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Provost & Umphrey has dismissed its own appeal of a case after the 5th U.S. Circuit Court of Appeals issued a rare and stinging memorandum concerning some of the firm’s lawyers on Sept. 16 for allegedly submitting appellate briefs containing a “substantial number of outright falsehoods, determinative omissions, out-of-context quotations and specious arguments.” The appeal of the “seven plaintiffs-appellants … and their attorneys — principally the firm, Provost Umphrey” didn’t sit well with an unnamed panel of the 5th Circuit that was scheduled to hear oral arguments in Dube, et al. v. Eagle Global Logistics Tuesday. The case involved an appeal of a settlement consent decree in a 5-year-old employment discrimination case. After reviewing the plaintiffs’ briefs, the 5th Circuit panel took the highly unusual step of issuing a memo to its chief clerk, in which the court threatened plaintiffs’ counsel with any or all of the following: possible sanctions; reporting the matter to a professional ethics committee of relevant state bars; and issuing a show-cause order preparatory to disciplinary action by the appellate court. A letter from 5th Circuit Clerk Charles R. Fulbruge III, which is attached to the memo and addressed to Provost & Umphrey partner Reuben A. Guttman, instructed that unless replacement briefs in Dube were submitted by Sept. 23 “free of improprieties and misrepresentations,” the appeal would be dismissed. The letter also gave Guttman and the other plaintiffs’ lawyers the option of dismissing the appeal “voluntarily in lieu of preparing and timely filing fully compliant briefs.” In response to the letter, Provost & Umphrey partner Guttman and managing partner Walter Umphrey, and Washington, D.C., solo Jonathan S. Massey filed a motion to dismiss the case on Sept. 23. Next to Guttman’s and Massey’s signatures on the motion is a handwritten note that says “with permission of John Cowan.” Cowan is a lawyer with the firm’s Beaumont, Texas, office. “The equity owners of Provost Umphrey Law Firm, L.L.P., wish to state that the firm takes very seriously its obligations to the court and takes very seriously what the panel has said. The equity owners will review the entire record and take appropriate action where warranted,” the motion states. “If the panel or any judge has questions regarding sanctions, the firm will respond to any inquiries. The firm requests notice of any inquiries or sanctions so that it may retain independent counsel if necessary,” the motion continues. Guttman, with Provost & Umphrey’s Washington, D.C., office, did not return three calls seeking comment. Massey declines to comment saying, “I don’t have anything to say about it.” Umphrey, managing partner of the Beaumont-based firm, did not return a call seeking comment. Cowan says he signed the document for the Washington, D.C., lawyers because the motion was filed from the firm’s Beaumont office. Nancy Patterson, a partner in Houston’s Baker & Hostetler who represents Houston-based air freight company Eagle Global Logistics, says the 5th Circuit memo vindicates her client’s actions in the employment case, which was settled with the Equal Employment Opportunity Commission for $9 million one year ago as part of a consent decree. “I’ve never seen anything like this, [and] I’ve been practicing law for 14 years,” Patterson says. Katharine Kores, regional attorney in the EEOC’s Memphis district office who also participated in the litigation and settlement, says the 5th Circuit’s letter and its strongly worded memo are “very unusual.” FIVE-YEAR FIGHT According to an addendum attached to the 5th Circuit’s Sept. 16 memo, the litigation dates back to 1997 when Eagle’s former general counsel Judith Robertson — who has since left the company — filed a complaint with the EEOC alleging widespread discriminatory practices at Eagle. In 1998, in the midst of the EEOC investigation, Eagle sued Robertson and the EEOC in state court in Houston alleging Robertson violated her fiduciary duty and attorney-client privilege when she provided information to the EEOC, according to the addendum. Robertson, who denied the allegations, later moved the action to federal court, and the case was assigned to U.S. District Judge Lynn N. Hughes of Houston. On May 1, 2000, the EEOC issued a 104-page letter of determination alleging evidence of employment discrimination at Eagle. Two weeks later, four plaintiffs represented by Provost & Umphrey, who were later joined by four other plaintiffs also represented by the firm, filed a separate discrimination case against Eagle in U.S. District Court in Pennsylvania seeking class certification, according to the addendum. The Pennsylvania court denied class certification and transferred the case to Hughes in Texas. Hughes also denied a motion for class certification. Eagle and the EEOC estimate there may be as many as 1,000 claimants, according to Patterson. On Aug. 3, 2001, Hughes ordered the EEOC to extend a settlement offer to Eagle without the participation of Provost & Umphrey attorneys. At that hearing, Eagle’s counsel alleged that the individual plaintiffs would not settle “until you [Eagle] pay the Umphrey Law Firm 40 percent of 18 million dollars,” according to the plaintiffs’ 5th Circuit briefs in the case. Provost & Umphrey lawyers denied those allegations in their briefs. According to the 5th Circuit addendum, there were conflicting claims as to whether Provost & Umphrey lawyers were asked to join the settlement negotiations. “It appears that an offer to join the negotiations was extended to plaintiff-appellants, but that it went nowhere because plaintiff-appellants refused to make their own settlement offer to Eagle,” the addendum states. On Oct 1, 2001, Hughes approved a consent decree between the EEOC and Eagle for a $9 million settlement, which contained an opt-out provision for any claimants who did not wish to participate in the settlement. The consent decree also did not bar any pending claims by Provost & Umphrey’s clients. Provost & Umphrey lawyers filed a motion asking Hughes to “enjoin” its own approval of the consent decree in order to hold a fairness hearing. Hughes denied the motion, and Provost & Umphrey lawyers filed an appeal with the 5th Circuit on Nov. 14, 2001, objecting to the consent decree. The chief allegation in the 5th Circuit’s memo is that the plaintiffs’ lawyers in their brief cited a hearing transcript from Hughes’ court and omitted significant portions of the transcript so as to “create the impression that the district court denied one of their motions without having even read the pleadings.” The 5th Circuit memo says the plaintiffs’ lawyers claim that Hughes denied their motion for an injunction of the consent decree in an Oct. 15, 2001, hearing, but the plaintiffs’ lawyers did not attach a complete copy of the hearing transcript in their brief to allow for independent verification of their claims. [See "The 5th Circuit Memo."] Hughes’ handwritten conference memorandum shows that the judge accommodated the plaintiffs’ lawyers’ injunction request by postponing the effective date of the consent decree, according to the 5th Circuit memo. “Plaintiff-appellants falsely allege in their briefs that the district court denied their motion without having read their pleadings,” the memo said. “They attempt to pass off this false accusation through selective manipulation of quotations from the record — the result of employing the use of ellipses that represent pages of redacted statements by the district court and counsel.” “This omission cannot be dismissed as an oversight; it is indisputably an act of deliberate misrepresentation,” the memo stated. The 5th Circuit memo also chastised the plaintiffs’ lawyers for improperly characterizing their clients as “class representatives” in briefs when motions for class certification had been denied twice. The memo also chided plaintiffs’ counsel for improperly characterizing their clients as “whistleblowers” who prompted the EEOC investigation — a claim EEOC lawyers found was “inaccurate,” according to the 5th Circuit memo. EXTRAORDINARY MEMO Several appellate and legal malpractice lawyers say they’ve never seen the 5th Circuit write such a memo. “I would say it’s extraordinary,” says David Schenck, a partner and appellate lawyer in Dallas’ Hughes & Luce. “Whether the circumstances are unusual, it’s hard to say. But someone has looked fairly closely at this record.” Schenck and other appellate experts say that the most significant aspect about the memo is it chastises lawyers based on a brief before oral arguments took place. When an appellate court excoriates lawyers, it’s most likely to occur during oral arguments or in decisions of the court, several appellate experts say. Randy Johnston, a partner in Dallas’ Johnston Tobey and a legal malpractice lawyer, also believes the 5th Circuit memo is “virtually unprecedented.” But the reasons for the memo, unfortunately, are not uncommon, he says. “There is a line about how much you can shade and outright distort an appellate record, and I absolutely don’t know where that line is, because I’ve seen my opponents do that,” Johnston says. “I was taught in law school that that is the ultimate sin. But my experience is to the contrary,” Johnston says of appellate record distortions. “Even when caught publicly, there seems to never be any response” from the appellate court.

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