Government Lies, Corruption and Mismanagement
California Federal Judge Sanctions Law Firm For Lying in a Special Education Case
Fresno law firm Lozano Smith billed the school district $500,000 for a case that could have been settled years ago for $8,000. How this makes sense is beyond us. Betsy Combier
Lying, obstruction cited in sanctions for law firm
Fresno's Lozano Smith, attorney ordered to train in ethics.
By Erin Kennedy / The Fresno Bee, January 18, 2005
U.S. District Court Ruling
Fresno law firm Lozano Smith and its attorney Elaine Yama have been sanctioned by a federal judge for lying, misrepresenting law and facts, and intentionally dragging out a case involving a school district and a special education student.
U.S. District Court Judge Oliver Wanger fined the law firm, Yama and Bret Harte Union High School District in Calaveras County $5,000 each. He also ordered Yama to take 20 hours of ethics courses and Lozano Smith to conduct ethics training for all of its attorneys and shareholders.
Lozano Smith is one of the largest education law firms in the state and the main legal representation for Fresno Unified, Clovis Unified and many other local school districts.
Mike Smith, the firm's founding partner, could not be reached Monday, and Yama declined to comment when reached at home.
Former State Bar Association President Anthony P. Capozzi of Fresno said the sanctions were "very unusual." Normally, it is the Bar Association, not a federal judge, that would ask an attorney in such circumstances to take ethics courses, he said.
Wanger's 83-page decision, dated Wednesday, has been circulating by e-mail among special education advocates and parents.
"I got it 23 times in my e-mail inbox over the weekend," said Deborah Johnson, president of Fresno Unified's PTA and its Community Advisory Committee on special education.
Johnson said the sanctions might help members of Fresno Unified's special education advisory committee, which was disbanded this summer by district trustees on the advice of a Lozano Smith attorney. Parents in the group have filed a state complaint calling the action illegal under state education codes.
Fresno Unified board President Luisa Medina said she intended to review Wanger's decision with other trustees and the superintendent. "It troubles me. ... It is the judge's statements about 'misstatements of the law and bad faith' that are bothersome."
Wanger wrote that Yama's behavior in court "cannot be interpreted as anything other than a bad-faith attempt to mislead the court, obscure the real facts of the case, to obstruct and/or harass the plaintiff ... either to wear down the plaintiff or to win a victory that was clearly unjustified by either the facts or the law."
The judge elaborated on Yama's actions: "Her presentation was carefully constructed to omit or minimize adverse facts. Portions of transcripts were cited out of context to support made-up facts. ... She was reckless. She systematically distorted the record and repeatedly ignored plaintiff's objections and warnings that she was doing so."
He pointed out that Yama had been practicing for seven years - three of them in special education law at a firm that billed itself as a specialist in that area.
Wanger found that Yama was not the only one to blame, since three attorneys had signed "misleading pleadings" in the case and had actively worked on it, including Mike Smith, main counsel to Fresno Unified.
Wanger wrote, "While isolated errors or misstatements might be excused, given the size of the record, the sheer volume of misstatements ... [the] only reasonable inference that can be drawn is that Ms. Yama and her law firm intended to obstruct at every step and stand education law on its head."
Wanger noted that Lozano Smith characterizes itself "as a recognized leader" and "major firm" in education law and conducts training for attorneys and school administrators on special education legal issues.
"It can only be hoped," Wanger wrote, "that these practices are not the standard mode of operation for Lozano Smith attorneys due to their potential to materially harm other special education plaintiffs."
Maureen Graves, the Orange County attorney who fought Lozano Smith in court, estimated that the Bret Harte school district, east of Stockton, spent nearly $500,000 on a case that she once had been willing to settle for $8,000.
Graves, who works alone out of her garage, took the case of special education student Robert Moser for no fee because she thought it would be easily won or settled. She was shocked that it ended up in federal court and took more than seven years of legal wrangling.
Moser and his parents requested a hearing in 1997 because they felt Bret Harte district ignored the high school student's medical condition and failed to properly assess his learning difficulties. The case was lost at an administrative hearing and appealed to federal court.
The now 23-year-old graduate has won tutoring services and vocational assessments and counseling from his old school district.
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Moser v. Bret Hart SE CA Counsel Lawfirm / CIV-F-99-6273 OWW SMS. ORDER RE: SANCTIONS FOR ATTORNEY'S VIOLATIONS OF DUTY OF CANDOR AND NOT TO IMPEDE, OBSTRUCT, OR TO VEXATIOUSLY MULTIPLY PROCEEDINGS
WHY is this case important?
This is a very important federal District Court case. It is a sanction order outlining the outrageous conduct of the school district's special education lead attorney, the attorney's law firm, and the school district in a case appealed by plaintiff parents to overturn a defective California special education hearing officer's decision in the school district's favor.
On appeal of the original hearing officer's final order, the parents' attorney, Maureen Graves, moved for a De Novo hearing on the facts, claiming that deference ordinarily shown to the hearing officer's findings was inappropriate because of substantial errors in law regarding due process and the failure of the Bret Harte School District to observe the substantive IDEA rights of the student and parents. Depending upon the facts in each such case, when there is a De Novo hearing, granted by the court, the case basically begins "from scratch" with the administrative and hearing record, witness testimony as well as the hearing officer's findings and decision, are all heard anew.
After prevailing in that IDEA appeal, the parents' attorney filed this action requesting sanction against opposing counsel and the school district. In this particular case, the parents' attorney had moved for summary judgment in the IDEA based partially on the misrepresentation of facts and the law, frivolous objections, bad faith, and intentional obstruction of case's resolution by the school district, its counsel, the lead attorney, and the lead attorney's law firm, causing the Court and parents' counsel unnecessary delay and expense.
Here the integrity of the legal process, respect for the court, and ethics of counsel and client behaving badly are at the core of the order. There aren't many such separate sanction hearings and orders. Since this case was decided by a district court in the ninth US Circuit, it has considerable weight, even though it is the decision of just one federal judge. The reason for its weight is the special attention the judge paid to its promulgation and publication. The majority of federal District Court orders are unpublished. Based on the Court's strong feelings on the issue of school district counsel misconduct, this order will find its way into the US reporter system. The original summary judgment order in the special education case itself, apart from this sanction order, may or may not be published.
Special note: The lead special education counsel for the school district was fired by her law firm.
In light of the detail gone into in the order, parent attorneys appealing adverse state complaint or due process hearing orders may wish to obtain the pleadings by both sides that were the basis of this order. They may be published, in the future, on special education web sites such as those maintained by the Council of Parent Attorneys and Advocates, or Pete Wright, at Wrightslaw.com.
Because of the strong political connection between the law firm, Lozano Smith, and LRP, the publisher of the IDELR, the major special education reporter, a struggle may arise regarding the publication of this sanction order in that reporter. OPU's website may be the first and one of the few public resources on which this order may be readily found by members of the bar as well as the general public.
Who could have guessed?
School district pleads ignorance after judge sanctions contract attorneys and orders them to attend ethics trainingBy Joe Piasecki, Pasadena Weekly
In what is being described as a highly unusual ruling, a federal judge last week sanctioned one of the largest law firms in the state, Lozano Smith - contract attorneys for the Pasadena Unified School District - for lying, obstructing the law and intentionally dragging out a case involving a special education student.
The judgment orders all Lozano Smith attorneys and shareholders to undergo ethics training. The judge also fined the firm, the school district involved and the lead attorney $5,000 each.
Hired in 2001 by Superintendent Percy Clark, Lozano Smith is the firm the PUSD uses for collective bargaining agreements, some matters involving special education students and responses to intricate state Public Records Act requests.
When contacted Tuesday, district spokesman Erik Nasarenko said the Weekly's questions were the first he had heard of the matter, which by that time had been reported in the Fresno Bee and had been discussed on district watchdog Rene Amy's Greatschools listserve.
Since then, Associated Press and the Sacramento Bee have published reports about the case.
Representatives of Lozano Smith did not return calls by presstime Wednesday.
Nasarenko expressed caution in rushing to judgment about the firm based on news reports.
"We will go ahead and speak to Lozano Smith and review the judge's order and, on the basis of the written and verbal material, go from there," said Nasarenko. "But I'm not going to comment on a newspaper article without first doing due diligence."
Nasarenko was unable to provide a list of current district cases involving Lozano Smith.
The case that prompted sanctions against the firm involved a special education student whose parents claimed the Bret Harte School District in Calaveras County had failed to properly assess their son, a special education student with learning disabilities.
The case dragged on seven years at a cost to that district of about $500,000, according to published reports.
"The only reasonable inference that can be drawn," wrote US District Court Judge Oliver Wanger in his decision against the firm and its lead attorney in the case, Elaine Yama, "is that Ms. Yama and her law firm intended to obstruct at every step and stand education law on its head."
Members of the law firm, including founding partner Mike Smith, were sanctioned because Smith and others had signed court documents that Wanger felt were meant to deceive the court.
"There is no way to interpret Lozano Smith's submissions of multiple misleading pleading under the signature of no less than three attorneys as anything other than a bad-faith attempt to mislead the court about the facts and the law," Wanger wrote.
Edethics.org congratulates the judicial system and judge for sanctioning Lorenzo Smith