Lawyer in Scientology case is stuck between state and federal judges

NeverMe

Patron
This was in the St. Petersburg Times today: I found it very interesting.......

Lawyer in Scientology case is stuck between state and federal judges

By Craig Pittman and Curtis Krueger, Times staff writers
In Print: Wednesday, September 1, 2010



LARGO — One of the Church of Scientology's most vocal critics, Tampa lawyer Ken Dandar, is in a pickle.
Six years ago, he settled a wrongful death case against the church on behalf of the family of Lisa McPherson, who died in 1995 after 17 days in the care of church members in Clearwater.
Part of the settlement agreement, approved by a judge in state court, required Dandar to never again represent anyone suing Scientology.
But last year, Dandar took on another wrongful death case against the church's Flag Service Organization — in federal court.

The church's attorneys objected that Dandar violated his agreement. Senior Circuit Judge Robert Beach agreed and in June 2009 ordered Dandar to withdraw from the new case.
Dandar resisted for some time, even asking the Florida Supreme Court to review the case. Finally, though, four months ago Dandar filed a motion to withdraw from the federal lawsuit.
But on April 12, U.S. District Judge Steven Merryday told him he cannot get out of it. The reason: No other attorney wants to take on Scientology. Two days later, records show, Beach found Dandar in willful contempt of court.
So Dandar is stuck between a state judge telling him to leave Scientology alone and a federal judge telling him he can't. And, according to federal court records, he has been fined $50,000 plus $1,000 a day by the state court until he withdraws from the federal case.

Dandar's predicament may be unprecedented in Florida law. "I've never heard of anything like it," said Clifford Higby, chairman of the trial lawyers' section of the Florida Bar.
A hearing on Dandar's fate occurred Tuesday in the Pinellas County Criminal Justice Center. But at the request of church attorney F. Wallace Pope, Beach ordered a Times reporter out of the courtroom prior to the start of the proceeding.
Dandar objected, saying he was facing a criminal charge — contempt of court. But Beach, 80, said it wasn't a criminal case.

He also said he was closing the courtroom because all the previous proceedings regarding Dandar had been closed-door sessions.

Since the McPherson case settled under a confidential agreement signed in 2004, all the motions and testimony in the case files — which now number 351 volumes, making it the largest current Pinellas case — have been sealed from public view as well.

The hearing concluded after nearly six hours. Dandar and his attorney, Luke Lirot, both said they could not comment on what happened or their next step. Pope, when asked about the case, said, "Our lips are sealed."

Dandar became known for challenging the church during the seven-year lawsuit over the death of McPherson, a Scientologist who after a minor traffic accident, took off her clothes and told a paramedic, "I need help. I need to talk to someone."

Although paramedics took her to Morton Plant Hospital for psychiatric evaluation, fellow church members showed up and escorted her out, promising to care for her. The church opposes psychiatric treatment.

They took McPherson to the Fort Harrison Hotel, where she was cared for by several church staffers, including a medical doctor who was not licensed in Florida but worked for the church. She died 17 days later while being driven to a hospital 45 minutes away. Although criminal charges were filed against the church, they were dropped after then-medical Examiner Joan Wood changed her finding of the cause of death to accidental.

However, the burden of proof in a civil suit is different. The suit, filed in 1997 on behalf of McPherson's estate, contended church staff members let McPherson become severely dehydrated and die. As the case neared trial it promised unflattering international headlines for the church.

The two sides worked out a settlement agreement. The terms weren't disclosed. Lirot, who was Dandar's co-counsel, said at the time, "Everyone involved gets to move on with their lives."
Five years later, though, Dandar was back battling Scientology in the federal lawsuit.
The new suit stems from the death of Kyle T. Brennan, 20, who shot himself in the head on Feb. 16, 2007, in Clearwater, while visiting his father, who is a Scientologist. According to the suit, filed on behalf of Brennan's mother, Brennan killed himself after the father locked up his antidepressant medication on the advice of Denise Gentile and her husband, Gerald. Denise Gentile is the twin sister of the church's current worldwide leader, David Miscavige.

The suit says they served as the father's "chaplains" in the church, an allegation the church's attorneys say is not true. The Gentiles told Clearwater police that Brennan's father was just their handyman.

The church's attorneys contend Dandar is a "rogue attorney" with "a long history of misconduct with regard to facts, law and ethics."
District Judge Merryday, in ruling that Dandar had to stay on the Brennan case, cited a sworn statement from Dandar's client, Brennan's mother, Victoria Britton. She said that nobody but Dandar dared to take on Scientology.

"I talked to many lawyers in different states and each turned me down as soon as they heard it involved the Church of Scientology," she said. "Some turned me down due to conflict, since some had represented Scientology in the past or are currently representing the organization, but many turned me down because it is an entity they do not want to litigate against. … I have no one else to turn to."

Robert Potter, law partner of church attorney Pope, argued that the statement just showed how weak her case against the church was.

http://www.tampabay.com/news/lawyer...tuck-between-state-and-federal-judges/1118849
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First of all, how could it have been legal for them to say that this lawyer could NEVER represent anyone against scientology???

Second of all -
:omg: OK, I didn't know DM had a twin sister! Is she as ...... ummm.... scary as he is?
 

Enthetan

Master of Disaster
When a federal judge and state judge issue two contradictory orders to a person, the federal judge generally wins.

It would be amusing if the federal judge issued an order to the state judge to cut it out, under penalty of federal contempt.
 

Enthetan

Master of Disaster
First of all, how could it have been legal for them to say that this lawyer could NEVER represent anyone against scientology???


As part of a settlement agreement between me and you to settle a case between us, I could insert the clause that you have to wear a clown hat every time you walk into McDonalds. You have a choice between accepting or rejecting the settlement, but if you accept the settlement, you have to wear the clown hat.

The settlement is like a contract. The Co$ offers something (like $$$) and the other side agrees to conditions. The lawyer appears to have voluntarily agreed to the conditions in exchange for Co$ dropping resistance, then violated the conditions in the federal suit. Or at least that's the opinion of the state judge.
 

FoTi

Crusader
When a federal judge and state judge issue two contradictory orders to a person, the federal judge generally wins.

It would be amusing if the federal judge issued an order to the state judge to cut it out, under penalty of federal contempt.

If that's true, then I wonder why Merryday hasn't done this already.

If the CoS somehow has both of these judges in their pocket they could really drive Dandar around the bend.
 

NeverMe

Patron
Yes, I agree that the federal ruling would win out. BUT wouldn't you think they'd get on the same page since this lawyer is being ordered to pay penalties in the meantime. It's totally ridiculous and takes away from the seriousness of the lawsuit itself. I'm sure that makes the mafiOSA (my new favorite word!) happy. Misdirection.........
 

Zinjifar

Silver Meritorious Sponsor
Here's hoping that as this continues the entirety of the sealing is reversed.

There is no good excuse for it.

Zinj
 

tikk

Patron with Honors
I've been following this somewhat closely, and have commented and posted relevant docs on WWP, starting here: http://goo.gl/iaeM

As to the question of the legality of such an agreement as the St. Pete Times reports, I commented on the same thread, but will paste here:

---

The St. Pete Times has not seen the agreement and is thus relating what it has been told, likely by Scientology's lawyers. I doubt that Dandar would characterize the agreement in the same way. No one except the parties have seen the Agreement at issue, so it's difficult to talk about it except in hypothetical terms. My guess, though, is that the agreement is more ambiguous than how the St. Pete Times characterizes it, and the sides disagree as to how it should be interpreted. That Judge Beach apparently sided with Scientology's interpretation of it shouldn't surprise anyone familiar with Beach, but Beach's interpretation shouldn't be given much weight given that he's routinely reversed by the appeals court.

All that said, an agreement restricting whom an attorney may sue is contrary to public policy and explicitly prohibited by state legal ethics Code and Rules, and any such clause within such an agreement should be declared void. To the extent there exists an ambiguity in such a clause, a court errs where it chooses the interpretation which violates public policy.

+++

Model Rules of Professional Conduct
Law Firms And Associations
Rule 5.6 Restrictions On Right To Practice

A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.
 

NeverMe

Patron
The St. Pete Times has not seen the agreement and is thus relating what it has been told, likely by Scientology's lawyers. I doubt that Dandar would characterize the agreement in the same way. No one except the parties have seen the Agreement at issue, so it's difficult to talk about it except in hypothetical terms. My guess, though, is that the agreement is more ambiguous than how the St. Pete Times characterizes it, and the sides disagree as to how it should be interpreted. That Judge Beach apparently sided with Scientology's interpretation of it shouldn't surprise anyone familiar with Beach, but Beach's interpretation shouldn't be given much weight given that he's routinely reversed by the appeals court.

All that said, an agreement restricting whom an attorney may sue is contrary to public policy and explicitly prohibited by state legal ethics Code and Rules, and any such clause within such an agreement should be declared void. To the extent there exists an ambiguity in such a clause, a court errs where it chooses the interpretation which violates public policy.

+++

Model Rules of Professional Conduct
Law Firms And Associations
Rule 5.6 Restrictions On Right To Practice

A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.

Yep, I would definitely be curious to see what the agreement really says. It would make sense that there are holes in the story/agreement since the judges are apparently interpreting it differently.

Does anyone know DM's twin? I understand if you're reluctant to say anything...... but my curiosity is piqued.....:D . I'll google her....
 

Zinjifar

Silver Meritorious Sponsor
Yep, I would definitely be curious to see what the agreement really says. It would make sense that there are holes in the story/agreement since the judges are apparently interpreting it differently.

Tikk knows what's in it, but, he won't tell you :)

Possibly because he's not *supposed* to know...

Zinj
 

tikk

Patron with Honors
Tikk knows what's in it, but, he won't tell you :)

Possibly because he's not *supposed* to know...

Zinj

I'll stoop to respond to this only because I'd prefer this lie not linger, despite whatever good it must be doing to serve Zinj's fantasies for so long now. Nevertheless, I have never seen, nor do I have knowledge, actual or otherwise, of the contents of Lisa McPherson settlement agreement or agreements. Like everyone else, I merely know that one exists.
 

SchwimmelPuckel

Genuine Meatball
It seems significant that it's 'out in the open' that the legal community as a whole is actually intimidated by Scientology!

Will some of these 'lawyers' grow a pair and get their act together now?

:duh:
 

SchwimmelPuckel

Genuine Meatball
They don't.. But did you know they don't have teeth either? - I didn't know that before I read the OP.. Hmm..

:unsure:
 
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KissMyStats

Patron with Honors
Never Me said:

Second of all -
OK, I didn't know DM had a twin sister! Is she as ...... ummm.... scary as he is?


Physically yes, think DM in a dress. Not good. She's on FB I think.
 
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