TORT ABORT

Finkel fired off a complaint to the State Bar, which regulates attorney conduct, asking for an investigation of Jakubczyk.

The Bar told him it would wait until Jakubczyk's appeal of the sanctions had been decided before taking any action. The Bar would wait a long time. It is still waiting.

More than two years later, the Arizona Court of Appeals reversed the Rule 11 sanctions assessed against John J. Jakubczyk. It is a ruling that should gladden the hearts of third-rate personal-injury attorneys across Arizona.

The appeals court said the mere "possibility" that Finkel had caused injury to the patient, as expressed in an affidavit written by Dr. McMillan, was enough proof of causation for Jakubczyk to have reasonably filed a malpractice lawsuit.

That ruling did not, of course, revive the malpractice lawsuit Jakubczyk had filed. It stayed dead as a doornail. And the appeals court didn't exactly sing praises about Jakubczyk's conduct, either.

The court noted that, from its reading of the Superior Court record, it seemed possible that Jakubczyk had violated standards of attorney conduct in all sorts of ways. For example, over the seven months the suit was pending, he never bothered to obtain records of the patient's "pertinent medical history"; in fact, he did not even have her undergo a physical exam, the court said.

But because the trial judge had not ruled specifically on those allegations, the appellate court said it had "no opinion" on whether other sanctions against Jakubczyk might have been appropriate.

The bottom line: The sanctions were dropped. Jakubczyk was officially, ethically pure.

"That was a case where the defense attorney just did a good job of defeating me," Jakubczyk says now. "They did a good job. They beat me. They won the case."

And what about the sanctions?
"Frankly, I'm not going to comment on how that all happened. It's behind me," he says. "Let's just say I was the lawyer on the case. I lost the case."

Although clearly upset and puzzled by the appeals-court ruling, Langerman, Finkel's attorney, chooses her words carefully before commenting. "There are many circumstances," Langerman says slowly, "where lawsuits are brought by litigants who are walking extremely close or on top of the line over which conduct would be sanctionable.

"All systems have loopholes," she says.
The State Bar isn't exactly working day and night to sew up this particular loophole. In fact, Finkel says the Bar has notified him that it will not investigate Jakubczyk's behavior in the case.

Harriet Turney, chief Bar counsel, would not confirm that, saying she is prohibited from commenting on specific complaints unless the Bar decides disciplinary action is warranted.

Turney did, however, agree to explain the Bar's discipline process.
Essentially, she says, unless someone asks a judge to assess legal sanctions against an attorney for violating ethics rules; unless the judge actually assesses those sanctions; and until those sanctions are upheld on appeal--unless and until all that happens, the Bar has no grounds to undertake disciplinary action against an attorney who engaged in conduct comparable to Jakubczyk's.

Later, when pressed for a bit more explanation, Turney puts it another way.

"The ethical rules for lawyers are minimum standards," she says. "So there are a lot of things that might not fit with your moral code or my moral code, that might not be violations of the ethics code of conduct."

Finkel does not see the situation in those terms. After the appeals court reversed the sanctions against Jakubczyk, the doctor shot off a letter of complaint to Turney. He apparently was not aware of her vision of the Bar's responsibilities.

In typical Finkel style, the letter is full of florid language and complaints about Jakubczyk. One sentence more or less sums up its main point: "What is the State Bar going to do to insure that its rules, regulations and disciplinary processes are adequate to cover developing art forms of misconduct?"

Turney's letter of reply was careful and lawyerly.
"The simple answer to your question," she wrote, "is that, according to the [appeals] court's ruling, there was no violation of its rules and, therefore, no basis to invoke disciplinary processes."

Finkel has an opinion about Turney's response. It's not careful at all.
"I pray to the Bar for relief," he says, "and they give me the finger."

During a couple of weeks of research, I was able to find eight abortion malpractice lawsuits in which John Jakubczyk has represented a plaintiff. Two of the cases are in fairly early stages, so it's hard to say how they will turn out.

In one of the cases that is complete, Jakubczyk apparently won a small amount of money for the client (one account puts it at $6,000; Jakubczyk declines to comment).

The other five netted Jakubczyk's clients nothing, as far as I can tell. Here's what his rigorous malpractice screening standards produced:

ù In a case that actually made it to court in 1987, a woman sought $2.1 million in damages. A jury rejected the claim.

ù Both malpractice suits Jakubczyk filed against Finkel were dismissed long before getting anywhere near a trial. No damages were awarded.

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