Thomas Girardi and Walter Lack are high-profile California lawyers. Amongst their other legal pursuits, they (and their firms) attempted to enforce a $489 million default judgment allegedly entered by a court in Nicaragua against Dole Food and Shell Chemical based upon the effects of a particular pesticide upon banana plantation workers. The problem, however, was that the default judgment was expressly entered against non-existent entities called "Dole Food Corporation" (not Dole Food Company) and "Shell Oil Company" (not Shell Chemical Company), and the reason the default was entered in the first place was because the Nicaraguan court didn't allow the real companies to prevent the defaults because it wasn't against them.
Which obviously makes it a challenge to thereafter attempt to enforce the foreign judgments in the United States against the real defendants. But Girardi and Lack (and their firms) attempt to get around this problem by using a Spanish "translation" of the judgment that helpfully uses the words "Dole Food Company" and "Shell Oil Company" when they file suit in California. But the district court dismisses the suit, saying these aren't the right entities.
Undeterred, Girardi and Lack appeal, and continue to say that the default judgment's against the right entities, even though it's not. After the defendants file their opposition, the young associate (less than two years out of law school) [!] who's writing the briefs essentially says: "Hey, are you sure about this? Looks to me like we're totally wrong here, and may be sanctioned." But Lack and others direct the thing forward, so the associate submits a reply that reiterates the same story the firms have been repeatedly telling the courts about the judgment being against the right parties.
Thereafter, while the case is pending, in a different suit, the defendants got the original copy of the judgment, which plaintiffs had strenuously resisted turning over. And, once they looked at it, filed a bevy of motions in the Ninth Circuit to dismiss the appeal, to impose sanctions, etc. based on the fact that the judgment was clearly against non-existent entities and contradicted all of the things the plaintiffs had been telling the courts for years.
Finally, a week before oral argument, Howard B. Miller, who's with the Girardi firm and who's to argue the appeal (and who's also the President of the California Bar, I might add), looks at the whole thing and says: "Holy crap." Plaintiffs thus dismiss the appeal.
Which gets 'em out of oral argument, but not the subsequent OSC, investigation, formal reports, etc. etc. After a trial of the OSC, Judge Tashima proposes to sanction the Girardi and Lack firms $390,000. Which they're cool with. But there's also the question of discipline, which is what this morning's opinion is all about.
Ultimately, the Ninth Circuit decides (1) to formally reprimand Thomas Girardi, (2) to suspend Walter Lack and Paul Traina from practice in the Ninth Circuit for six months, and (3) to privately reprimand (and not name) the young associate, primarily because he wrote the memo warning about sanctions (but then was told to go forward). [I say "he" because while I -- like the Ninth Circuit -- won't use his name in print, it's easy to discover.]
Three thoughts. First, having looked at the post-appeal briefs, I might have taken a different approach than plaintiffs did. The first paragraph of their opening brief ends with: "Neither ethical zeal nor moral outrage animates the prosecution: these proceedings are about leverage and dominance over those who would dare to sue Dole and the chemical giants that supplied DBCP [the underlying pesticide]." I have no doubt plaintiffs believe that. But sometimes you have to restrain your own outrage. This is one of those times. Stuff like that doesn't help.
Second, I thought it was interesting that plaintiffs hired Professors Hazard (at Hastings) and Vairo (at Loyola) to opine that they shouldn't be sanctioned, that they both did so, and that Judge Tashima rejected this sage counsel. I'll say no more.
Finally, it's telling that the lawyers are eventually willing to suck up the $390,000 sanction but are fighting the discipline. For most of us, the money would matter more than a suspension or public rebuke, especially since you can just have someone else sign the briefs. That says a lot about the value of publicity in high-profile practices.
The whole thing is fascinating. And there's a lot more here than meets the eye. But I'll leave the matter for now. The affair's nonetheless definitely something worth considering.
