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Friday, December 6, 2019

Legally Speaking: Lawyers Behaving Badly Again

By John G. Browning | Apr 29, 2009

As regular "Legally Speaking" readers know, the subject of ethical lapses by lawyers and judges is a recurring one.

It's not that I particularly want to focus even more attention to those members of my profession whose moral compass has been knocked askew. But it's been happening with such regularity – and often with scant attention being paid by a media understandably preoccupied with the financial scandals perpetrated by the likes of Bernard Madoff – that I feel compelled to speak out.

At the risk of sounding like a broken record, here are the latest additions to an unfortunately growing rogues' gallery.

If there's one thing a lawyer should know – and a judge should know even better – it's to not lie and tamper with evidence. Evidently, former Erie County, N.Y., prosecutor Anne Adams and former New York Supreme Court Justice Joseph Makowski didn't get that memo.

Adams faced charges of driving while intoxicated, and, according to Erie District Attorney Frank Sedita, attempted to cover up her crime with a falsified blood test to purportedly show she was sober.

As bad as that is, she reportedly asked a friend, 55-year-old Judge Makowski, to write a statement saying Adams wasn't drunk when she left a bar. Once the evidence tampering was discovered, Judge Makowski recanted the statement and resigned from his bench.

As for Adams, the DWI charges were compounded by misdemeanor counts of offering a false instrument for filing and attempted evidence tampering. Besides facing the loss of her law license, Adams also lost her job teaching at the State University of New York (Buffalo) School of Law, where she directed a program on trial advocacy.

Clearly, she wasn't teaching legal ethics.

Speaking of law professors, one would think that they, of all people, would be able to put what they teach into practice. Not Robert "Do As I Say, Not As I Do" Martin of Seton Hall Law School in New Jersey.

The law professor, practicing attorney and New Jersey state senator, to his surprise, was actually picked as a juror in a slip-and-fall case. Once on the jury, Martin helped explain various legal concepts to his fellow jurors and gave them the benefit of his opinions on such things as "proximate cause."

But it wasn't enough for the professor turned jury foreman to simply explain things to the rest of the jurors; apparently of the "publish or perish" mindset, Martin wrote an article about his experiences for the December 2006 issue of the New Jersey Law Journal.

Professor Martin was certainly not shy about the impact he felt he had. At one point, he wrote "I do think my familiarity with the law proved helpful to fellow jurors… I am convinced that in our case my opinions swayed other jurors and were extremely influential in the final outcome."

Unfortunately, Professor Martin's influence was not lost on the losing party, either. The grocery store defendant appealed the $826,000 verdict, arguing that it was deprived of a fair trial because of Martin's improper influence (among other things, he proposed the amount of damages that was awarded).

A New Jersey appellate court agreed, and overturned the verdict. The court noted, "It is not the role of the foreperson to explain legal concepts to the other jurors."

Next time, Professor Martin, keep your teaching in the classroom, not the jury room.

Mother's Day may be right around the corner, but don't look to Madlyn Primoff to win any "Mother of the Year" awards. The 45 year old is a partner at the prominent New York law firm Kaye Scholer, representing clients like Bank of America, Merrill Lynch and Wells Fargo in the firm's business reorganization and creditors' rights practice group.

But in late April, she gained attention for an incident in which she booted her 10-year-old and 12-year-old daughters out of the family car and drove off.

Although the older girl managed to catch up, the 10 year old did not. A Good Samaritan spotted the crying child at 7:30 p.m., bought her ice cream and flagged down a police officer. Shortly thereafter, Mrs. Primoff was arrested and charged with endangering the welfare of a child.

Tampering with witnesses is bad enough, but it's even worse when the Wall Street Journal writes about it.

It seems the Wall Street Journal was covering a story about Danny Pang, CEO of a company called Private Equity Management Group Inc. (PEMGroup); among other things, the Journal article revealed allegations (denied by Pang) that he stole $3 million from a former company, fabricated his educational accomplishments, and lied about his work experience.

What's more, a former president of the company, Nasar Aboubakare, claimed in an arbitration proceeding that Pang had defrauded investors. PEM Group's lawyer, Charles Schmerler of Fulbright & Jaworski, allegedly wrote a letter proposing that Aboubakare would be paid $500,000 if the Wall Street Journal pulled its story about his allegations.

The Journal posted the letter (Schmerler also reportedly drafted a letter for Aboubakare to send to the newspaper, saying his statements were false and brought on by stress that affected his judgment and mental state).

The resulting controversy over the alleged witness interference drew attention from legal publications like The American Lawyer and the ABA Journal.

For the record, PEM Group denies that either it or its attorney sought to induce a witness to retract truthful statements made to the Wall Street Journal, claiming that the Schmerler letter was prepared at the request of Aboubakare's lawyer and was part of a global settlement offer between the parties.

Finally, for anyone who doubts the truth behind the old saying
"there's no such thing as a free lunch," you might want to check with attorney Troy Ellis, who was employed as an in-house counsel to Koch Industries Inc. and its subsidiary Invista.

On multiple occasions in August and September 2007, Ellis was observed taking food from the Eurest Cafe (a food vendor for Koch & Invista) and leaving the premises without paying for his meals.

The cafe even installed a security camera, and captured footage of the lawyer entering the restaurant, putting food on his tray, and walking out without paying.

When Ellis was confronted by his superiors, he initially denied any wrongdoing. But once the video evidence was played, he admitted his misconduct.

Ellis sent an apologetic email to Koch's General Counsel, Mark Holden, admitting that "I lied," "I stole," and that he was "embarrassed and disgusted" by what he claimed was "an isolated incident and out of character."

Holden ordered Ellis to report his conduct to the Kansas bar disciplinary authorities.

In an opinion published in April, the Kansas Supreme Court, noting that Ellis had "engaged in the criminal act of theft and upon discovery lied about his activities," disciplined the attorney by public censure and ordered him to make restitution to the Eurest Cafe for the stolen meals.

Public embarrassment, disciplinary action and being faced to resign from his job – that's probably the most expensive lunch tab Troy Ellis has ever had.

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