Appeals Court calls for investigation of attorneys, blasts judge

“All defendants were subjected to the
improper and harassing discovery requests of plaintiffs."

The appeals court panel called for the ethics investigation “considering the flagrant and inexcusable (code of conduct) violations, the numerous misrepresentations, abuse, harassment, and the tactics designed to embarrass and humiliate, as well as exhaust financial resources … during the entirety of the trial court proceedings.”

                                                            -- Michigan Court of Appeals ruling

Macomb Daily reporter Jamie Cook has a big story about the state Court of Appeals calling for an investigation of two Detroit area attorneys and chastising Chief Macomb Circuit Judge John Foster.

The Appeals Court took action in a largely overlooked opinion that featured surprisingly harsh criticism of the lack of ethics displayed by the attorneys and the judge in a frivolous lawsuit.

Here's the gist of Cook's story:

In a scathing opinion, state appeals court judges called for an ethics investigation into two lawyers and they sharply criticize a Macomb County judge for actions in a 2010 lawsuit.

Mount Clemens-based attorney Michael Tindall and Plymouth-based attorney Mark Chaban are accused of violating the Michigan Professional Code of Conduct for filing what appeals judges called a retaliatory lawsuit against a former client in Macomb County Circuit Court in Mount Clemens.

“The type of egregious and outrageous attorney conduct displayed during the entirety of this matter demands answer in an extraordinary measure of action,” the appeals judges said in the Nov. 21 ruling.

 

The three-member Court of Appeals panel said the lawyers, who were agitated by a client's refusal to pay his legal bills for a previous case, used confidential information gleaned from the client to sue him and his associates for fraud.

In order to make the case appear to be more than mere retaliation, the COA said Tindall and Chaban added about a dozen creditors who also claim they were owed money.

Fred Freeman, attorney for the defendants, called the appeals court opinion “blistering.”

“I’ve been practicing since 1975, and I’ve never seen such strong language by the court,” he said.

 

Judge Foster, who declined to comment on Friday, is criticized by the appeals court for failing to dismiss the case immediately instead of waiting until January 2012, and for appointing a receiver when none was needed.

“This matter should have been dismissed in favor of defendants before, during or after the preliminary injunction/receivership hearing” in January 2011, the court said. “Defendants should not have been subjected to these lengthy and acrimonious legal proceedings at all.”

At issue in the initial lawsuit was the business dealings of Ishtadev “Ray” Rathore of Macomb County and his business, DOABA Truck Stop Inc., a Washtenaw County gas station.

Tindall and Chaban had represented Rathore and DOABA in two other cases and their suit claimed that Tindall was owed $138,000, and Chaban was due $32,000.

Eleven other creditors were part of the suit, including Midwest Oil Supply Co, which claims it was shorted by $125,000.

Rathore denied that he owed the money and said the financial information included in the suit was confidential.

Tindall and Chaban accused Rathore of transferring DOABA’s assets to family members in order to conceal them from creditors, allegations Rathore also denied.

 

Cook also reported that the COA panel was specific in the allegations it raises against the two attorneys:

 

The appeals panel of judges Michael J. Kelly, Mark J. Cavanagh and Douglas B. Shapiro in its ruling said the lawyers violated two sections of the state ethics code.

The COA judges noted that Tindall and Chaban could have filed a simple lawsuit seeking payment of attorney fees.

Instead, the attorneys filed unnecessary motions, including an “ex parte” motion granted by Foster that allowed them access to defendants’ bank records.

That maneuver was “a significant invasion of privacy,” according to the judges. “All defendants were subjected to the improper and harassing discovery requests of plaintiffs."

The panel called for the investigation “considering the flagrant and inexcusable (code of conduct) violations, the numerous misrepresentations, abuse, harassment, and the tactics designed to embarrass and humiliate, as well as exhaust financial resources … during the entirety of the trial court proceedings.”

 

Tindall now contends that the information was not confidential because it was given to him by Rathore to file as a public document in a prior court case.

Tindall maintains that a lawyer may reveal the confidential information if it will rectify a wrong or go toward collecting a fee.

On Friday he denied any wrongdoing and claimed that politics was involved in the COA decision.

Tindall accused the appeals judges of protecting “one of their own,” Foster, who was appointed chief judge of Macomb circuit last year.

 

“Judge Foster is a nice guy and raises a lot of money for judicial campaigns,” Tindall said. “One of the reasons the language is pretty strong is it’s not based on facts.”

“The decision was clearly ‘structured,’ based on illusory and contradictory ‘facts’ to justify a pre-determined outcome/result,” he added in a 55-page Supreme Court brief that sought to appeal the COA ruling.

In a strange twist, Tindall and Chaban’s request for the Supreme Court to accept an appeal was rejected because it was filed one day, according to a clerk at the high court's Lansing offices.

 

The Attorney Grievance Commission, which imposes discipline on attorneys -- up to disbarment -- keeps investigations secret until a formal complaint is filed.

The COA judges upheld Foster’s ultimate ruling, that the case was a frivolous lawsuit. They ordered that attorney fees paid by Rathore in fighting the suit, estimated between $50,000 and $100,000, be awarded to the defendant. A hearing on the fees is scheduled for Feb. 3 in front of Foster.