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Wednesday, October 19, 2011

Lawyer's Failure to Safeguard Documents Brings Penalty

Lawyer's Failure to Safeguard Documents Brings Penalty
The New York Law Journal by Andrew Keshner  -  October 14, 2011

A federal judge has ordered an attorney to pay more than $30,000 in sanctions after confidential documents the lawyer turned over to a client ended up fueling a third party's legal action.  Southern District Judge Shira A. Scheindlin ordered Manhattan attorney Daniel S. Brecher and his former client Paul Lewicki to each pay $33,780 to Enzo Biochem after Lawrence Glaser obtained documents that had been under Judge Scheindlin's protective order and used the documents to support a motion to reconsider a closed case filed by Mr. Glaser against Enzo Biochem in Virginia federal court. Enzo Biochem is a bio-tech company based in New York.  Although the judge did not find that Mr. Brecher had acted in bad faith, she faulted him for turning over the documents to Mr. Lewicki in the presence of Mr. Glaser, who had already unsuccessfully sued Enzo Biochem in Virginia and had loaned Mr. Lewicki $20,000 to hire a New York attorney for another suit against Enzo Biochem.  According to Judge Scheindlin's decision, Mr. Brecher said he reminded both men at the handoff about the protective order's requirements.  Mr. Brecher maintains he complied with the court's order by solely turning over the documents to Mr. Lewicki.  Mr. Lewicki argued that he should not be sanctioned because he did not know the documents were confidential and Mr. Brecher failed to alert him to his duties under the order.  Neither argument persuaded Judge Scheindlin.

Referring to Mr. Glaser's financial and legal stakes in the New York action, she wrote in Hunt v. Enzo Biochem, 06-cv-170, "Given this knowledge, Brecher was obliged to do more than simply give Glaser and Lewicki instructions not to violate the Protective Order. Repeated warnings to play by the rules to a person with known incentives to do otherwise simply do not meet the substantial burden of making a diligent attempt to comply with the Protective Order in a reasonable manner."  In addition to paying Enzo Biochem's $67,000 legal bill to fight the Virginia motion, the judge directed Messrs. Brecher and Lewicki to retrieve the confidential documents and return them to the company. The judge said that Mr. Glaser now possesses the documents.  Judge Scheindlin released Tuesday's decision after a hearing on Enzo Biochem's sanction motion over two days in July. Messrs. Brecher and Lewicki both testified.  The dispute stems from suits filed by Messrs. Lewicki and Glaser and others against Enzo Biochem for allegedly misrepresenting the effectiveness of AIDS research, which inflated the value of the company's stock.  Mr. Brecher, then with the Law Offices of Dan Brecher, took Mr. Lewicki's New York case in 2007 after another attorney died.  After the parties entered a protective agreement with Enzo Biochem, both Mr. Lewicki and Mr. Glaser asked Mr. Brecher to seek modification of the order to allow Mr. Glaser access to the papers.  Mr. Brecher rebuffed the requests and threatened to end his representation if Mr. Lewicki petitioned the court for modification himself, Judge Scheindlin said.  Judge Scheindlin ultimately sided with Enzo Biochem in a summary judgment motion in 2009. The U.S. Court of Appeals for the Second Circuit upheld her summary judgment ruling earlier this year. A circuit decision on a motion for reconsideration in banc is still pending.  Mr. Brecher did not handle the appeal.

Mr. Lewicki requested the files after the summary judgment decision. Mr. Brecher and Donald H. Chase of Morrison Cohen, an attorney representing the Enzo Biochem defendants, agreed that documents marked "highly confidential" could not be turned over. But they could not agree on whether to hand over the files marked "confidential."  The disagreement was still unresolved when Mr. Lewicki and Mr. Glaser showed up at Mr. Brecher's office to get the files.  Mr. Lewicki signed for the files, and he and Mr. Glaser moved them into Mr. Glaser's truck and they were later stored at a friend's home.  After using the documents to unsuccessfully pitch an appeal of Mr. Lewicki's case, Mr. Glaser brought several files to a meeting with Mr. Lewicki at a New Jersey Turnpike rest stop.  At least three of the files were marked confidential and would be used by Mr. Glaser in his motion to re-open the Virginia case, Mr. Lewicki testified.  The motion was denied in the Virginia district court in April, and by the U.S. Court of Appeals for the Fourth Circuit this month.  In her decision, Judge Scheindlin noted that Mr. Brecher contended he did "nothing improper" by letting both Mr. Lewicki and Mr. Glaser move the files. But noting Mr. Glaser was not authorized to receive the files under the order, she called Mr. Brecher's view of his actions "irrelevant."  Judge Scheindlin acknowledged Mr. Brecher's efforts to comply with the order's terms leading up to the handoff.  "What makes the act of transferring confidential materials into Glaser's possession deeply troubling—even if [Mr. Brecher] only viewed Glaser as a stand-in for a paid moving company—is what Brecher knew about Glaser," she wrote.  Judge Scheindlin did not find Mr. Lewicki's testimony to be credible, saying his actions essentially showed a "simple dissatisfaction with the fact that Brecher entered into the protective order at all."  Mr. Brecher, who is now counsel to Scarinci Hollenbeck, referred comment to his attorney, Robert J. Bergson at Abrams Garfinkel Margolis Bergson.  "The court expressly found that Mr. Brecher's conduct was not willful or in bad faith. We are confident that the order will be reversed on appeal for this and other reasons," Mr. Bergson said.  In an interview, Mr. Chase called the decision "a clear statement that you cannot take confidentiality orders cavalierly."  Mr. Lewicki, who represented himself, did not return a request for comment.  Andrew Keshner can be contacted at akeshner@alm.com.

13 comments:

wondering said...

Seems to me that there's more to the story.....

Anonymous said...

I thought Shira retired?
Hasn't she done enough damage?

Anonymous said...

Shira does the seal deal so things can be covered up --- what a scam! Good way for Judges and corrupt attorneys to hide the truth!

Anonymous said...

Attorney's don't take client documents, financial information or anything else they can think of to prepare a case to protect their client.

They take this information and use it for their own self-dealing. When the client finally figures out what is going on, they have had all their money taken and are in debt to the attorney, who then has everything they need to destroy their client and prevent them from being able to prove anything, including the case they were hired to handle in the first place.

There is no scam these scum haven't mastered.

Anonymous said...

Isn't this the judge that Christine Anderson had?

What happened with her case?

Anonymous said...

LOOK!

Westchester Matrimonial Court's are back in the news.

Westchester lawyer Sam Friedlander killed wife, kids before shooting himself in murder-suicide

Read more: http://www.nydailynews.com/news/ny_crime/2011/10/19/2011-10-19_family_dead_slaysuicide_eyed.html#ixzz1bFgX6VaH


For those who are familiar with the judges in Westchester, this guy had Tolbert. Nothing more need to be said.

Anonymous said...

Maybe some rockland attorneys will follow suit. Any suggestions ?

Anonymous said...

When these lawyers are doing their community "service" they should leave their families out of it.

Anonymous said...

First, for those who were actually in the court room or have closely followed these highly suspicious cases, the facts of this specific opinion are catastrophically wrong. Second, there are blogs citing that the Hunts had a plan and "the plan was" when in fact, no "plan" was unveiled or proven in this case. If one checks the record, the Virginia case was reversed and remanded back for trial, then the latter NY cases were filed. No one "waited for a win". These Plaintiffs had counsel, and nothing in the record surfaces to prove they directed their Counsel,rather,it appears they followed the advice of their counsel. Interestingly, although deceased, their Counsel is now being investigated for possibly taking a bribe in this matter. The Courts, however, do not seem to care about this tiny little fact. Also, the timing was such that had the remaining plaintiffs "waited" their statutes would have run. So they could not have "planned" to wait. If Glaser had won in Virginia, and the Hunt cases were pending, would they not be entitled to instant judgment as a matter of law? So perhaps their Counsel was trying to explain that to them in terms they could understand?

What is very interesting and telling is that the Defendant's documents were made confidential and sealed in the first place. This is a public company. What documents would need to be sealed? From the record, one can glean that the Defendant was required to turn over patient records, so they wanted a confidentiality and seal agreement for that. But documents of this nature do not reveal the identity of the patient and can be accessed through the freedom of information act. So, the confidentiality and seal, looks like a complete eye wash and bluster, so the public cannot view the documents and learn the truth. Also, it was a false way to get the court room cleared, if the matter ever made it to trial. This is a case where the Plaintiff's Counsel discovered there were trusts set up by the Defendants, where each trust named as a beneficiary, the controlling insiders of the public company. Restricted stock was shorted and sold and the stock and money was thus fed back to the controlling insiders. There were s-corps involved in the middle, giving it a racketeering or laundering appearance. The Court leaves one with the impression that these combined cases "had to be dismissed" and for "whatever" reason. Consider, if it is true that the exchanges, the sec and the FBI, as well as the US Attorney curry favors and do not investigate such a wild abuse of the public trading systems (the Madoff effect), and indeed, if it is true that stock was illegally shorted and sold here, without the proper forms and with no oversight from those who are empowered to protect investors, what is the bottom line here? The Court sides with impropriety, to cover it up? And those who seek to expose it, get sanctioned?

Perhaps the most telling conclusion is how confidential documents got from the NY Cases back to the Virginia case. The Court concluded that the Hunt Plaintiffs did not engage new Counsel when their Counsel, Brecher, withdrew. However, they actually did. And that Counsel was fired about a year later, with cause. Then the documents were turned over to Virginia. That means, this opinion is based on incomplete, inaccurate and inconclusive information. And that speaks loudly as to what the Court was really up to. If I am right in these observations, it would appear, the Court is incompetent. So why did the NY Court make it a point to find that the Hunts did not hire new Counsel, when in fact they did? It is evidenced at the NY City Bar, where the Hunt Plaintiffs had to file a fee dispute with their last Counsel engaged in this matter, which they won! This case has stink all over it. Top to bottom, start to finish. What is the Judicial up to here?

Anonymous said...

Conspiracy theory

Frankly, this is what this particular blog is about, right?

So what happens if it's discovered that the stock exchanges in the US, have been turned into an 'elites only' club, where investors are fleeced and the corporate insiders take what they want, with glee? And the Judicial strains to cover it all up? Just once, if this kind of thing were true, and not just one bitter investor's take, what would it mean? What about the occupy wall street initiative? What change would make a thing like this less possible, or impossible to achieve? If it has happened and its continuing to happen, it means capitalism is dead and we are fascist, here and now. Is that acceptable?

Anonymous said...

Shira the world marvels at your schemes, you are unreal

Anonymous said...

The stock markets haven't been for investors for decades. It's gotten even worse with the use of computers and high speed trading. The stock exchanges know this, and this is one of the reasons the NYSE has built high speed servers (which are physically next to the exchanges computer) that the lease out to these trading houses so they get every nano-second's worth of advantage in their trades.

Those OWS protesters know something is wrong, but the corruption and insider deals have been going on for so long that no one recognizes it for what it really is.

Anonymous said...

I have discovered that lawyers are a law unto themselves, they protect each other and screw the client who is paying the bill - so they screw everyone at least twice, what a racket

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