Lawyers Behaving Badly: Mark Briggs Ducks and Dennis Wilenchik Skates
It would not be entirely accurate to say that attorney Mark Briggs "stole" $810,000 from a client. "Stole" is such a harsh word, so direct, so ugly. If you believe Briggs and his lawyers, the situation is simply more . . . complicated.
Sure, Briggs, then a lawyer at Quarles & Brady, took $810,000 from a client's account. But he always intended to repay it. And even though he used the money to help his own brother buy a nightclub, he wasn't trying to enrich himself. It was an investment — an investment on behalf of his client.
And so what if Briggs never exactly told his client about the "investment"? He documented it in writing. Yeah, he created the documentation months after "borrowing" the money, as his clients were starting to question its whereabouts. But the timing was pure coincidence.
Right . . .
I first wrote about Mark Briggs — and the lawsuit he was facing from a local mystery novelist, Sylvia Nobel — more than a year ago. In a series of lunch meetings, I sat wide-eyed as Nobel walked me through the entire tawdry tale. How an elderly fan had donated $1 million to back a film adaptation of one of Nobel's novels. How Briggs, a young partner at one of the town's most respected law firms, had been brought in as the production's lawyer — only to systematically transfer almost all the money out of the film production's accounts and into accounts he controlled. How Nobel eventually learned that the money had been used to purchase Sugar Daddy's nightclub in South Scottsdale.
That part of the story was shocking enough. But what happened next is even worse. When Nobel discovered the transfers and started asking tough questions, Briggs blamed her for not understanding his "investment" strategy. And though he ultimately returned the $1 million, instead of giving it back to the production company, Briggs returned it directly to the elderly investor, suggesting the project was dead. Even if it hadn't been, that surely did the trick.
And here's the kicker: After Briggs effectively killed Nobel's dreams of filming anything, he had the audacity to send her a bill — for $350,000.
At the time I wrote about this case, Nobel's wounds were still fresh. The novelist had filed a complaint with the State Bar of Arizona, but it was still pending. She'd also filed a lawsuit, but it was unclear whether it would go anywhere.
And Briggs seemed to be maintaining his status in the community. Briggs' wife, Wendy, is arguably the premier female lobbyist in the state, and he himself is a member of the commission that chooses appellate court judges. Despite Nobel's allegations, he was still a partner at Quarles & Brady. And though a second lawsuit was filed in late 2008, alleging he'd defaulted on the loan he signed to buy Sugar Daddy's, Briggs and his partners still owned the nightclub.
That was then.
One year and two months later, everything looks different. Briggs and his wife have defaulted on three more loans, court records show, all involving real estate investments. They're being sued by three different banks for a total of $662,000. Briggs has also left Quarles & Brady. (It's unclear whether he quit or was forced out.) He's now set up a one-man firm out of his wife's office and reports a monthly income of only $417.
Last month, the couple filed for bankruptcy — and not just a Chapter 13 reorganization. This was Chapter 7: a complete liquidation of debt. They're walking away from their real estate investments, their one-year-old Toyota Highlander, and an estimated $11.5 million in debt.
Wendy Briggs spent nearly $15,000 on political contributions in 2009. But the couple now claims to have just $845 in the bank.
Even as Briggs' financial world is crumbling, Sylvia Nobel is still waiting for justice. Her lawsuit is still pending. Her Bar complaint is still open. And Mark Briggs, incredibly, is still on that committee that chooses appellate court judges.
In a brief phone call Monday, Briggs declined comment, other than to say he denies "all" of Nobel's claims — and is looking forward to his day in court. He also directed New Times to the statement his lawyer provided when I first wrote about the case, which paints the dispute as an issue of control. It also notes that he returned the elderly fan's entire investment at her request.
I frequently write about skullduggery and financial fraud. I hear enough sad tales to be numbed by tragedy.
But Sylvia Nobel's story really stuck with me, and not only because I found Nobel to be so warm and sympathetic. It frightened me, frankly, that someone could do everything right — hire a lawyer from a respected firm to handle the legal aspects of their life's dream — only to be victimized so badly. You hire a lawyer to make sure you don't get ripped off. You don't expect your lawyer to do the ripping!
But as this story has continued to play out, my fear has turned to outright horror. Even as his mortgage defaults have piled up in Maricopa County Superior Court, Briggs has avoided accountability. Nobel's lawyers have done a great job to date, and their suit is still active. But, in light of that bankruptcy, it's unlikely that Briggs will get stuck paying much of anything out of pocket: Quarles & Brady's insurance policy is surely Nobel's best hope for restitution.
And about that bankruptcy . . .
In its Bankruptcy Reform Act of 2005, Congress attempted to force Americans to stay accountable for their debts. It cracked down on who was permitted to file under Chapter 7, to the point that most Americans who spend like profligates can't just walk away from their debt. If you have any ability to repay, you're required to file under Chapter 13, not Chapter 7, and get on a strict payment plan.
Not the Briggses. The couple earned a staggering $814,713 in 2008, according to their bankruptcy filing. But they're still off the hook: More than half of their debts are "business" debts, and so even the new-and-improved bankruptcy laws allow them to walk away without penalty.
And then there's the State Bar.
Sylvia Nobel filed her complaint against Briggs with the agency's governing lawyers in Arizona in the summer of 2008, almost 18 months ago. Yet the Bar's spokesman tells me the complaint is still open.
I understand this one is complicated. But this is not 18 months complicated.
Briggs took the money from the film production company. He created loan documents only after he got caught — and returned the money to its original donor only because he had to. Indeed, when Briggs returned the money, his house of cards collapsed: He simply didn't have the cash to cover monthly payments on his nightclub purchase without the money "borrowed" from the film production.
That may be too direct, too ugly for Briggs and his lawyers. But that's the only story that makes sense.
That ought to be enough to get a lawyer sanctioned in Arizona, if not disbarred. And it shouldn't take 18 months to do it.
Sadly, Mark Briggs isn't the only lawyer skating in Arizona these days, despite truly bad behavior. Last week, I finally got confirmation that Dennis Wilenchik, the "special prosecutor" who attempted to prosecute this newspaper for publishing Sheriff Joe Arpaio's home address, has been cleared of all wrongdoing by the State Bar.
Strangely, New Times learned that information only because we're in the business of newsgathering. Even though New Times lawyer Steve Suskin filed a lengthy Bar complaint detailing how Wilenchik abused his post, New Times wasn't notified when the complaint was closed. The paper wasn't contacted at all, in fact, during the course of the Bar's "investigation." The only news we got came from reporters acting on tips.
The Bar's newly hired spokesman, Rick DeBruhl, was downright apologetic when I asked him about all this. As he explained, the Bar received multiple complaints about Wilenchik's behavior as a special prosecutor. So rather than considering New Times the complainant on the case, the Bar itself took the lead role and split the complaints into two separate cases. One dealt with Wilenchik's attempt to contact Presiding Criminal Court Judge Anna Baca, which Judge Baca believed amounted to a case of impermissible ex parte contact. The other dealt with Wilenchik's behavior in court — where he labeled Assistant Presiding Criminal Court Judge Timothy Ryan a "threat to public safety" — and his aggressive pursuit of this newspaper.
In both cases, since the Bar itself became the complainant, no one except Wilenchik was notified when the cases were closed, DeBruhl says.
DeBruhl tells me that the Bar is making major changes to its disciplinary process. It wants to make the process quicker — which would certainly help in cases like the one against Mark Briggs — and it wants to communicate better with the people who file complaints. Those are both great ideas.
But beyond the clumsiness the Bar showed in the way it handled the closing of the complaints against Wilenchik, I'm more stunned by how they were closed: without as much as a slap on the wrist.
The New Times case shocked people across the Valley — and even more people who read about it online. There's a reason the Bar got so many complaints: People who heard the details were horrified.
This case is the very definition of abuse of power. The Sheriff's Office spent years agitating to have its loudest critic prosecuted — even when this newspaper's only alleged crime was publishing an address online that was widely available on, yes, other Web sites. After Maricopa County Attorney Andrew Thomas' staff told him that the case was a dog, he mollified the sheriff by claiming he had a "conflict of interest" and kicking it over to another county. But when that county ultimately sent the case back to Thomas, he yielded to pressure from the sheriff and appointed Arpaio's lawyer — Wilenchik — as special prosecutor.
Even worse: The very reporter that Arpaio wanted to see prosecuted, former New Times columnist John Dougherty, had already written critically about Wilenchik at the time he was appointed special prosecutor. "Less than a week before he became special prosecutor, Wilenchik sent an angry e-mail railing against New Times and the reporter who had written the offending article disclosing the sheriff's home address," New Times attorneys note.
Naturally, Wilenchik pursued the case aggressively, rather than impartially seeking justice: He had the same conflict of interest as County Attorney Thomas, who'd "recused" himself for just that reason.
So Wilenchik demanded information from every New Times reporter who'd written critically about Arpaio, not just Dougherty. He issued grand jury subpoenas without actually convening a grand jury — demanding detailed information about the browsing habits of everyone who so much as glimpsed at our Web site. As the paper resisted, Wilenchik attempted to set up that infamous meeting with Judge Baca, a meeting she immediately deemed improper.
Finally, when New Times revealed the contents of the subpoena, the investigation got so out of control that the supposed "victim" on the case sent his men out under the cover of night to arrest New Times' executive editor and CEO in their homes. That one was such an overreach that even Andrew Thomas cried foul: He fired Wilenchik the next day.
The bizarre denouement, though, is that the very actions that drew a public outcry have failed to result in accountability for anyone. When New Times sued, U.S. District Court Judge Susan Bolton found that Arpaio, Thomas, and Wilenchik were all within their rights. It doesn't matter how horrifying their actions; they argued that their offices give them immunity, and last March, Bolton actually agreed.
The State Bar, we know now, has done no better: Andrew Thomas got off the hook by arguing that he'd only appointed Wilenchik. He wasn't responsible for anything after that. (Never mind that he'd chosen as special prosecutor a man with an inherent conflict.) And Wilenchik got off the hook by arguing — well, we still don't know just how he did it. But the fact is, he's home free. The Bar didn't even issue a reprimand.
There's nothing New Times can do about the Bar's decision. But New Times' lawyers are appealing Bolton's ruling, and they make a compelling case that she erred in granting these officials immunity. In a brief filed last Thursday, attorneys Michael Meehan, Don Moon, and Michael Manning argue that Wilenchik lost immunity when he fabricated the existence of a grand jury. They also argue that Andrew Thomas should have never enjoyed immunity in this case: A prosecutor is not entitled to immunity for administrative actions, like hiring or firing employees. He must answer for hiring Wilenchik.
More importantly, the attorneys lay out a First Amendment claim against Arpaio and Wilenchik.
In a memo written to persuade prosecutors to take up the case, Arpaio's own lawyer explained why New Times should be investigated for publishing the sheriff's home address online, when government Web sites with the address have faced no similar persecution.
Unlike New Times, the sheriff's lawyer wrote, those Web sites had not been "historically anti-Arpaio."
So why was New Times the focus of a special prosecutor?
Because we were critical of the sheriff.
The newspaper's lawyers cite a case called White v. Lee, which was decided by the same circuit court now pondering our appeal. In that case, the court held that officials "may not rely on 'investigative authority' to shield investigative actions that chill protected speech and that occur after it is crystal clear that there is no 'case' to 'investigate,'" as New Times lawyers write.
"As here," they add, "White was a case about public officials throwing their weight around in an investigation of citizens who had simply and obviously exercised their First Amendment rights."
The case should shred the officials' defense.
"The press has a right to publish anything in the public domain," Moon explains. "The sheriff's address was all over the Net, he knew it was all over the Net, and the investigation he demanded was a pretext to go after journalists who had questioned his real estate investments and his conduct in office. We don't believe his conduct is protected by immunity."
The State Bar may not have a problem with what Thomas or Wilenchik did. Judge Bolton may not, either.
But the Constitution's framers would surely have a big problem with all three. And we can only hope that the appeals court is smart enough to understand why — and finally, do something about it.
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