Miami-Dade judge tosses malpractice case against former Miccosukee lawyers

12/16/2013 8:45 AM

12/16/2013 7:47 PM

Two prominent Miami attorneys have won a decisive victory against their former client, the Miccosukee Tribe, in an acrimonious malpractice lawsuit tossed out by a state judge.

Miami-Dade Circuit Judge John Thornton has dismissed the tribe’s malpractice case against law partners Guy Lewis and Michael Tein, saying the one-time federal prosecutors committed no civil wrongdoing while collecting more than $10 million in fees from the tribe for various legal services.

In a decision issued Sunday, one month before a scheduled trial, Thornton wrote: “There is no evidence of fraud. There is no evidence of any damages resulting from any purported bad act.”

The judge’s sweeping ruling dealt a critical blow to the tribe's case against Lewis and Tein, who have seen their law practice shrink dramatically during a two-year-long legal battle with the Miccosukees. The legal victory — even if the tribe seeks an appeal — opens the door for Lewis and Tein to rebuild their practice after being mired in state and federal court fights.

Lewis and Tein, along with their lawyer, Paul Calli, did not return a request from the Miami Herald for comment. But in a proposed order for the judge, who adopted many of the assertions, Calli wrote: “The record is devoid of any evidence of criminal intent or intentional misconduct.”

Calli also told the Daily Business Review that “Judge Thornton's detailed and careful analysis completely exonerates Guy and Mike of the scurrilous and false allegations levied by the tribe. Guy and Mike are grateful that the truth has finally prevailed.”

Significantly, Thornton ruled that Lewis and Tein did not overbill the West Miami-Dade tribe between 2005 and 2010 — in contrast to a previous judge, Ronald Dresnick, who presided over a related Miccosukee lawsuit and said the partners’ multimillion-dollar billing “made my eyes spin in their sockets.”

Thornton also ruled the tribe's malpractice case did not belong in the state Circuit Court because it was an “intra-tribal” dispute stemming from the hostile political conflict between the tribe's current chairman, Colley Billie, and its former longtime leader, Billy Cypress. In other words, the legal dispute with Lewis and Tein is actually a “sovereign” matter for the tribe to resolve on its reservation off the Tamiami Trail, he said.

“This case is an attempt by the Miccosukee Tribe’s current leadership to bring to this court what can properly be described at its core as an intra-tribal dispute over alleged abuses of power by a former chairman,” Thornton wrote in his 14-page ruling.

Cypress had hired Lewis and Tein in 2005 to represent the tribe on tax issues arising from its casino gambling operation and later to defend him and other tribe members against income-tax and other personal legal problems. Each of the tribe’s 600 members receives between $120,000 and $160,000 a year in gambling distributions.

The judge’s twin decisions on jurisdiction and summary judgment block the tribe’s case from being heard by a jury at trial in January.

Thornton’s ruling on jurisdiction was striking because he had rejected a previous motion by Lewis and Tein to dismiss the malpractice case. But this time, Thornton changed his mind after U.S. District Judge Marcia Cooke ruled in September that the Miccosukee’s federal racketeering case against Lewis and Tein, former tribe general counsel Dexter Lehtinen and Cypress did not belong in federal court. The tribe has accused Cypress of embezzling $26 million.

But unlike Cooke, Thornton went the extra distance and ruled on the merits of the tribe’s malpractice case, which had accused Lewis and Tein of fraud, breach of fiduciary duty, excessive billing and conflicts of interest while representing the Miccosukees and some members on tax matters and other personal litigation.

In his ruling, Thornton focused on a controversial civil case that Lewis and Tein handled for two Miccosukee Tribe members, who were held liable in a 2009 trial for the death of a woman in a fatal car-crash collision on the Tamiami Trail.

In June, Thornton’s colleague on the circuit bench, Dresnick, had ordered the Miccosukee Tribe to pay an outstanding $3.2 million judgment to the victim’s husband, Carlos Bermudez, and his son, Mathew, who were represented by attorney Ramon Rodriguez.

They have been waiting more than four years to collect the judgment from a Miccosukee woman and her father. Tammy Gwen Billie was behind the wheel of an uninsured car, owned by her dad, when she crashed and killed 30-year-old Liliana Bermudez in 1998.

The fight over who would pay the judgment arose because Billie and her father, who were represented by Lewis and Tein, maintained they had no money to pay the jury award.

Dresnick, the judge, ordered the Miccosukee Tribe to pay the award after learning that it had paid $3.1 million in legal fees to Lewis and Tein for the defense.

In April, Dresnick also slapped the two lawyers with a $50,000 fine, after deciding he had originally sanctioned them too little for a post-judgment violation over their failure to promptly turn over certain financial records of their two Miccosukee clients.

Dresnick said he was “shocked” and “flabbergasted” by the $3.1 million in fees charged by Lewis and Tein in the fatal car-crash case.

But the judge also found that Lewis, a former U.S. attorney in Miami, and Tein, an ex-federal prosecutor in his office, did not commit perjury or make any misrepresentations after they had testified in fall 2011 that their two clients actually paid their legal fees — not the Miccosukee Tribe.

Both defense lawyers had told the judge back then that any fine would come out of their pockets, not their clients' or the tribe's.

The source of the legal payments to Lewis and Tein carried significant weight.

If the funds came from the tribe as opposed to the legal team's clients, it meant there indeed was more than enough money available to pay the outstanding 2009 civil judgment.

Now, the Miccosukee Tribe is on the hook for that judgment, which, with interest, totals more $4 million.

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