Thursday, January 6, 2011

The Mendenhall Chronicles: Part III

Burke Mendenhall appealed the trial court’s seizure of his building to the Indiana Court of Appeals. On June 12, 1985, the Court of Appeals found that the seizure of Mendenhall’s building by Marion County Prosecutor Steve Goldsmith acted as a prior restraint in violation of the First Amendment. The Indiana Supreme Court though reversed that decision on March 2, 1987. Following the ruling, Goldsmith again directed the police to seize and padlock Mendenhall’s building pursuant to the trial court’s original seizure order. The United States Supreme Court took the case though and on February 21, 1989, ruled that the pre-trial seizure amounted to a prior restraint on expression in violation of the First Amendment. The vote was 9-0 in favor of Mendenhall.

In April of 1989, Mendenhall reached a settlement agreement in the civil forfeiture action, agreeing not to use the building for an “adult use." Interestingly, Mendenhall had made a settlement offer early on in the litigation. He would simply sell the building back at a loss to DeBartolo. Mendenhall believes that Delaney never communicated this offer to DeBartolo, that Delaney and his law firm wanted to keep the litigation going to keep DeBartolo on the hook for paying what had to ultimately be monstrous legal fees. The failure of an attorney to communicate a settlement offer to a client is an ethical violation.

After the six year fight by the City against Mendenhall to stop the building from becoming an adult bookstore, Mendenhall sold the building. What did it become just a few years later? An adult bookstore.

While the seizure and forfeiture matters proceeded through the state court system, Mendenhall in 1985 filed a federal civil rights action against Steve Goldsmith. The district court stayed that action though until the state court proceedings concluded. Ultimately the federal court would conclude that Goldsmith, who took the action as a prosecutor, was immune from liability, a decision which was upheld by the 7th Circuit. The legal system offered Mendenhall no remedy for the wrong the United States Supreme Court had decided had been done to him.

Although the United States Supreme Court had ultimate declared Mendenhall the victor, the years he spent fighting the Delaney and Goldsmith cost him dearly. He went from being a relatively wealthy man in 1983 to bankruptcy less than 10 years later. While Mendenhall’s finances were broken by the litigation, his spirit was not. As was evident during my time with Burke Mendenhall, he had a story to tell about what he believed to be corruption in our local legal system, and in particular corruption involving the politically-connected Barnes & Thornburg and the law firm’s web of influence throughout government.

I would like to say that Burke’s suggestion Delaney enlisted Goldsmith’s prosecutorial authority to help out Delaney’s client is unlikely, that the ethical bearings of both men would preclude such obvious impropriety. But I know better. I had seen the pattern before.

Just days before Mendenhall came to my office, I received a phone call from “Bob” an attorney I hadn't talked to in years. Bob told me the story about how a woman had filed an ethics complaint against him relating to a contract dispute. According to Bob (and this entire account is according to Bob), the ethics complaint was immediately dismissed by the Disciplinary Commission. Barnes & Thornburg later began representing the woman in civil litigation filed against Bob over the contract dispute. Bob claims the woman’s boyfriend then refiled virtually the same disciplinary complaint against him but this time, with Barnes & Thornburg now in the picture, the disciplinary complaint lingered, hanging over Bob’s head as he was immersed in litigation with Barnes & Thornburg on virtually the same subject that was raised in the complaint.

Then one day Bob reads that the head of the Disciplinary Commission, Don Lundberg, had accepted a position as a partner at Barnes & Thornburg. According to Bob, he phones a prominent attorney who then calls up Lundberg and suggests he may have a conflict in pursuing the complaint which was so intertwined with the Barnes & Thornburg lawsuit. The ethics complaint quickly gets dismissed. The clear impression I got from Bob was that he felt the pending ethics complaint was all about Barnes & Thornburg using the ethics process and the firm's connections to Lundberg, to try to gain leverage in a civil case.

Bob escaped the labyrinth of litigation with just a learning experience about how the power, influence and connections of a politically-connected law firm can play a bigger role than being right about the law. Mendenhall also learned that same lesson, albeit his tutelage took much longer and came at a steeper price.

Not only did the Delaney-Goldsmith litigation initiated in 1983 break Burke Mendenhall financially, but the anger and animosity the litigation engendered the tearing apart of the Mendenhall family. The seeds sown by that anger would lead to a confrontation between Burke’s son, Gus, and Delaney, an ill-fated attempt to avenge the wrong Gus Mendenhall felt had been done to his father over a quarter of a century earlier.

The Mendenhall Chronicles: Prologue

The Mendenhall Chronicles: Part I

The Mendenhall Chronicles: Part II


dcrutch said...

I'm a long, long way from being a B&T fan. But, isn't this "abuse" bigger than one firm? This is going to get any better with Melina Kennedy elected? Isn't it more symptomatic of a country with a lawyer for every 300 persons (statistic I recently heard cited), and too few checks, balances, and vigilance on those we have?

I love the investigative journalism our local bloggers undertake. I don't see drywall hangers undertaking it. When you need a divorce, you don't need customer service representative to help you. However, can't we at least agree there's a great rot within this profession? That given their prominence in creating and enforcing the laws of the state, they sometimes can and do "take advantage", creating problems on all levels of government- for darn near all of us?

I'm way out of line here?

Paul K. Ogden said...

Dcruth, putting all big firms in the same basket is a big, big mistake.

One thing you find out from talking to attorneys who do litigation is that Barnes & Thornburg will engage in improper and unprofessional tactics that most attorneys in town wouldn't touch with a ten foot pole.

Also, B&T's conflicts of interest the firm gets away with are off the chart and unrivaled by any law firm. Take for example, B&T's $5.25 million contract to represent FSSA against IBM in which the firm admits it may have to sue its own subcontractor clients as part of the representation. No other firm in town would even attempt to get around that blatant and non-waivable conflict of interest.

I have been a practicing attorney for more than 26 years. I have had cases against every big law firm in town, Ice Miller, Baker & Daniels, Bingham McHale, Bose McKinney, etc. Rarely have I had a problem with one of those firms' attorneys and almost always those attorneys handled their cases with professionalism and ethically, doing what was in the best interest of the client. And the legal work was usually top quality work. I can't say that about B&T. As a litigator, when you deal with B&T you are dealing with an entirely different situation than with a lawsuit against those firms. You get the firm impression B&T is more about billing hours, than doing what is in the best interest of their client.

Do the other firms have influence in government and try to get more? Absolutely. But those firms seem to have ethical limits to what they will do for that influence, limits that B&T generally doesn't have.

dcrutch said...

It's not my intent to put law firms or attorneys in one basket, any more than to contend that all sanitation workers are saintly. However, I read one instance after another where the complaint is that so and so or their law firm should get their hand slapped- or worse. It begs the question of what's wrong with whatever safeguard(s) we have to protect against legal abuse?

I don't believe my larger concern is devoid of legs to stand on either. Someone is going to come on this blog and say Ms. Kennedy's law firm will not benefit from her election more than other firms? As this is one of the local blogs that very usually cares about local taxpayers getting a square deal- I'd love to hear it! The health "reform" that passed Congress was inadvertently devoid of tort reform? I don't think so, any more than I believe that the omission benefitted trial lawyers of only one party. Even doctors have made it to Angie's List.

However, no place I've worked or any industry I know of is without rotten apples. I again am grateful for the brave work of yourself, Gary and others to expose the worst of the lot. My apologies if someone felt unfairly lumped into my comments. One day, I too will need an attorney as much as the next guy.

I also don't believe human beings are inherently devoid of temptation. I think we share a common concern of what to do when powerful ones go astray.

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