RESPONSE (PARTIAL) THAT LED TO THE DISMISSAL OF RODRICK’S BAR COMPLAINT

[note: Even though the following is public record, the firm has elected to redact certain information.]

November 3, 2015

VIA E-MAIL AND U. S. MAIL

Hunter F. Perlmeter, Esq.

Staff Bar Counsel – Litigation

State Bar of Arizona

4201 North 24th Street

Suite 100

Phoenix, AZ  85016-6266

 

Re:     File No. 15-2075

Charles Rodrick, Complainant

Daniel R. Warner, Respondent

 

Dear Mr. Perlmeter:

This is our initial response on behalf of Daniel R. Warner (“Mr. Warner”) in the above-referenced matter.  Thank you for giving us additional time to prepare this response.  Mr. Warner denies that he has violated the Arizona Rules of Professional Conduct (generally, the “Ethical Rules,” or specifically, “ER x”).

FACTUAL BACKGROUND

The Charge is Part of a Pattern of

Conduct by Complainant

As an initial matter, it comes as no surprise to Mr. Warner that Complainant is pursuing allegations of ethical impropriety against him.  Complainant first threatened Mr. Warner with a bar charge two years ago, when Mr. Warner advised him that he would be withdrawing from his representation of Complainant due to Complainant’s failure to pay for legal services.  Complainant’s goal then became to extort free legal services from Mr. Warner.  His goal now is to ruin Mr. Warner’s professional reputation through the dissemination of lies.

The claim that Complainant had made a “decision to move past” Mr. Warner’s alleged misconduct and filed this charge only as a result of the June 11, 2015 blog post is blatantly false.  Several weeks before the June 11, 2015 blog post on Mr. Warner’s website, Complainant began posting false and defamatory statements about Mr. Warner on yelp.com (see Ex. 1) and ripoffreport.com (see Ex. 2).  Thereafter, on May 22, 2015, Complainant sent an email to Mr. Warner, stating:

Didn’t want you to think I forgot about you. Your malpractice suit is coming soon. Just adding up the damages. I plan on going after your license as well. This suit will also be very Public so the public is aware of how the Kelly Warner firm really operates. See ya soon.

[Ex. 3.]  Complainant has since proceeded with the promised public-smear campaign of Mr. Warner (and others) through two websites that he launched earlier this year, “courtkey.com” and “barcomplaint.com,” with this bar charge at the center of those efforts.  [See Excerpt from Courtkey.com, Ex. 4; see Excerpt from Barcomplaint.com, Ex. 5.]

Thus, despite his claim to the contrary, Complainant did not file this bar charge in response to the June 11, 2015 blog post.  He filed it because he is angry Mr. Warner would not represent him for free.  He submitted it with the objective and intent to post it online and make Mr. Warner look “guilty” in the eyes of the public before the State Bar even started its investigation.  He submitted it to further defame and harass Mr. Warner, just as he promised he would do as part of his attempt to extort Mr. Warner two years ago.

Overview of Mr. Warner’s Representation of Complainant

Complainant initially retained Mr. Warner to prosecute a defamation lawsuit against Complainant’s ex-wife (Lois A. Flynn (“Flynn”)) and her boyfriend (David Michael Ellis (“Ellis”)), as well as other individuals.  Complainant claimed to be involved in the development of some “mugshot” websites, which focused on publishing mugshot photos and information about sex offenders (the “Websites”).  Complainant denied being the owner of the Websites.  The Websites offered the individuals who were published on the Websites an opportunity to have their mugshots removed without any questions in exchange for a payment of approximately $500.  Two of the individuals who were published on the Websites refused to pay the removal fee and became confrontational with Complainant.  When the conflict with these individuals escalated, Complainant was in the middle of a long and contentious divorce.  These individuals found out about the divorce and contacted Flynn and Ellis for information, which the individuals obtained and then published on another website.  Complainant maintained that the information published on the website was false and defamatory, and he sought Mr. Warner’s representation to take legal action against Flynn, Ellis, and the two individuals.

Complainant sought to achieve several goals in pursuing litigation, including, but not limited to, gathering evidence in the lawsuit to be used in his divorce proceeding, getting the individuals to take down the information they had posted, as well as pursuing monetary compensation against Ellis.  Complainant was also concerned about his girlfriend’s reputation because information about her was also posted on the website.

Because of the contentious nature of the relationship among the parties, Mr. Warner required a retainer of $15,000.  Complainant briefly attempted to negotiate a lower amount for the retainer, but Mr. Warner declined that request given the highly contentious nature of the case.  Complainant boasted about being a seasoned litigant who was in the middle of one of the county’s longest divorce proceedings in history and that he understood why a retainer was being required, but also said he thought the defendants would quickly settle.  In response, Mr. Warner emphasized the uncertainty of a quick settlement, given the level of animosity among the parties.  Complainant ultimately paid the $15,000 retainer.

* * * *

On January 28, 2013, Mr. Warner filed the complaint in Maricopa County Superior Court, Case Number CV2013-003800 (the “State Case”).

* * * *

Throughout the attorney-client relationship, Mr. Warner continued to give Complainant the benefit of the doubt—time after time.  Besides Complainant’s alleged ownership of the extortion Websites, Mr. Warner became suspicious of Complainant after finding out that he was in fact a convicted felon and changed his name in an attempt to mask his criminal record.  This was significant because the complaint specifically identified statements as false and defamatory pertaining to Complainant being a convicted felon, being involved in fraud, and being a con-man.  An opposing party in the case sent Mr. Warner evidence that Complainant had a prior felony conviction, which involved a fraud scheme involving cable boxes, approximately three months after filing the lawsuit.  [See Ex. 7.]  Complainant, however, explained that the conviction happened when he was very young and that he was unaware he had been convicted of a felony based on what he said his attorney told him about the plea.  He also had what Mr. Warner believed to be a viable explanation for his name change.  Mr. Warner continued with the representation because other statements on the website appeared to be actionable.

It was not long, however, before Complainant again broke Mr. Warner’s trust.  Initially, Mr. Warner first required that payment be made pursuant to the terms of the fee agreement.  Then, as an accommodation due to Complainant’s alleged financial situation related to his divorce, Mr. Warner provided significant reductions to a few bills.  Then, as another accommodation, Mr. Warner agreed to provide legal services on credit.  Then, as another accommodation, Mr. Warner agreed to allow Complainant to pay invoices issued the previous month on the 22nd of the following month, well outside the 30-day payment period set forth in parties’ fee agreement.

Up until this point, there had never been any problems or disputes with billing as indicated by Complainant in his email dated July 8, 2013, in which he stated, “Dan we have never had a billing issue.”  [Ex. 8.]  Also, to the extent there may have been some payment issues, there were no disputes, and all issues had been resolved without incident.  More specifically, Complainant accepted responsibility for being late with payment after being given these accommodations and assured Mr. Warner that the “next [invoice] will be paid on time.”  [Ex. 9.]

The situation changed abruptly near the end of September 2013.  At that time, Complainant started unreasonably scrutinizing Mr. Warner’s bills, demanding reductions, and refusing to pay anything more until reductions were provided.  [See Ex. 10.]  Mr. Warner became increasingly concerned about Complainant’s sudden change in behavior.  Nevertheless, Mr. Warner once again gave Complainant the benefit of the doubt and provided him with a $1,500 discount in an attempt to salvage the attorney-client relationship.  [See id.]  Despite that courtesy, Mr. Warner was continuously required to ask Complainant to pay past-due invoices.  [See Email to Complainant, Ex. 11 (“I sent you these invoices at the beginning of the month and specifically told you that we could not have a reoccurrence of last month.”).]
Shortly after Complainant’s sudden discontent with billing, Mr. Warner learned that the Websites could no longer process payments due to the credit card companies’ stance on these types of websites:

Asked two weeks ago about its policies on mug-shot sites, officials at MasterCard spent a few days examining the issue, and came back with an answer.

“We looked at the activity and found it repugnant,” said Noah Hanft, general counsel with the company. MasterCard executives contacted the merchant bank that handles all of its largest mug-shot site accounts and urged it to drop them as customers. “They are in the process of terminating them,” Mr. Hanft said.

PayPal came back with a similar response after being contacted for this article.

“When mug-shot removal services were brought to our attention and we made a careful review,” said John Pluhowski, a spokesman for PayPal, “we decided to discontinue support for mug-shot removal payments.”

American Express and Discover were contacted on Monday and, two days later, both companies said they were severing relationships with mug-shot sites. A representative of Visa wrote to say it was asking merchant banks to investigate business practices of the sites “to ensure they are both legal and in compliance with Visa operating regulations.”

On Friday, Mr. D’Antonio of JustMugshots was coping with a drop in Web traffic and, at the same time, determining which financial services companies would do business with him. “We’re still trying to wrap our heads around this,” he said.

See New York Times Article, Ex. 12, at 9-10.]  Unfortunately, rather than be honest and discuss his inability to fund the litigation as a result of the credit card companies’ new policy, Complainant began manufacturing grievances in an attempt to gain leverage over Mr. Warner and obtain as much in free legal services as possible before representing himself pro per. . . .

* * * *

Before losing the ability to receive payments from his mugshot Websites, Complainant . . . was very happy. . . .  This is not only demonstrated by the fact that they hired Mr. Warner to defend them in another lawsuit that was filed in late March 2013 in the U.S. District Court, Central District of California, Western Division, Case Number 5:13-cv-00514-JGB (the “Federal Case”), but also by numerous emails to Mr. Warner expressing their satisfaction with his services.  For example:

 

1. On March 26, 2013, Complainant stated: “Looks like we have his attention 🙂 Nice Job.” [ 14.]

 

2. On March 26, 2013, Complainant stated: “He has pressure on him now. Nice job.”  [ 15.]

 

3. [ ]

 

4. On April 25, 2013, Complainant stated: “Nice job dan.” [ 17.]

 

5. On April 25, 2013, Complainant stated: “Again nice job here.” [ 18.]

 

6. [ ]

 

7. On May 7, 2013, Complainant stated: “It is nice to deal with a true professional. I like your style.” [ 20.]

 

8. [ ]

 

9. On May 14, 2013, Complainant stated: “Nice Depo Today!” [ 22.]

 

10. On May 17, 2013, Complainant stated: “Awesome!” [ 23.]

 

11. On June 10, 2013, Complainant stated: Your “[r]esponse looks great as usual.” [ 24.]

 

12. On June 27, 2013, Complainant stated: “Looks good. . . . Nice Job on Cali Case.” [ 25.]

 

13. On July 12, 2013, Complainant stated: “I like the pressure and the way you did it.” [ 26.]

 

14. On September 9, 2013, Complainant stated: “That was awesome.” [ 27.]

 

Additionally, even after being unable to receive payments from the Websites, Complainant remained pleased with Mr. Warner’s work product.  [Sept. 26, 2013 Email, Ex. 28 (“Looks awesome!”); Sept. 30, 2013 Email, Ex. 29 (“Your response to continue settlement conference . . . [w]as good.”).]  It was not until late October 2013, when Mr. Warner informed Complainant that he would no longer work on credit, that Complainant’s praise of his work product turned to allegations of unethical conduct.

* * * *
CONCLUSION

For the reasons stated herein, we respectfully request that you dismiss the bar charge in its entirety for lack of probable cause.

Very truly yours,

JENNINGS, STROUSS & SALMON, P.L.C.

By

J. Scott Rhodes