Monday, December 4, 2023 | Back issues
Courthouse News Service Courthouse News Service

Enough’s Enough, Judge Tells Union Attorney

RENO (CN) - Fed up with misrepresentations and delays by a union attorney, a federal judge ordered the attorney's client to pay $118,729.59 of the opposing party's attorney's fees as a penalty.

U.S. Magistrate Judge Valerie P. Cooke on Thursday ordered United Government Security Officers of America International Union and its Local 283 to pay the attorney's fees due to misrepresentations and delays by union attorney Robert Kapitan.

The union is among the defendants in an employment complaint filed in April 2013 by Isaac Avendano and Rolando Duenas, who are represented by attorney John A. Tucker.

Kapitan on Jan. 17, 2014, filed a motion to disqualify Tucker, saying Tucker represented the union and Local 283 for 12 years before the union ended the relationship in May 2012.

Kapitan also claimed that Tucker's law firm represented the union in an arbitration of grievances on behalf of Avendano and Duenas during 2011 and 2012.

"There can be no doubt that the firm's representation of the union defendants is substantially related to this case. As such, it is a conflict of interest and the court must disqualify" Tucker, Kapitan argued in his motion.

The arbitrator entered an award in favor of Avendano and Duenas, who later sued the union for not enforcing the arbitration award, Kapitan said in his motion.

In a Dec. 2, 2014 order, Judge Cooke said the union authorized Kapitan to file a conflict of interest complaint against Tucker with the Ohio Supreme Court Office of Disciplinary Counsel, which the state supreme court dismissed in October 2013.

"In several separate remarks, Kapitan stated that the Office of Disciplinary Counsel matter was 'pending,' 'still pending,' that his clients decided they 'could not wait anymore for the Ohio Supreme Court to review this [alleged conflict of interest],' and that union defendants 'believe that the confidential procedure before the Ohio Supreme Court may resolve the issue,'" Cook wrote in the Dec. 2 order. (Brackets in order.)

Tucker repeatedly stated that the matter had been resolved, and Kapitan knew it, Cook wrote.

Kapitan on Jan. 17, 2014 filed a motion to disqualify Tucker from the case, which the court denied.

Due to his misrepresentations, on Sept. 12, 2014, the court issued a show cause order against Kapitan and the union, demanding they show why the court should not sanction them for "knowingly making repeated misrepresentations," according to Cook's Dec. 2 order.

Cook ruled that Kapitan's misrepresentation led to "time-consuming and unmeritorious motion practice," during which, "aside from airing their mutual animosities, the parties accomplished little else."

"On Dec. 2, 2014, the court found by clear and convincing evidence that Kapitan had intentionally misrepresented the status of the Office of Disciplinary Counsel complaint against plaintiffs' counsel, and that he further failed to comply with his ethical obligations to the court to correct his misrepresentations ... when several opportunities presented," Cook wrote in her April 2 ruling.

"Although the court is loath to utilize its power to sanction counsel who appear before it, the court concluded that Kapitan's conduct required its intervention," Cook wrote.

She awarded attorney's fees to plaintiffs and levied other sanctions, including referring the matter to the Office of Disciplinary Counsel.

Tucker sought $300,843.60 in fees and costs, which Cook said is "an amount that is likely case-ending" and "fall[s] outside the ambit of the December order."

"Yet on the other hand, facing what could be draconian sanctions, union defendants remain grossly unhelpful, blithely disregarding the seriousness of this matter - even at this late juncture," Cook wrote.

"Apparently unrepentant for Kapitan's conduct in this matter, union defendants provide a response to the fees motion that ... fails to engage in detailed analysis of the invoice or to provide a rational basis by which the court can reach a determination of what is fair," Cook said.

"Union defendants cannot seriously expect this court to conclude that $1,383.75 in attorneys' fees and $10 in costs is an appropriate sanction."

Cook said Kapitan's misrepresentations "delayed the resolution of this case by over one year" and ordered the union to pay $118,720.59 in attorney's fees as a penalty.

Categories / Uncategorized

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.