Lawyers Threatened With Sanctions for Talking About Foreclosure Abuses

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So much for the idea that the legal profession cares about integrity. While there are no doubt many upstanding attorneys, state bar associations seem vastly more concerned about trying protect the industry’s meal ticket than policing questionable conduct. It’s well known in the profession that to the extent lawyers are ever sanctioned, it’s almost without exception small firm operators. The big boys pay a lot in dues and often have partners in their firms that hold offices in the state bar organization.

One damning illustration: even though Florida has been a virtual cesspool of legal malfeasance, with its biggest foreclosure mill having shuttered its doors and impermissibly not passed open cases on to other lawyers and all of the other big players on the ropes, not a single lawyer has been sanctioned. Yet two lawyers in the state were threatened because they’ve dared to say a candid word or two about the mortgage mess. The bar association’s excuse is investigations take time, but the old state attorney general has been investigating these firms since last August. The state bar’s speed in efforts to silence members who are candid versus the leisurely pace in taking action on rampant abuses smacks of cronyism.

We’ve written about previous efforts to silence one of the two lawyers mentioned in this article, Matthew Weidner:

But what is telling are the desperate-looking but nevertheless potentially effective measures being deployed to hamstring the opposition. The vanguard of this effort are foreclosure defense attorneys, many of whom are solo or small firm operators, with not hugely lucrative practices or doing pro bono work (you don’t make a lot of money defending people who have no money).

Suing someone like that, even with a suit that seems spurious, throws a wrench in their operation. It takes time to deal with litigation, and often money, plus the stress is also a considerable distraction. And of course, the hope is no doubt that this sort of risk will also deter other lawyers and critics.

The first example is a lawsuit filed by National Title against Matthew Weidner, a Florida attorney who blogs about foreclosure fraud. The suit charges him with slander and libel.

As most readers no doubt know, in the US, slander and libel are false and malicious statements that damage the reputation of the subject. Thus the most effective defense in a slander or libel case is to establish that the remarks made were accurate (note that remarks that are narrowly accurate but misleading can be deemed to be slanderous).

The cause celebre is that Weidner included a four-part YouTube video of a deposition of Crystal Moore, a robo signer at National Title, and also provided some commentary about the video in his post.

Note that Weidner had NOT posted the video on YouTube, and this deposition was not one taken as part of a suit he was involved in. A different lawyer, Christopher Forrest, had put videos of three National Title employee depositions he had taken on YouTube. National Title secured an injunction on Wednesday ordering Forrest to remove the videos, but the Crystal Moore videos still seem to be up, and Forrest said he had removed his videos but others reposted them. The ACLU filed an emergency appeal on Thursday, calling the injunction a “gag order”…

Note that this effort to take down the videos comes as part of a broader battle in Florida over the transparency of court proceedings. Some Florida judges had taken to barring members of the public from watching foreclosure court proceedings, contrary to Florida law, which led the ACLU, some First Amendment groups, and several media outlets to write to the Florida chief justice and one of its circuit court judges. The chief justice, Charles Canaday, responded quickly and ordered judges to open their hearings to the public.

More on the propensity of the Florida bar to try to stop public discussion of dubious legal conduct than address the conduct itself from Law.com (hat tip reader Doug Smith):

No attorneys are facing disciplinary charges for their work in foreclosure cases despite a firestorm of complaints about purported fraudulent court filings on behalf of lenders.

But two foreclosure defense attorneys have been actively investigated for publicly criticizing the gridlocked foreclosure process.

The Bar investigated Jacksonville attorney Chip Parker for telling CNN, “Foreclosure courts throughout the state of Florida have adopted a system of ramming foreclosure cases through the final judgments and sale — with very little regard to the rule of law.” He also said, “What I am seeing now is an attack upon the citizens of the state of Florida by retired judges.”

The Bar also is investigating Tampa lawyer Matthew Weidner for “exercising free speech in the courtroom” in violation of a Pinellas County ordinance. Weidner, a prominent foreclosure defense lawyer, runs a blog critical of the state’s foreclosure process and is frequently quoted in national publications.

The Florida Bar has closed 46 investigations with no charges filed against foreclosure plaintiff attorneys out of 272 complaints, according to statistics from The Bar. The Bar also has closed without charges 29 investigations into foreclosure defense attorneys out of 58 complaints filed since last October….

Parker learned he was under scrutiny in a letter from Bar counsel Shanell Schuyler last Dec. 3. The letter, obtained by the Review, includes a link to Parker’s CNN interview and advises him to explain his on-camera statements in writing by Dec. 20 in light of The Bar’s Rule of Professional Conduct 4-8.2 prohibiting lawyers from making false or reckless comments about court personnel.

“I was shocked,” Parker said. “I said, ‘This is a joke, right?’ I have a First Amendment right to free speech. I’ve said a lot worse and been more pointed in my speech in the past. CNN actually toned down my comments.”

Parker responded to The Bar by quoting Oliver Wendell Holmes Jr., the late associate justice of the U.S. Supreme Court, saying his criticism was “consistent with the great traditions of American lawyers.”

Parker said he hasn’t been told who filed the complaint due to confidentiality rules, but he heard it was an offended judge. He reached out to constitutional lawyer Talbot “Sandy” D’Alemberte, a former president of the American Bar Association and Florida State University, whom he had met at a recent dinner honoring Parker. D’Alemberte intervened at The Bar, and the case was dropped Jan. 13, 2011.

D’Alemberte also is helping Weidner at the request of the Florida Press Association and the First Amendment Foundation, which were contacted by Weidner. He declined comment on his pending investigation. But D’Alemberte said he believes the case also will be dropped.

“I am pleased that The Bar is not going forward with these complaints,” he said. “My sense from talking to The Bar people is they feel there’s a duty to investigate whenever there’s a complaint. It seems like one of the complainants may have been a judge. We saw possible implications for free speech purposes.”

If you think the fact that these investigations are being dropped means the Bar was acting properly, think again. There is no way they would have gone anywhere; the ACLU would have been all over any real action like a cheap suit and the adverse publicity would have been very damaging. This was harassment, pure and simple, both to get Parker and Weidner to back down and to warn other members of the Florida bar that they’d better observe the industry code of omerta.

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37 comments

  1. attempter

    So far as I’m aware, this is typical of all establishment professional associations. They’re all collaborators with kleptocracy. (Librarians might be a partial exception; at least they used to criticize the “Patriot Act”, if not actively resist it.)

    Contrast that with the bar under the czar in the latter 19th-early 20th century, which maintained relative independence of the government’s agenda and was often fiercely critical of it (and often assisted anti-regime activists).

    Today’s example is more like that of German lawyers in the 30s, who all caved right in.

      1. alex

        Why do you hate India?

        But I can’t resist telling an old joke in these parts (NYC area).

        Q: Why did New York get all the lawyers and New Jersey got all the toxic waste sites?

        A: New Jersey got to choose first.

        1. ambrit

          Dear Alex;
          Lambert is right, India NEEDS lawyers and accountants at this delicate period in its’ development. You see, India is reaching that threshold where its’ society develops a large and powerful middle class. Just the people the oligarchs need the help of the lawyers and accountants to defeat. This is shaping up to be a hat trick of sorts. Imagine, a huge country going from semi-feudalism directly to neo-feudalism without that pesky personal freedom phase!

    1. alex

      “Librarians might be a partial exception; at least they used to criticize the “Patriot Act”, if not actively resist it.”

      Some libraries/librarians made it a policy to destroy lending records as soon as a book was returned. Were you in the front lines of resisting the Patriot Act? The Abraham Lincoln brigade is falling far short of its enlistment goals.

      1. Jim A

        Some libraries/librarians made it a policy to destroy lending records as soon as a book was returned. The fact is that most library software is designed this way.

        1. alex

          But of course. The most pernicious type of counter-revolutionary is not one who openly supports the ancien régime, but someone like me who even gently questions the revolutionary commitment of my betters. What deadlier threat to revolutionary morale than to wonder whether Robespierre displayed appropriate symbolism during the Festival of the Supreme Being?

  2. Mark P.

    “Most jury trials are contests between the rich and poor.”

    – Clarence Darrow

    1. meticulous observer

      Nowadays there’s no contest: poor automatically loses. Only when it’s rich vs. rich is there any excitement.

      1. jacke

        The less than wealthy never even make it to court to have a chance. Recent lawyer comments from a big bank fraudclosure lawyer: “You don’t have enough money to fight us; we are a bank and we will break you long “before you find a decent lawyer to take your case.” You can’t get a decent lawyer in this town, and I’ll make sure of it.” (Bankruptcy and summary judgments by incestuous judges followed. Case never made it to court.)
        And, from a different lawyer in the same case “I may be disbarred someday, but by then I’ll have so much money it won’t matter.”

        1. fran

          In our case, the WF attorney told our attorney that we ‘were swimming upstream because this judge was friendly to landlords’ (it was an eviction hearing). Our attorney was rather shocked. Turned out to be true. The judge joked around with the WF attorneys, etc. He paid no attention to evidence submitted; evidence that had led 2 other judges, in a higher court, to uphold a Restraining Order – preventing WF from evicting the homeowner. It appeared to me, that WF was ‘court shopping’.

  3. Jo

    The net renders such rearguard actions laughable.

    I mean, I pop into my local net cafe, publish, go home for a cup of tea.

    Canute is seething but the age of secrecy is ovah.

  4. Transor Z

    A lawyer making disparaging remarks about a judge or a court by saying that s/he or it ignores rule of law/Due Process is ballsy and a big deal in any jurisdiction. Lawyers are “officers of the court” so they are expected to promote respect for the judicial process.

    But here, Yves, you could place a somewhat different emphasis on this story. It dovetails with the recent announcement that the Florida “kangaroo” foreclosure courts are being closed. It could be cast as a story that the bar complaint system worked — to the great embarrassment of powerful mortgage industry interests and supporters in the bar/judiciary. Ordinarily, a lawyer that made these kinds of accusations would have big problems. But where the accusations turn out to be arguably true, even a complaint filed by a judge (a really big deal, btw) falls flat.

    Incidentally, it’s typical practice in bar oversight to investigate ALL complaints.

    1. DownSouth

      • Transor Z said: “Lawyers are ‘officers of the court’ so they are expected to promote respect for the judicial process.”

      As usual, your moral compass points in the polar opposite direction from mine.

      To me it all sounds entirely too much like the “language rules” the Nazis concocted to obfuscate their nefarious activities:

      [A]ll correspondence referring to the matter was subject to rigid “language rules,” and, except in the reports from the Einsatzgruppen, it is rare to find documents in which such bald words as “extermination,” “liquidation,” or “killing” occur. The prescribed code names for killing were “final solution,” “evacuation,” and “special treatment”; deportation—-unless it involved Jews directed to Theresienstadt, the “old people’s ghetto? for privileged Jews, in which case it was called “change of residence”—-received the names of “resettlement” and “labor in the East”, the point of these latter names being that Jews were indeed often temporarily resettled in ghettos and that a certain percentage of them were temporarily for labor… For whatever other reasons the language rules may have been devised, they proved of enormous help in the maintenance of order and sanity in the various widely diversified services whose cooperation was essential in this matter. Moreover, the very term “language rule” was itself a code name; it meant what in ordinary language would be called a lie… The net effect of this language system was not to keep these people ignorant of what they were doing, but to prevent them from equating it with their old, “normal” knowledge of murder and lies. Eichmann’s great susceptibility to catch words and stock phrases, combined with his incapacity for ordinary speech, made him, of course, an ideal subject for “language rules.”
      ▬Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil

      • Transor Z said: “It dovetails with the recent announcement that the Florida ‘kangaroo’ foreclosure courts are being closed. It could be cast as a story that the bar complaint system worked — to the great embarrassment of powerful mortgage industry interests and supporters in the bar/judiciary.”

      Do you have any evidence that the bar did anything which resulted in the demise of the kangaroo courts? Just the opposite seems to be the case. “The Florida Bar has closed 46 investigations with no charges filed against foreclosure plaintiff attorneys,” attests the cited Law.com article.

      1. DownSouth

        Should have read:

        • Transor Z said: “Lawyers are ‘officers of the court’ so they are expected to promote respect for the judicial process.”

        So truth and justice get sacrificed on the altar of “respect for the judicial process”? Not surprisingly, your moral compass points in the polar opposite direction from mine.

        1. meticulous observer

          Do you really think that Courts would have any legitimacy in the best of times if people really saw how the sausage was made?

        1. DownSouth

          Pure rhetoric. Zero evidence.

          Well I guess if rhetoric’s all you got to defend these bastards, then you gotta go with that.

          1. DownSouth

            By the way, Chip Parker, the attorney being investigated by the Florida Bar, appeared in the CNN video Florida’s foreclosure robo-judges
            .

            As you can see from the CNN report, on the Florida rocket docket the average “trial” lasts only about three minutes.

            “There is no evidence, and I want to say this with as much clarity as I can,” declares Judge A.C. Soud, who heads up Jacksonville’s rocket docket, “nothing has presented to us in the Fourth Circuit that there is any fraud being perpetrated on the court.” Soud concludes that “What is being classified as possible fraud can also be classified as sloppiness, can be classified as neglect, but the word fraud, the technical aspects, the legal aspects we do not experience that.”

    2. jake chase

      Those who need a good laugh should page through the Canons of Legal Ethics at leisure. They exist to protect the legal process in the same way that curtain protected the Wizard of Oz. Lawyers know so much about that process that they must be hamstrung in fifty different ways in order to keep the gears grinding and the money rising to the top. What do you expect from a system that permits lawyers to regulate themselves and the most powerful lawyers to dominate the Bar Committees doing the regulating? Legal ethics is an oxymoron.

  5. Middle Seaman

    In the state of Maryland this can never happen. There simply are no court procedures besides filing and automatic approval. You can scream to high heaven and may not even owe a penny on your property, still once the foreclosure is filed, bye bye property.

    Maryland is supposed to be one of bluest states in the union; it has piles of such rich-benefiting laws and short on support for progress.

    1. Bar Towel

      I cannot believe the things I am seeing in my Circuit Court (in a very prosperous county in our state.) Put all those naive assumptions about honesty, the rule of law, away in a safe place because it isn’t real. Some public officials, bend over backwards, allowing the land seizures to continue with 2nd, 3rd and 4th chances to get the offending party’s case right, and eject the borrower. The Bar doesn’t apparently doesn’t have any issue with debt collectors and their fraudulent affidavits. Mere technicalities because you allegedly owe money?
      In a way, this tragic, sordid, eye opening affair should give the folk the impression that corruption is so prevalent that things must be rebuilt. Can’t have a public system so ready to please the wealthy that the idea of justice has been perverted to the point of tyranny. Can’t have a Senator who takes money from auto dealers serving in any capacity without anti-Democratic conflict of interest, can’t have a Governor work to ease Debt Collectors burdens when they eject Maryland borrowers. That might be called patronage or illegitimate private gain.

    2. Jim A

      Well at least in theory, Md is a “full recourse” state. So if a lender wanted to go after an FB for the rest of their money after they’d sold the house, they WOULD need to go in front of a judge. Is it still the normal case that servicers bid what they’re owed at the “courthouse door” foreclosure auction? Because that might seem to preclude a deficiency judgement.

  6. LeeAnne

    Well, the rot in Denmark are the judges from the US Supreme Court on down.

    What chance does anyone have to push back fascism and tyranny in this country peacefully when the Courts have gone rogue.

    Even the seeminingly well intentioned articles and debates on the 2008 Hank Paulson/Goldman Sachs financial coup d’etat invariably fail to mention that the public was firmly against the bailout, and succeeded only after the PPT caused the Dow Jones to decline 700 points to provide cover for Congress to capitulate.

  7. LeeAnne

    So this is a very small number of people driving the destruction of my country and the hopes of people all over the world who saw the US as a bastion of freedom, prosperity and creativity.

    1. meticulous observer

      A common mistake is to presume that a “conservative” judge won’t make big changes in the law by keeping things more or less the way they were. That couldn’t be further from the truth: “conservative” = “regressive activism.”

  8. rd

    The canard of “self-regulation” continues to disprove itself over and over again.

    Self-regulation can only occur within a very strict moral and ethical framework that is internalized by the vast majority of the participants. If even the church can’t achieve this (priest-little boy scandals, etc.) then how could we possibly expect people who primarily worship power and money to self-regulate?

    I think that this generation will see the myth of the rational, efficient self-regulating economic man perish or see our economy and freedoms perish instead.

    1. Arthor

      Consider the important context, that we live in a post-principles capitalistic world. There’s nothing wrong with capitalism as an economic theory; in fact capitalism is merely the absence of arbitrary interference in an organic marketplace.

      This only becomes a problem when there are no higher principles to which a people subscribes except to gain more money. The words “Thou shalt not steal” would turn our economy upside down if they were taken seriously, but people are content despite massive financial fraud and theft because at the end of the day we all have decent houses and cars (along with hefty debt). A principle against moneylending would, in the words of Nassim Taleb, protect people from their epistemic arrogance w/ re: to debt.

      This was the purpose of religion: to protect human societies from dangerous cancerous growths which could potentially ruin the whole (your point about priests is well-taken though not necessarily appropriate. Catholicism is an unusually sexually repressive belief system which can wreak havoc on a fragile psyche). Without the ordering and coordinating effect of a principled system of beliefs the cancers are not only tolerated but, if they lead to short-term “growth”, actively encouraged.

      Also I’m a lawyer. Lawyers are like all groups of people, there are a small number of honest thinkers who act with a real sense of honor and dignity, and the rest are dumb sheep who will do whatever is considered normal by the people around them. I’m sure you know people like that in your profession too.

      1. Tao Jonesing

        “in fact capitalism is merely the absence of arbitrary interference in an organic marketplace.”

        Then capitalism is impossible. Once any entity achieves sufficient size, it can and will exert arbitrary control over the organic marketplace.

        Economic theory is a pathological lie carefully constructed to normalize evil.

        1. nonclassical

          TJ sounds like 1952 “Motorcycle Diaries”…which is what “Patriot Act” is actually inacted to defeat…

          TJ-harsh, but true…

        2. psychohistorian

          TJ said: “Economic theory is a pathological lie carefully constructed to normalize evil.”

          I would add to the end that it is done by the inherited rich oligarchy of our world.

  9. leapfrog

    what the “Too Big To Fail” law firms are up to:

    “Last November, the FDIC sued Bryan Cave in federal court in Atlanta, accusing the firm of improperly acquiring, via the bank officers who retained the firm, confidential bank records from a failed bank in Kansas for use in a planned defense should those bank executive and directors face criminal charges or civil litigation.

    According to the FDIC suit, Bryan Cave withdrew as counsel for the bank officers and directors shortly after the bank closed and began destroying its copies of the bank records. The FDIC claims the records included evidence that would have identified who, anticipating the bank’s imminent failure, had illegally had taken corporate and banking records and given them to their attorneys.”

    http://webcache.googleusercontent.com/search?q=cache:2V29jruuavgJ:www.dailyreportonline.com/Editorial/News/singleEdit.asp%3Findividual_SQL%3D4%252F27%252F2011%254038168+bryan+cave+representation+terminated+by+BAC&cd=1&hl=en&ct=clnk&gl=us&source=www.google.com

  10. Alice

    And this is how it ends…what a poor excuse for an Empire…a couple hundred years. They just couldn’t wait to do us in, in destroying their people they have destroyed themselves.

  11. Paul Tioxon

    I don’t see this revelation as an act of destruction of a unitary rule of law, arbitrated in its finality at the Federal level with the US Supreme Court. There is a concept of the Dual State, where one system of justice operates for the simple administration of legal rights for corporations, individuals as citizens, and the enumerated powers of the state itself, so we can all just get along in a civil society. Then there is a prerogative state, one operated by organized political power, such as the Bar Association wields. It is widely comprehended as the stifling announcement of National Security in a thousand scenes, where local authorities or families are shut out of facts, due process and even simple justice in the name of the all encompassing National Security Act, its amendments and enhancement, The Patriot Act.

    In the name of Economic Apocalypse, the financial equivalent of war, the law is commandeered by the Bar for a greater good, the Geo-Political Economy. This of course is the platform for the Military Establishment, which also secures the Ontological Imperative, the right to exist and defend that by all means, including nuclear war. For a government that has played out scenarios with mega-death calculations of the US population as the critical path decision making process, this is, as Yves like to say, small potatoes.

    So the Normative state of civil society operates, doles out traffic violation, jails drug dealers and helps people get divorced. The prerogative state operates by political control for those special cases, and is not easily swallowed by the vast middle class which can count on rules to be followed, not only to stay out of trouble, but to calculate a life, a business plan and decision with meaningful consequences that can be projected with accuracy to enable rational decision making, and beyond the arbitrary reactions of obstructionist to your personal, legal pursuits.

    We used to count on the stability of the US to buy a house and project 30 years with a stable job. Not only is that gone but calculations of the legal system, are beyond our ability to include them in long term decisions. We just can not trust the law, anymore than Wall St.

    1. nonclassical

      Paul,

      your synopsis also sounds like “Motorcycle Diaries”, which is what Patriot Act attempts to silence…

  12. Matt

    So are there any complaints about foreclosure lawyers and rocket judges to the Florida Bar. I remember Yves posting the story that the Bar told the Florida AG to take a cold shower, that the Bar would be the one doing any disciplining of attorneys and judges.

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