A personal injury firm’s case that accuses a New York area competitor of paying clients out of a briefcase full of cash to switch law firms has escalated, with the plaintiff revealing that one of its paralegals went undercover as a potential client to obtain “forensic” proof of wrongdoing by William Schwitzer and his law firm.
Ginarte Gallardo Gonzalez & Winograd raised eyebrows last year with a lawsuit in Manhattan Supreme Court claiming that Schwitzer and his firm, William Schwitzer & Associates, used non-attorney “runners” to entice Ginarte clients in a doctor’s office waiting room to switch firms. The Ginarte firm revealed Friday that one of its paralegals pretended he was injured on a construction site and recorded conversations with the runners and two lawyers at Schwitzer’s firm.
Schwitzer and his firm—who are represented by Gibson, Dunn & Crutcher’s Randy Mastro—have denied the claims as baseless and earlier this year countersued for defamation, asserting the Ginarte firm was simply trying to tear down a more nimble competitor.
“This lawsuit is a brazen and baseless attempt by the Ginarte firm to transform a routine commercial scenario—an unhappy client changing law firms—into a cudgel to falsely and shamelessly attack its archrival’s reputation,” Gibson Dunn said.
The Schwitzer defendants and Rene Garcia, a solo practitioner who is a co-defendant in the lawsuit, have argued that the claims against them must be dismissed. The Gibson Dunn team representing the Schwitzer firm and its lawyers said even if the facts alleged were true, they wouldn’t support the claims against it—for violating Section 487 of New York’s Judiciary Law, tortuous interference, defamation, unfair competition and unjust enrichment.
“There is a reason why this complaint is unverified—because no one would dare verify these outrageous, defamatory allegations, for fear of criminal prosecution,” Schwitzer’s lawyers wrote. “This lawsuit, brought to great public fanfare by the Ginarte, is a stain on our profession because it never should have been brought in the first place.”
But the Ginarte firm said it didn’t file the allegations lightly.
“Having been caught red-handed with both hands in the proverbial cookie jar, with the crumbs still on their faces and chocolate still on their hands, the Schwitzer defendants feign indignation and deny what they have done,” said the Ginarte firm in the Friday court papers.
The Ginarte firm, which lists 25 lawyers on its website, has said that it began investigating Schwitzer’s eight-lawyer firm and Garcia after it received counsel substitution forms for several clients who were getting treated by a doctor it referred to as “Dr. X.” It accused Schwitzer’s firm of paying clients from a briefcase full of cash for switching firms.
In Friday’s papers, the Ginarte firm identified Dr. X as Dr. Juan Colon, a pain management doctor at Rehabilitation Medicine Center of New York. Colon and his office are not accused of wrongdoing and they didn’t respond to a request seeking comment.
The Ginarte firm said several of its clients—whom it did not name—were approached by Mignolia Pena or Janilda “Jenny” Gomez, mostly in October 2018 but in one case 2016, at Colon’s office and were advised to steer clear of the Ginarte firm. Pena and Gomez would allegedly offer the potential clients $2,000 cash if they would take their case to the Schwitzer firm, and they’d pay for the clients to ride to its offices in an Uber.
The most detailed witness statements from the Ginarte firm came from Juan Flores Hernandez, a Ginarte paralegal who was allegedly at Dr. Colon’s offices to prevent other clients from being poached. Upon being approached, Flores said he told Pena he was an undocumented immigrant named ”Hector Robles” and said he hurt his knee while he was doing off-the-books demolition work. Before he knew it, Flores said, Pena and Gomez took him to Schwitzer’s offices, where they all sat down with attorneys Giovanni “John” Merlino and Barry Semel-Weinstein and began evaluating his made-up claims.
“Jenny and Mignolia were also present during the meeting, and it appeared to me that they and the attorneys knew each other,” Flores said in an affidavit.
Those allegations, coupled with transcripts filed in court from the encounter, contradict sworn statements filed by Pena and Gomez last month, in which they said they “have never personally met” Schwitzer or his firm’s lawyers and hadn’t engaged in any client-poaching.
Asked about the new allegations, Gomez and Pena’s lawyer, Alexander Dudelson, who leads his own firm, declined to comment.
In a statement Monday, the Ginarte firm’s attorney, Clifford Robert, of Robert & Robert, said, “The merits of Mr. Ginarte’s case are clear and will only become more so when we play the [Flores] audio recordings in front of a judge and jury.”
In his own statement, Mastro decried the Friday filings as “a mountain of material that has little to do with the Schwitzer firm, comes largely from anonymous sources making demonstrably false allegations, and proves nothing.
“In fact, there is no evidence presented from any actual client who actually switched firms, so the core of their case collapses like a house of cards,” Mastro wrote. “But facing immediate dismissal of its lawsuit, the Ginarte firm has accomplished its objective of publicly smearing and defaming its arch rival, the Schwitzer firm, which enjoys an impeccable reputation for zealously representing clients and obtaining for them some the state’s largest verdicts.”
Georgia K. Winston of Walden Macht & Haran, who represents Garcia and his firm, expressed confidence that the claims against her client would be thrown out.
“Nothing in their papers, or in the purported evidence they attach to them, demonstrates any wrongdoing by the Garcia firm,” she said in an email. “We look forward to our clients’ complete vindication.”