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Monday, July 10, 2017

Disciplinary action against lawyer who brought "case of the severed penis" indicates Alabama State Bar has different rules for lawyers who might "go off the grid"


Princeton Baptist Medical Center
New evidence has surfaced that indicates the Alabama legal system would have to improve to be a joke. The case in question involves an allegedly severed penis, so it even sounds like a joke.

The Alabama State Bar recently disciplined a Birmingham lawyer for filing a lawsuit on behalf of Johnny Lee Banks, who claimed he entered a hospital for a circumcision and left with a severed penis. The Bar found that attorney John Patrick Graves did not adequately research his client's claims before filing the lawsuit. The Bar issued a public reprimand, without general publication, for violating an Alabama rule of professional conduct, according to a disciplinary notice in the July edition of The Alabama Lawyer, a state bar publication.

Personal experience has taught me that Alabama lawyers violate this particular rule all the time and tend to get away with it. So why is attorney Graves having his tootsies held to the fire? Our only answer is this: The Alabama State Bar is a corrupt organization -- a joke, if you will -- that tends to let connected lawyers from big firms off the hook, while punishing less-connected practitioners.

An alert reader might ask, "Well, why didn't the lawyer just say to his client, 'Drop those trousers, bro, and let me take a look at that manhood of yours -- or what's left of it (Uh huh, uh huh).'" We're not sure Graves did that, but there is evidence he did research the case. So why does the State Bar have its panties in a bunch?

Public records indicate Graves was disciplined under Rule 3.1 Alabama Rules of Professional Conduct, which holds in part:

In his representation of a client, a lawyer shall not file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of the lawyer's client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

The medical-malpractice lawsuit was filed on July 22, 2014,after a circumcision allegedly went awry at Princeton Baptist Medical Center in Birmingham. According to an August 2014 report at al.com, the patient signed an affidavit stating that his penis had been amputated during a circumcision. Hospital officials denied the penis was amputated and claimed Graves should have checked medical records before filing the lawsuit. The patient, his wife, and son, however, filed affidavits saying the patient was believed to be dying in July and so the lawsuit was filed then in order to preserve the claims.

Based on the record, it seems clear Graves conducted a reasonable amount of research on the case. My own experience with lawyers filing bogus lawsuits suggests the discipline against Graves is preposterous.

Just consider what my wife, Carol, and I have experienced from unscrupulous lawyers in court. Our former Birmingham neighbor Mike McGarity -- the guy with a lengthy criminal record -- filed a malicious-prosecution lawsuit against me in 2001. That came after I had signed a complaint for criminal trespassing (third degree, a violation, not even a misdemeanor) against McGarity when he ignored our repeated verbal and written warnings -- he even threatened to sue me for "harassment" -- and continued entering our property without permission.

The problems with McGarity started our journey through legal hell and led to the birth of this blog. Here is background on what took the McGarity problems into court, from an earlier post:

Our legal woes started when we had the misfortune of having a career criminal named Mike McGarity move in next door to us. Our charming neighbor apparently hid his ugly past during the job screening process at his employer, Blue Cross and Blue Shield of Alabama. (In blunt terms, he likely lied on his job application, and the lax process at BC/BS let him get away with it.)

McGarity, his kids, and guests -- having already sassed us when we asked him to keep his barking coon hound under control ("You just need to get earplugs") -- proceeded to trespass on our property on an almost daily basis. When we called to let McGarity know his presence was not welcome on our yard, McGarity replied, "I'm going to sue you for harassment" and "we're going to keep on coming,"

When we asked a Birmingham lawyer named Bill Lewis to write a letter, explaining the law to this dunderhead, it seemed to have no effect. The trespassing continued, and the last line of Lewis' letter was, "You will receive no more warnings."

With all that in mind, we felt we had no choice but to pursue a case against McGarity for criminal trespassing, third degree. The alternative was to wait until someone got hurt on our property, have them sue us, and watch our homeowners-insurance premiums go through the roof. (Allowing trespassers to freely roam your property is a bad idea, for a lot of reasons, perhaps the biggest one is financial.)

During the criminal proceeding, McGarity admitted that he had entered our property without being "licensed, invited, or privileged" to be there. He also admitted that he had been warned multiple times to stay off our property. In essence, he confessed to trespassing as charged, but Shelby County Circuit Judge Ron Jackson found him "not guilty" anyway. (We're not making this up, folks.) From our previous post:

District Judge Ron Jackson had encouraged both parties to work out a settlement, but McGarity refused to discuss it. That meant the case went to trial, and a transcript shows that McGarity confessed to the crime as charged. How do we know? Well, the elements of criminal trespassing, third degree, are about as straightforward and simple as law gets. Here they are, straight from Code of Alabama 13A-7-4:

(1) "A person commits the crime of trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises."

(2) "A person enters or remains unlawfully in or upon premises when he is not licensed, invited or privileged to do so."

Our research indicates "licensed" refers to someone who has a professional reason to enter property, such as a meter reader. "Privileged" refers to someone who tries to address an unexpected occurrence. For example, if your hat flies off your head and lands in my yard, you have a right to retrieve it. (In a lot of legal opinions, "licensed" and "privileged" are used interchangeably.) "Invited," as it sounds, refers to someone who who has a good relationship with the owner and has reason to believe he is welcome to enter.

The transcript shows that McGarity admitted to entering our property, he made no claim to being licensed or privileged, and he made no claim that he was welcome. In fact, he admitted we had verbally warned him multiple times to stay off our property, along with others entering from his yard. Translation: McGarity admitted to the crime of criminal trespass, third degree.

This is when Judge Jackson, supposedly a "conservative," started making up law on the bench, apparently pulling it out of his anal cavity:

Judge Jackson, however, found that -- in this instance -- we had to give McGarity written warning. We did that, of course, in the form of Bill Lewis' letter. But a woman from Lewis' office testified that she could not find the certifield-mail receipt that proved when McGarity received the letter. McGarity claimed he had not received the written warning prior to trespassing, and Jackson found that created enough reasonable doubt to acquit -- even though the judge essentially read McGarity the proverbial "riot act" from the bench about the dire consequences of any future trespassing.

We later discovered that Jackson got the law laughably wrong -- except it's not funny when you are the victim of a judge's corrupt rulings. Here is the actual law from a case styled Chambers v. City of Opelika, 698 So. 2d 792 (Ala. Crim. App., 1996):

The appellant has cited no authority for his position that to be guilty of criminal trespass the intruder must be aware that he or she had no license or privilege to enter or to remain on the premises. There is authority, however, that states that when those premises are private and not open to the public, there is no requirement that the prosecution prove that a prior written or verbal warning was given to the intruder.

In other words, we had no obligation to warn McGarity at all. We certainly did not have to warn him in writing, as Jackson found. The same holds true for any homeowner -- or renter, for that matter. It is the would-be intruder's duty to make sure he has lawful grounds to enter. McGarity never did that, and Jackson turned the law on its head in order to reach an "acquittal."

The whole point of a malicious-prosecution claim is to show you were arrested on a complaint that was not based in probable cause. The McGarity trial showed that I not only had probable cause, I had actual cause -- he confessed to the crime, but still was acquitted.

How does this happen? Well, McGarity's lawyer, Bill Swatek, has a son (Dax Swatek) who served as former Gov. Bob Riley's campaign manager. Dax Swatek is tied to Bill Canary (head of the Business Council of Alabama), who is tied to Thomas Donohue (head of the U.S. Chamber of Commerce), who is tied to former Bush guru Karl Rove. We think that pretty much explains the favoritism Bill Swatek received in the GOP hotbed of Shelby County, Alabama.

Bill Swatek
How does this compare to the "severed penis" case? Well, it's obvious Bill Swatek did zero research before filing McGarity's "malicious prosecution" lawsuit. In fact, he shouldn't have needed to because he was right there for the criminal trial, where his client confessed to the crime with which he was charged.

Like many lawyers, Swatek probably wanted McGarity's money -- public records indicate McGarity had to refinance his house twice in order to pay Swatek -- and didn't care about telling him he had no case. Here is the conversation the two of them should have had:

Bill Swatek (BS): Mike, why do you want to file a malicious-prosecution claim against Mr. Shuler?

Mike McGarity (MM): Well, I got hot about Shuler trying to keep me off his yard. It ain't right, so I want revenge. (That's how McGarity talks; he gets "hot" about things that don't go his way.)

BS: Mike, the judge made it clear you have no right to go on Shuler's yard. That's law that goes back to the Old Testament. It's not new stuff.

MM: Well, I still want to fire back at Shuler for what he did to me.

BS: Mike, he didn't do anything wrong to you. Evidence at trial showed you were on his property after being warned -- and, by law, Shuler didn't have to warn you. You admitted committing trespass as charged. Judge Jackson cut you a ton of slack by acquitting, when you actually were guilty.

MM: Yeah, but I want revenge. I'm hot.

BS: Well, a malicious-prosecution claim is not about revenge -- or hotness. It's about proving you were arrested without probable cause. In this case you were arrested with probable cause -- with actual cause, in fact. You have no malicious-prosecution case.

MM: Well, I want to file one anyway, I want to make Shuler suffer.

BS: You're going to have to find another lawyer to do that. If I filed such a case, I would be subject to sanctions for filing a case without "good cause" to bring it. It would be a violation of our ethical rules. It's wrong, and I'm not going to do it. I got you off on criminal charges, so I would suggest you be content with that and move forward -- except be sure you stay off Shuler's property when you do it. The judge said you are going to get nailed if you wind up in court again on this. I'd suggest, for once, that you listen to somebody.

The notion of Bill Swatek being concerned about ethics issues is a joke, to be sure. But this isn't a joke: We filed a bar complaint against Swatek and received a letter that it would not even be investigated. Now we learn that attorney Graves has been disciplined for failing to research a case, when published reports indicate he did research the case -- certainly more than Bill Swatek did on the McGarity case.

The Alabama State Bar is a big reason Alabama courts stink to high heaven. It enables dirt bags like Bill Swatek, while dropping the hammer on John Patrick Graves.

Did Graves makes a mistake, did he rely too heavily on the word of his client? It's possible, sure. Graves' biggest mistake probably was taking on a large hospital that could afford to hire Starnes Davis and Florie, a Birmingham firm with roughly 60 lawyers. That's the kind of large firm the Alabama State Bar routinely favors.

Did any possible misconduct on Graves' part reach the level of Swatek's gross behavior in the McGarity case? Not even close.

10 comments:

Anonymous said...

Sounds to me like the lawyer embarrassed the hospital by filing this lawsuit, so someone decided to make him pay -- by embarrassing him.

Anonymous said...

Lots of unanswered questions about this. Did the patient and his family just lie about this, and the lawyer fell for it? Were they out to make a quick buck? Pretty brazen, if that's what happened.

legalschnauzer said...

@7:30 --

Agreed. Lots of questions. It appears the lawyer did file the lawsuit before doing much research, but he quickly followed up with affidavits from the patient and two family members re: the allegedly severed penis. Not sure what the medical records show, but hospital folks were adamant that no penis was severed.

Anonymous said...

The Alabama State Bar is a political organization whose main job is to collect member dues. Not sure it accomplishes much beyond that. It certainly doesn't promote integrity in the legal profession.

Anonymous said...

I've had several cases before Judge Jackson and always thought he was a reasonable judge. Don't know how he concluded that you had to give written warning in the criminal trespass case. If warning was required, we would have no such thing as private property. Swatek probably is a sacred cow in Shelby Co., and that must explain the ruling. Otherwise, it makes no sense, and Jackson should know that.

Anonymous said...

Swatek is the type who makes all other lawyers look bad. Malicious prosecution, by law, is a disfavored tort, and anyone who is capable of passing the bar exam should know that. One role lawyers have is to educate clients when they don't have a case -- to have the kind of conversation you cite in your post. Swatek failed miserably at his job, and the result was an abusive lawsuit that makes the whole system look bad. Who was the judge on the civil case?

legalschnauzer said...

The judge in the civil case was Mike Joiner, who was presiding judge in Shelby Co. at the time. I suspect Joiner instructed Jackson to screw us on the criminal matter, and then Joiner himself twice denied summary judgment when McGarity/Swatek didn't even respond to our motion. And it wasn't a motion I prepared; we hired Jesse P. Evans III and Michael Odom (then of Lange Simpson) to do it.

One of Robert Bentley's first acts as governor was to appoint Joiner to the AL Court of Criminal Appeals. Like a lot of people, I had a reasonably favorable impression of Bentley at that time, but the Joiner appointment made me wonder if Bentley's integrity was shaky. Of course, we know how that turned out.

Anonymous said...

Is Swatek the guy who got caught hiding a tape recorder in his desk to record the opposing party's "private" discussions during a deposition?

legalschnauzer said...

@8:46 --

Yep, that's him. He got suspended for that -- 3 or 6 months, I think -- but he was right back practicing law in no time. He also was charged with perjury for lying about what he did, but somehow was acquitted, even though evidence presented at trial clearly showed he was guilty.

Anonymous said...

It's painful to read these stories about severed penises. Can we switch to another topic, please?