Once upon a time, it took ten years for a strong-willed lady and her tenacious attorney to prevail against the woman’s former lawyers over their claims of unpaid fees. The strong-willed lady had signed a lawyer hiring agreement (retainer agreement) with the law firm without understanding the terms,  or knowing that part of the agreement was unethical and could hurt her financially. Although the law firm’s claims against her were unfounded, they stuck to her like sticky glue all because she had signed the unethical attorney hiring (retainer) agreement. Her former lawyers felt so emboldened in their lust for the dollar that they unleashed all their legal might and viciousness against her, believing she would become too worn out to keep up the legal fight and just give up. They figured they would be able collect their unethical fees with interest on top of it. But the strong-willed lady and her tenacious lawyer did not give up. They knew that in actuality she was the one who had been seriously harmed by their incompetence and negligence. It took a trial and four appeals. (The strong-willed lady’s tenacious lawyer was even unfairly financially sanctioned by a judge all because the tenacious lawyer courageously stuck up for the woman’s claims). But eventually the strong-willed lady and her tenacious lawyer prevailed on all counts (and even the sanction against the tenacious lawyer was overturned on appeal.)
I think back a lot about that case. I was the strong-willed lady’s lawyer.

For any lawyer, it is pretty easy to understand the legal jargon in a lawyer hiring agreement because that’s what we are trained to do, of course.  But how can non-lawyers learn what they need to know to avoid having to spend their resources and a decade in court to free themselves from unethical one-sided lawyer retainer agreements and the harms they bring? This is a vexing problem. But not insurmountable. I would venture to wager (if I were a betting woman) that any non-lawyer professional or business law student can learn to spot the top 5 most dangerous provisions in a lawyer hiring agreement in roughly about the time it takes to calmly eat a a bowl of popcorn. I am certain of this because I have tested it out. I use an air-popper, without the need for oil or butter. I would not want to get any more grease on some of these attorney hiring agreements when soooooo many are already oily to begin with.

In his ongoing fraud trial, Mr. Donald J. Trump does not deny that his financial statements were falsified or that they made him look much richer than he was (and is).  The banks provided hundreds of millions of dollars in loans to Mr. Trump for real estate projects based on fraud. But Mr. Trump persists in his view that he should not be held accountable because of the disclaimer clauses in the financial statements.  He should not have relied on the disclaimers for legal protection. It was bad judgment on his part to think that he would always be above the law.

As I explained in an earlier blog post, Mr. Trump’s accountants “compiled” the financial information for Mr. Trump and did not check it for accuracy. As long as his accounting firm did not audit the information, they offer no opinion as to whether the financial statements are accurate or not — so the accountants are off the hook for fraud.  For example, at Trump Park Avenue, 502 Park Avenue,  Mr. Trump and his company owned 12 rent stabilized units (where price increases are capped). His company valued the rent stabilized apartments at  $50 million —  not  $750,000, their actual value, as reported in the New York Times. The accountants merely accepted what Mr. Trump told them.

Justice Arthur F. Engoron read the disclaimer clause in Mr. Trump’s financial statements and he saw the following:
“Donald J. Trump is responsible for the preparation and fair preparation of the financial statement in accordance with accounting principles generally accepted in the United States of America and for designing, implementing, and maintaining internal control relevant to the preparation and fair presentation of the financial statement.”
In other words, Mr. Trump’s own disclaimer clause sunk his defense.
On November 6, 2023, after Justice Engoron ruled that Mr. Trump bears the responsibility for the fraudulent statements, Mr. Trump was apparently desperate and pulled out a piece of paper in court with the disclaimer clause on it and asked Justice Engoron if he would like to see it, according to published news reports. Justice Engoron declined.
The fraud case against Mr. Trump is civil and not criminal which means that he is not being accused of a crime. But the civil case does threaten his business empire because he could be barred from doing business in New York and be forced to sell his businesses.
As I have seen in my investigations and legal practice, a woman in divorce may shell out thousands of dollars to forensic accountants in the hopes of proving her fair share of the marital holdings —all in vain because financial fraud by lying spouses is often treated lightly. Maybe Mr. Trump, having been divorced two times himself, believed that Justice Engoron’s court would operate like so many divorce courts do, and turn a blind eye to the fraud, allowing him to get away with it. But Justice Engoron is not a divorce court judge, and as he wrote, the state has an interest in “guaranteeing a marketplace that adheres to the standards of fairness. . .”

Former President Donald Trump’s accounting firm, Mazars USA LLP now reveals that the last 10 years of the financial statements it created for former President Trump are unreliable, according to published news reports. These same financial statements were used to show banks, investment companies and real estate firms how wealthy Trump appeared — wealthy enough to cover loans to purchase certain expensive properties, for example. In other words, the financial statements created the illusion of Trump’s magnitude of wealth.
Why isn’t this fraud on Mazars’ part you may ask?
Turns outs an accounting firm can find a way out of inaccuracies in the numbers because of one word in the fine print contained in the financial statement: DISCLAIMER. It is an acknowledgement that the firm did not audit or authenticate the numbers in the documents used to arrive at the Trump’s net worth.
It turns out that accounting firms are not legally required to check the figures one provides to them as long as the firm uses the words “compile.”  Compile means the firm gathered the figures but did not check the figures to make sure they are accurate. As long as the firm does not use the word “audit” the firm can find a way out of vouching for the accuracy of a financial statement.
When I taught Financial Fraud in Divorce at John Jay College of Criminal Justice I passed around some accounting firm disclaimers to show how accounting firms legally get around having to be held accountable to avoid accusations of fraud. For example, in one real divorce case I handled, the husband’s accounting firm set his net worth statement at $20 million — the purpose was to obtain a loan. But on another net worth statement for the husband’s divorce case, he stated his net worth was under $5 million. The discrepancy between the husband’s two financial statements were shown to the Court, but the judge did not care. The husband was not held accountable. And when I looked at the fine print in the accounting firm’s financial statement for the husband, sure enough, I found that word “Disclaimer. “ All the firm did was gather and organize the numbers for the bank — “compile” the figures for the husband. The firm did not look behind the husband’s numbers to see whether the numbers were accurate. Was the husband worth $20 million as he contended to the bank? Or was he worth under $5 million, as he contended in his sworn-to papers to the divorce court?
That’s another story. . . .
It’s interesting to think that some of Mazars’ unreliable financial statements for Trump were made during the time he was President — through 2020 — according to published reports. Stay tuned for more developments. . .

February 4, 2022: UPDATE TO THE STORY BELOW

CNN reports: Michael Avenatti was convicted Friday of wire fraud and aggravated identity theft for stealing from Stormy Daniels.

 This morning, jury deliberations took another turn in the criminal fraud trial of Michael Avenatti, former high profile attorney of Stephanie Clifford, a pornographic actor known by her stage name, Stormy Daniels. One juror had not been looking at the evidence, according to the jury foreman who wrote to the judge the juror “is acting on a feeling,” as quoted in the Washington Post. Avenatti immediately called for a mistrial — but Manhattan Federal Judge Jesse Furman rejected the request and told the jury it must use evidence to decide whether Avenatti is guilty or innocent, according to published news reports.

Avenatti allegedly diverted nearly $300,000 from Daniels to his bank account. The money he allegedly swindled was from a book advance for Daniel’s tell-all memoir, Full Disclosure that detailed her hush-agreement with Donald Trump, on the eve of his election, after an alleged tryst with him.

 The government’s case against Avenatti presented evidence that he had allegedly sent a phony letter under Daniel’s name — forging her signature — to her agent. It directed the agent to send all future payments she was owed under the book contract to Avenatti’s bank account. Daniels did not authorize the letter, and she was not aware of it. Avenatti then spent the money on personal expenses and for his firm’s payroll, and allegedly lied to Daniels to cover up his scheme, that the publisher was late in releasing the funds.

During the trial, Avenatti, representing himself, did not take the witness stand but tried to discredit Daniels by asking her if she did porn, and about her beliefs about the paranormal. He also sought to minimize his actions, characterizing his alleged crimes as nothing more than a legal fee dispute between him and his former client, according to published reports.

Avenatti must be getting worried however, because this was the second time in two days that he called for a mistrial.

Earlier today, Avenatti wrote the judge a letter citing the “outrageous development” that “Ms. Daniels gave an extensive interview to CNN (on TV and radio) . . .stating that the jury is showing prejudice to Ms. Daniels because of her beliefs in the paranormal.”

Judge Furman rejected Avenatti’s request for a mistrial, calling his letter-motion “beyond frivolous” and citing Daniel’s first amendment rights.

The Order states in part “Ms. Daniels is not a party to this case and has a right to speak her mind. Defendant provides zero basis to believe that anyone on the jury is even aware of the interview (the Court was unaware of it until Defendant’s letter), let alone disregarded the Court’s repeated instructions to avoid any news or information related to the case. The motion is DENIED. SO ORDERED.” (Signed by Judge Jesse M. Furman on 2/4/2022

It might not be lost on the judge that Avenatti rose to fame making the rounds on cable TV  to promote Stormy Daniel’s case against President Trump. He appeared to be a hero, confronting the fascistic Strong Man. But Avenatti disappeared from the airwaves in 2020 when a California jury found him guilty in the Nike extortion case.

So what did Stormy Daniels say this morning on CNN that prompted her former lawyer to call for a mistrial? Here’s an excerpt of Daniels, in the CNN transcript: . . . “[It’s] just crazy to me that he created all of these side shows and created doubt. Like, he actually mentioned while I was on the stand, you’re an actress, you did porn. Like, you’re — you’re used to rehearsing lines and faking things. Like, really? OK.”

Daniels went on: . . . .”[At] the end of the day, it’s [his conviction] not going to get me my money back. He doesn’t have it. I just hope that justice is served and it creates, you know, that he’s punished for his crimes. I’m going to leave that to the judge because I honestly don’t know. I’m way more afraid that if he’s found not guilty, this sets a precedent that is absolutely terrifying for anybody in the adult film business, and anybody that works in the paranormal field or even does paranormal as a hobby. Like, basically is free license to commit crimes against us and get away with it. And that’s really terrifying. And if — whether he’s found guilty or not, I intend to use my voice to try to rectify that for friends of mine and colleagues of mine.”

Stay tuned for the verdict. . . .

A recent New York Times article “Britney Spears’s Courtroom Plea Spurs Questions for Her Lawyer” shows how even famous people with disabilities have trouble accessing their rights in court, and make them vulnerable to ruthless financial and legal exploitation. I’m really shocked at the way she’s been controlled and oppressed through the conservatorship — and not told by her own lawyer that she had the right to petition the court to end it. An ADA Disability Advocate for her in court would have stopped this legal abuse. People with invisible disabilities — such as psychological disabilities, like PTSD, need Disability Advocates: they use the powerful federal ADA law to ensure people with invisible disabilities obtain equal access to justice in the courts. The Americans with Disabilities Act of 1990, as Amended (ADAAA) is a powerful law that can be a real game changer for people with invisible disabilities in court. I know because I’ve been using the ADA nationwide, fighting on the forefront to advocate for people with “invisible” disabilities in the courts.

I’m expecting a package from Amazon, and I can’t help feeling guilty about the Amazon employees I am apparently exploiting. The Amazon driver who is bringing my new gym pants, and all the other drivers on long routes, will have to keep peeing in bottles because there are no accommodations for them on their drives. And I did nothing to help Amazon employees in their fight for unionization. They fell short of required votes in Alabama yesterday, to unionize.

At first Amazon denied and then issued this apology: “We know that drivers can and do have trouble finding restrooms because of traffic or sometimes rural routes, and this has been especially the case during Covid when many public restrooms have been closed.”(See Our Recent Response to Representative Pocan April 2, 2021 https://www.aboutamazon.com/news/policy-news-views/our-recent-response-to-representative-pocanI).

Peeing in a bottle is not the only problem for my Amazon delivery driver. He may be being spied on by his Amazon bosses. Recently, Amazon revealed the installation and use monitoring cameras in company vehicles — to “improve driver behavior.” There are four cameras in every van. The cameras use artificial intelligence (AI) and record the drivers according to certain triggers, such as when the driver makes a hard stop. You can see how it works here: https://vimeo.com/504570835/e80ee265bc.

In March, five senators wrote a letter to Amazon CEO Jeff Bezos raising concern about the AI-spy cameras in some of its delivery vans. (Read the letter here: https://www.markey.senate.gov/imo/media/doc/(3-3-21)%202%20Senate%20Letter%20-%20Amazon%20Driver%20Video%203-3-21.pdf

The Amazon drivers aren’t the only ones being monitored either. The Amazon Alabama warehouse workers who initiated the drive to unionize complained aboutAmazon management spying on them. An entire infrastructure has apparently been developed to spy on Amazon employees, from the drivers to the plant-workers. It does not stop there, however.

I admit there is self-interest on my part to support the Amazon workers because I know that we are also subject to Amazon’s vast eavesdropping systems. Amazon’s virtual assistant Alexa through its microphone-equipped Echo speakers, records us all. Also, Amazon CEO Jeff Bezos, richest man in the world, has the power through his company to set up workers to overhear what you say to Alexa. Every time you ask a question of Alexa, Amazon’s virtual assistant, there are real live humans on the other end, somewhere in the world, listening to you, gathering information about you. It records you too. You can go back and hear years of what you said, as the author of a Washington Post article found out, to his shock:” I listened to four years of my Alexa archive and found thousands of fragments of my life: spaghetti-timer requests, joking houseguests and random snippets of “Downton Abbey.” There were even sensitive conversations that somehow triggered Alexa’s “wake word” to start recording, including my family discussing medication and a friend conducting a business deal.” (See https://www.washingtonpost.com/technology/2019/05/06/alexa-has-been-eavesdropping-you-this-whole-time/)

The next time Amazon workers try unionizing, maybe we should help them. In fact, go to Alexa right now and tell them!

Have you signed a fee contract with an attorney? Do you know that you are losing your rights once you sign this agreement?

Attorney Fee Contracts are Written to Protect Attorneys Not Clients

An attorney fee contract sets forth the provisions for retaining the lawyer’s services. But a lawyer does not write it to protect your rights. A lawyer writes this agreement to lock you into terms favorable to the attorney.  Attorney fee agreements are tricky! They contain traps for the unwary. Why? Because they are difficult to understand legally speaking.  These type of agreements are governed by formal contract law interpretation and  “agency law.” How many of you are versed in that?

Let’s talk a little more about these types of agreements to see just how tricky they can be. 

The Wording May Waive the Client’s Right to Make Important Decisions About His or Her Own Case

The agreement’s wording might give your attorney vast authority to take any actions on your behalf. This actually means you are giving up your right to decide important matters on your case. How can this work against you? You may not know what you have given up.

Consider the case of a taxi driver abused by a rogue police officer. The client signed up with an attorney to handle his case. His lawyer sued the city’s police department and police officer for use of excessive force and violation of his client’s civil rights. He had numerous claims.  The client’s lawyer did not communicate with him very often, however. When the client did not hear from the attorney for several months, he came to find out that his attorney had agreed to voluntarily drop nearly all of the claims against the city and police officer. In fact, the taxi driver’s lawsuit was reduced to only one claim — and this was not a very strong claim under the law and it assured the client would lose the case. When the client realized what happened, he later brought a lawsuit to try and get his claims restored. But he was out of luck. The court ruled against him on the grounds that the lawyer had “apparent authority” to take any action on the client’s behalf. It was the retainer agreement that gave the attorney that authority.

Wait a minute, you say. Wouldn’t the attorney get in trouble for not communicating with the client for several months? Maybe — but only as an “ethics” matter — which will take you down another legal road into legal Siberia, stretched out over several years.  So how can you protect yourself?

Don’t Be Stuck With Unfavorable Provisions in an Attorney Fee Agreement

You have the choice to negotiate the fee agreement with your attorney. You don’t have to be locked-in to provisions you don’t agree with.  Although it is traditional for the attorney to draft the fee agreement, (also known as an engagement letter or retainer agreement) by law they are like any contract — negotiable. 

You can negotiate to add, modify, delete terms that might not be in your best interest. For example, you may want a specific lawyer to represent you at hearings or on certain issues. 

You can change the terms on your behalf.  If negotiating the agreement with your attorney seems intimidating, we can help. We offer professional legal services to review these agreements. We can help coach you, and even negotiate terms. Don’t give up your power! Learn to avoid the traps. Call us first. See AttorneyWinner.com to set up a consultation.

Imagine you are a female criminal defense lawyer just trying to do your job in court to defend poor people accused of crimes,  and the judge you are appearing before takes you aside, and makes comments to you such as calling you “a hard one” and “Your parents didn’t spank you enough.” What if at other times while he was hearing cases in which you were representing people accused of crimes,  he would call you to the bench  to ask if  you were mad at him? What if he did this between 10 and 15 times?

Would you just take it in silently and absorb it as an occupational hazard of being female?  This was the experience of attorney Deputy Public Defender Della-Piana, who was a witness in a judicial ethics investigation against  Contra Costa County Superior Court judge, John Laettner when his conduct  came under scrutiny by judicial ethics investigators in California. DPD Della-Piana said she could predict what was coming, when he usually ruled against her. She stated:

“But usually when he ruled against me, I would sort of know that that was coming next. And he would want to debrief, almost as if we were having like a relationship fight or something . . . Like a relationship talk. And he wanted reassurance that I wasn’t mad at him. Or he would often comment on my facial expressions, the facial expressions I would make during the hearing. ‘Say, you know, I noticed that you were really happy when I said this.’ Or ‘you didn’t like when I said this. I could tell from your face,’ and comment how well he knew and could read my facial expressions and how that affected him essentially.”

A witness to all of thie goings-on between the judge and professionals in his courtroom was Jennifer Michel, Judge Laettner’s court reporter from March 2006 to June 2017. She endured his comments calling her “pretty” and “hot” and all she saw, before she finally quit.

Michel testified that “she quit working in Judge Laettner’s department in 2017 because she “could not take the years of unwelcome and inappropriate comments toward [herself] and others,” his “favoritism towards tall, skinny blondes, young females [and] petite Asian women,” and his bias against “heavyset, pudgy, dark-haired public defenders and ones that would argue their case too strenuously in front of him.”   [Judge] Laettner’s inappropriate comments based on the physical appearance of female attorneys or litigants created an environment that resulted in Michel changing her court reporting assignment,” according to the 76-page decision and order of the State of California’s Commission on Judicial Performance that on November 6, 2019,  removed Judge John T. Laettner  from the bench.  

Here are some other excerpts from the findings, involving the judge’s  treatment of Deputy Public Defender Nicole Herron:

“Between 2014 and 2017, Judge Laettner repeatedly told DPD NicoleHerron that she looked like an actress named Caroline Catz, who appeared on the television show, “Doc Martin.” DPD Herron testified that Judge Laettner referred to Catz and the show about 12 to 20 times during DPD Herron’s weekly appearances in his department, often saying, “I saw you on TV last night.”

DPD Herron testified that, when Judge Laettner mentioned the show, he seemed “overly excited,” and that his comments felt “creepy” to her. The comments made her uncomfortable because they were about her physical appearance and were made in open court, where other people could hear them, including clients who later commented to her about the judge’s statements.

The Order also continued:

“Judge Laettner admits that, in 2013, while presiding over a domestic violence case, in response to a defendant explaining what he learned from participating in a domestic violence treatment program, the judge said, “On a lighter note, I can take judicial notice that women can drive you crazy.” DPD Wills-Pierce, who was representing the male defendant, believed the statement was demeaning and undermined her ability to represent clients in the judge’s courtroom. When she explained this to Judge Laettner, he responded that his wife “would be really upset if she heard about this” and, “You know, a judge could get in trouble for something like this.” DPD Wills-Pierce memorialized this meeting at the time in an email to her supervisor.”

“Although Judge Laettner testified that he immediately recognized that the comment was a mistake and apologized for it, it was not until DPD Wills-Pierce confronted him several days after the comment that he expressed contrition. He acknowledged to his supervising judge, Judge Barry Goode, that he made the remark and said it was a “bone-headed statement.” Judge Laettner also testified that he and Judge Goode “had a chuckle” about it. The masters found it notable that this conversation occurred as a result of Judge Goode contacting Judge Laettner ostensibly as a result of a complaint.

Neither party objects to these factual findings.”

The Judicial Commission stated in its Order that the decision to remove Judge Laettner from the bench was done in part because of his “inability to fully accept responsibility for his behavior.” They wrote:

[It] was evident at his appearance before the commission on October 2, 2019. While he acknowledged generally the impropriety of his comments in Counts Two, Four and Five, he continued to deny responsibility for the significant acts of misconduct in Counts One and Three, and to blame others. Judge Laettner argued that the special masters were incorrect in each of the multiple instances they found his explanations or statements to be not credible, and he denied that he might have been mistaken as to any instance, even after hearing testimony from other individuals that was inconsistent with what he said was his recollection. When asked why he thought the special masters found some of his testimony to be not credible, he responded that they “weren’t given the whole story.” He claimed that he had “100 other witnesses lined up and ready to go,” with “testimony that corroborated [him],” but that the masters did not allow their testimony. This assertion seems disingenuous in light of what actually occurred during this proceeding.

The Commission on Judicial Performance concluded that “In light of all of the foregoing factors—but particularly the requirement that judges must, at a minimum, be honest and have integrity—we conclude that removal from the bench is warranted.”

As stated in Law.com, the Commission’s vote to remove Laettner from office was not unanimous. Three of the 11 commissioners—Justice William Dato of the Fourth District Court of Appeal, Los Angeles County Superior Court Judge Lisa Lench and public members Richard Simpson—would have chosen to publicly censure Laettner. (Censure means publicly reprimand him.)

The judge still has an opportunity to petition the California Supreme Court for review.

You can read the entire Decision and Order at the link below:

https://cjp.ca.gov/wp-content/uploads/sites/40/2019/11/Laettner_DO_Removal_11-06-19.pdf

You can read the Law.com story at: https://www.law.com/therecorder/2019/11/06/contra-costa-judge-ordered-removed-from-office-for-significant-misconduct/