Attorneys Guy Lewis and Michael Tein, (J. Albert Diaz)
The Miccosukee tribe won an appeal Wednesday in a lawsuit filed by its former law firm, which accused the tribe of almost driving it out of business.
The Third District Court of Appeal rejected Lewis Tein’s lawsuit in its messy battle against the Miccosukee Tribe. Judge Robert Luck, writing for a unanimous panel, ordered dismissal on sovereign immunity grounds, saying the tribe “did not clearly, unequivocally and unmistakably waive its immunity.”
The law firm co-founded by former Miami U.S. Attorney Guy Lewis and former federal prosecutor Michael Tein alleged in a malicious prosecution complaint that the tribe “spent five years filing false lawsuits, suborning perjury and obstructing justice in an effort to damage the attorneys’ finances, reputations and law firm,” Luck wrote.
Miami-Dade Circuit John W. Thornton Jr. allowed the case to proceed, finding an immunity waiver. But the appellate court reversed him.
“Lewis and Tein had a right not to have their reputations ruined and their business destroyed by the tribe,” said Luck, also a former Justice Department attorney. “But just as every right has its remedy, every rule has its exception.”
In this case, the exception is sovereign immunity.
“Whatever its wisdom, tribal immunity endures, and Indian tribes are not subject to the civil jurisdiction of our courts absent a clear, explicit and unmistakable waiver of tribal sovereign immunity or a congressional abrogation of that immunity,” the judge wrote.
Lewis and Tein were hired in 2005 to defend two tribal members in a civil wrongful death case, which ended with a $3.19 million award. The tribe hired the law firm by arranging loans to tribal members Tammie Billie and Jimmie Bert against quarterly dividends paid to all members of the small tribe. It is based in the Everglades and generates most of its income from a casino west of Miami.
Another attorney for the tribe, Bernardo Roman Jr., later sued Lewis Tein and the name partners in state and federal courts alleging malpractice, breach of fiduciary duty, fraud, fraud conspiracy, civil RICO conspiracy and other counts.
The cases were dismissed, and Roman now faces possible disbarment for pursuing the litigation. At a Florida Bar disciplinary hearing in July, Tein said the firm lost 14 lawyers and all but one of its 10 staff members as a result of Roman’s misconduct.
The tribe is now suing Roman.
The court outlined other options for recovery by the law firm, saying: “Nothing in this opinion precludes a trial court from sanctioning a tribe for bad faith conduct or vexatious litigation in the case where the conduct occurred. Where the tribe chooses to litigate in our courts, it must follow the same rules that apply to all litigants: no lying; no destroying evidence; no filing claims without a basis in law or fact.”
The court noted sanctions already have been imposed in two state court actions. In federal court, U.S. District Judge Marcia Cooke referred Roman to the U.S. attorney’s office for a criminal investigation and to the Florida Bar for disciplinary action and awarded $1 million in sanctions.
The tribe agreed last year to pay $4 million to cover Lewis and Tein’s attorney fees in three lawsuits Roman pursued against them.
Judges Leslie Rothenberg and Edwin Scales III concurred on the 27-page opinion, which details the often-tortured relationship between the tribe and the law firm stretching back to 2005.
Robert O. Saunooke of the Saunooke Law Firm in Miramar and Alston & Bird’s George B. Abney, Daniel F. Diffley and Michael J. Barry in Atlanta represented the tribe.
Roberto Martinez and Stephanie Casey of Colson Hicks Eidson in Coral Gables represented Lewis Tein. By email, Martinez said, “We are looking at our options.”