Miccosukee Tribe of Indians of Florida v. Cypress

686 F. App'x 823
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 28, 2017
Docket15-11223 Non-Argument Calendar
StatusUnpublished

This text of 686 F. App'x 823 (Miccosukee Tribe of Indians of Florida v. Cypress) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miccosukee Tribe of Indians of Florida v. Cypress, 686 F. App'x 823 (11th Cir. 2017).

Opinion

PER CURIAM: .

Appellees Guy A. Lewis, Michael R. Tein, and their law firm, Lewis Tein P.L., move to correct our panel opinion, which Appellants Bernardo Roman III, and Bernardo Roman III, P.A., do not oppose. We grant the motion to correct, vacate our earlier opinion, and substitute this corrected opinion.

Bernardo Roman III, appeals judgments that disqualified his counsel and that sanctioned him and his law firm (collectively “Roman”) for filing in bad faith a civil action on behalf of the Miccosukee Tribe of Indians of Florida against its general counsel, Dexter Wayne Lehtinen, and Guy A. Lewis, Michael R. Tein, and their law firm, Lewis Tein P.L. (collectively “Lewis Tein”). Roman argues that the district court erred by disqualifying his counsel of choice and by sanctioning him. Roman also argues that the district court erroneously based its sanctions award on billing records that were submitted under seal. We affirm the judgments to disqualify counsel and to sanction Roman, but we vacate the sanctions award and remand for the district court to unseal the billing records, to give Roman the opportunity to respond, and to provide an explanation for the amount awarded to Lehtinen and Lewis Tein.

The disqualification of counsel requires • that we review de novo the application of the rules of professional conduct and related findings of fact for clear error. Bayshore Ford Truck Sales, Inc. v. Ford Motor Co., 380 F.3d 1331, 1338 (11th Cir. 2004). We review for an abusé of discretion all aspects of the imposition of sanctions. Peer v. Lewis, 606 F.3d 1306, 1311 (11th Cir. 2010). A district court “must afford the sanctioned party due process, both in determining that the requisite bad faith exists and in assessing fees.” In re Mroz, 65 F.3d 1567, 1575 (11th Cir. 1995).

We reject Roman’s argument for reversal based on the disqualification of his lead counsel, Angel Cortinas. Roman argues that the district court failed to “clearly identify a specific Rule of Professional Conduct which is applicable ... [and explain how his] attorney violated that rule,” *826 Schlumberger Techs., Inc. v. Wiley, 113 F.3d 1553, 1561 (11th Cir. 1997), but we disagree. The district court stated that Cortinas was disqualified because he was in “partnership with Mr. Lehtinen” when Lehtinen allegedly made false statements about his client, the Tribe. Cortinas’s representation of Roman and the Tribe, the district court stated, violated the “model rule [which] says that a lawyer in the firm cannot ignore the behavior of other lawyers in the firm” who . had a conflict of interest that could be imputed to Cortinas. See Fla. R. Prof'l Conduct 4-1.09, 44.10(a).

Even if we assume that the district court erred in disqualifying Cortinas under Rules 4-1.09 and 4-1.10, any error was harmless. See Fed. R. Civ. P 61 (“Unless justice requires otherwise, no error ... by the [district] court ... is [a] ground ... for vacating, modifying, or otherwise disturbing a judgment or order.”). Roman, as the “plaintiff in a civil case[,] [had] no constitutional right to counsel.” Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999), and he opposed requests from Lewis Tein and Lehtinen to impose sanctions for two years. Roman does not argue that his or his firm’s substantial rights were affected by proceeding with Cortinas’s associate, Jonathan Kaskel. See Fed. R. Civ. P. 61, Roman also fails to identify anything that could have been done differently or more effectively by Cortinas. See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 439, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985) (“If respondent were to proceed to trial and there received as effective or better assistance from substitute counsel than the disqualified attorney could provide, any subsequent appeal of the disqualification ruling would fail.”). Cortinas and Kaskel did not enter a notice of appearance until after the first evidentiary hearing on the motions for sanctions and after we had affirmed the dismissal of the Tribe’s complaint for lacking the particularity required to state a claim for relief, Miccosukee Tribe of Indians of Fla. v. Cypress, 814 F.3d 1202 (11th Cir. 2015). Roman investigated Lewis Tein and Lehti-nen; thrice revised the complaint against them; and defended against then- requests for sanctions. In the light of Roman’s familiarity with the facts, his legal abilities, and his retention of Kaskel, we cannot say that disqualifying Cortinas harmed Roman or his firm.

The district court did not abuse its discretion when it determined that Roman filed the second amended complaint in bad faith. A party exhibits bad faith by pursuing a claim that it knows is frivolous. Peer, 606 F.3d at 1316. Roman alleged that Lehtinen countenanced the misappropriation of millions of dollars from Tribe members while falsely representing that the funds were being held in trust accounts to satisfy tax liabilities they potentially owed to the federal government and violated his fiduciary duty to the Tribe by disclosing its financial information to the Internal Revenue Service. But Lehtinen established the allegations were objectively frivolous by introducing testimony that the Tribe created two reserve accounts to satisfy potential federal tax liabilities, by submitting financial records and minutes from Tribe meetings about the balances in the reserve accounts, and by presenting a letter recounting that attorney Larry Blum submitted the Tribe’s financial documents to the Agency. Lewis Tein likewise controverted the allegations that it had funneled to the Tribe Chairman millions of dollars in excessive fees charged for fictitious or unnecessary services that Tribe members paid for using loans obtained from, but not approved by or intended to be repaid to, the Tribe. Lewis Tein introduced evidence that a Tribe member approved the firm’s invoices and was repaying a loan obtained for legal fees; that Roman billed the Tribe *827 large amounts for his legal services; that Roman had in his custody records of Tribe members’ loan payments; that an accountant for the Tribe was fired after telling Roman about existing loan schedules; and that an independent audit detected no financial irregularities. Roman failed to produce any evidence that Lewis Tein transferred money to the Chairman or that Lewis Tein overbilled or falsely charged for its legal services.

The district court did not abuse its discretion when it sanctioned Roman under Federal Rule of Civil Procedure 11 for frivolously accusing Lehtinen of wrongdoing. Rule 11 exists “to deter baseless filings in district court.” Peer, 606 F.3d at 1311.

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Related

Glatter v. Mroz
65 F.3d 1567 (Eleventh Circuit, 1995)
Dillard v. City of Greensboro
213 F.3d 1347 (Eleventh Circuit, 2000)
Bayshore Ford Truck Sales, Inc. v. Ford Motor Co.
380 F.3d 1331 (Eleventh Circuit, 2004)
Richardson-Merrell Inc. v. Koller Ex Rel. Koller
472 U.S. 424 (Supreme Court, 1985)
Chambers v. Nasco, Inc.
501 U.S. 32 (Supreme Court, 1991)
Peer v. Lewis
606 F.3d 1306 (Eleventh Circuit, 2010)
Miccosukee Tribe of Indians of Florida v. Billy Cypress
814 F.3d 1202 (Eleventh Circuit, 2015)

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Bluebook (online)
686 F. App'x 823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miccosukee-tribe-of-indians-of-florida-v-cypress-ca11-2017.