Legal Ethics

Posner: Appeal brief is 'a gaunt, pathetic document'; lawyer 'shenanigans' should have been reported

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Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals had little patience for a Georgia lawyer and the law firm representing him in an appeal from a contempt order.

In a March 12 opinion (PDF), Posner called the appellate brief “a gaunt, pathetic document” and said the Georgia lawyer appealing a contempt citation had engaged in “outrageous” conduct. Posner deemed the appeal “frivolous” and issued an order to show cause why there should not be a sanction for filing it.

The opinion was filed three weeks after oral arguments in the case.

At issue in the appeal was whether Georgia lawyer David Lashgari and his client should be held in civil contempt for failing to put aside $180,000 to repay the costs of the client’s medical treatment after obtaining a $500,000 tort settlement. Lashgari knew his client’s health plan had a subrogation lien, yet he split the June 2011 settlement proceeds with the client, Posner said. Lashgari got $298,000, which included payment for unspecified “advances,” and the client got $202,000, Posner said.

The trial judge had found Lashgari and his client in contempt after they didn’t heed an order to place the $180,000 into Lashgari’s trust account. On remand, Posner said, the trial judge should determine whether the defendants should be jailed until they comply with the order.

Posner includes a mention of the website for Lashgari’s firm,

Lashgari had claimed he didn’t have to pay the health plan because the settlement compensated for an automobile driver’s “post‐accident tortious conduct.” The argument is “nonsense,” Posner said, citing the settlement agreement. The defendants had also claimed the health plan didn’t have standing to sue and Lashgari’s client hadn’t properly been served. The trial judge “should have smelled a rat” as soon as those defenses were pleaded, Posner said.

Lashgari’s law firm offered little supporting evidence showing why the money wasn’t set aside, Posner said. An affidavit by the client stated she had spent the money on a new house, a vehicle and repayment of a variety of expenses. Two other affidavits said neither Lashgari nor his law firm was in possession of funds that could be used to restore the $180,000. There was also a bank statement showing disbursement of the settlement proceeds.

Posner noted there was no mention whether other assets could be used to reimburse the health plan. “The defendants may think that a mere assertion of inability to pay made in an affidavit (and thus under oath) precludes a finding of contempt. Not so,” Posner said. “Few judgments would be paid were that the rule.”

Posner questioned why the trial court allowed the suit to recover the health plan money “to drag on for so long.” He said the judge should have notified the Georgia Bar about Lashgari’s “shenanigans” rather than directing Lashgari to self-report. After resolving the merits, he said, the trial judge “should give serious consideration” to transmitting the court record and appellate opinion to the Justice Department and the Georgia bar.

Posner’s opinion also included his assessment of the appellate brief filed on behalf of Lashgari and his client: “The defendants’ appeal brief is a gaunt, pathetic document (there is no reply brief),” Posner wrote. “Minus formal matter, it is only eight and a half pages long. Brevity is the soul of wit, and all that, but still: the first seven and a half pages are simply a recitation of the history of the Georgia lawsuit, the settlement negotiations, and the present suit, along with questionable and irrelevant facts; and the tiny argument section of the brief—118 words, including citations— states merely, without detail or elaboration, that the defendants do not possess the settlement funds and therefore can’t restore them.”

The appeals brief was filed by the Law Offices of Arnold H. Landis in Chicago. Neither Lashgari nor an attorney in Landis’ office responded immediately to phone calls and emails requesting comment.

Hat tip to How Appealing.

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