December 29th, 2009
Before reading the article below, one wonders if the Florida Bar has reported their status and liability in the Iviewit Multi Trillion Dollar Federal Lawsuit to State Auditors???
David Arthur Walters
Contempt for The Florida Bar and Supreme Court
12/23/2009 9:26:00 AM
by David Arthur Walters
Commentary: Allen Sanford and Scott Rothstein should have been nailed in Florida long ago.
The Florida Bar and the Florida Supreme Court of which the Bar is part and parcel deserve an utterance of contempt for their failure to regulate powerful, politically connected law firms until damage to the public is irreparably done.
For example, Greenberg Traurig, some of whose lawyers were implicated in the Hamilton Bank and Allen Stanford scandals, the very firm whose name became infamous in the Abramoff political scandal.
But Rothstein Rosenfeldt Adler, the erstwhile South Florida legal powerhouse led by the now notorious swindler Scott Rothstein, is currently the most glaring example. Rothstein and his colleagues ran a Ponzi-scheme that bilked investors of over $1 billion under the mantle of the firm, using the firm’s letterhead and mingling some of the ill-gotten proceeds with the firm’s accounts while doling out millions of dollars for the benefit of his fine friend Governor Charlie Crist, former Senator Mel Martinez, Senator John McCain, presidential candidate Rudy Giuliani, and the like.
The Rothstein firm hired former judges and a mayor, and Rothstein bought police protection from top law enforcement officials. Ironically, he sat on a Bar committee responsible for disciplining unethical conduct of lawyers.
Governor Crist appointed him to a judiciary nominating committee just after Rothstein contributed funds to his campaign and the Republican Party.
The Rothstein firm doled out huge bonuses to attorneys on the condition they contribute to designated candidates, a fact that could subject them to charges of fraud, money laundering and tax evasion.
Furthermore, Rothstein and his law associates created at least 30 shell corporations to launder money, shuffle acquired assets and conceal the identities of the corporate directors and officers involved in the illicit scheme.
Berger Singerman, the law firm handling Rothstein Rosenfeldt Adler’s bankruptcy, filed a bankruptcy document stated that the books and records of Rothstein’s firm “are in disarray, inadequate and do not contain the typical records that one would expect to be maintained in the normal course of business.”
Frauds and other misconduct would undoubtedly be detected and Florida’s legal profession as well as the Bar spared a great deal of embarrassment and dishonor if the books of law firms were regularly examined by independent certified fraud examiners.
But Kenneth L. Marvin, Staff Counsel, Director of Lawyer Regulation for the Florida Bar did not respond to my suggestion to do just that, nor was he interested in law firms as such. Unless he was prevaricating, the Bar’s information system is wholly inadequate to the task of producing any information about the relationship of lawyers to their firms.
“We do not keep records pertaining to law firms, since law firms do not have a license to practice law,”
Marvin stated in on October 16, 2009 email, in response to my formal request for records appertaining to the involvement of the lawyers of the powerful, politically connected firm of Greenberg Traurig, a firm that has reportedly represented the Florida Bar.
In any event, a careful reader could infer from the widely published reports on the Allen Stanford scandal that Greenberg Traurig lawyers colluded with public regulators and lawyers for the State of Florida in setting up the specious trust that enabled Stanford to use his Miami office to launder most of the money he bilked from investors or laundered for others.
Banking lawyers were astonished by the trust arrangement, as it appeared contrary to banking law not to mention ethical standards - information as to whether or not any of them filed complaints or inquiries with the Bar as required by its Rules cannot be obtained from the Bar due to the policies that allows it to conceal information from immediate public view and destroy it in short order.
“Mr. Walters, I don’t understand why you are so distrustful of the Bar. I had never heard of the Stanford Trust until I read your writings about it,” Marvin stated. “I do not know who you originally spoke to, but we do keep our records under the accused attorney’s name and not the subject matter.
If you had asked me about the Stanford Trust, I would have claimed no knowledge, but if you had asked about Carlos Loumiet, I would have recognized that name and recalled that there were newspaper articles about him.”
Apparently neither Marvin nor anyone else at the Bar had carefully read the series of Miami Herald articles about the involvement of private and public lawyers in the forging of the Stanford Trust.
If a member of the public in want of a lawyer were referred to Carlos E. Loumiet, one of the principal lawyers accused in both the Hamilton Bank fraud and the Stanford Trust fraud, and if he checks the Bar’s website for public information, he will discover that, as of December 22, 2009, Loumiet is a member of the Bar in good standing and that there is no disciplinary history on him for the last 10 years.
Indeed, a recent press report described him as “a distinguished member of the Florida Bar.” In fact, a file was opened and recently closed on Loumiet in re the Hamilton Bank fraud, and another file has been opened on him in re the Stanford fraud. Both files are hidden from immediate public view so that the public will be kept in the dark about the investigations unless it makes a public records request about a specific attorney - in one instance, Bar staff denied the existence of a file until this writer insisted that a defense lawyer had publicly declared that disciplinary action was pending. If the Bar in its discretion decides not to pursue a matter or decides that discipline is unwarranted, the file is destroyed hence the Bar is left unaccountable for its actions.
“Mr. Marvin,” I responded to Marvin’s email, “Thank you very much for your revelation that The Florida Bar does not keep records appertaining to law firms. I believe I may fairly conclude from your statement that the Bar’s information system must be inadequate and in need of considerable improvement.
As it stands, the Bar staff apparently have no way, for example, of producing statistics to demonstrate that there is little or no merit in the widespread belief that the Bar favors large, powerful (i.e. politically connected) firms such as Greenberg Traurig, wherein it is alleged that the individual consciences are too easily submerged.
I would think that you and other persons charged with the regulation of the profession would find the organizations of practitioners as interesting as the individuals involved in them, and would make sure that information was kept on that aspect for several good reasons.”
Mr. Marvin also responded on behalf of the Executive Director of the Florida Bar and the Chief Justice of the Florida Supreme Court to my constructive suggestions for the improvement of information transparency. My letter included the following suggestion:
“I respectfully suggest that a list of Pending Complaints and Open Disciplinary Cases be maintained on the website and regularly updated until disposed of. Thereafter the initial and dispositive information would be maintained for 10 years on the respective website-available files of the attorneys involved.
By ‘Pending Complaints’ I mean each and every complaint received, and by ‘Open Disciplinary Cases’ I mean each and every complaint that Bar counsel decides to pursue. The information available would of course include the name of the attorney, the date and nature of the complaint and the current status of the investigation.
If a case is not opened or an investigation not conducted on the complaint, the disposition then posted to the attorney’s website-available file would state the specific reason for not investigating the complaint. When an open case is closed, the specific reason for disposition would likewise be posted to the attorney’s website-available file.
As for the confidentiality of open files, Rule 3-7.1 (e) allows for the disclosure of the status of specific cases under investigation. The specification under my suggestion would be any and all open files.”
“Please understand that I do not wish to argue with you and I do not set policy,” replied Mr. Marvin on October 27, 2009. Since he was responding for the Executive Director and Chief Justice, it appears that any constructive suggestions sent to the high authorities of the Florida integrated bar would fall on deaf ears since none of the above nor any delegates below “set policy.”
But Marvin informed me that suggestions could be made to a special citizen council controlled by the Bar; but then the Bar would have discretion over what measures if any to adopt.
The arrogance of a public institution that does not have to answer to the public and is a law unto itself is exceedingly dangerous to that public, and is deserving of its contempt.
To return to the Rothstein scandal, there is little doubt that several members of the legal community and more certainly colleagues at the Rothstein Rosenfeldt Adler itself knew about the scam or should have known that something was seriously amiss. Indeed, rumors were running rampant in legal circles as to the source of Rothstein’s sudden wealth and the enormous political influence of his legal powerhouse.
Lawyers had good reason to wonder where all the money was coming from so fast, for it would have been impossible for the law practice itself to generate such a fabulous fortune virtually overnight. U.S. Senator George LeMieux, a lawyer, former campaign manager and then chief of staff to Governor Crist (who are both now calling for an end to corruption in Florida), did not bother to look the gift horse in the mouth at the time of receipt.
He has now admitted that he did not understand where all the money was coming from, pleading that, “You don’t look at someone who’s generous and just criticize.”
Perhaps Gary Phillips at Rothstein’s previous firm, Phillips Eiseinger Koss Rosenfeldt and Rothstein, could have nipped the pathological liar in the bud some time ago, as Phillips and his partners got rid of Rothstein after discovering he had lied to a client about filing a complaint and a motion for injunctive relief; but Phillips decided not to report Rothstein to the Bar because he took the Bar’s job into his own hands and erroneously determined that lying to clients is not a legitimate grievance against a lawyer.
Bar rules require attorneys to blow the whistle on such misconduct; therefore I forwarded the information on Phillips to Marvin and asked whether the Bar would inquire into the matter. A smooth-talking staff lawyer called me on December 21, 2009 and said there was no file open on Phillips but one might be opened “at the discretion of the Bar.” If a citizen filed a sworn complaint against Phillips, I was informed, he or she would then have access to documents appertaining to the proceedings if any. The complainant could then reveal the information obtained - some states make such a revelation a contempt of court.
I pointed out that citizens might not like to go on record against attorneys for fear of retaliation. I recommended that an independent ombudsman be created to file such complaints based on information obtained from the press and interested members of the public.
The staff lawyer did not seem interested; why should he be when the integrated bar does not have to answer to the public for anything at all?
Of course the Bar would be far more effective if lawyers would only blow the whistle on one another as the Rules of the Bar do require, but a code of silence imposed from the top down of the Bar integrated with the Supreme Court renders them reluctant to do so, despite such ethical mouthing from the Bar as that of its ethical counsel, Elizabeth Tarbert, who recently effused that, even though lawyers may not have actual evidence of something amiss, they cannot bury their heads in the sand if knowledge of wrongdoing might be inferred from circumstances. Seldom are such inferences filed with the Bar, and the ones that Bar counsel and the Good Old Boys on the grievance committees give a free pass to are never brought to the public’s attention and all the evidence is destroyed a year later so that the Bar may not be brought to task for its prejudices, preferences, and negligence.
In any case, what humble lawyer would scruple to draw damning inferences in the form of complaints against the high power that provide not only his privilege to practice his profession but determine his relative success in courts? He might then find himself the defendant in disbarment proceedings presided over by the Good Old Boys he has begged askance of.
Indeed, disbarred attorney Mark A. Adams believes he was permanently disbarred from practicing law in Florida because he blew the whistle on members of a powerful, politically connected law firm, Battaglia Ross Dicus & Wein, P.A. He has in fact made numerous public statements alleging corruption of the Florida judiciary and the Attorney General’s office, and has accused specific attorneys of criminal conduct. He did file a complaint with the Florida Department of Law Enforcement.
The FDLE forwarded the file (FDLE File 73-5818-134-131) to Susan Austin at the Florida Bar on June 25, 2004. According to Adams, the Florida Bar, instead of pursuing the matter on its own initiative, as it is allowed to do by its own Rules, simply dismissed it on a technicality, that the complaint was not sworn by a complainant. The Florida Bar has been accused by watchdogs of routinely rat-holing numerous grievances against attorneys without inquiry; however that might be, evidence supporting Adam’s claim, that his complaints were ignored, is not retrievable from the Bar because of its record-destruction policy, a Supreme Court policy that creates an appearance of impropriety as it obviously would allow its strong “arm”, the Florida Bar, to behave irresponsibly since its deeds are rendered inscrutable.
I asked Adams if he had some concrete evidence of a quid pro quo between the Battaglia firm lawyers and the judicial officers regarding his allegations of criminal conduct.
“Battaglia and his clients were able to get a number of judges to ignore black letter law and the facts to deprive my former client of the pay that was due to him, to make my former client pay Battaglia’s client, and to enter a judgment against me and use a baseless criminal charge to attempt to extort money from me.
That’s explains the benefits to Battaglia. Regarding the evidence of the benefit to the judges, why would judges ignore the law and the facts and expose themselves to liability unless they were receiving a benefit?”
That is a good question, one that should have been thoroughly investigated by the Florida Bar. We are left to speculate, that the judges could be ignorant, or they could believe they are above the law for some reason or another, say, answering a higher call, or they could be getting definite benefits - favors, payoffs et cetera. Concrete evidence of the latter would of course definitely interest Federal investigators who are not subject to the powerful machinations of the integrated state bar and bench.
In Rothstein’s case almost everyone knew or suspected that something was seriously amiss, but nobody was willing to draw derogatory inferences until federal authorities swooped in to end the colossal fraud. And then not a single competent member of the legal circle was surprised, for the fall of Rothstein & Firm was not a matter of if but of when, so obvious had the likelihood of fraud become.
Now the general public has some reason to assume, from all the evidence brought forward and the allegations being made, that the integrated bar of Florida is a legally constituted racketeering organization. Therefore an historical recapitulation of the monstrosity called the “integrated bar” is in order:
During the Great Depression, Americans were once again sorely plagued by hordes of lawyers, wherefore they were apt to raise once again the revolutionary cry, “Kill the lawyers! Burn down the courthouses!”
The high courts of several states, in a supreme exercise of judicial vanity, circled wagons and gazed into their self-flattering mirrors, each reflecting the mutual opinion that supreme courts possess an inherent and absolute power to regulate the practice of law in their respective states without interference from the legislative or executive branches of government.
A strong jurisprudential argument was made that only an organization of lawyers dominated by a supreme court are competent to regulate lawyers given the complexity of the law and its practice and the native tendency of litigious lawyers to independent and relativistic thinking. Therefore all lawyers who want to practice should be integrated into a state supreme court system so that the court might adopt and enforce standard scruples thus effectively curb the abuses people were suffering at the hands of unscrupulous lawyers - Plato’s Socrates might argue that lawyers are unscrupulous sophists by virtue of their trade.
In Florida, the “integrated bar” concept was embraced and eventually enshrined in the state constitution by way of amendment. But not all states bought the integrated bar movement - independent-minded lawyers were naturally opposed to paying dues and being beholden for their livelihood to a ruling hierarchy of their own disparaged kind. Naturally, there are many opposing arguments to an integrated bar.
The absolute integration of bench and bar would belie the very independence from political influence that the judiciary is wont to brag about as its chief virtue when claiming that it protects people from legislative politics. An integrated bar would allow the same forces that rule lawyer-dominated legislatures to rule the judiciary as well, with impunity and without debate from an opposition.
Politics is the distribution of power, and the integrated bar, having arrogated to itself the sole power to regulate the most powerful profession pursuant to the prejudices of the dominating political power of its members, would become a virtually unregulated power.
There could be no genuine “integrity” in such an integrated bar, no virtue except traditional loyalty to one’s own kind or else. There could be no real balance of powers here. Surely an absolutely independent integrated bar would tend to the absolute corruption of every state in which it is institutionalized. Such an institution would deserve the unmitigated contempt of a democratic people if only the people fully understood its nature.
That understanding has not been advanced by the so-called fourth branch of government, the press. A well seasoned investigative reporter with the McClatchy newspaper organization informed this commentator that integrated bar organizations routinely ignore the transgressions of powerful law firms while diligently pressing complaints against small practitioners, who are easily intimidated by the prospect of losing their livelihood.
This, in effect, keeps the rank-and-file in line with the ruling political power. We seldom or never see a critical report from the mainstream media addressing the Bar’s favoritism and negligence, which appears to rise to a fraud on the public. Instead, the public is fed pabulum, a steady diet of press releases praising the Bar’s good works, much of it well deserved, and an occasional press release notifying the public that a few small fry have been disciplined. Once in awhile a big fish is fried by the Bar, after he has been caught by law enforcement and convicted.
The so-called fourth branch of government, the press, ignores the crucial, political point, obscured by the gospel, as it were, or at least the true perspective is never published. After all, notwithstanding the public’s low albeit envious regard for lawyers as a class, it is difficult to elucidate such an obscured subject as the “integrated bar” so that a clamor might be raised against its inherent conflict of interest and organizational hypocrisy.
Furthermore, since the Bar integrated with the Supreme Court is in effect an arm or organ of the Court, since it is thus a law unto itself lorded over by its presiding power, nothing short of a clamor to kill lawyers and burn down courthouses could cause it to mitigate its arrogance and effect the radical reform needed, the disintegration of the integrated bar. Finally, the press is not wont to alienate the hand that feeds it with choice information and free-speech rulings.
Yet disintegration of the integrated bar is still possible, as is evidenced by England’s Legal Services Act of 2007, which mandated the end of the legal profession’s self-regulation and separated its regulation from its self-interested representative or political function. The Legal Services Board was appointed on September 1, 2008 pursuant to the Act, and it will be the single independent oversight regulator of legal services in England.
The Board will supervise all licensing authorities and oversee lawyer regulation. It is appointed entirely by the government. Most of the appointees are non-lawyers chosen for their regulatory and other public affairs experience, and some are consumer advocates. An Office of Legal Complaints will be established and monitored by the Board, completely independent of the profession, and will deal with consumer complaints according to an ombudsman scheme. The Complaints Commissioner must be a non-lawyer.
Much more can and should be said on this subject. The Florida’s integrated bar does deserve a great deal of credit for its many good deeds, but until significant and radical reform of the regulatory function is obtained, its pollution by political factions will create at least the appearance of impropriety, and its negligence alone deserves the public utterance of contempt.""
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