Monday, November 5, 2007
Page 7
PERSPECTIVES (Column)
The ‘Blot’ on Uncle Jerry’s ‘Escutcheon’ Is Indelible
By ROGER M. GRACE
“Scoundrel.”
That’s the adjective employed by Los Angeles attorney Roy G. Weatherup in describing Jerome B. Rosenthal, with whom he sparred as opposing counsel some years ago. That occurred in a case that sprang from the $6 million settlement by Rosenthal’s insurers of singer/actress Doris Day’s $26 million judgment against the lawyer for mismanagement of her business affairs, fraud, malpractice, and so forth. The case began when Rosenthal was a member of the State Bar…and dragged on after his disbarment.
Weatherup is a leading local practitioner, versed in collegiality, respected by colleagues…hardly accustomed to denigrating lawyers who happened to have been on the other side in cases he has litigated. But Rosenthal—once “Uncle Jerry” to me when my father’s sister was wed to him—is an exception.
“He was a disgrace to the human race, and a disgrace to the legal profession,” Weatherup says of Uncle Jerry.
He uses the past tense because, as I’ve mentioned in previous columns, Jerry died Aug. 15, without public mention of his passing. He was 96.
There are those who admire scoundrels…some of whom have become folk heroes. I don’t know if Jerry is, to this day, a hero to anyone, but he certainly does stand as one of the most successful and gifted of the con men ever to sap funds from clients while acting in the capacity of a California lawyer. Through charm, cunning and connivery, he gained the confidence of Hollywood’s “rich and famous” and garnered huge sums…perhaps largely lost by him in the sort of highly speculative and ill-fated investments into which he poured clients’ funds…perhaps salted away somewhere, never to be found.
Weatherup’s clients were Ventura appellate lawyers Edward L. Lascher and his wife, Wendy Cole Lascher (formerly Wendy Cole Wilner). Ed Lascher (now deceased) was a member of the State Bar Board of Governors and his lively column, “Lascher at Large,” appeared each month in the State Bar Journal.
When Jerry lost the case brought by Day, he hired Lascher & Wilner to represent him on appeal. After the insurers in 1977 settled with Day (thereby, obviously, ending any potential liability on Jerry’s part), Jerry still pursued the appeal to remove the “blot on his escutcheon.” The Laschers obtained the court’s permission to withdraw as counsel, and Jerry sued them on Jan. 8, 1979. Their withdrawal, he asserted, would delay his eventual vindication.
Weatherup recalls that Jerry sought to set the case against the Laschers for trial while the appeal in the Day case was pending. He also recounts that in a day-long deposition, Jerry “shied away from every question.”
On March 21, 1984, this newspaper printed a “not for publication” opinion by Joan Dempsey Klein, presiding justice of Div. Three of this district’s Court of Appeal, granting a writ that compelled a stay of the action against the Laschers pending resolution of the Day appeal. Klein explained that “the success or failure of Rosenthal’s action against the Laschers is inextricably intertwined” with the outcome of that appeal since Jerry would be collaterally estopped from claiming the Laschers harmed him if the judgment in favor of Day were upheld.
On the page of the MetNews on which the opinion begins, a box appears containing this:
Jerome B. Rosenthal’s contentions in his action against attorney Edward Lascher and others were crystallized in a deposition of Rosenthal conducted by Roy G. Weatherup of the law firm of Haight, Dickson, Brown & Bonesteel. Here’s a portion:
“Q. Now, as I understand your second amended complaint, you believe that the settlement that was made with the Doris Day interests was adverse to you. Is that a fair representation of your complaint?
“A. Too mild for you, far too mild, therefore unfair.
“Q. Okay, will you explain to me how it was adverse?
“A. Oh, because it delayed and perhaps injured my chances, for which I had been spending my years of hope and life to have reversal on appeal.
“Q. Weren’t your rights to appeal preserved?
“A. No. Obviously nobody could match the skill, the ability, the prestigious handling of Mr. Lascher and so that’s what he was, my knight in shining armour and he ran away because he is a treacherous betrayer.”
Later in the deposition, Weatherup asked: “Had the defendants not withdrawn from representing you, what do you contend would have happened so as to avoid damages?”
Rosenthal answered:
“That’s too conjectural. I object on that ground. The possibilities are endless. They might have been hit by a streetcar, an airplane. They might have lost their practice, their heads. God knows what. That’s a goofy question, Roy, and I think you know it.”
In a declaration filed in opposition to pretrial motions by Lascher, Rosenthal said he had made clear to Lascher at the outset of the representation on appeal that he “depended and relied heavily, if not entirely, upon him in an effort to resurrect” his “professional life” which he said was “shattered” by the verdict in the Doris Day case. He revealed that during the decade preceding the lawsuit, his net income exceeded $100,000 a year, and that from 1976-81, his gross income plummeted to a figure below $8,000 a year.
Jerry was hardly impecunious, however. He settled his action against the insurers, based on their pay-offs to Day without his consent, for nearly $1 million.
After 11 years of litigation and two more Court of Appeal opinions, Jerry’s action against the Laschers was resolved. A Nov. 2, 1990 Court of Appeal opinion upheld summary judgment in favor of the defendants, granted by Los Angeles Superior Court Judge Dzintra Janavs.
Weatherup remembers being telephoned one day by an astonished lawyer who had just come out of a deposition. Representing the other side was Rosenthal. The reason for the astonishment was that Rosenthal had been disbarred.
As I mentioned in my last column on Uncle Jerry, he refused to recognize the validity of the 1987 disbarment, and continued practicing. The infirmity, as Jerry saw it, was that then-Chief Justice Malcolm Lucas had recused himself, yet signed the Sept. 2, 1987 order denying a rehearing.
On Feb. 18, 1988, a new order was issued, this time signed by Acting Chief Justice John Arguelles, spelling out that Jerry “was disbarred as of September 11, 1987,” the last date on which the court had jurisdiction to grant a rehearing.
Meanwhile, Rusnak Volkswagen, Inc. had moved to disqualify Jerry as opposing counsel in a case. On Feb. 19, 1988, the trial court granted the motion and imposed sanctions on Jerry in the amount of $1,500. Jerry appealed, arguing that his position that the disbarment was ineffective was “arguably meritorious.” The Court of Appeal, in an unpublished opinion by Presiding Justice Lester Wm. Roth (since deceased), declared that Jerry’s position “was wholly devoid of merit,” and the judgment was affirmed.
The last time he saw Jerry, Weatherup says, was in 1996. He recounts that Jerry was arguing a case before Div. One of this district’s Court of Appeal. When Jerry finished, he says, Acting Presiding Justice Reuben Ortega (since retired) advised opposing counsel that he had no need to respond.
I assume Weatherup is referring to a case brought by attorney Gary S. Lewis who had represented Jerry in an action (related to the Day case) that was settled in 1981. Under the settlement, Jerry received $205,000 in cash, as well as a lifetime annuity, payable quarterly in the amount of $12,500. My ex-uncle dickered with Lewis over his fee, and the two agreed on April 5, 1982, in writing, that Lewis would receive $1,000 per quarter and waive rights under prior contracts.
Jerry made payment each quarter through Oct. 31, 1990, then stopped paying. Lewis sued him. Jerry cross-complained against Lewis, seeking a refund of all amounts paid him to date. Jerry’s story—an implausible one—was that Lewis, who worked in the office of attorney Herb Hafif when he provided his services, had orally agreed that if Hafif did not waive his own fees, Jerry could recoup any $1,000 payments he had made to Lewis. Los Angeles Superior Court Judge David Yaffe granted summary judgment to Lewis.
The Court of Appeal, in an unpublished opinion by Ortega, affirmed. A supposed oral agreement can’t be asserted to refute the terms of a written agreement, the opinion says. It notes that Jerry knew at the time he entered into the April 5, 1982 agreement that Hafif wasn’t waiving his fees; more than six months before, Jerry had submitted his fee dispute with Hafif to arbitration.
(Hafif secured a $205,000 award which was affirmed on appeal.)
At the time Lewis sued Jerry, the disbarred lawyer no longer had an office. He did, however, have an apartment in Beverly Hills. But the papers he filed in the Lewis case and other cases did not bear the address of that abode. He wasn’t living there at the time.
He was in Central Jail.
Los Angeles Superior Court Judge Stephen O’Neil sent him there based on his refusal to accede to a commissioner’s orders that he answer questions at a debtor’s examination. O’Neil (since deceased) held that “[t]he Fifth Amendment privilege does not apply” at such proceedings.
The creditor seeking answers from Jerry was Los Angeles attorney Robert Nolan Conrad whom Jerry brought into his firm in 1975, then tried to cheat out of fees he had earned. A jury in February, 1990, awarded a total of $3.5 million to Conrad and to Harlan N. Green, a former partner in the firm.
Jerry was in confinement from April 8, 1991, to Nov. 1, 1993, steadfastly remaining silent as to the whereabouts of his assets. O’Neil ultimately released him on the basis of the Court of Appeal’s 1974 decision in In re Farr.
There, a reporter who was incarcerated for declining to reveal the identities of his confidential news sources was given the opportunity to institute a proceeding in Superior Court to show that his open-ended commitment under the coercive contempt statute had actually become punitive, thus limited by the five-day maximum provided for in the criminal contempt statute.
That case didn’t apply to Jerry’s situation. In Farr, the contemnor’s refusal to obey the order of Judge Charles H. Order (now dead) was founded on the sacred commandment to every reporter not to betray confidential news sources. The Court of Appeal’s ruling was restricted to situations “where disobedience of the [court] order is based upon an established articulated moral principle.” In defying judicial orders to reveal where his assets were tucked away, Jerry was not acting pursuant to any “established articulated moral principle,” but out of a base desire to frustrate efforts of Conrad to satisfy the judgment he had won.
O’Neil released Jerry in response to a petition for writ of habeas corpus filed by the Office of Public Defender. Though paying rent on his apartment while incarcerated, he was professing indigency.
A $167,238.14 judgment against Jerry, plus $37,066.03 in interest and costs, was entered in Los Angeles Superior Court on February 16, 1988, in favor of the assignee of the law firm of Cooper, Epstein & Hurewitz, based on unpaid attorney fees. On July 18, 1989, Div. Three of this district’s Court of Appeal, in an opinion by Justice H. Walter Croskey, affirmed. Also affirmed were two discovery sanctions totaling $27,901.
Croskey’s opinion is kicked off with these words:
“In this case, involving five separate appeals, we are presented with an incredibly obscene example of the defiance, subversion and abuse of the judicial system in general and the procedures for pretrial discovery in particular. In affirming a summary judgment and two trial court sanction orders, we write what should be the final chapter of the unsuccessful efforts of a disbarred lawyer to avoid paying fees for valuable legal services rendered to him. As two of the five appeals were frivolous and were clearly motivated by an intent to delay and harass the respondent and, in the process, imposed a significant burden on this court, we impose substantial sanctions.”
Those additional sanctions totaled $113,909, payable by Jerry to the law firm’s assignee, and $20,000 payable by him to the court.
The last of the Rosenthal cases was decided by the Court of Appeal for this district on Aug. 1, 2005. Div. Eight, in an opinion by Justice Laurence D. Rubin, affirmed a summary judgment granted by Los Angeles Superior Court Judge Irving S. Feffer in favor of Woodland Hills attorney Stanley P. Lieber. Jerry, at age 92, sued Lieber in 2003 for failure to pay him for his services as a paralegal. Lieber insisted that he never hired Jerry in that capacity. Lieber’s version was that he received a bill for services after Jerry referred a potential client to him and after Jerry had conferred with that person. Rubin found some of Jerry’s contentions to be “incoherent.”
Much of Jerry’s time and attention was devoted to challenging the disbarment order. He craved vindication, notwithstanding the “smoking gun” evidence against him.
He sought certiorari in the United States Supreme Court in the disbarment case. Denied.
In U.S. District Court, he sued the State Bar and the five justices and two pro tem justices of the Supreme Court who disbarred him. His action was dismissed, and he appealed. The Ninth U.S. Circuit Court of Appeals, in an opinion by Judge Robert R. Beezer, spurned various contentions, such as the asserted right of a lawyer facing disbarment to the same protections as a worker facing ouster from a union. The U.S. Supreme Court in Keller had analogized the State Bar to a union; the “analogy does not establish that the bar association is a labor union,” Beezer’s opinion says.
Jerry sought certiorari. Denied.
In a 45-page complaint filed in the Los Angeles Superior Court, Jerry sued the State Bar and attorneys working for it under the federal Racketeer Influenced and Corrupt Organizations Act (RICO) and pursuant to other theories. The Court of Appeal on March 11, 1991, affirmed orders of dismissal in an opinion by Justice Morio Fukuto of this district’s Div. Two (now retired).
The blot on Uncle Jerry’s escutcheon remains; it is a stain not destined to fade. His misdeeds are chronicled in the Official Reports, documents which will endure in paper-based volumes, as well as in electronic forms familiar to us now, and forms yet to be devised.
Copyright 2007, Metropolitan News Company