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A three-judge panel of the 1st District Court of Appeal on Tuesday dismissed a corporate whistleblower’s claim to a portion of attorney fees stemming from a successful class action suit against Bank of America. Ruling in McIntosh v. Mills, 04 C.D.O.S 6992, the court said former Bank of America employee J. Nicholas McIntosh was not entitled to recoup what he claimed was his share of approximately $20 million in fees from lawyer Robert Mills, a consumer law specialist at San Rafael, Calif.’s Mills Law Firm. But Justice Ignazio Ruvolo’s ruling also lambasted both parties for ethical lapses. If allegations that the two conspired to conceal a fee-sharing agreement are true, he wrote, then the parties took part in “nothing less than an appalling abuse of this state’s civil justice system.” Ruvolo was joined by Presiding Justice J. Anthony Kline and Justice Paul Haerle. “The summary judgment record reveals that the parties jointly planned a scheme by which McIntosh would illegally share in the potential financial benefits of class action litigation,” Ruvolo wrote. Ruvolo was especially tough on McIntosh, saying the whistleblower was so determined to keep Bank of America out of the loop that he “apparently” lied. “McIntosh’s dogged determination to stop the existence of the agreement from being revealed to Bank of America apparently led him to lie in his deposition. This is hardly a harsh assessment on our part, particularly given that McIntosh denied unequivocally that he was promised or told he would receive any remuneration as a result of his work on the case for Mills,” Ruvolo wrote. The lawsuit began in 2002 in Marin County Superior Court when McIntosh sued Mills for breach of contract, claiming the attorney had reneged on an oral agreement to give him up to 15 percent of any fees won in a class action accusing Bank of America of overcharging trust account fees. The court granted Mills summary judgment after concluding that the agreement entered with McIntosh was unenforceable. Mills’ attorneys have said from the beginning, and still contend, there was no agreement. McIntosh, who sued the bank in a separate wrongful termination action after he reported improprieties, said Mills forced him to turn over insider information and documents by threatening to haul him into court. McIntosh said an attorney he had retained — David Anton of Davis, Calif. — and Mills drew up the fee arrangement with the understanding that McIntosh be kept ignorant of the details. Ruvolo wrote that all the parties tried to keep Bank of America’s attorneys unaware of their arrangement. “The purpose of the parties’ machinations was a deliberate effort to keep the existence of the fee-sharing agreement, and the details of the deal, from Bank of America and its counsel, and even from Mills’ own law partners,” Ruvolo wrote. “Keeping the agreement secret would hopefully avoid the potential impeachment of McIntosh by cloaking his testimony in the class litigation.” Mills’ attorney, Jonathan Bass of Coblentz, Patch, Duffy & Bass, said his client is relieved the suit has been resolved. Bass also downplayed Ruvolo’s tough talk. “The plaintiffs claimed that this happened but we always denied it,” Bass said. “The court is saying if this did happen, it was an abuse of the justice system � so the court is not saying much more than when we argued this agreement offends basic notions of public policy.” Steven Brady, who represents McIntosh, was on vacation and could not be reached. Another attorney for McIntosh refused to comment, referring all questions to Brady.

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