-based wholesale company, had sued First Union alleging that the bank was liable to Scadif for $3.2 million because First Union failed to pay or return a check for that amount before the midnight deadline as required by Florida law. Hoeveler held a six-day bench trial last December in Miami. In his ruling granting judgment in First Union’s favor, Hoeveler concluded that the so-called midnight deadline rule did not apply. Last December, Scadif’s attorney Alvin F. Lindsay III, a partner with Miami-based Steel Hector & Davis, discovered the changes three days before trial when he realized from the page numbers in the treatise and the texture of the paper that Clark had amended his comments. The next day Lindsay telephoned the publisher and learned that the changes had been made after Clark was hired by First Union. The treatise in question is titled “The Law of Bank Deposits.” Treatises are books that delve into a particular area of law and are often cited as authoritative by attorneys and judges. Clark was contacted but declined comment. Calling the amendments an “epic fraud,” Scadif filed a motion for sanctions and argued that the changes directly aided First Union’s case. In other words, Clark had allegedly created evidence to benefit his client. Clark responded that he regularly amended his treatise, and did so in this case because of changes in the law. A hearing on the motion for sanctions was held before Hoeveler on May 6. In his ruling, Hoeveler agreed that the changes gave the appearance of unethical conduct, but nevertheless agreed with Clark. “While amending these sections of his treatise during the pendancy of this litigation was certainly a lapse in judgment, the Court does not believe Mr. Clark risked his reputation and the reputation of his treatise for the consulting fees in this particular case,” Hoeveler wrote in his ruling. Clark, who is considered one of the top authorities on banking law in the country, is a partner and chair of the banking and commercial law practice group at Shook Hardy & Bacon in Washington, D.C. He is also an adjunct law professor at Georgetown University. “We are surprised and disappointed with the ruling,” said Lindsay, who was Scadif’s lead attorney. “We are now determining how to proceed.” Scadif could appeal to the 11th U.S. Circuit Court of Appeals. The company was also represented by Joseph P. Klock Jr., chairman and managing partner of Steel Hector, and Robin Lea, an associate at the firm. First Union was represented by Stephen B. Gillman, a partner with Gallwey Gillman Curtis & Vento in Miami, and Virginia B. Townes, a partner with Akerman Senterfitt in Orlando, Fla. Gillman and Townes declined to comment for this story. An adverse ruling against Clark could have stained a stellar career. A graduate of Harvard Law School, and a law professor for 20 years at the University of Kansas and George Washington University, Clark has authored or co-authored six different treatises, written eight books and published 30 law review articles. Listed in the “Best Lawyers in America,” Clark is on the board of editors of the Banking Law Journal and is a special adviser to the Federal Reserve Board. In addition to working as a lawyer, professor and legal commentator, Clark also works as an expert witness. It was his willingness to be both attorney and expert witness that drew fire from Scadif’s attorneys. In a motion for sanctions, Scadif alleged that Clark, who testified at trial, improperly served as both an attorney and expert witness in the case and that his precise role was not fully disclosed. First Union responded that Clark was never co-counsel but worked as a consultant before shifting to the role of testifying expert. It also argued that even if Clark had been co-counsel and then testified as an expert witness it would have violated no rules of ethics. Hoeveler ruled that First Union should have disclosed all of Clark’s prior involvement in the case but failed to do so. But the judge ruled “there was no actual impropriety” by the bank. Scadif, in its motion for sanctions, also alleged that First Union concealed documents and engaged in abusive deposition conduct. On each, Hoeveler ruled in First Union’s favor. Nonetheless, Hoeveler wrote that he had reservations about First Union’s handling of the case. “Although the court declines to impose monetary sanctions or to strike testimony in this case, the court does not fully approve of First Union’s conduct in litigating this case,” Hoeveler said in his ruling. “While corporate clients may view lawyers as just part of the cost of doing business, we cannot allow the loss of our civility to become just part of the cost of practicing law. A victory is a hollow one indeed, when it is won at the cost of an adversary’s respect.”

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