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Marietta, Ga., attorney Don C. Huprich was having a bad day. In a letter he faxed to DeKalb Superior Court Judge Linda W. Hunter on Sept. 15, he informed the judge that he had failed to appear at a trial scheduled that morning because, “Due to a lack of sleep last night, I almost caused one traffic accident in the rush hour traffic headed downtown. � I decided it was not safe for others or me to drive in rush hour traffic and got off the interstate by Cumberland Mall and returned home.” The decision to return home cost Huprich $5 million. Just over an hour before he sent his written apology to Hunter, a DeKalb jury issued the $5 million damages verdict against him in a case brought by two former clients. After the jury found that Huprich and his firm, Huprich & Associates, “had committed fraud in their representation of the plaintiffs in this case,” Hunter entered a judgment against Huprich and his firm “because of malpractice, breach of fiduciary duty, fraud and bad faith” in DiNino v. Huprich. Dennis J. Webb, a partner at Webb, Zschunke, Neary & Dikeman, represented Huprich’s former clients — Meishelle Haverkamp and Gerald DiNino of Seattle, Wash. — in the malpractice case. Huprich defended himself. The Washington residents sued Huprich after he lost in a default judgment a federal franchise suit that named them as defendants. In issuing that default judgment in 1999, U.S. District Senior Judge Marvin H. Shoob also tossed out a counterclaim potentially worth as much as $1.5 million that Haverkamp and DiNino had filed. The loss forced DiNino into bankruptcy, caused his wages to be garnished and led to seizure of his bank account, according to Webb. The DeKalb jury’s legal malpractice judgment against Huprich, Webb continued, “is the biggest one I’ve ever seen, and certainly there aren’t very many like it. There have been very few legal malpractice verdicts at all.” Webb also called the verdict “poetic justice” because after Huprich failed to appear for the trial, Hunter tossed out Huprich’s answer and counterclaim — which is exactly what Webb said had happened to Huprich’s former clients as a result of the lawyer’s conduct before Shoob. Webb said he also has filed a formal complaint against Huprich with the State Bar of Georgia. Bar officials would not confirm they had received a complaint, saying only that Huprich has been in good standing with the organization since he was admitted in 1980. In the first of two voicemail messages to the Fulton County Daily Report, Huprich said he is appealing the jury verdict and is “confident the verdict and judgment will be reversed on appeal.” In the second message, Huprich said, “I steadfastly deny that any malpractice whatsoever was committed.” Huprich said that Hunter should have granted his motion for summary judgment to dismiss the fraud claim. “Defendants [Huprich] proved five independent reasons why the fraud claim should have been dismissed on summary judgment, and plaintiffs offered no evidence, no argument and no citation of authority on four of them,” Huprich said in his first message. “On the fifth one, they just made a stupid argument.” Huprich also explained in the second message that he did not appear for trial because he had difficulty falling asleep the night before “and ended up only getting about a half-hour of sleep.” As he drove to court, he said, “I almost caused one accident on the freeway at a fairly high rate of speed because I fell asleep at the wheel and then just barely missed someone else’s mistake because I was about to fall asleep at the wheel. “I decided since I should have won completely on all of the claims presented by the plaintiffs on summary judgment that I wasn’t going to risk my life or other people’s lives in order to show up for trial. Life is more important than money, anyway,” Huprich said. Webb said he doesn’t know what Huprich will appeal because there is no record of the trial. Once Judge Hunter struck Huprich’s answer, defenses and counterclaim, Webb said, “I told the court reporter to leave. � Once [Hunter] struck the answer and counterclaim, there was no reason to have any record.” LAWYER LACKS MALPRACTICE INSURANCE Webb said he remains uncertain whether his clients ever will collect the judgment from Huprich because he has no malpractice insurance. In his letter to Hunter, Huprich wrote that he considered filing for bankruptcy after he failed to appear in court “in order that the trial would automatically be stayed.” Returning home that morning, “I put together a creditor list while drinking coffee,” he wrote. “I do meet a ground for being able to file bankruptcy,” he wrote. But Webb insisted that the judgment will stand, whether Huprich files for bankruptcy protection or not, because the damages verdict is based on fraud. “The most obvious [claim for fraud] was that he told his clients he had malpractice insurance, and he didn’t,” Webb explained. “That’s major all by itself. His conduct in general was horrible. He never did what he said he was going to do or what the court told him to do. � The extent to which he did it makes it fraudulent. Normally, it would be negligence. This is so far beyond negligence, this is fraud. That’s what the judgment actually said,” he added. COURT’S PATIENCE RAN OUT The malpractice verdict against Huprich stems from a 1997 commercial franchise dispute between a California franchiser and DiNino and Haverkamp, who had secured a franchise to open a retail store in Georgia. When the franchiser sued, alleging trademark infringement and breach of contract, Haverkamp and DiNino — who were then living in Georgia — hired Huprich to defend them in Daniel Franchise Systems v. HD2. In meetings with his clients, Huprich assured them he “had extensive experience in handling lawsuits of this nature,” had malpractice insurance and that, “It was his opinion that it had a 95 percent chance of being successful if and when it was tried,” according to documents Webb filed in the malpractice case. It was during the course of the subsequent litigation that Huprich engaged in legal malpractice, the pleadings alleged. Twice, Huprich ignored specific instructions by the federal judge assigned to the case to sign and submit a three-page, proposed consolidated pretrial order with opposing counsel. After issuing his instructions a second time, Shoob warned Huprich that the court’s “patience is at an end.” Shoob said any subsequent failure to comply with orders would result in a default judgment against Huprich’s clients and the imposition of sanctions. Huprich failed to comply. Instead, in a response to Shoob’s pretrial consolidation order, Huprich filed more than 50 pages of pleadings with 29 exhibits attached. Those pleadings also disputed statements by plaintiffs’ counsel as to why they had been unable to secure Huprich’s signature or cooperation. In a second order, Shoob lambasted Huprich’s “voluminous filings,” calling them “an absurd waste of this Court’s time.” Shoob wrote that the filings “demonstrate better than any argument plaintiff could make that [Huprich] has completely failed to cooperate in the preparation of this case for trial, despite the Court’s repeated orders.” Huprich, Shoob concluded, had “willfully violated” orders. As a result, the judge struck all of Haverkamp and DiNino’s defenses, declared them in default and dismissed their counterclaim. NEW COUNSEL, NO BIAS Huprich then waited two weeks before informing his clients of Shoob’s “terrible order.” In an April 2, 1999, letter, Huprich assured his clients, “While that is bad news, it is not as bad as it sounds.” In that letter, Huprich informed his clients that in an effort to repair the damage, he had hired one of Shoob’s former law clerks, who remained “a close personal friend” of the judge, to file a motion for reconsideration. He also assured them that there was “an extremely high probability” that the 11th U.S. Circuit Court of Appeals would reverse the judge’s ruling. “In light of this recent turn of events which definitely means I have unintentionally managed to really tick off Judge Shoob and/or his law clerk, Michael Robinson, I recommend that you do engage another attorney to serve as lead counsel in this case,” Huprich informed his clients in the letter. “I recommend that because I fear that Judge Shoob may maintain a bias against you if I am serving as lead counsel and because, quite frankly, my self-confidence when it comes to Judge Shoob is badly shaken at the moment. � I spent much of this week wondering whether I even want to continue as a trial attorney because Judge Shoob’s ruling has had such a terrible effect on my self-confidence,” Huprich wrote. In Huprich’s own motion for reconsideration, which Shoob denied, the lawyer accepted responsibility “for his serious errors in judgment in responding to the Court’s orders” and said he would agree to be held in contempt or otherwise disciplined. He also offered to secure another attorney “acceptable to the court” to act as lead counsel in the case. “[T]he undersigned respectfully requests that the Court direct that the undersigned counsel — rather than his clients — bear the sole burden of any such action by the Court,” Huprich wrote. In a subsequent bench trial, Shoob awarded the plaintiff in the case, Daniel Franchise Systems, $58,028.11. While the case was on appeal, the parties settled the matter out of court. Webb said that despite Huprich’s admissions in his motion for reconsideration before Shoob, the malpractice case against Huprich has been “very contested” for two-and-a-half years. Huprich’s former clients, Webb said, “have been taken advantage of something awful by this guy. It’s just terrible.” ‘THE BIGGEST TREE KILLER � EVER’ While Huprich was “very difficult to reach by telephone” during the course of the litigation, Webb said the attorney filed reams of paperwork in court that created multiple delays. Huprich’s affinity for paperwork led Hunter at one point to call the lawyer “the biggest tree killer I’ve ever seen,” according to Webb. For his part, Huprich wrote in his letter to Hunter, in which he apologized for not appearing for trial, that after returning home, “I then drove downtown in order to file bankruptcy, with the hope any required forms would be available in the bankruptcy clerk’s office. Such was not the case. Forms have to be obtained elsewhere like purchasing them from an office supply business. While I was able to purchase the forms late this past morning, I have since decided not to file bankruptcy. “Where does my failure to appear leave this case? I have no idea whether you have issued any order(s) as a result of my failure to appear. Can you simply reset the trial just like you reset a hearing when Mr. Webb failed to appear? Yours very truly, Don C. Huprich.”

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