Legal Leaders Disagree With Court In Ethics Fine

September 3, 2014 21:24 pm

by Mike Hassinger · 34 comments

Received via email, the following statement:

Regarding Fulton County Sanctions Decision

“Regarding the Fulton county sanctions decision, we disagree with the court’s decision. To have produced the memorandum in this case without a request covering its production would have, in our opinion, constituted malpractice. It is clear that this was a good faith discovery dispute that is very common in civil litigation. It should also be noted, that both in the plaintiff’s motion and in the judge’s order, AG Sam Olens is not mentioned. This was a decision by a career attorney in the department of law who was constitutionally and ethically bound to zealously represent his client. The department’s attorneys have no choice in picking their clients when it comes to state employees. Today’s ruling shows just how difficult at times that task can be.”

-Jay Cook, State Bar President, 2007; Cook Noell Tolley & Bates, Founder and Managing Partner

Ben Easterlin, State Bar President, 1997; King & Spalding, Partner

Jimmy Franklin, State Bar President, 2002; Taulbee Rushing Snipes Marsh & Hodgin, LLC, Member

Robert Ingram, State Bar President, 2006; Moore Ingram Johnson & Steele, Partner

Charles “Buck” Ruffin, State Bar President, 2014; Baker Donelson, Shareholder

Dwight J. Davis, former Board of Governors of the State Bar of Georgia, 1995-2002; retired Partner, King & Spalding

{ 34 comments… read them below or add one }

analogkid September 3, 2014 at 10:33 pm

Slightly shorter summary: “Sam Olens is not at fault, because to release the memo would be malpractice. Even if it was determined to be improper not to release the memo, the “career attorneys” Sam manages at the dept of Law are the ones that are to blame. However, if the career attorneys made a mistake, it was only because they have no choice but to represent lying, incompetent state employees.”

Alex Rowell September 3, 2014 at 11:43 pm

I don’t think many people will be surprised to learn that each of the signatories on this letter have donated directly to the Nathan Deal for Governor campaign and/or are partners at contributing firms.

Ed September 4, 2014 at 7:39 am

Their *LAWFIRMS* donated? Well good thing there’s no Democrats on the list…

Alex Rowell September 4, 2014 at 7:52 am

For what it’s worth, if you’re the “Founder and Managing Partner,” I feel like you might have some influence on where your firm donates.

Mike Hassinger September 4, 2014 at 9:20 am

This comment is going to stay up in order to serve as a relevance warning to others. This post is about the attorney’s statement and the legal implications contained therein, and not an excuse to re-hash/revisit the (settled) charges against the Governor’s 2010 campaign for the gazillionth time. Any comments that stray off the relatively narrow topic will be deleted.

oscardagrch September 4, 2014 at 10:06 am

No offense, but it seems to me that Mr. Rowell’s point of the attorneys making this statement having contributed to the Governor’s campaign is relevant to this exact post.

I am not saying it makes a lick of difference…but it is on point to this posting.

Mike Hassinger September 4, 2014 at 10:34 am

It is on topic -but just barely. I’ve already deleted others that were not and wanted to explain why.

Alex Rowell September 4, 2014 at 11:48 am

Thanks for backing me up, Oscar. Definitely in agreement that the “legal leaders” all being tied to the governor whose staff was implicated by the withheld memo is “relevant.”

David C September 4, 2014 at 11:40 am

Discussing the ethics issues that produced the withheld memo as well as the lawsuit that in turn produced the discovery motion that was wrongfully carried out by the Attorney General’s office, that produced the actual legal reprimand discussed here are all off topic? How painfully narrow your vision of what is “relevant” here.

Chris Huttman September 4, 2014 at 12:50 pm

If Peach Pundit were a Dan Uggla blog, they’d be commissioning a study as to why baseball bats don’t work anymore.

Bull Moose September 4, 2014 at 8:18 pm

Mike, I’m sure you’re going to delete this post, but I must take issue with your stance that the allegations from the 2010 election into Deal’s ethics charges are settled and somehow are not germane to this discussion thread.

Our state has paid out millions in whistleblower settlements because of Deal’s actions and there are ongoing investigations at the state and federal level related to the ethics charges from the 2010 campaign.

I know, as a Republican, this is a hard truth, but even Sam Olens himself confirmed that the FBI was investigating the matter.

HueyMahl September 4, 2014 at 12:02 am

What do all the state bar presidents have in common? The are active in the Republican party. Oh yeah, most of them get a lot of business from the state. Oh yeah, they also have no clue about the case they are making comments on.

I’ll trust the Judge who lived this case for three years. He saw all the evidence, he read transcripts, he reviewed the discovery, he heard the witnesses. The extent of research this group of attys did was to maybe read a news report and take a phone call from Olens.

JayJacket September 4, 2014 at 9:33 am

If you assume judges are infallible then you’re sorely mistaken. Ya know, half the reason we have appellate courts is because trial court judges screw up so often.

The fact that the trial court judge is familiar with all the evidence isn’t all that relevant to the particular issue here, which involves just one short memo and a couple of definitions. The judge’s opinion offers no rationale with respect to the AG’s staff, just a conclusory opinion that both the defendants violated discovery requirements. The opinion is pretty flimsy stuff, so it’s no surprise to me that the legal community strongly disagrees.

objective September 4, 2014 at 10:53 am

why does the judge need to spell out a rationale for the AG staff? they were the relevant attorneys. and as i mention below, whenever a gov agency is involved, the legal process names actual ppl responsible for the actions of the agencies. no need to re-invent years of civil procedure with each Order.

JayJacket September 4, 2014 at 12:09 pm

You claim you’re a lawyer, and yet you’re asking why the judge should have to explain the rationale behind his ruling? Something doesn’t add up. Adding one or two more pages to address the issues and defenses raised by the defendants doesn’t amount to “reinventing years of civil procedure.”

I’m not a lawyer, but I have some familiarity with the English language, and it seems like the AG’s office presented a plausible defense about the meaning of the word ‘correspondence’. In his order, the judge doesn’t even make a serious effort to explain how this memo fell within the scope of the discovery request. Some people have called this a technicality, but my understanding is that the practice of law often revolves around narrow issues like the definition of a particular word.

objective September 4, 2014 at 3:11 pm

some judges like to give short shrift to arguments they consider implausible, rather than spend taxpayer time entertaining what is considered unworthy of the time. analysis of the arguments is never guaranteed. personally, i can’t imagine any court or judge who wouldn’t consider the memo to be correspondence. did it pass from one person to another? done. and even if was just created but not shared, it probably fell within what is generally requested as evidence. the argument just didn’t pass the smell test.

JayJacket September 4, 2014 at 3:41 pm

You seemed to have missed the main point about the memo: It was never sent to anybody. I suspect that changes your argument a bit.

objective September 4, 2014 at 4:18 pm

not at all; that’s what the second-to-last sentence i wrote covered. discovery requests are typically written so broadly that any relevant document in existence should be covered. now the requesting attorneys could have done a poor job of wording the requests, but it’s near impossible to imagine how something like the memo didn’t fall within one request or another. just generally, if the AG knew about the memo, and based any part of their position or defense upon its existence, or the information it contained, whether that position acknowledged the existence or information of the memo or not, it was surely requested. so, if it was relevant to the defense, it was responsive to the discovery requests. the lawyers who state their opposition to the sanctions are free to continue to argue their position, but i can see how any number of judges would just consider it an untenable position.

HueyMahl September 4, 2014 at 4:43 pm

I respectfully disagree that the Order from Judge Glanville is “flimsy”. At nine pages, it sets forth a solid basis for his decision under the law, backs it up with a finding of fact and sets forth his reasoning for damages. The judge is not required to do any of that. He could have simply ruled in favor of or against the motion as the finder of fact given his extremely broad discretion.

You are probably thinking of appellate decisions. Those typically contain a longer recitation of the law and the reasoning. But even under that standard, his order was both complete and well supported by the law and the facts.

Olens et al have a VERY steep appellate burden. I would think that any attorney that has done any appellate practice would agree that an appeal by the AG’s office from that order is virtually unwinnable.

NoTeabagging September 4, 2014 at 8:31 am

Right or Wrong. Bottom line. It creates more billable hours.

Stefan September 4, 2014 at 10:23 am

For whom exactly? The AG’s attorneys don’t bill hourly and Kalberman’s attorneys likely took the case on contingency.

NoTeabagging September 4, 2014 at 12:41 pm

I stand corrected. Thanks.

SmyrnaModerate September 4, 2014 at 8:39 am

Forget donated, bob Ingram is the chairman of Sam olens re-election campaign

xdog September 4, 2014 at 8:44 am

What is Baker Donelson shareholder of?

JayJacket September 4, 2014 at 9:25 am

Is… is this a real question or a lame attempt at a joke? At the risk of taking the bait, Ruffin is a shareholder – an equity partner – at Baker Donelaon.

xdog September 4, 2014 at 10:49 am

Real question although it looks dumb and confused to me now. Please disregard. I was thrown by the term ‘shareholder’.

Lea Thrace September 4, 2014 at 11:13 am

Dont feel bad. I had the same thought as you. Baker Donelson sounds like the name of an actual lawyer person. Thought it was an unfinished sentence.

JayJacket September 4, 2014 at 12:11 pm

Sorry for the snark, then. I totally see confusing all these different positions could be.

xdog September 4, 2014 at 4:21 pm

Snark is not a problem. Thanks for your responses.

objective September 4, 2014 at 10:49 am

as an attorney, i was appalled that they withheld the memo. discovery disputes are a huge burden on the court system, and if litigants were actually 100% honest re: discovery, so much more litigation would be resolved so much more cheaply and quickly. possession of evidence does not mean that you get to write 95% of the law.
to say there was not a relevant discovery request is so bogus. i read the requests, and as appropriate and typical, the requests were written in blanket manners, so basically anything relevant is requested and supposed to be produced. the memo is so obviously relevant that to say it wasn’t covered doesn’t pass the smell test. zealous representation does not mean withholding evidence. it is a shame upon the justice system that it was withheld.
that said, ms. laberge was undoubtedly following the advice of her attorney, so seems just a touch less culpable to me, although the fine upon her is appropriate. the state should be fined heavily because it should be setting an example. and why does it matter whether olens was mentioned? the AG’s office committed the foul, and they need to pay the fine. olens is named b/c in the practice of law, we need to name the people who are responsible for the actions of the government agencies that are involved.

BryanLong September 4, 2014 at 10:59 am

Once again Nathan Deal is looking after himself and not the taxpayers of Georgia who are on the hook for well over $3 million for his cover-up.

This “Dream Team” of Deal’s legal defenders look a lot like Deal’s political appointments: white, wealthy, male donors.

These men all gave money to Nathan Deal’s campaign or are senior partners at law firms that give heavily to Deal:

https://s3.amazonaws.com/s3.bettergeorgia.org/images/Deal-Legal-Eagles.jpg

Also, Mr. Franklin serves on Deal’s Judicial Nominating Commission and served as co-chairman of the lawyers committee for Sam Olens’ campaign.

Deal and Olens have conspired to cover-up evidence.

There is nothing “obscure” about Deal’s actions or this investigation. It goes far beyond accounting practices.

I would explain why the charges aren’t obscure but those comments have been banned from this website.

Stefan September 4, 2014 at 11:24 am

Eh, I don’t think they’ve been banned from the website, I think they should just be in the other thread. The “sanctions” post is really the place for all of that. The goals here are, among other things, to prevent parallel conversations from occurring and keep the debate on the topic of the post.

Will Durant September 4, 2014 at 12:30 pm

IANAL and therefore will not speak about the merits or lack thereof in the judge’s sanctions. I do question the venue chosen by these attorneys to use an email to the press to gripe about the outcome in order for a judge to be criticized in the court of public opinion. I consider this as purely political and outside of the legal arena. This was a judge who tried hard to keep the case as non-political as possible, even disallowing subpoena of the Governor and some of his staff that likely would have been allowed had the memo been turned over.

HueyMahl September 4, 2014 at 5:07 pm

Exactly. It is all spin at this point. The person who should be particularly ashamed is Buck Ruffin, using his position as State Bar President for political purposes.