The more we owe you, the more you owe us

2005-10-11 17:33

Forgot to mention this gem in Source Lending’s lawsuit against my lawyer.

The damages, as stated here and in the Complaint, stem from continued litigation expense and potential liability for Mr. Seebach’s attempted class action lawsuit against Source. Far from being ‘vague and illusory’ as stated by Mr. Appelget, the damages can be measured merely by calculating trial costs and damages awarded to Mr. Seebach. These damages cannot be known until the litigation with Mr. Seebach ends; Source’s damage claims cannot be more specific until that time.

Translation: If we are liable for damages, we demand that your lawyer personally pay them.

If you were legally allowed to do things like this, or if the professional ethics of the Bar allowed them, no lawyer could file suit without facing a frivolous countersuit by the Defendant, seeking to create a conflict of interest.

Honestly, IMHO, this isn’t a question of dismissing the case; this is a case where I think law licenses should be pulled. Think about it. “If you recover damages for your client, we will demand that the court award us those damages, plus our own fees, out of your personal bank account.”

The whole basis here (and it was not pled in their original complaint) is the ludicrous claim that I sued Source, not because they were assholes, but because Mr. Appelget somehow revealed to me that, at an unknown future time, they would settle with Bob ELIDE and pay him money.

The fact is, my decision to sue was made when I found out that we had identified the senders of at least two of my dozens of unsolicited mortgage faxes. The other fact is, when Source filed frivolous counterclaims against ELIDE and accused him of “extortion”, I became convinced that they were genuinely bad actors, willfully subverting the legal system to try to escape the liability they face for their unlawful actions. This has been confirmed by their latest gimmick.

Frankly, I am shocked that such an argument could have made it into any document signed by a lawyer. This is a threat, pure and simple, and it is a personal threat made by a defendant against a plaintiff’s counsel; it can have no purpose but an attempt to create pressure to settle.

Well, fuck you, Source Lending. I work for a living, and if the cost of making you stop faxing is twenty thousand dollars in legal expenses to defend against your frivolous suits, I’ll pay it, and if the cost of dealing with this is appealing all the way up to the Supreme Court of the US, then I’ll pay that too. You can threaten all you want, and I will speak truth to your power, and we shall see what happens.

RULE 8.4 MISCONDUCT

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

[…]

© engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

A threat, however vaguely worded, attempting to coerce my lawyer into failing to represent me in accord with his duties under the Rules of Professional Conduct, certainly counts as “inducing” another to violate the Rules of Professional Conduct.

A lawsuit based on simply false claims about what I was told and when it was told to me, which presents baseless speculation as factual claims without even asking so much as a single question in discovery in either case, is “dishonesty”, “deceit”, and “misrepresentation”. (I do not believe it is fraud.)

A lawsuit against my lawyer clearly tying the damages sought to any liability or damages justly and lawfully awarded to me by another court can hardly be seen as anything but “conduct prejudicial to the administration of justice.

And just think. I have over a thousand junk faxes, and all this over two of them!

Peter Seebach

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Comments

  1. I’m not sure I understand what is so wacky about this lawsuit. First, your January 24, 2005 entry revealed a settlement agreement the day before you signed it. Signing a contract knowing that you have breached one of its terms violates your duty to negotiate in good faith, and to avoid actions which make contract terms moot without telling the other party. Besides your duties to care for contracts you plan to sign, the information is still on a website entirely in your control. Doesn’t that breach the agreement? Aren’t you still effectively telling people about the settlement today, when you could stop easily? One way or the other, signing an agreement knowing that you have already pre-empted a term important to the other side sounds a bit to me like saying you had your fingers crossed when you promised. So why should anyone believe you or your lawyer respected confidentiality in this case?

    Second, it seems to me that Source has as much right to bring this suit as you do to bring yours. If you decide that sending junk faxes is ethically wrong and prosecuting those who junk fax is a proper use of the court’s time, why shouldn’t someone else be free to determine that people who filch on their word deserve the same treatment? If Source is right about this, why should they pay for Mr. Carye’s silence if he doesn’t give it? Since it is a settlement, they haven't actually paid for junk faxes, it's a bargain that ends the dispute. It also seems like you're saying that (again, if Source is right) defendants have no rights against lawyers that begin litigation and then breach confidentiality agreements to begin more litigation. Suing the lawyer on the other side can't ALWAYS be unethical. The argument is essentially "since Source is wrong, their lawsuit is meritless." But the Courts can't know Source is wrong until the hear it out, right? Personally I think both these lawsuits sound like crap.

    — J · 2005-10-11 23:56 · #

  2. I did not breach any of the terms of the (Complex Capital mortgage) settlement in question, which applied only to disclosure after the settlement date. We told the guy it was a stupid agreement. He didn't really care, he knew people already knew (so far as I can tell), I think he just wanted confidentiality because the word sounds cool.

    If it makes you feel any better, Complex Capital breached that settlement anyway, and after their lawyer withdrew, we ended up having to go to court to collect.

    Which is to say, at this point, there is really not a settlement agreement, but simply a judgment and an injunction.

    As to why people should believe we respected confidentiality? First, as you should be well aware (you do have access to the files, right?), I filed my suit before Source negotiated with Carye. It is simply impossible for me to have made my decision based on any information which was confidential.

    As to whether or not Source has the right to bring this suit: They could maybe justify bringing such a suit after this case is resolved, or even pleading this as a counterclaim. What they cannot ethically do is separately sue my lawyer and make it clear that the suit against him will go away if my suit goes away on terms favorable to Source. That's a straight up multiple-violation of the Rules of Professional Conduct.

    Source had Mr. Carye's silence until they breached the confidentiality agreement. Before that, the sum total of my knowledge was that Carye had settled, and that Source's counsel was insisting that I give them blanket indemnity to settle. (Maybe this was before your time.)

    Anyway, check the timeline again. I sued long before any confidentiality was being discussed. No breach of confidentiality occurred until Source disclosed the settlement amount. This is the key reason for which their whole thing is bunk. (Well, that, and their complete change of arguments between their initial complaint and their memorandum in opposition.)

    Discovery could have revealed the timeline easily enough. Honestly, their own records should have made it pretty clear that I knew about them long before they started any serious negotiations with Bob.

    Anyway, my lawsuit may "sound like crap" to you, but the fact is, sending junk faxes is illegal, and when I am able to identify senders, I generally sue them. This is the tool Congress used to try to eliminate junk faxes, and it is a tool that only works if we use it.

    Have fun, and we'll be seeing you around!

    seebs · 2005-10-12 01:03 · #

  3. Aahhh . . . Complex Capitol . . .

    The folks who gave me an NSF settlement check to deposit in my trust account.

    — seebs_lawyer · 2005-10-12 08:08 · #

 
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