Legal Ethics

Suit alleges O'Melveny misled court about sex-abuse investigation at Brooklyn Poly Prep

Updated: Eleven former students at Brooklyn Poly Prep claim in a lawsuit (PDF) that O’Melveny & Myers misled courts about the school’s investigation of sexual abuse by former football coach Phil Foglietta.

The school reached a settlement in December with a dozen plaintiffs who claimed they were sexually abused. Now the lawyer for the victims, Kevin Mulhearn, has filed a suit against O’Melveny, which represented the school, the New York Daily News reports. Foglietta died in 1998.

The only plaintiff who didn’t join in the new suit is Philip Culhane, a partner at Simpson Thacher & Bartlett, Mulhearn tells the ABA Journal in an email.

The plaintiffs say the law firm told the courts that a former federal prosecutor hired in 2002 to investigate abuse allegations, Peter Sheridan, had concluded there were no abuse complaints before 1991, according to the Daily News account. In reality, the complaint says, the school fired Sheridan before he could complete his investigation.

The suit alleges O’Melveny became aware of Sheridan’s investigative notes in its defense of a 2004 sexual-abuse lawsuit against the school, but did not ask for the notes despite a duty to preserve them. The new lawsuit alleges an O’Melveny lawyer nonetheless told a judge in 2010 that the firm had asked Sheridan for “any documentation of his investigation” before the 2004 suit was dismissed on statute of limitations grounds.

Sheridan says he later threw out or lost those notes. The school did, however, produce notes by the school’s counsel summarizing Sheridan’s notes.

The new suit seeks payment of the plaintiffs’ legal fees, which amounted to $2 million, and says the amount should be trebled under the New York Judiciary Law. The plaintiffs are also seeking interest on their December settlements dating back to the date they filed their case in 2009. The suit also claims unjust enrichment, and conversion of the plaintiffs’ property interest in the value of their lawsuit.

An O’Melveny spokesperson issued this statement: “The underlying case was concluded nine months ago with a settlement voluntarily entered into by the plaintiffs. These claims are completely baseless and without merit.”

Updated at 2 p.m. to include information supplied by Mulhearn.

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