Randazza Wrestled With A Pig (And This Time, The Pig Won)

There’s an adage, attributed to George Bernard Shaw.

I learned long ago, never to wrestle with a pig. You get dirty, and besides, the pig likes it.

Shaw wasn’t a lawyer.  Lawyers don’t always have the option not to wrestle with pigs, as even pigs are entitled to representation.  That doesn’t mean the adage doesn’t hold true.

Marc Randazza* was never one of those guys who talked tough on the internet but was a meek, timid, moderated guy in real life.  What you saw online was what he was in person, in his practice, in his dealing with Excelsior, Liberty Media, and Jason Gibson, the guy in charge of the gay video production company for which Randazza served as general counsel.

But it was more than that. The two were tight. They hung together, drank together, the way two close friends do. And as sometimes happens with close friends when one pushes the envelope of familiarity too far, they had a falling out.

For these two guys, it began with Gibson using Randazza’s personal office for a “shoot” without his actual knowledge or permission. It was a liberty too far, though for anyone who doubts just how close Gibson thought the two of them were, consider that he felt shooting on Marc’s desk was within the parameters of their friendship.  Then there was the straw that broke the camel’s back in the backseat of Marc’s car.  If you need the details, you have no imagination.

As is usually the way, the breakup of buddies who worked together ended up in need of financial resolution, and so Randazza refused Gibson’s offer to pay him a few hundred thou to keep his secrets and demanded arbitration.

Guys who are in the wrong don’t usually eschew a few hundred thou. Guys who are in the wrong don’t usually demand the airing of dirty laundry. Guys who do are confident that they have the goods, especially when they are seasoned lawyers who grasp what this entails. Guys who do are confident when they have a seasoned lawyer, one like Ken White, to represent them. Even so, they sometimes lose, because they’re wrestling with a pig.

Joe Mullin at Ars Technica bought into the pig’s story, because an arbitrator said so and, well, everyone knows how pure, naïve and pristine these gay porn producers are. I have a theory, and it’s grounded in how bizarrely over-the-top the arbitrator’s decision was in disparaging Randazza’s actions and motives at every turn, and how the arbitrator rejected, if not utterly ignored, all evidence to the contrary.

It’s not that Excelsior, Liberty Media and Gibson were likeable litigants, but that no one expects a pig to be anything other than a pig. In contrast, Marc Randazza was a lawyer, but a lawyer who used foul language, jokes, snark and all the other means that normally fly between close friends, in his emails.  While Excelsior is expected to be offensive, Randazza was expected to behave with the faux dignity that makes those members of the guild with a rod up their ass feel comfortable.

But Randazza puts on no airs, and in the scheme of pig mud-wrestling, that made the mud on Randazza dirtier, more filthy, more wrong.  Once he got a hate on Randazza for dirtying up his profession, there wasn’t an argument, a word, a fact, the arbitrator was going to accept. He burned Randazza and hugged the pig.

The details are sordid, and Mullin relishes smearing Randazza with each dripping bit of ooze. If you want to spend the time, read them.  But was there anything Randazza did that Gibson wasn’t fully aware of, or didn’t Gibson’s total approval? Not between buds. And if there was, would Randazza give him a settlement agreement that spelled out that Randazza would get $75,000?

There were no fools here. Gibson was no naïve babe in the woods, and certainly Randazza is no idiot. As an expert explained at the hearing, there was an industry practice, an ugly practice, of upping the settlement amount by creating the appearance of a bribe so that the third-party pig (pigs like things that smell like garbage) felt comfortable that they were buying protection for the future rather than just settling past wrong.

Randazza never got a dime, and never would. But this practice was unseemly, though effective.  Nor did Randazza ever compromise his buddy’s interests by conflicts, not merely because Gibson knew everything Randazza was up to, but because after claiming the opposite, Excelsior never took any action different than what they did when Randazza and Gibson were still tight.

Ken White, who also knows what sort of person, what sort of lawyer, Marc Randazza is, explained this:

We presented evidence that in these sort of negotiations — content providers suing (or threatening to sue) infringing sites — it was routine for the lawyers representing the sites to offer “bribes” to the threatening lawyer as part of the package — offers to hire them in the future, or retain them, so that the lawyer would not be able to go against that site again.

Mr. Randazza testified that all such negotiations were part of that culture — calculated to drive the settlement offer up and promote his clients’ interest, but not ever anticipated to come to fruition.  Our expert testified that such offers/trends are known in some legal subcultures, and that this didn’t surprise her.  There was no evidence that Marc ever received any sort of bribe or consideration — which we maintain shows that they were always hot air.

The truth is that I didn’t need Ken to tell me this, because I know Marc Randazza.  I know his bluster, and I know his integrity.  We’ve talked about things, and as with almost any lawyer, there were choices available which pitted a lawyer’s integrity against money he could make if he had a little larceny in his heart. Marco Randazza had integrity.

There is no question whatsoever in my mind that Marc Randazza would never screw his client because that’s not what he does, how he thinks, where his head goes.

So an arbitrator decided that the wrestling match with a pig was won by the pig? And even friends, people who enjoyed Randazza’s largesse when they were in need, lack the intelligence to read about this with enough skepticism, enough belief, that the lawyer who demonstrated total integrity toward them would somehow be the dirtier of the two as described by an arbitrator.

Ken White knew better. I know better. So Marc Randazza wrestled with a pig and lost. That changes nothing about who and what Randazza is. And if you can be so easily confused by what Ken called a “grotesquely unfair and unjust” decision, a “one-sided screed,” then go hang with the pig. I pick the lawyer with integrity, and a foul mouth. I am proud to stand with Marc Randazza.

*Full disclosure: Marc Randazza has been, is and will be my lawyer on all First Amendment matters.

41 thoughts on “Randazza Wrestled With A Pig (And This Time, The Pig Won)

  1. Bob

    While the Ars Technica piece seems one-sided, I’m struggling with this “routine” practice of accepting higher settlement amounts to conflict Randazza out of future cases against those sites. That agreement, “routine” or otherwise, is expressly forbidden by Nevada Rule of Professional Conduct 5.6 and California Rule 1-500. Randazza is a member of both the California and Nevada Bars. When accused of violating the Rules of Professional Conduct, it’s not a good defense to argue that “everyone does it.”

    1. SHG Post author

      No, it’s not. And it’s a shitty practice under any circumstance. The routine wasn’t to actually “do it,” however but to use it to create a larger settlement pool, which would then be used for the client, so it was more sham tactics than anything else.

      That said, it’s still a terrible and disturbing practice. There is a lot of pattern and practice in law that, frankly, stinks.

      1. Bob

        If a separate payment of $75,000 to Randazza is spelled out in a settlement agreement that’s about to be signed, that seems like “doing it,” whether the payment is made or not.

        1. SHG Post author

          Too many unfounded assumptions in that sentence. When you say “seems like,” you say nothing. Things either are or aren’t, regardless of what they “seem like” by failing to take facts into account.

        2. dm

          I did not see it noted (though perhaps I’ve missed it) whether the agreement for separate payment to Mr. Randazza was part of a separate, stand alone agreement, or part of the primary settlement agreement between the named parties. If it was an entirely separate agreement then I think Mr. Randazza has real problems proving to any ethics squad that it was disclosed. If the separate payment was known to his client there would not seem to be any particular reason for not including that provision in the settlement agreement between the named parties.

          1. SHG Post author

            Per the arb award, it was in the settlement doc given by Randazza to Excelsior to review. There was no separate secret agreement. I thought I made that clear in the post.

  2. Stan

    I really don’t know what to think. If he survives the grievance process in Nevada (and Florida if Nevada finds a violation) he should be ok. It makes no sense to me that a stalwart who defended his clients like an attorney should suddenly dip his toes into another’s pool. If what was written Ars is true, then there must’ve been a mental or emotional breakdown somewhere along the way, or it could have been straight out hubris and narcissism, though I doubt it.

    The use of foul language is a red herring, as are a lot of the comments made by the author in the Ars article. I for one, hope he survives this with nothing more than the financial penalty, so he can fight the good fight on behalf of others.

  3. losingtrader

    Could it be mere chance you used the phrase, “….with a rod up their ass….” where the biz is gay porn?

  4. Mort

    I would never, for a single second, hesitate to attempt to retain Marc as my attorney for First Amendment issues if I had the means and cause to do so, just as I would not hesitate to attempt to retain our Benevolent Host were I in need of a criminal defense lawyer in New York.

    The argument that he is somehow unfit is, frankly, insane.

  5. Turk

    This comment isn’t for shg, but for readers who may come across this piece:

    I’ve know Marc for a bunch of years, and worked with him, and he repped me as he did shg on a 1st Amendment case (where I was his local counsel), and I have faith in his integrity. The arb award does, in fact, look bizarrely one-sided. It’s as if the arbitrator hated Randazza personally, and then did everything possible to hurt him.

    Being outspoken and colorful can certainly rub some folks the wrong way. But arbitrators should decide cases on facts, not emotions.

    I continue to recommend Marc to others for 1st Am and IP work and will continue to do so in the future.

    1. SHG Post author

      That was how the award read to me as well. As there is no evidence of which I’m aware that would explain any basis for personal hatred, I won’t attribute any malice to the arb, so the only rational explanation I was able to come up with is that Marc’s “colorful” language offended him so greatly that he did everything possible to hurt him.

      1. Steven M. Warshawsky

        For what’s worth — and feel free not to post this comment — but I think the folks who have a personal and/or professional relationship with Mr. Randazza are allowing their judgment to be clouded by their feelings. I’ve read the arbitrator’s decision (and other writings about this case)and from my outsider’s perspective (informed by many years as an employment lawyer) it simply reads to me like the decision of an arbitrator who has ruled against Mr. Randazza on his various claims. His legal and factual positions were rejected. Credibility determinations were made against him. He lost. Nothing in the decision sounds to me like it was personal or biased or unfounded. The alternative view appears to presume that there was no merit to the company’s positions and that the **only** reasonable decision was a decision in Mr. Randazza’s favor. I fail to see the case this way. Mr. Randazza might be a great First Amendment lawyer, and lots of excellent lawyers might vouch for his ability and integrity, but that doesn’t mean the arbitrator’s decision was wrong.

        1. SHG Post author

          No reason not to post this. While you are somewhat right that I bring personal knowledge to my view, the arb award hardly reads like he merely found against Randazza. It goes level, by level, by level, below and beyond what would be necessary to simply find against him. It’s replete with gratuitous findings which do not further the decision, but appear to be inserted merely to do harm. The characterization of finding the “bribe,” for one, was needless. Yet he not only did it, but beat it to death.

          That someone loses isn’t great, but is part of the game. This award isn’t about mere losing. As for my personal bias, I can’t help the fact that I know very damn well that Marco is a lawyer of integrity from personal experience. That doesn’t disappear because of a shitty arb award.

        2. Turk

          Let me just add to Scott’s comment about arb decisions: Most decisions are very short. There are reasons for it, both based on the fact that arb decisions are very difficult (but not impossible) to get thrown out.

          First, they don’t have to write much. An arb decision can be just a couple of sentences long, even on a complex case. Why spend the time to write more than a result, unless the litigants have specifically asked for it?

          And second, the less one writes, the less there is for a losing litigant to hang his hat on in an appeal.

          In both situations (time spent and appealability), the less written, the better it is for the arb.

          By going on at length, the arbitrator clearly seemed to be going beyond what was needed, and the only reason I can think of is to deliberately hurt someone that he didn’t like.

  6. Dave Crisp

    I agree that both the Ars article and the original arbitration judgement bear all the hallmarks of being hatchet-jobs.

    One thing that does concern me a little, however, is the apparent screencap of Marc’s statement of assets about halfway down the first page of comments. I hope to god it’s either not real or that the highlighted line isn’t what the poster claims it is, because if it IS real, then either Marc really isn’t such a good guy, or Ken White seriously fucked up. I’m not sure what I’d want to believe less. Can anyone here confirm or deny this to set my mind at rest?

    1. SHG Post author

      There is no possibility of a claim of malpractice against Ken. Marc thought the world of Ken’s representation, and Ken did a great job. There is no issue of malpractice, though from a bankruptcy perspective, it’s a theoretical asset. That said, no one suggests any malpractice happened, and no one fears any claim of malpractice.

  7. Marc R

    Looking at the contract between Exc and MJR, the arbitration and specific performance/equity sections near the end should have more weight.

    I don’t know him personally but the quality of his work and his longstanding moral pro bono stances with clients and Nevada free speech legislation demands far more evidence for me to think he did something “wrong.” We will get more of the story in time, but Mark reps those who say and act highly improperly. The chance of a client not acting wrongly against him is very slight in that field.

    I just don’t see evidence of illegality or immorality and I think he deserves the benefit of the doubt until shown otherwise. I’ve seen plenty accuse him, sue him and degrade him but he seems to usually have the moral position and the legal win to give it some heft.

  8. RoyceEsq

    It’s never pleasant contemplating a colleague and even friend might have made some serious mistakes or have some serious failings. In acknowledging that, we’re in turn acknowledging we too might have been deceived by them. I’ll force myself to be optimistic here, and hope for the best.

    In reading through the entire arbitration award, though, I have a difficult time maintaining that hopeful optimism re: Marc. The whole bribe matter and the conflicts issue weren’t the only points being disputed and on which the arbiter made determinations. What of the spoliation (not covered in the Ars Technica article)? At the very least, attorneys should preserve client legal files and it would appear Marc had wiped computers and phones and destroyed files/property.

    OK, so perhaps Marc was just ill-prepared for the nature of the arbitration that would come about. But the award covers a great deal of evidence against him, with very little in his favor. At some point, after sitting here and telling myself “Those bribe comments look bad and its technically a violation to do that, but…”, “An absence of informed written consent on these conflicts is bad, but…”, “He really should not have engaged in spoliation, but…”, it gets more and more difficult to follow that “but…” with anything convincing.

    This is not a condemnation of anyone, and I fully admire dedication to a friend and faith in their demonstrated capabilities. Let’s be sure we’re not actually doing a disservice to colleagues and friends, though, by ignoring warning signs or problems that could interfere with their fulfilling their full potential and performing the service they’re capable of performing. Attorneys are constantly presented with opportunities to take advantage of this and get away with that, and the impression one’s peers may stay willfully blind to wrongdoing or refuse to encourage one to correct their behavior doesn’t do anyone any good.

    1. SHG Post author

      One of the things I had to consider in writing this post was whether to explain each allegation, the defense, etc. I chose not to get into the weeds, because it looks defensive coming off an adverse decision. It’s not up front, but it is afterward. Consider, for example, the spoliation claim. Computers were used (knowingly and with full approval) for all clients, not just this one.

      Does this client get access to all the other clients’ privileged communications? Does he not have a duty to preserve their privilege? And if there was nothing deleted relating to this client that wasn’t otherwise preserved, then is there spoliation?

      Well, the arb ruled there was, no mention of any of this, of any other client, no mention of his duty to preserve the confidences of all those other people on those computers. See what comes of explaining each point? Neither Turk nor I were blind to Marc being Marc, and we’re both pretty skeptical lawyers. But still, there was never any doubt in our minds about Marc’s integrity. Not that he couldn’t do the occasional bonehead thing with which we disagreed, but that he was, without a doubt, ethical. And that’s the point.

  9. AD

    As an attorney, I understand the feeling of an adverse judgment. Unfortunately, I also am familiar with the feeling when the judgment is one completely devoid of any sense. Not having a comprehensive knowledge of the facts in this case, I don’t know that I am capable of making the statement that this arbiter’s findings are completely devoid of merit. However, the human-being-common-sense within me tends to side with Ken White’s take on the matter. Whether I am naive for that, or not, I really do not care.

    There is, however, a question that I hope someone more informed than I can answer. One part of the arbiter’s award (while understanding the problems that arise from cherry-picking) states:

    “This is another of Mr. Randazza’s assertions in this arbitration of “No harm, no foul”— which the Arbitrator has not accepted, primarily because of the violations of duties constituting and/ or including fiduciary duties. Ethical and other violations of fiduciary duties do not require “fact of harm” to be shown by a preponderance of the evidence or otherwise. ” (Interim Award, p.15-16).

    Has the fundamental element of damage been erased from the requirement of liability? “No harm,no foul” is the very core defense of every single theory of imposing liability. Absent some statutorily imposed penalty for breach (which I am unaware exists in this case), how can there be an imposition of liability without damage — regardless of the burden of proof?

    I certainly find the notion of negotiating an additional fee to be paid to create a future conflict to be completely distasteful, but how was that company (or anyone) harmed? Ethical rules are creatures of the licensing authority and implemented solely for the protection of the public — but not enforceable by private right (unless I am unaware of some other jurisdiction’s crazy law to the contrary). Of course, the fiduciary duties would give rise to a private action, but they are two different animals. I’m not sure I can ever be on board with an ethical breach (wherein no private right of action exists) giving rise to some theoretical damage supporting the basis of imposing liability for a breach of a fiduciary duty. It appears that this is what was done.

    By way of a (bit of) humorous analogy: if Timmy the 5th grader enlists me (another 5th grader) to approach the kids that are stealing from him to obtain remuneration for him, and I tell the other kid “Look, you stole from Timmy. You have to cough up three oreo cookies for Timmy. And if you give me two oreo cookies, I won’t ever bother you again.” and the kid in turn decides to just give Timmy 4 cookies and me none, then my tactic worked to Timmy’s benefit. However, even if the kid gives Timmy 3 cookies and me the 2, Timmy hasn’t been harmed. Timmy didn’t lose a cookie, he just did not gain the theoretical cookie. And Timmy isn’t prevented from approaching the kid in the future, only I am. If the Association of Cookie Enforcers wants to punish me, then that may be the case…but the breach of cookie enforcer rules doesn’t give rise to Timmy’s claim for damages of a lost theoretical cookie.

    Sorry for the long comment, shg. If you feel it doesn’t add anything, feel free to moderate appropriately. tl;dr – the arbiter’s decision is a head-scratcher at best.

    1. RoyceEsq

      AD –
      I’m sure others will contribute to an answer as well, but I’ll offer up this.

      The problem with the “no harm, no foul” excuse in this situation is we’re talking about an attorney’s fiduciary duties owed to their client. That particular portion of the arbitration award discusses the “bribes” that have been a key topic of discussion here. Abandoning the “bribe” term for objectivity’s sake, if an attorney were to attempt to secure from the opposing party in litigation a financial payment to themselves, this could interfere with their ability to effectively represent the client – they’re now pursuing personal financial gain through a separate arrangement or side deal. Imagine how this might cloud an attorney’s judgement or influence them properly – for instance, say they were to hasten agreement to a settlement that didn’t actually serve the interests of their client, because they were too focused on getting those signatures on to paper knowing a 5-figure windfall would come their way as a result.

      Things are a bit different for attorneys and those with fiduciary duties than others. In other civil matters, “no harm, no foul” might very well apply in terms of calculating damages and the like. The arbitration decision here, though, does not accept that because the violation has taken place through the introduction of competing interests by the attorney.

      That is what I gather about the arbitrator’s reasoning, and I am in no position to be the one to rule on the merits myself. Simply explaining what I interpret that portion of the arbitration to be about. Again, this is about an attorney’s fiduciary duty’s and not a run-of-the-mill civil dispute.

      1. SHG Post author

        This discussion is not merely academic, but going off-topic. If you want to blindly accept the arb’s decision just because it exists, that’s fine. But discuss it elsewhere. That’s not what this post is about.

      2. AD

        But the problem is that the standard is the same here as a run-of-the-mill civil dispute, from a damages perspective. There has to be damages in order to award them.

        The fact an attorney is involved only changes the standard of care, not the theory of liability.

        If a doctor commits negligence in treating a patient, they breached the duty owed to patient. But if the patient can’t prove damages (and that the negligence was the proximate cause of the damage) then the doctor is not liable.

        Maybe the medical board suspends the doc, but that does not equate to damages for the patient.

        1. SHG Post author

          That’s correct. While Royce is correct that a lawyer’s conduct doesn’t require damage to be unethical, the free-floating ethics issue is for the bar to decide. The issue before the arb was whether there was compensable damage.

          And thanks for bringing this back on topic, rather than going down the path RoyceEsq took.

  10. John Barleycorn

    I see Stephen E. Haberfeld is one of them retired judges that can’t let go of the Honorable title.

    Come on Stephen I can see if you were appointed by the President and confirmed or elected to public office or something, but even a Princeton and Harvard grad needs to show a little humility. I mean after all, setting bail and taking care of administrative hubabloo for one part time term isn’t exactly orchid in the lapel duty.

    But I guess you are just barley entitled…

    Not to take away from the esteemed ones theory but I got a theory of my own and it doesn’t have a thing to do with Mr. Randazza style. But more to do with Stephen being a team player and JAMS needing to throw a lawyer under the bus now and then to maintain that lovely wretched scent of “objectivity” in the world of for profit “alternative dispute resolution”. Mr. Randazza’s “resolution” ought to be particularly reassuring to many future and current frequent flyers. So there is nothing to see here, now move along…

    P.S. For all you in the cheap seats and those guilded ones on the company clock. Let this minor glitch in Mr. Randazza’s regularly scheduled mission be a lesson to you. Never ever put your own shit on the company’s hard-drive. Especially if you don’t, or even if you do, have friends with the expertise of Mr. Randazza’s.

    P.S.S. As for you Sam Glover I quote from your post:

    “All I know for certain is that Randazza is having a bad day.”

    Really Sam? Ya think?! WTF? You smug prick! Hope you got more upper body strength than those mad presumptive skillz of yours. Because if not and your arms give out, holding yourself up atop the picked fence can get messy.

  11. Daniel White

    Sad, I’ve enjoyed coverage of various legal topics from both you, and Ken White, only to realise now that my trust was misplaced. You’re just part of some old boys’ network. Taking the side of your buddies, facts be damned. It’s a real shame. I’m genuinely flustered here, I really thought you had integrity.

    1. SHG Post author

      So how did you come to know the facts that are being “damned,” thus misplacing your trust in Ken and I, who you thought had integrity? Nice first comment, by the way. Nothing weird about that. I can’t speak for Ken, but for myself, losing your trust (whoever you are) makes me sad.

  12. Herp Derp

    Just to be clear, the “bribe” that’s described in the arbitration award isn’t just a distasteful or “shitty” practice. It is patently unethical, and I hope no one is laboring under the belief that it isn’t.

    Nevada Rule 5.6 says “A lawyer shall not participate in offering or making . . . [a]n agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.” In other words, it doesn’t matter if you’re bluffing or don’t really intend to carry it out: you can’t even discuss it. Period. And it’s certainly not a defense to say, well, that’s just the way lawyers who represent particular clients roll. The ethics rules apply to all lawyers.

    Also, even if it weren’t specifically barred by Rule 5.6, Randazza’s conduct almost certainly violated the general conflict of interest rules. Randazza seems to be saying that the arrangement — whereby he’d be conflicted out of any future suits against the defendant — was kosher because the client knew about it and didn’t object. Not true. First of all, even where conflicts are waivable, Rule 1.7 says the client must give “informed consent” to the waiver that is “confirmed in writing.” In other words, Randazza was required to ” communicate[] adequate information and explanation about the material risks of and reasonably available alternatives” to the conflict, and then receive prompt written confirmation from the client consenting to the conflict. See Rule 1.0. I don’t see anything in either the arbitrator’s decision or Randazza’s brief opposing confirmation of the award suggesting that this high standard was met.

    Moreover, I’m fairly certain the conflict Randazza was (rather intentionally) creating isn’t the kind the client can consent to, even if there’s full disclosure and a written agreement. It’s doubtful enough that Randazza *reasonably* believed that conflicting himself out of further cases against the same defendant was compatible with continuing to provide his employer with “competent and diligent representation,” Rule 1.7, particularly because he could easily be called upon in the future to advise his employer on whether the defendant was violating the terms of the settlement or continuing to infringe on his employer’s copyrights. And in any event, Rule 1.7 specifically identifies a conflict “involv[ing] the assertion of a claim by one client against another client represented by the lawyer in the same litigation” as one that cannot be waived — yet that’s precisely what Randazza was proposing.

    1. SHG Post author

      I suspect you’re right on all points, and it’s certainly an appropriate subject for bar counsel to consider in Nevada.

      Damn you and your refusal to use a real email, but writing worthwhile comments. I hate you.

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  14. Charles

    So, rather than negotiating honestly and in accordance with the expectations of the law, Randazza crafts a deceptive settlement agreement which violates the Rules of Professional Ethics. His defense is, “Hey, it didn’t hurt my client. I violated the rules to help my client out! And, besides, everyone does it–unlike GAY fellatio.”

    It is perhaps slightly unfair to characterize an arbitrator who looks askance at cavalier violations of ethical and legal duties as having a stick up it. Our clients, and the public, have the right to expect we will conform our behavior to the expectations of the law and faithfully advise them to do the same, regardless of what everyone else is doing. We all make mistakes, but the response to being shown your error is not to double down with excuses; an honorable person acknowledges the mistake and does better next time. I will not give a label to the kind person who hires an expert to say, “Everyone is unethical, so you can’t expect me to be any different.” Suffice it to say that an arbitrator finding he lacks credibility is eminently reasonable.

    I have no doubt that he is a fine lawyer and a good friend. Perhaps Ken will put the arbitration exhibits up and it will make my remarks seem uninformed. But as the facts stand, and setting aside your admirable loyalty to your friend, Randazza looks to be in the wrong.

    1. SHG Post author

      I agree that it was unseemly and Marco shouldn’t have done it. Marco agrees as well, in retrospect. But as already said, this is an issue for determination by bar disciplinary committee, not the arb. That’s the relevance here.

      1. Charles

        Is it not directly relevant to his credibility?

        Which is to say, it is an instance of Randazza, as an employee and fiduciary, ignoring the ethical constraints placed on him. He argues that he didn’t harm his client’s interest, but what is the prohibition against harming one’s clients interests but an ethical constraint? And Randazza has already manifested a willingness to disregard these. All of this is to say nothing of the other findings, which do not read as though they are unsupported by evidence.

        I don’t want to be tendentious here; in fact, I want to see the evidence and be proven wrong.

        1. SHG Post author

          No, it has no direct bearing on credibility, nor is this an argument. As for your wanting to “see the evidence” and be “proven wrong,” you’ve exceeded any reasonable expectations. This is not about proving anything to some unknown guy on the internet who calls himself “Charles.”

  15. A. Nony Maus

    So, a slightly different perspective/question. Everyone here starts with the premise that the “bribe” violated ethical rules. A question for you all. Large companies routinely retain multiple firms in a given city expressly so that they can conflict these firms out of representing an adversary. It is also not an infrequent occurrence that a company will retain former opposing counsel (not simply because they found the attorney to be a worthy adversary but because they want to make sure that the person doesn’t show up on the other side of the “v” again.) How is this actually different? And if the examples I’ve cited don’t violate ethical rules (and I don’t think they do), how precisely do Mr. Randazza’s actions differ?

    And before anyone asks, no I’m not a Randazza cheerleader – I’m honestly curious about the widespread assumptions in the comments that the practice described must be an ethical violation.


    1. SHG Post author

      I am a Randazza cheerleader, but there is a difference. Regardless of his underlying purpose, Marc facially sought payment from an adversary during the course of his representation. It’s one thing to be a whore after the case is over, but its another to do so while actually engaged in the representation of a client. Afterward, an attorney is essentially a free agent, available to take on any client he chooses (assuming there are no other reasons to preclude representation). But during the course of litigation, he owes a fiduciary obligation to the client he already represents, and cannot ethically do anything that would create a conflict, even if it’s inchoate.

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