I would not enter into that agreement as a lawyer in a thousand years, period," attorney David Gage, a seasoned member of the state's personal-injury bar, would later testify. Mr. Harris has a clear conflict of interest under this agreement, and it is an intolerable conflict of interest, in my opinion, that no attorney should get himself into."
Even Peter Jarosz, a volunteer state bar counsel who is handling disciplinary proceedings against Levine, conceded in a brief that [i]f, as Mr. Abril claims, the agreement was made without his consent, then perhaps some sort of ethical violation occurred."
Harris declined to discuss the fee agreement.
Piatt, the other party to the deal, argues that it was not only ethically correct, but served Abril's interests.
Without the arrangement, Piatt says, Harris would have had no interest in taking Abril's case. Although Johnson and Abril were initially legal adversaries, they became allies at the point Abril sued Globe, and everyone's interests would be served if Harris could win the largest judgment possible against the insurance company.
To do that, Harris needed to be able to argue that Abril's debt to Johnson had caused him anguish, and driven him to attempt suicide. Far from being his enemy, Johnson would be a help to Abril in his lawsuit, Piatt argues.
Chip had to have some incentive to take the case," Piatt says. I don't see it as a conflict. I see it as a concurrence of interest."
Other attorneys, however, say Piatt's argument rings hollow. Harris had other, more accepted, methods of collecting legal fees without cutting a deal behind Abril's back.
The fee agreement clearly raised a question of propriety. Levine was determined to answer it. Harris soon handed Levine more ammunition to use in his quest.
Even though he had been fired and told to stay away from the case, Harris played one more card in the game.
While the $1.3 million verdict was on appeal, the clock was running on Johnson's claim against Abril. By law, judgments lapse after five years if they are not collected or renewed.
Piatt, concerned that his legal right to demand payment from Abril might slip away as the Globe case dragged on, called Harris and asked him when the judgments were due to expire.
Harris, who had Piatt's files on the case, told him, and then sent Piatt a letter telling him to immediately" renew one of the judgments.
It appeared to Levine and Abril that Harris would have only one reason to urge the renewal-Johnson had to collect money in order for Harris to collect his share of the fee. The conflict of interest, Levine felt, had indeed induced Harris to betray his former client.
If the judgments against Abril lapsed, Levine says, any money Abril won in his lawsuit would be his, free and clear. Abril would owe Johnson nothing, and Harris would not get his share of Piatt's fee.
That letter cost Anthony $95,000," Levine says.
Other attorneys disagree. They say it was in Abril's interest to renew the judgments, because a $95,000 debt was the best proof he had that Globe's indifference had harmed him.
Whatever the legal ramifications, another serious question had been raised about Harris' ethics, particularly since his own financial interest was directly served by renewing the judgments. Levine felt he was well-armed to go after his former partner.
With Levine's help, Abril filed complaints against Harris with the State Bar of Arizona. The complaints were dismissed, but not without a curious episode that confirmed Abril's belief that Piatt and Harris, and possibly the State Bar, were conspiring to cheat him.
Right off the bat, a bar attorney called Piatt about the complaint-not as part of an investigation, but to ask his advice on how it should be handled. It was equivalent, in practice if not degree, to asking the guys from whom Charlie Keating was buying real estate with depositors' money whether they all should be investigated by the feds.
Piatt says the bar inquiry was a coincidence. At the time, he was serving on the bar's fee-arbitration committee and would occasionally field questions about fee arrangements.
Piatt says that he promptly informed the bar attorney that he had an interest in the case, and advised her to have Abril's complaint investigated.
Piatt never should have been called for his advice, agrees Chief Bar Counsel Harriet Turney. But she says no harm was done.
That should not have happened," Turney says. But just because Bill Piatt would say yea or nay or anything else doesn't affect what the bar would do. He wouldn't have had anything to do with the decision."
The bar's decision to reject Abril's complaint was the first in an as-yet- unbroken string of defeats.
LEVINE PROCEEDED to sue Harris, and others involved in the case, not once but many times. In the next few years, he filed at least seven lawsuits and appeals trying to cut to the heart of the secret agreement," and stop Harris from receiving legal fees from the Abril case.
The fate of Levine's first lawsuit set the tone for all that was to come.
Without a trial, Superior Court Judge Cheryl Hendrix summarily dismissed Abril's initial lawsuit against Harris and others in August 1986.
In what one attorney calls a peculiar" decision, Hendrix threw out Abril's suit even while seeming to acknowledge that he could be right.
In her ruling, Hendrix decided that Harris may have breached his contract with Abril, but that Abril had suffered no tangible damages as a result.
The Court must take as true that a wrong was suffered, but no damage sustained," Hendrix wrote in her ruling. Not only did she throw the case out, but Hendrix also ordered Levine to pay Harris more than $7,000 for his legal bills in defending the case.
The ruling foreshadowed years of setbacks for Abril and Levine.
Time and again, Levine filed, pursued and appealed actions against Harris, his law partner Tony Palumbo and others tangentially related to the case. Time and again, the rulings came back echoing Hendrix's first opinion.
Pleadings, transcripts and briefs from the various lawsuits began to fill file cabinets in law offices across Phoenix, but Levine could not get anyone to take Abril's complaints seriously.
Two factors, Levine believes, accounted for the repeated defeats.
First, judges had a hard time believing that Abril was harmed by an attorney who won him such a substantial judgment. Second, many perceived the lawsuits as Levine's vendetta against Harris, and wrote them off without ever pondering the merits of Abril's claim.
I think there have been horrendous legal errors made," Levine says. They did not understand that Anthony was truly damaged." At least, Levine argued, Harris had cost Abril 000. In addition, he says, Harris subjected Abril to deceit and bad faith that exacerbated his already volatile mental state.
Not only did Levine persistently lose, but he steadily began to develop a reputation as an out-of-control attorney. Court after court not only threw out his cases, but decided to punish him for pressing the matter.
In the orderly ebb and flow of the courthouse, Levine had become a pest, not to the general public but to the attorneys and judges he was repeatedly challenging.
Judges attempted to cow him with a judicial cattle prod known as Rule 11. The rule, designed to keep attorneys from clogging the courts with litigation that is meant only to harass or embarrass someone, holds attorneys responsible for the lawsuits they file.
If a judge decides that a lawsuit is frivolous or obviously groundless, he can assess legal fees and sanctions against the offending lawyer. The idea, basically, is that lawyers will screen out worthless lawsuits themselves if they run the risk of being fined for filing them.
Such sanctions have been invoked against Levine an astonishing ten times at various stages of his lawsuits. He has been assessed more than a quarter-million dollars in fees-most owed to Harris. In 1990 Levine filed for personal bankruptcy largely because of those awards.
Even as he was being trounced in the Abril lawsuits, Levine's multiple lawsuits against Harris stemming from their partnership dispute were proceeding through the courts, and Levine was losing on every front there, too.
Rebuffed by the bar, beaten in courts at all levels and pushed into personal bankruptcy, Levine still would not abandon the cases. It was, he says, a matter of principle.
He didn't back off, even though he was told innumerable times, `It's over, you lost,'" says an attorney, not involved in the cases, who considers Levine a friend.
IN LATE 1986, the State Bar disciplinary machine-guardians of integrity in the legal realm-roused itself to do something about the unfolding saga of Abril and Levine versus Chip Harris. The target of their curiosity was Levine, however, not Harris.
Nationally, lawyers were trying to clean up their image. Rule 11, the sanctions invoked so frequently against Levine, had been passed so the legal system could try to tidy up its own ranks.
Unique among professions, the legal fraternity has the power to expel its own members. That power, badly used, can be a deadly tool. Levine believes it is being wielded against him unfairly.
Since his adversarial baptism in Arizona law, Levine had maintained an uneasy peace with the legal powers that be. Besides suing attorneys and judges with abandon, Levine claims he has filed more complaints against other attorneys with the bar than anyone else.
He writes frequently, and often critically, of the legal establishment, challenging the way judges are selected and the politics of the judiciary. He has never been loath to criticize judges or fellow attorneys for what he perceives as ethical lapses, and he has decried the sheer expense that prevents some people from obtaining legal representation.
He has not been a cheerful member of the club, and the club has turned against him.
In 1985 Chief Bar Counsel Harriet Turney reviewed the file of Levine's complaints against Harris, and felt there might indeed be problems.
Turney ordered an investigation, and in its slow, methodical manner the bar was able to decide by 1988 to pursue full-blown disciplinary proceedings against Levine.
In question were the lawsuits Levine filed for Abril, and his continuing fight over the partnership breakup.
Two years later, in April 1990, seven days of testimony were taken over a one-month period by an ad hoc bar disciplinary committee. All the regular members of the committee had to step down because of possible conflicts.
In its final report, the committee recommended that Levine be thrown out of legal practice for three years. Essentially, the committee agreed with the many judges and appeals courts that had already dealt with pieces of the case.
Levine, it decided, was using the courts to pursue a personal grudge against Harris and, by association, Harris' partner Tony Palumbo.
[Levine] has engaged in a near- decadelong quest to make Harris and Palumbo pay for imagined faults, breaches and lapses," the committee found. The committee is simply astounded that [Levine] did not wake up to his blind spot when faced with sanction after sanction and rebuke after rebuke... . The committee is heartfelt in its hope that this disciplinary action will untie the blindfold and allow [Levine] to comprehend the outrageous nature of his conduct."
After the ruling, bar leaders took a low dig at Levine. Ever prolific with letters, Levine had written an opinion column for a local weekly questioning merit selection of judges.
An Arizona Republic editorial writer picked up some of Levine's arguments and echoed them in that newspaper, causing consternation among bar leaders who hold merit selection dear.
A meeting between former Republic publisher John Zanotti and bar leaders was arranged so the case for merit selection could be aired. In that meeting, someone from the bar let it be known that Levine was being disciplined, and a reporter was eventually dispatched to check out Levine's disciplinary file.
part 3 of 4
THE WINDMILLS OF JACK LEVINE THIS LAWYER... v4-01-92
