IN RE GIRARDI
In Re: THOMAS V. GIRARDI, Esq.; WALTER J. LACK, Esq.; PAUL A. TRAINA, Esq., et al., Respondents.
SONIA EDUARDA FRANCO FRANCO; et al., Plaintiffs-Appellants,
DOW CHEMICAL COMPANY; et al., Defendants-Appellees.
Nos. 08-80090, 03-57038
United States Court of Appeals, Ninth Circuit.
Filed July 13, 2010.
Thomas V. Girardi, Howard B. Miller, Girardi & Keese, Walter J. Lack, Paul A. Traina, Sean A. Topp, Engstrom, Lipscomb & Lack, Los Angeles, CA, for plaintiffs-appellants.
Michael P. Fordas, Kirkland & Ellis, Chicago, IL, for defendant-appellee Dow Chemical Co.
David W. Ogden, Wilmer, Cutler Pickering Hale & Dorr, Washington, DC, for defendant-appellee Shell Chemical Co.
Alan E. Friedman, Jones Day, Los Angeles, CA, for defendant-appellee Dole Food Co., Inc.
Thomas J. Nolan, Skadden, Arps, Slate, Meagher & Flom, Los Angeles, CA, for respondents Thomas V. Girardi and Girardi & Keese.
Robert C. Baker, Baker, Keener & Nahra, Los Angeles, CA, for respondents Walter J. Lack, Paul A. Traina, Sean A. Topp, and Engstrom, Lipscomb & Lack.
Before: William A. Fletcher, Marsha S. Berzon, N. Randy Smith, Circuit Judges.
We must decide the appropriate discipline in the case of respondents Thomas V. Girardi, Walter J. Lack, Paul A. Traina, and a junior associate in Lack's firm. Respondents attempted to enforce a putative foreign judgment for $489 million in district court but failed. They undertook and main-tained an appeal to this court although they knew, at least by the time defendants filed a motion to supplement the record in this court, that the document they offered as evidence of that judgment was spurious.
The factual and procedural background of the case is complicated but essentially uncontested.1 Respondents Thomas V. Girardi and Walter J. Lack are Los Angeles-based lawyers who have practiced law together for 25 years, while maintaining separate firms. They are highly experienced and highly successful practitioners. Typically, in the cases they take on jointly, Girardi and Lack divide responsibilities between their respective law firms, Girardi & Keese (the "Girardi Firm") and Engstrom, Lipscomb & Lack (the "Lack Firm"). In some cases, the Girardi Firm has the primary responsibility; in others, the Lack firm has the primary responsibility.
On November 13, 2000, Lack and Girardi agreed to engage in one such legal joint venture, signing a Master Fee Agreement with the Nicaraguan law firm of Ojeda Gutierrez and Espinoza (the "Ojeda Firm") to represent Nicaraguan claimants in litigation concerning the effects of the pesticide Dibromochlorpropane (DBCP) on banana plantation workers. Lack and the Lack Firm would have complete responsibility for the complaint and all other filings in the case.
In September 2001, Sonia Eduarda Franco and 465 other Nicaraguan plaintiffs sued several American companies for injuries allegedly caused by the companies' use of DBCP on banana plantations in Nicaragua. Lack coordinated with the Ojeda firm, drawing upon his knowledge and experience with other pending DBCP litigation around the world. Lack identified five proper defendants: Dole Food Company, Shell Oil Company, Shell Chemical Company, Dow Chemical Company, and Standard Fruit Company. The Nicaraguan complaint, however, named as defendants Dole Food Corporation and Shell Oil Company, but not Dole Food Company or Shell Chemical Company. While the Nicaraguan complaint mentions "Dole Food Company," it lists "Dole Food Corporation," and not "Dole Food Company" as a defendant in the action, although there is no such entity as "Dole Food Corporation."
Despite the misidentification, the complaint was served on Dole Food Company at its corporate headquarters in West-lake, California. Dole Food Company authorized Dr. Roberto Arguello Hurtado, its Nicaraguan counsel, to appear in the Nicaraguan proceeding on behalf of Dole Fresh Fruit Company, another Dole entity that was currently doing business in Nicaragua, but which did not exist at the time of the events described in the complaint and which was not named in the complaint. For that reason, Plaintiffs' Nicaraguan lawyer, Angel Espinoza, moved successfully, on October 25, 2002, to exclude Dole Fresh Fruit Company from the proceedings. Realizing the problem with the complaint, Espinoza petitioned the Nicaraguan court on November 12, 2002, to change the names of Defendants from Dole Food Corporation and Shell Oil Company to Dole Food Company and Shell Chemical Company. As far as the record shows, the Nicaraguan judge never ruled on that petition.