Scientology FLAG's reply memorandum of law re disqualification

13 September 2002

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA CIVIL DIVISION CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC. Plaintiff, v. CASE NO.: 00-002750-CI-20 DELL LIEBREICH, individually and as Personal Representative of the Estate of Lisa McPherson; ROBERT MINTON; THE LISA MCPHERSON TRUST; DANDAR & DANDAR, P.A., and KENNAN G. DANDAR, Defendants. __________________________________/ PLAINTIFF CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION'S REPLY MEMORANDUM OF LAW RE DISQUALIFICATION PRELIMINARY STATEMENT To paraphrase this court's April 9, 2002 observation, just when plaintiff thought that Dandar's conduct both before and during the hearings in this disqualification proceeding could not get any more outrageous, along comes Dandar's post-hearing brief, a/k/a his "Closing Argument." Dandar's brief is extraordinary in several respects. First and foremost, the vast majority of its 154 cumbersome pages consists of a disturbing blend of shrill cries, unethical and unprofessional advocacy, and diversionary tactics; what is more, virtually the entirety of his Appendices pertain to testimony and exhibits offered not to this court in this case, but to Judge Schaeffer in the wrongful death case. Dandar apparently believes that the proper way to try a case before this court is not to present his evidence before the court, but rather to have the court determine the serious issues before it, including credibility, based on testimony given by absent witnesses in a different case before a different judge. In doing so, Dandar obstinately and implicitly refuses to acknowledge that this case is not the trial of the wrongful death case, nor is it the trial of the motion to disqualify Dandar in that case. Despite Dandar's feigned misunderstanding, this is the trial of Dandar's disqualification in this case, before this court. The second - and related - remarkable aspect of Dandar's opposition, is that in addition to offering the wrongful death case testimony of witnesses who did not appear before this court, Dandar offers testimony from the wrongful death case of witnesses who did testify before this court, including Dr. Garko, Minton, Liebreich and Prince. Rather than elicit the fullness of the desired testimony before this court, thus permitting full cross-examination here and enabling this court to judge the witnesses' credibility while they were on the witness stand, Dandar has instead resorted to soliciting only limited testimony from them in this case, and then sandbagging plaintiff with out of context and incomplete snippets of trial testimony previously given before Judge Schaeffer. That is not the way cases are tried in this or any other court. Third, and clearly the prize winner in terms of brazenness, Dandar's brief offers his own prior testimony before Judge Schaeffer. Rather than take the witness stand in his case on defense and offer his version of the facts on certain key issues he now contests so as to enable this court to judge his credibility under the test of cross-examination, Dandar failed to take the witness stand - despite previously telling this court he would do so on several occasions, including at the beginning of these hearings and on August 29th. Instead, Dandar offers his prior testimony from the wrongful death case to this court in an obvious attempt to avoid cross-examination. Further, unsatisfied with offering merely the trial testimony before Judge Schaeffer, as he had represented to this court, Dandar's brief offers: exhibits introduced before Judge Schaeffer that were not offered and/or received by this court; deposition testimony, including that of Minton, that Dandar neither offered before this court nor confronted witnesses with on cross- examination here; and, as if all of that were not enough, Dandar offers, throughout his brief, his own unsworn recitations of fact, devoid of any citation to any record in any case. For example, it is bad enough that Dandar offers to this court for the first time in his brief certain Minton testimony before Judge Schaeffer, but even after doing so, Dandar offers his own unsworn statement that Minton's testimony is wrong. (Def. Brf., pp. 79-80). Fourth, if Dandar ever had any competition for the chutzpah prize of the year, he cemented his victory by offering the very perjurious deposition testimony of Minton that he gave in this case at Dandar's insistence. (Def. Brf., pp. 37-38). This is the very perjury Minton recanted and Dandar offers it as proof positive that the accusations now made against him are untrue. Tautologically, Dandar argues that Minton's testimony from the witness stand in this case is shown to be false by Minton's prior perjured testimony, which perjury Dandar engineered. Further, despite Dandar's repeated statements throughout his brief, that Minton's recanted testimony cannot be believed because Minton is an admitted perjurer, plaintiff respectfully submits that the only difference between Minton and Dandar is that Minton has seen the light (albeit, enhanced by the threat of incarceration) and has decided to tell the truth, while Dandar persists in his demonstrable perjury. Fifth, it is both remarkable and contumacious, that after this court specifically rejected Dandar's attempt to offer evidence, in the form of documents of general bad acts by different churches of Scientology unrelated to the issues or individuals involved in this case (Ex. B, August 29, pp. 221-223), Dandar's brief proceeds to offer volumes of "testimony," exhibits and argument on this very subject. (Def. Brf., pp. 90-153). In contrast to the nine documents that constituted Dandar's proffer before this court on August 30, Dandar's brief offers fourteen documents, thus thumbing his nose to this court, and insisting that any rejection of his "evidence" will be met with even more material of the same nature. Apparently, Dandar does not subscribe to the core principal of our judicial system that when a judge rules, attorneys are bound to follow that ruling, and their remedy is limited to appeal. Instead, Dandar challenges this court to reject his "evidence" as fast as he can file it. Sixth, not content to merely offer as "evidence" here the testimony given before Judge Schaeffer, Dandar's brief also offers "evidence" that was not received and was specifically rejected by this court, including: 1) a letter purporting to be from Minton's own attorney, Steven Jonas to Dandar, which Dandar never even offered and which therefore has not been received into evidence in this case (Def. Brf., p. 112); and, 2) Dandar's own self-serving, March 30, 2002 "I'll pray for you" letter to Minton which was offered and specifically rejected by this court. (Def. Brf., pp. 109-111). This, despite the Sixth Judicial Circuit of Florida's Standard of Professional Courtesy, Section D.1., stating, "In written briefs or memoranda, we will not rely on facts that are not properly part of the record." Apparently, under Dandar's own peculiar rules of procedure, a trial does not end when the last witness is excused, nor are a judge's rulings on the admissibility of evidence binding; under Dandar's rules, there's always room for a few dozen more "exhibits." The seventh remarkable aspect of Dandar's brief is his incessant fabrications, calculated dissembling, willful distortions of the record, and intentionally misleading statements of fact and law. Ironically, in its post-trial brief here (at pp. 42-52), plaintiff offered a discussion of Dandar's misconduct committed during the pendency of these hearings, which, separate and apart from the misconduct charge in plaintiff's motion, requires Dandar's disqualification here. Now, in his post-trial brief, Dandar has outdone himself in deceitful advocacy. Indeed, as discussed, infra, Dandar's brief, standing alone, is so bereft of ethical or professional restraint as to itself also warrant disqualification. Eighth, despite this court's clear and unequivocal caution that sanctions will issue for Dandar's baseless accusations that plaintiff's lawyers (including Rosen) engaged in "threats," "coercion," and "extortion" of Minton, and despite the unqualified denials by Minton, Brooks and attorney Yingling before Judge Schaeffer, as well as Rosen's denials in his testimony before this court, Dandar's brief is rife with these very same irresponsible accusations. (See e.g., pp. 90-92, 117, 118, 119, 120, 130). Indeed, his brief turns the rhetoric up further, accuses plaintiff's representatives, primarily Rosen, of committing criminal conduct, all without one iota of evidence to support his accusations, all based entirely on his warped logic that simply because Minton "turned" on Dandar and told the truth, a priori, Minton must have been "threatened," "coerced," or "extorted." Dandar ignores the fact that Minton and his own counsel have said the impetus for Minton's confession was not any threat by plaintiff, but the threat of his impending incarceration by both this court and Judge Schaeffer. Dandar's baseless accusations of misconduct and criminal conduct by plaintiff and its attorneys, is itself egregious misconduct for which Dandar must be disqualified, separate and apart from other sanctions. But all of these Dandarisms aside, and moving beyond Dandar's pursuit of his own personal rules of procedure and rules of evidence, the single most significant fact to be noted about Dandar's defense is his utter failure to testify respecting certain of the key allegations made against him by Minton. Specifically, Minton's testimony before this court included: 1) Minton's involvement in a meeting at Dandar's office respecting the litigation strategy of seeking to add Scientology's worldwide ecclesiastical leader as a defendant in the wrongful death case (Ex. A, April 9, pp. 16-19); 2) Dandar's instructions to Minton and Brooks at the end of that meeting, in the elevator, that, if asked, they must falsely deny that this meeting ever took place (Ex. A, April 9, p. 19); 3) consistent with the "elevator" instruction, as Minton was soon to go into deposition, Dandar again instructed Minton to falsely deny that this meeting ever occurred (Ex. A, April 9, pp. 19-20). Incredibly, Dandar elected not to take the witness stand in his case on defense and elected not to offer any denial of these damning accusations. And that silence, that failure to testify refuting these accusations, is itself powerful, compelling, if not near-dispositive, evidence of the truth of the charges against Dandar. Similarly damning is Dandar's failure even to address, either by testimony at the hearing or in his brief, the devastating testimony elicited from Dandar's witness, Dr. Garko. Specifically, when Minton's April 9, 2002, recantation before this court concluded, Lirot sped to Tampa personally to report to Dandar in the presence of Garko and others the dramatic testimony that Minton had just offered, accusing Dandar not only of breaches of the canons of ethics, but also of substantial criminal conduct. Upon hearing for the first time that he was now accused of conduct such as theft, commingling of client funds, perjury and suborning perjury, all Dandar could say was that he should have listened to Garko and not sought to add Mr. Miscavige as a wrongful death case defendant. (Ex. B, August 29, pp. 105-106). Dandar did not offer a single word of protest that anything that Minton had just said, as reported by Lirot, was untrue; not even one spontaneous utterance of "I didn't do it," "I did not tell Minton to lie," or "Minton is lying." Common sense and experience teaches us that if one is confronted with an accusation of serious misconduct, we may expect the accused to reflexively and immediately protest and claim innocence. But Dandar did not on April 9, indicating that he knew full well that he was guilty. That is as damning as the fact that in his 154-page tome to this court, there is not one word even acknowledging, much less disputing, Garko's devastating testimony. In the pages that follow, and in its accompanying Objections to the evidence Dandar offers this court for the first time in his post-trial brief, plaintiff deconstructs Dandar's presentation and shows that, while its burden of proof on its motion to disqualify him is only one of fair preponderance, the evidence of Dandar's egregious misconduct, exacerbated by the dissembling in his brief, mandate disqualification. Dandar's New "Evidence" By way of background, by letter dated August 27, 2002, Dandar stated that he intended to offer into evidence here (Ex. B, Argument, August 29, pp. 210-212) at the hearing before this court, the following testimony given before Judge Schaeffer: 1) all of Mr. Merrett's testimony; 2) all of Ms. Yingling's testimony; 3) unspecified portions of Minton's and Brooks' testimony. Thereafter, when this issue arose at the August 30th hearing and when this court asked Dandar what specific testimony given before Judge Schaeffer he intended to offer here, Dandar replied, expanding his list at the 11th hour to include the hearing testimony of: 1) Merrett and Yingling; 2) Brian Haney, Teresa Summers, Peter Alexander, Frank Oliver, Wally Pope and Daniel Leipold (Ex. C, August 30, p. 503). No mention was made of any exhibits or of any prior deposition testimony. Dandar's moving target style of advocacy continues unabated. In his brief here, he has included not only the previously unidentified Judge Schaeffer trial testimony of Garko, Prince, one Nancy Many (a brand new name, not even on Dandar's original witness list in this case) and Dandar himself, but a host of previously unidentified exhibits never offered to this court. Not yet satisfied with the size of his appendix, Dandar adds the deposition testimony of Minton, his own client, Liebreich, and Mr. Jost (another brand new name), none of which was offered into evidence or used to confront a witness on the stand before Judge Schaeffer or this court. So as not to burden this court with a reply brief in size comparable to Dandar's, plaintiff here respectfully submits its separately filed evidentiary objections to everything - testimony and exhibits - from the wrongful death hearing that Dandar now offers to this court in his brief and requests that the court exclude all such evidence for the reasons set forth therein. Dandar's Response to the Charges of Misconduct Preliminarily, Dandar's brief once again chooses to ignore this court's rulings, and treats this court as, in the memorable words of Oliver North's counsel, "nothing but a potted plant." At the August 29 hearing, Dandar claimed ignorance as to the charges of misconduct against him at bar: "...I don't know what the issues are quite frankly...". (Ex. B, August 29, p. 29). This court corrected Dandar, instructing him to read plaintiff's motion more carefully (Ex. B, August 29, pp. 29-30). Despite this, Dandar has the unbridled arrogance to now tell this court the "singular issue within this court's jurisdiction is whether Dandar solicited Minton to perjure himself in Minton's October 2001 deposition in this case concealing Minton's attendance of a meeting with Dandar, Stacy Brooks, Jesse Prince, and Michael Garko on deciding to add parties in the wrongful death case." (Def. Brf., pp. 3-4). Dandar's willingness to misrepresent to this court, even as to matters of which this court has firsthand knowledge, is reminiscent of the oft-cited phrase turned by Judge Connor in American Home Prod. Corp. v. Johnson & Johnson, 654 F. Supp. 568 (S.D.N.Y. 1987). There, when confronted with experts and their sponsoring attorneys who were dishonest with the court, Judge Connor observed that the wrongdoers were "more likely knaves than fools. If they were indeed the former, they must have assumed that judges are the latter." American Home, 654 F.Supp. at 582. It takes a complete absence of respect and an utter dearth of restraint to lie to a judge about matters not within the judge's personal knowledge. But the Dandar propensity to misrepresent matters within this court's own knowledge, to misrepresent to this court matters easily disproved by unimpeachable documents, evidences an attorney to whom prevarication is such a way of life that he has long lost the moral compass needed to distinguish proper advocacy from pure fabrication. Among the more obvious of the disingenuous assertions in the Closing Brief, are the following: On the issue of "Who's Money Is It?", Dandar asserts, "It was only subsequent to entering into confidential settlement negotiations with the Church of Scientology that Minton changed his story, and alleged that in fact, the money was a loan to the Estate, and that the agreement included specific provisions for its repayment." (Def. Closing Brf, p. 74). And, "At his first deposition, January 13, 1998, with two of Minton's attorneys present, Steven Jonas and Kathy Shipe, Minton admitted this money was a loan to Dandar, with repayment left up to the success of the case." (Id., pp. 74-75). Yet the very Minton testimony cited to support the claim actually refutes it, as Minton specifically states the money was advanced for the Estate: "What I have said and what [Dandar] has said is that if they - "they" being the estate of Lisa McPherson - are successful in getting money back over and above their legal expenses in this case and they had $100,000 left to pay me, I would get paid back my $100,000. If they do not succeed in this case, they're under no obligation to pay me back." (Minton, January 13, 1998, Depo., pp. 46-47)(quoted at p. 75 of Def's Brief). Dandar's position that the loan was to him personally with "no strings," but that his client is the only one with an obligation to repay the loan is hardly logical, and even if it were so, would be equally as unethical as the truth manifested by the evidence. Dandar persists in pretending that the $500,000 UBS check was not Minton's money, asserting as "proof" that, "Minton states he had no relationship with the UBS Bank. He states that is why he could not obtain a copy of the UBS checks." (Def. Brf., p. 45). And, he claims, "Scientology amazingly was able to obtain a copy of this UBS check before Minton could get a copy!" (Id., p. 53). First, "amazingly," Dandar never even asked Minton in this case when or even if he gave the plaintiff a copy of the UBS check, even though during Minton's testimony the issue was raised as a comment by Mr. Lirot, and after objection by plaintiff's counsel that it was a speech rather than a question, the court instructed Mr. Lirot to pursue his cross-examination. (Ex. D, Minton, April 19, pp. 89-90). Further, Dandar admitted in his own testimony that the $500,000 UBS check was physically handed to him by Minton. (Id., Dandar, April 19, pp. 264). One of the more egregious misrepresentations in Dandar's brief, is his effort to take back his own testimonial admission before Judge Schaeffer that he finally recognized that the $750,000 UBS checks were Minton's money. (Def. Closing Brf., p. 63-65.) Dandar claims that Judge Schaeffer was referring to funds given not to him by Minton, but to the LMT by Minton. This is refuted by Dandar's own words. Dandar is addressing discovery in the wrongful death case and noting that Minton was being "subjected" to discovery of his personal finances. (Def. Brf., p. 64, citing testimony, p. 340-341.) He then testifies, And then it went on in the year 2001. So I get another check in 2002 ... And I can understand why no one in Europe, if he had anonymous friends like he said he had, would want me to know who they were so wouldn't have to disclose it to the Court. They didn't want Scientology to know who they were. ... *** THE COURT: There weren't any pals in Europe, their wasn't "Fat Man." THE WITNESS: Well, now I know that is right. (Def. Closing Brf., p. 64-65.) Dandar's reference to getting "another check in 2002" and his alleged thought process that there was a reason for the source of the check to him to be anonymous, makes it crystal clear that he was testifying about UBS checks to him - not to LMT. LMT closed its doors in October 2001. In any event, Mr. Rosen certainly testified that the check was provided to the Plaintiff by Mr. Minton: You keep saying our client obtained the bank checks, the Swiss bank checks, when Mr. Minton couldn't. Now, you may choose to belief [sic] that. I'm telling you, it's the exact opposite. The way we got the Swiss bank checks was after Mr. Minton first disclosed them, long after March 29th, we asked Mr. Minton - or the client did - I didn't personally - we need copies of them. And since they're bank checks, you don't have them because it's not like your personal check where the bank returns to you your cancelled check with your monthly statement. And we tried to get them simultaneously by serving a subpoena on UBS, the Swiss bank. Because one way or the other, we wanted those checks, and we wanted the fronts of them and the backs of them. And Mr. Minton is the one who obtained the checks because he bought the checks. They were his Swiss bank account. And he's the one that went to the bank and said, "They're my checks, give me copies." He supplied them to us, at which point we said - and we produced them at the hearing on April 9th. And I remember that I said to the client, I think he only produced the fronts. Tell him to go back and get the other photostats. I want the backs. I want to see Ken Dandar's name on them, on the endorsement. But we had served a subpoena - I think Wally did - on the bank, the UBS bank, to get them. We didn't have to. Mr. Minton got them. (Ex. B, Rosen, August 29, 2002, pp. 201-203). In the context of Dandar's argument that the court should not consider the issue of the commingling of his accounts with client funds, Dandar flatly asserts, "There has not been any commingling or theft. This is another fabrication by the church and its counsel." (Def. Brf., p. 60). This purported "fabrication" is based on black and white evidence which Dandar cannot refute and does not therefore even mention in his brief: the fact that he has variously deposited checks from Minton into his client trust account, firm operating accounts and/or personal accounts. (Pl. Hrg. Exs. 5, 58A, 6, 59, 8-11, 13-15, 81). That an attorney's trust account consists of monies held in trust for a client is beyond dispute. That Dandar originally deposited Minton's funds in his trust account is also established. (Pl. Hrg. Ex. 8; Ex. D, Dandar, April 19, p. 199). That Dandar deposited subsequently funds into firm operating accounts or his personal money market account - even though the checks with notations all indicated on their face that they were for the "McPherson" case, is also not disputed. (Pl. Hrg. Exs. 13, 14, 15, 81). Dandar also conceded that he deposited Minton monies into his IOTA client trust account with checks drawn on his personal or business accounts, and thereafter wrote checks to experts therefrom. (Ex. G, Dandar, April 30, pp. 175-176). Thus, by definition, funds have been commingled between a trust account and other accounts. In its Post Trial Memorandum, the Plaintiff noted: " [I]f the Minton money was, from the outset, a personal loan to Dandar with "no strings" and Dandar was free to use it as he wanted, it was not necessary for Dandar to seek an advisory opinion from The Florida Bar before taking the first check in October, 1997." (Pl. Post-Trial Memorandum, p. 11). In his Closing Brief, Dandar responded by pretending this damning evidence exonerated him stating, "the very fact that Dandar responded to Minton's initial offer of support by immediately writing to the Bar to seek advice, he demonstrated professional responsibility and respect for the law." (Def. Brf., p. 73). First, there is no writing to the Bar that Dandar has produced, and during his testimony Dandar denied he wrote the Bar. (Ex. D, Dandar, April 19, 2002, p. 175). More important, Dandar's alleged telephone call to the Ethics Hotline, reveals that he understood the money was entrusted to him for the benefit of his client and, critically, that it was earmarked solely for one particular case. The Plaintiff's post trial memorandum demonstrated that Dandar suborned false testimony both in depositions and through affidavits of Minton and Liebreich that Dandar filed regarding the agreement with the Estate to receive the proceeds of the wrongful death case. Dandar's response asserts, "The only evidence of how the proceeds would be distributed is the family's testimony that it was their 'idea' to set up a nonprofit foundation in memory of Lisa McPherson to help victims of cults." (Def. Brf., p. 32). Similarly, Dandar asserts that before these hearings, Minton "consistently [ ] testified" there was no agreement between him and the Estate to receive any of the proceeds received by the Estate in this case. (Id., p. 36). Dandar's version of "the only evidence" that it was the family's idea merely to donate money to some unknown group and that Minton "consistently testified" to the absence of an agreement with him ignores that (1) Minton testified in January, 1998, that it was his idea; (2) Dandar expressed at the same time that "I already had that idea but I haven't discussed it with Dell Liebreich yet;" (3) Dandar later discussed it with Liebreich and "she agreed to do just that;" and (4) Dandar was present at this deposition and made no move to correct or refute these sworn facts. (Pl. Hrg. Ex. 70, Minton January 13, 1998 deposition, pp. 64-66). Dandar also ignores the later deposition testimony of Ann Carlson (also represented by Dandar), that the beneficiary later designated by the Estate to receive the proceeds was the Lisa McPherson Trust, (Pl. Hrg. Ex. 56, Ann Carlson July 27, 2000 Deposition, p. 225), owned by Robert Minton. Dandar also admitted at the recent hearings that the Liebreich testimony regarding the proceeds was accurate. (Ex. G, Dandar, April 30, pp. 143-144). Dandar also necessarily ignores other evidence given by Minton before these hearings, that he had an agreement to receive the proceeds, including Minton's authenticated radio statements (Pl. Hrg. Ex. 67); Minton's public Internet posting (Ex. D, Minton, April 19, p. 66); and Minton's January, 1998, testimony agreeing that he had a "piece of the litigation." Indeed, Dandar also ignores his latest "counter-counterclaim" in which he pleads a "contractual relationship" with Minton to fund the case, not only to loan money to Dandar with "no strings." (Pl. Hrg. Ex. 82). Dandar argues that he "took it upon himself to ensure that the money was directed in its entirety to the continuing costs of mounting a suit .... At no point in either this hearing, or that before Judge Schaeffer, has the Church proved the claim that the money was diverted into any other avenue of income for Dandar." (Def. Closing Brf., p. 72). This is astounding, considering that plaintiff has put in evidence the canceled checks showing that Dandar deposited the $750,000 in his personal mutual fund accounts. (Exs. 5, 6, 58A and 59). He admitted that he deposited a May 2001 check for $250,000 into his mutual fund account in Massachusetts, (Pl. Hrg. Ex. 15; Ex. G, Dandar, April 30, 174-175), and that the May 2000 check for $500,000 went "outside the state of Florida." (Pl. Hrg. Ex. 6 and 59; Ex. G, April 30, p. 172-173). Dandar's closing brief also attempts to avoid the significance of the perjurious declaration Minton signed on December 13, 2000, that Dandar filed with the Second DCA to attempt to stop all discovery into the agreement with the Estate, by arguing that it was not he, Dandar, that prepared that perjurious affidavit, rather, it was his co-counsel in his petition to the Second DCA, John Merrett, that actually prepared the affidavit. (Def. Brf., pp. 32-36). Dandar evades the point: whether Dandar drafted the Minton affidavit is hardly significant. He submitted it to the court knowing it was false. Dandar's "Defense" The proofs of Dandar's misconduct, subornation of perjury and persistent material misrepresentations to this court, come primarily through Minton's testimony, Garko's testimony, and hard documentary evidence, but is also supported by testimony of Dandar and Liebreich. Dandar's defense to such proof has been to ignore the documents and to assert that Minton was "threatened" or "extorted" during the meetings with the Plaintiff and its counsel to "change sides." No one who attended and testified about the meetings in this case remotely identifies any manner of threat. None of the witnesses and none of the writings makes any mention whatsoever of Minton's wife or children, and nothing at the meetings suggests "threats" made to Minton. This court allowed Dandar carte blanche to question Minton (or any other witness he chose) about any alleged threat, extortion or blackmail to support the unusual defense theory. The questioning of Minton was broad but produced nothing supporting the defense, and entirely refuted the allegations of "extortion." For example: Q. Mr. Minton, I want to find out what happened to you. A bold and long, long-term challenger of the Church of Scientology, now you're going around, you're telling people, I don't want to fund these cases. I need you to dismiss these cases. To what do we owe this 180? A. Mr. Dandar. *** Q. Has the Church of Scientology threatened you with bringing criminal charges for some of your business practices involving the country of Nigeria? A. No. *** Q. Has the Church of Scientology presented you with a stack of papers represented to you to be a suit charging you with racketeering? A. No. (Ex. D, Minton, April 19, pp. 131-133). Minton testified that the pressure that induced him to recant his perjury and tell the truth about Dandar's misconduct and his own misconduct, was brought about entirely by the concern that he was in serious trouble because of the perjury and faced dire consequences of potential contempt or jail if he did not come clean. (Ex. D, Minton, April 19, pp. 147-148, 153-154, 158-159). The sole evidence that the Plaintiff threatened Minton - contrary to his own denials and that of counsel - are the hearsay allegations of a man, Jesse Prince, who has literally been caught on video tape making vulgar threats to harm Church members. The only "evidence" of actual threats, as Minton has testified, were those he received from Dandar's agent and "consultant," Jesse Prince: A. There was a subsequent discussion where he brought that up, not directly, but through his girlfriend who read a letter from Mr. Prince to Ms. Brooks and I over the telephone in our office and Clearwater two, maybe three nights ago. I'm not sure of the date. But what he said was, in his letter, that was - Bob, you know, I'm working with the FDLE. He say they're going to be in the courtroom in Florida on Friday when you testify. If you so much as dare tell a lie they're going to haul you off to jail. I think he also said at that time that the FBI - no, the FBI came up yesterday. He told Mr. Howie that the FBI was also going to be here. Mr. Prince, you know, has done everything he can to threaten me ever since he came to our new hotel, the Radisson Hotel which we moved to on Sunday, this past Sunday. Um, Prince came to that hotel. He threatened me and he threatened top people in Scientology. *** A. Um, you know, we went down and had dinner at the restaurant in the Radisson Hotel. Mr. Prince was drunk before he got to the hotel. ... He said to Stacy Brooks and myself - well, this was principally addressed to me, he said, Minton, I am not going to let you do this. I am not going to let you go down this road. And I will do everything in my power to stop you. You've become a Scientologist and he used some vulgar words in front of that. And then he started into the story about how when he was in Scientology and he was in trouble one time they - that he went back to his room when he was being - his room while he was in California in the desert compound there. That he went and got an AK-47 and a 45 caliber pistol and came out and pointed it at the head of the Church of Scientology, David Miscavige, Norman Starkey, Mike Rinder and one other person whose name I can't remember. And, you know, this was, you know, I - this was a very, very upsetting thing, the way Mr. Prince acted toward Ms. Brooks and myself. He said, you know, that you've never done anything for me. I'm not going to let you go and do anything with Scientology. These people have destroyed me twice when I've tried to settle with them and I'm not going to let you go down this road. I'm not going to let you do this. (Ex. D, Minton, April 19, pp. 149-152). Mr. Prince ultimately admitted in this case that after a discussion with Mr. Dandar, he visited the FDLE and told Agent Strope that Minton was committing perjury, and then had a threat delivered to Minton before his testimony that if Minton got on the stand and "lied" that he would be arrested on the spot by Agent Strope who would be in the courtroom. (Ex. C, Prince, August 30, pp. 409-419). Dandar's allegations are desperate and unsupported and should be rejected. Dandar's Ongoing Misconduct In the post-trial brief (at pp. 42-52), plaintiff offered, as additional, independent grounds to disqualify Dandar here, his misconduct during the pendency of these hearings. Dandar's brief is silent on these accusations, offering nothing by way of explanation or defense to these matters. Nor does Dandar's closing brief offer one word of explanation to this court for the conduct of Kennan and Thomas Dandar before Judge Barton in orchestrating a conflict with dates previously set for the continuation of the hearings in this case. That omission from Dandar's brief is all the more compelling given that plaintiff's post-trial brief, (p. 45) offers a case virtually on-point. In Burns v. Huffstetler, 433 So.2d 964 (Fla. 1983), an attorney was disqualified from representing a defendant in a criminal case, on the grounds that he had misrepresented to the court his supposed scheduling conflicts. Knowing that the civil case here is even stronger, it is remarkable that Dandar's brief does not address this case or the point that his disqualification is appropriate for the same misconduct Dandar employed in here misrepresenting his "conflict" with Judge Barton. Dandar's continuing misconduct in these hearings in connection with Prince, while providing separate, independent grounds for disqualification, is mysteriously lacking in any mention in Dandar's brief. For example, Prince testified before this court that Dandar has been paying him $150 per hour, for, inter alia, preparing his affidavit which was filed with this court. (Def's Hrg. Ex. 7). It is black letter law in Florida that an attorney who pays a fact witness for his testimony not only commits unethical conduct, but that an appropriate remedy for such actions, apart from striking the witnesses' testimony entirely, is disqualification of the attorney: [T]here is the appearance that [the witness] is being paid for his factual testimony as opposed to his work as a "trial consultant". Such conduct violates (a) Fla. Bar Code of Prof. Cond., 4-4.8(c) which prohibits attorneys from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and (b) Fla. Bar Code of Prof. Cond., 4-4.8(d) which prohibits attorneys from engaging in conduct that is prejudicial to the administration of justice. . . . The likelihood of public suspicion resulting from the $5,000 advance payment to [the witness] outweighs the social interest, if any, that will be served by [the lawyer's] continued participation as counsel. Rentclub, Inc v. Transamerica Rental Fin. Corp., 811 F. Supp. 651, 654, 656 (M.D. Fl. 1992) (emphasis added) (disqualifying the attorney in question). Yet knowing this was an issue, and despite hearing Prince's testimony about payment of $150 an hour for his affidavit, Dandar's brief offers no explanation or defense for this inappropriate conduct. Despite the sequestration order entered by this court at the beginning of these hearings on April 19, and although Prince and Dandar were present when the court explained that order, it is apparent that Prince violated the sequestration order and that he did so with Dandar's assistance. At the August 30th hearing, Prince testified and referred to the fact that Rosen had gone to school in Boston. (Ex. C, Prince, August 30, p. 465). Rosen would not have told Prince about Rosen's educational background, (nor did he ever tell Dandar), and the only place Prince could have learned this information was by reading the transcript of Rosen's testimony before this court the day before, August 29th. Prince clearly violated the sequestration order by reading that transcript, and the only way Prince could have been reading that transcript before testifying on August 30th was for Dandar to provide Prince with a copy. But in the face of this, Dandar's brief offers no explanation for his violation of this court's order. Prince once again evidenced his breach of the sequestration order - and Dandar's complicity - during his testimony before this court. Just before break was taken, Rosen elicited from Prince, on cross-examination, certain critical evidence relating to Prince's payment for the provision of a fact declaration: Q. I will repeat my question. Did Mr. Dandar give you a retainer payment? A. Yes. Q. How much was it? A. $4,000. Q. And this was not a payment of a bill. This was a retainer for services that you were to perform, right? A. Correct. Q. Okay. And these were services assisting Mr. Dandar in research about Scientology, correct? A. Correct. Q. Without disclosing, sir, the particulars of anything else, would you tell us whether your activities for Mr. Dandar in this engagement, have they included anything other than, quote, research? A. Yes. Q. What else did they include? A. Well, I wrote an affidavit or two. THE COURT: I'm sorry. What was that? THE WITNESS: I authored an affidavit or two. (Ex. C, Prince, August 30, p. 367). Prince resumed the witness stand for redirect and Dandar posed the following questions to Prince and elicited testimony directly contrary to what Prince had said previously: BY MR. DANDAR: Q. Mr. Prince, you met with me on April 14th of 2002 at the mall, and that handwritten statement that we identified, did I pay you for that? A. No. Q. Did I pay you to write the April 2002 affidavit which was actually dated May 1st of 2002? A. No. (Ex. C, Prince, August 30, pp. 487-488). While Prince denied any communications with Dandar during the break, it is apparent that communication must have occurred - there is no other explanation how Dandar came to formulate the questions to Prince he posed immediately after the break. The questions are illogical in view of Prince's earlier testimony. The only explanation why Dandar went back on redirect to pose these questions, is that Prince was, during the break, prepped to provide different answers than those he provided on cross-examination. But Dandar's brief offers no explanation or justification for these events. Instead, Dandar offers primarily Prince's testimony before Judge Schaeffer rather than testimony elicited before this court. That Prince is nothing but a paid mannequin who will testify to whatever Dandar wants, a mere student of Dandar's plan (albeit, not a very good one), is apparent from Prince's relation of the story involving the poor widow, Mary Carter. Prince is not a student of the law and would have no basis to have heard of Mary Carter. Nevertheless. once Dandar fired Prince's imagination about a supposed illegal Mary Carter agreement between plaintiff and Minton, Prince did his part by voluntarily offering the Mary Carter tale. As serious as is Dandar's misconduct during these hearings, that conduct pales next to the intentional fabrications and disregard for this court's initial rulings paraded in Dandar's brief. So that this court may fully appreciate Dandar's misconduct, plaintiff sets forth a non-exhaustive selection of Dandar's misrepresentations. DANDAR'S BRIEF SAYS THE TRUTH "[T]he threats to put Minton's wife in jail..." (Def. Brf, p. 117). There is not a single word in the record that anyone threatened to put Minton's wife in jail. "According to the notes [of Monique Yingling], this outcome [making the wrongful death case 'go away'] was to be reached by any means necessary." (Def Brf, p. 2). There is simply nothing in Ms. Yingling's notes to support whatever Dandar means by "by any means necessary." "When he was unable to persuade the Estate to drop the case voluntarily, Minton found himself locked into a clandestine agreement with Scientology." (Def. Brf, p. 2). There is no evidence of any agreement whatsoever. "[N]otes on the negotiation process itself taken by Church counsel Monique Yingling, who attended the meeting with Minton, were ordered to be produced before Judge Schaeffer." (Def. Brf, p. 6). Ms. Yingling's notes were produced without Order and without objection. Judge Schaeffer specifically said such notes are normally work product and not produced, but "If you're willing to and if it's helpful, that's fine. It is not precedent." (Ex. H, June 12, 2002, pp. 47-48). "There never was an agreement to give any portion of hoped for proceeds in this case to Robert Minton or the Lisa McPherson Trust, Inc." (Def. Brf, p. 26)."Minton consistently and correctly testified under oath that there was no agreement between him and the ESTATE to donate any portion of the money that may be received by the ESTATE in this case. In every one of his depositions," he denied any agreement. (Def. Brf, p. 36). Dandar confirmed Minton's deposition testimony of January 1998 when he said that Dell Liebreich was in agreement. (Ex. G, Dandar, April 30, p. 141). Dandar further testified Dell said "it was a good idea" and she "was very excited about it"; Ex. G, Dandar, April 30, pp. 149-151). Ms. Liebreich and her siblings met in May 1999, ratified this plan, and authorized Dandar to convey their agreement to Mr. Minton and Dandar did so (Ex. D, Dandar, April 19, pp. 276-277). In July 2000, Ann Carlson confirmed that the LMT was the group they agreed to donate to. (Pl's Hrg. Ex. 56). After Mr. Minton recanted his perjury Liebreich "decided to change that deal and no money is going to the LMT" (Ex. I, Liebreich April 20, Depo., pp. 351-352).In his May 24, 2000 depo., Minton said he was told by Dandar "that they [the family] were going to donate a substantial amount of the proceeds of the lawsuit to the Lisa McPherson Trust." (Minton, May 24, 2000 Depo., pp. 391-392, cited in Def Brf, pp. 39-40). "The only evidence presented by FLAG that this $500,000 bank check is money of Robert Minton is from testimony of an admitted perjurer, Robert Minton." (Def. Brf, p. 45)"To this day Minton refuses to show proof that the money came from his accounts." (Def. Brf, p. 47, emphasis in original)"...Minton has consistently failed to conclusively demonstrate that the money in question belonged to him." (Def. Brf, p. 62)In neither case did Minton bring forward any proof that the UBS checks were from money in his account in another bank. (Def. Brf, pp. 62, 63). In front of Judge Schaeffer, Dandar entered as an exhibit a letter from an attorney in Geneva affirming the fact that the money was Minton's. The letter was produced by Minton's attorney, Bruce Howie. (Ex. F; Ex. J, Hearing, May 24, pp. 934-935, 1079-1080). "...Scientology amazingly was able to obtain a copy of this UBS check before Minton could get a copy!" (Def. Brf, p. 53). There is no evidence the checks were obtained by anyone other than Minton. Rosen testified that the checks were obtained from Minton. (Ex. B, Rosen, August 29, pp. 201-203). "Dandar has not, and will not 'admit' to knowing that the money in question originally came from Minton,..." (Def. Brf, p. 62). In addition to the exhibits in plaintiff's brief, Dandar several times "slipped up" in front of Judge Schaeffer, admitting the money was Minton's. (Ex. K, Dandar, May 30, pp. 4, 10-11; Ex. L, p. 891). Dandar also argues the precise opposite in his Brief, when, after Minton asserted a Fifth Amendment privilege to refuse to reveal the source of the funds he utilized to purchase the UBS check, Dandar asserted, "Minton played this shell game not because of any demands by Dandar, but in an attempt to conceal his own tax evasion and it was that tax evasion that was discovered and used for purposes of blackmail and extortion by Scientology." (Def. Brf p., 58). Dandar thus concedes the UBS funds were Minton's to attempt to create his "blackmail" and "extortion" argument, as there could be no tax evasion unless the money was Minton's. "There has not been any commingling or theft. This is another fabrication by the church and its counsel." (Def. Brf, p. 60)."In fact, there has not been any evidence of commingling or conversion." (Def. Brf, p. 71)."...there is no evidence that Dandar spent Minton money on anything except for the benefit of its client, the Estate of Lisa McPherson." (Def. Brf, p. 71). There has been commingling, and there is evidence of such. Money from Minton has been deposited in the estate's client trust account, the Dandar & Dandar operating account, as well as Dandar's personal account and transferred between them. (Pl. Hrg. Exs. 5, 58A, 6, 59, 8-11, 13-15, 81; Ex. D, Dandar, Apr. 19, p. 199; Ex. G, Dandar, April 30, pp. 175-176).Dandar objected and refused to produce further financial records on the basis of the orders of the Second DCA. Dandar, however, testified numerous times that he could use the money for whatever he wanted. He also testified to commingling Minton funds with his operational account, from which company operating costs were paid. (Ex. D, Dandar, April 19, pp. 197-198, 200, 205-206). "Minton disclosed how extensive Scientology lied to him during the secret meetings to distance himself from Dandar:" (Def. Brf, p. 78). In the quote used by Dandar to "illustrate" his assertion, Minton says nothing about being lied to. Nor does Minton refer to "secret" meetings. These are entirely Dandar's mischaracterizations. "This [Rosen's waiver of confidentiality concerning promises or inducements to Minton] effectively prevented Dandar from questioning Minton in detail about precisely what terms were proposed as part of the meetings with Scientology in order to bring about 'disengagement' between Minton and the church .." (Def. Brf pp. 130-131). After Rosen's waiver of confidentiality, Lirot went ahead and immediately asked two questions about whether Minton had been threatened by the Plaintiff, and the truth of the matter was revealed when Minton answered "no" to both questions. (Ex. D, Minton, April 19, p. 133). Of particular importance is the case of United States v. Kattar, 840 F.2d 118 (1 st Cir. 1988), an extortion prosecution of Scientology's private investigators...In this case, the court also noted that the government acknowledged Scientology's illegal practices and "Fair Game" policy. (Def. Brf, pp. 139-141). Dandar mis-states an appeals court opinion, United States v. Kattar, 840 F.2d 118 (1st Cir. 1988). The defendant in this case was convicted of extortion against the Church. The defendant was never an investigator for the Church. The defendant attempted to use the "fair game policy" in his defense which was disallowed by the lower court and affirmed by the appellate court. The court pointed out that, "any further evidence on the nature of the Church's policies would not have assisted the appellant in disproving the extortion charge." The case did not make any finding on the "fair game policy," and in fact rules that "regardless of whether the Fair Game Policy was in effect, Kattar still threatened the Church officials with physical as well as economic harm." "Mr. Prince, formerly the third highest executive in Scientology's worldwide operations...." (Def. Br., p. 6) There is no evidence in the record that Prince was ever remotely "the third highest executive in Scientology's worldwide operations." He was not. "There never was a meeting to discuss adding on parties as described by Minton." (Def. Br., p. 12) Minton and Garko both testified as to the existence of the meeting (Minton, April 19, pp. 124-126; Garko, August 29, pp. 53-55, 93-94), and Dandar never took the stand to refute this fact. "Brian Haney, a former staff Scientologist, former officer of the Lisa McPherson Trust, Inc., and a former confidant of Minton also confirmed no such meeting ever took place." (Def. Brf., p. 20) There is no evidence presented that Haney was ever present at or knew about the meeting in the first place. DANDAR'S BRIEF SAYS"Mr. Minton, as conceded by Flag, has always maintained that the funds were loaned to Mr. Dandar for the expenses in the wrongful death case, to be spent within the full discretion of Ken Dandar, not Minton or Dell Liebreich. (Def. Brf. p. 60.) THE TRUTHDandar cites to no such admission anywhere in this case or any other. Flag has never made such an "admission." "Dandar is solely responsible for advancing costs in the death case. The standard retainer agreement was indeed amended as reflected in a letter to Dell Liebreich disclosing who is responsible for costs." (Def. Brf., p. 85) The retainer agreement says the client is responsible for costs (Pl. Hrg. Ex. 52). The "amending" letter does not change the agreement. It merely states that in the event the Estate loses the case and becomes responsible for litigation costs to Flag, that the Estate would pay - not Liebreich or her sisters. (Def. Hrg. Ex. 2) Dandar devoted more than a dozen pages of his closing argument to a discussion of Scientology-related litigation from decades ago that was not raised at the hearing. This material is grossly distorted and is irrelevant. The citations are improper attempts to submit evidence, because the court is not being asked to use them as guidance for their holdings or legal analyses, but rather to adopt their findings of fact as true and incorporate them as evidence against Flag (which was not a party in any of the cases cited). In other words, to take judicial notice of the findings of fact in other cases and to adopt those findings as true, and thus as evidence, against plaintiff. That is legally impermissible. Section 90.202(6), Florida Statutes, provides that the court may take judicial notice of the records of any court of this state or the United States. However, as Professor Ehrhardt explains: [C]are must be taken so that the court does not extend the reach or scope of that notice. For example, it may be proper under section 90.202(6) for the trial judge to notice a court record in another case, which embodies a finding of fact by a trial judge. The effect of that notice is to establish the fact that the judge made the particular finding. The truth of the fact itself is not established by the notice. C. Ehrhardt, Florida Evidence § 204.2, at pp. 70-71 (2002). Professor Ehrhardt points to Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987), construing Federal Rule of Evidence 201, a provision similar to section 90.202(6). In Holloway, defendants moved for summary judgment and asked the trial court to notice factual findings in another suit arising out of the same incident, which the court declined to do: The fact that the judge made that finding in Woods is a judicially noticeable fact; but that fact is irrelevant in this case…. Whether the [fact is true] can be determined only by evaluating the testimony and credibility of various witnesses; this is not the kind of fact contemplated by Rule 201. Holloway v. Lockhart, 813 F.2d at 879. See also 1976 Florida Law Revision Council Notes citing similar provision under California Evidence Code § 452; Sosinsky v. Grant, 8 Cal.Rptr.2d 552, 563-64 (Cal. 1992). No Mary Carter Agreement Dandar also contends that plaintiff has entered into an unlawful "Mary Carter Agreement" with Mr. Minton. (Def. Brf., p. 128). That allegation is false, factually unsupported, and legally unsupportable. It also defies common sense. Contrary to Dandar's contention, a "Mary Carter Agreement" is not "[t]estifying without informing the opposing party and the court that the testimony is pursuant to a settlement or as a precondition to settlement." (Def. Brf., p. 128). The Florida Supreme Court defines a "Mary Carter Agreement" as: a contract by which one co-defendant secretly agrees with the plaintiff that, if such defendant will proceed to defend himself in court, his own maximum liability will be diminished proportionately by increasing the liability of the other co-defendants. Dosdourian v. Carsten, 624 So.2d 241, 243 (Fla.1993), quoting Ward v. Ochoa, 284 So.2d 385, 387 (Fla. 1973). Mary Carter Agreements "are void as against public policy." Id., at 247-48. Dandar offers no evidence of any such agreement, much less a secret one. Moreover, in this case, the proposition of shifting liability from the wealthy Mr. Minton to the asset-less estate, is absurd. Without such liability-shifting, there can be no Mary Carter Agreement. 27th Ave. Gulf Serv. Ctr. v. Smellie, 510 So. 2d 996, 998 (Fla. 3rd DCA 1987) (liability shifting "essential to a Mary Carter Agreement."). Dandar's efforts generally to slur the Scientology religion, pander to prejudice, and distract from his own bad acts in this fashion merely magnify his misconduct. Accordingly, the cases cited on page 104 of Dandar's Closing Brief, and all of the cases cited on pages 137 through 151 of that brief, and all the findings of other courts which Dandar seeks to import through those case citations (and the hearsay magazine article) must be disregarded. ARGUMENT SUMMARY OF ARGUMENT Other than his dissembling smokescreen of lies, omissions, and distortions, Dandar raises two principal arguments in defense to this disqualification proceeding: a) he contends that this Court cannot disqualify him for unethical conduct occurring in another case; and b) he argues that plaintiff lacks standing to seek his disqualification for actions that principally harm his client. His artificial restriction that this court may only consider, and act upon, conduct occurring immediately before it is wrong for three reasons: 1. There is no such limitation found in the law, and such a limitation would be particularly inappropriate where, as here, misconduct occurred in a related case, involving many of the same witnesses; 2. Much of the conduct that supports Dandar's disqualification did occur in this case; and 3. The false testimony given at Dandar's behest dissuaded further inquiry, within the context of this case, into material matters before this Court. See, infra, pp. 34-38. Similarly, his contention that plaintiff is without standing to pursue unethical acts by him that directly harm his client, such as the commingling or conversion of funds, ignores two critical points: 1. Among the real parties in interest to a disqualification proceeding are the court and the public, who have an interest in the integrity of the administration of justice. Accordingly, the court always has standing to address attorney misconduct that threatens to impugn it and the practice of law; 2. The plaintiff has a very real interest in being a party to a proceeding which is free of the cloud of suspicion and disrepute that threatens to descend on these proceedings with Dandar's continued involvement. See, infra, pp. 44-48. Dandar also raises the specious objection that the false testimony he gave and suborned did not rise to the level of perjury. This fundamentally misunderstands the Florida ethics rules, and the standards for attorney disqualification, which clearly do not require that a misstatement be material before it is punished severely by the court. In short, recognizing that promoting confusion by dissembling remains his best defense, Dandar offers only the most spurious of legal arguments. 1. Violations of the Florida Code of Ethics Warrant Disqualification. One basic truth that Dandar cannot evade is that unethical conduct in violation of the Florida Rules of Professional Conduct not only merits disqualification, but mandates it. As plaintiff pointed out in its post-trial memorandum, the weight of law supporting disqualification here is overwhelming. Among the most instructive of the cases cited by plaintiff, and ignored by Dandar, is Beiny v. Wynard, 522 N.Y.S.2d 511 (N.Y. 1987). Cf. plaintiff's post-trial memorandum at 54, n. 44. In Beiny, the court addressed the conduct of an attorney at the firm of Sullivan & Cromwell, who obtained privileged documents from a third party by issuing a subpoena without sending copies of that subpoena, or notice of its issuance, to opposing counsel. Beiny, 522 N.Y.S.2d at 513. The court found that this rose to the level of intentional misconduct, and disqualified the attorney and his firm. Id. The court explained: Intentional misconduct of the sort committed by petitioner's counsel vitiates and demeans the process and, as [Sullivan & Cromwell's] motion demonstrates so vividly, results in substantial additional burdens being placed on both the courts and litigants.... To have imposed a sanction short of disqualification in this case would have sent a very dangerous message to the Bar.... We cannot afford to hold open the prospect of any gain from conduct such as that presented by this case. The sanction of disqualification was, therefore, necessary, not only to protect [opposing party's] interests but to address adequately the intentional misconduct with which we were confronted. Beiny, 522 N.Y.S.2d at 523-24 (emphasis added); see also Henriquez v. Temple, 668 So.2d 638 (Fla. 3rd DCA 1996) (attorney disqualified for surreptitiously obtaining documents). In contrast to Sullivan & Cromwell, who only committed one ethical misdeed, Dandar has violated at least eleven separate ethical rules, guidelines, and oaths of Florida. (See, Plaintiff's Post-Trial Memorandum at 55-56, listing rules and guidelines violated). The Beiny court's observation that to refrain from disqualifying an attorney who has engaged in misconduct effectively endorses that conduct and that such an endorsement must be avoided applies with even greater force here. Violations, especially when repeated, certainly meet Florida's stated test for disqualification, "the appearance of impropriety." State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 633-634 (Fla. 1991). Recurring ethical violations necessarily give rise to "a situation rife with the possibility of discredit to the bar and the administration of justice," which is a proper ground for disqualification. Henriquez, 668 So.2d at 639 (quoting State Farm, 575 So.2d at 634). There can be no dispute that Dandar's ethical violations, if unpunished, threaten to impugn the integrity of both the bar and the integrity of the judicial process. 2. Dandar's Claim That Only Misconduct Occurring in this Case Can Lead to Disqualification is Wrong. Dandar attempts to brush away much of the evidence of his misconduct by arguing that the only issue within this court's jurisdiction is whether Dandar solicited Minton to perjure himself in Minton's October, 2001, deposition in this case concealing Minton's attendance of a meeting on adding David Miscavige as a party to the wrongful death case. (See Def. Brf. at 3-4). Dandar is wrong on this score, both as a matter of law, and as a matter of common sense. As noted above, the main objectives of courts deciding questions of disqualification, are to protect the integrity of the judicial process, to avoid discredit to the administration of justice, to avoid any appearance of impropriety, and to avoid public suspicion. See, e.g., State Farm Mut., 575 So.2d at 633-34 (authorizing disqualification to prevent "the appearance of impropriety"); Henriquez, 668 So.2d at 639 (finding disqualification in "a situation rife with the possibility of discredit to the bar and the administration of justice"); Rentclub, Inc. v. Transamerica Rental Fin. Corp., 811 F. Supp. 651, 654 (factoring likelihood of public suspicion into disqualification decision); Beiny, 522 N.Y.S.2d at 523 (explaining that real interests in disqualification case, over and above the concerns of the individual parties, is "the considerable interest of the courts and the public in maintaining the integrity of the judicial process . . ."). As the court in Rentclub noted, "A [trial] court has the responsibility for controlling the conduct of attorneys appearing before it and has broad discretion in deciding motions for disqualification . . ." Rentclub, 811 F. Supp. at 654 (applying Florida law and disqualifying counsel for misconduct). In considering its responsibility to control Dandar and his conduct, this court should not ignore conduct that occurred in the wrongful death case, a case proceeding simultaneously, in the same county, involving almost identical sets of parties and witnesses. Take, for example, Dandar's payment of the fact witness, Prince, as a "trial consultant." In addition to a practice subjecting the paying attorney to disqualification, the payment of Prince for his affidavit herein as well as his testimony before Judge Schaeffer, casts grave doubt on the integrity of the judicial process when Prince is a witness in this case. Thus, the unethical actions taken by Dandar in the wrongful death case can, and do, create an appearance of impropriety in this case. Once there is such an appearance, particularly where it is well-founded, disqualification is mandated, regardless of the precise source of the appearance. To the extent that Dandar argues that plaintiff lacks standing to challenge actions taken jointly in this and another case that impinges upon this case, he misunderstands the nature of disqualification proceedings. The real parties in interest include the court and the public. See Beiny, 522 N.Y.S.2d at 523 ("[I]t is not only the interests of the parties which are implicated . . . , but the considerable interest of the courts and the public in maintaining the integrity of the judicial process . . ."). This court always has standing to sanction or disqualify an attorney whose conduct, regardless of its source, threatens to impugn it and the administration of justice. See Henriquez, 668 So.2d at 639 (finding disqualification in "a situation rife with the possibility of discredit to the bar and the administration of justice"); Rentclub, 811 F. Supp. at 654 ("A [trial] court has the responsibility for controlling the conduct of attorneys appearing before it . . ."). Accordingly, this court has ample grounds for the disqualification of Dandar for his misconduct occurring in the context of the wrongful death case. Cf., infra, pp. 44-48. The following substantial misconduct by Mr. Dandar occurred in this case: $ After the meeting in Dandar's office about adding David Miscavige as a defendant to the wrongful death case, Dandar told Minton never to disclose the meeting. Dandar's purpose was to prevent the plaintiff from learning that Dandar was allowing Minton to interfere in the case. (Ex. A, April 9, p. 19). $ Dandar reminded Minton before his deposition in the instant case that he must never reveal the meeting - the "meeting that never happened" - thus suborning perjury. (Ex. A, April 9, pp. 19-20). $ Following Dandar's instructions, Minton lied in his October, 2001, deposition herein about being involved in any discussions about adding Mr. Miscavige as a party to the wrongful death case. (Pl. Hrg. Exs. 3 & 4). $ After Minton testified in the wrongful death case in May, 2000, authenticating his public pronouncements that the estate was to provide the bulk of the hoped-for proceeds to the Lisa McPherson Trust, Dandar told Minton to backtrack about the agreement. (Ex. D, April 19, pp. 66-68). $ In December, 2000, Dandar suborned perjury by having Minton sign an affidavit in the wrongful death case, again "backtracking" about the existence of the agreement with the estate on the bulk of the proceeds. The affidavit was filed with the Second DCA petition filed by Dandar to quash the order compelling Dandar to produce information on Minton's payments in the wrongful death case and to stop discovery. (Pl. Hrg. Exs. 18 & 89a). The Second DCA specifically relied on the record in the wrongful death case to support granting Dandar's disingenuous petition in the instant case. (Pl. Hrg. Exs. 88 & 90). $ Dandar told Minton to backtrack before his deposition of October 2001 in this case. Minton then testified in this case and perjured himself in Dandar's presence. (Pl. Hrg. Ex. 43). Some of the perjury was the result of questions from Dandar. (Ex. M, Depo. pp. 628). $ Dandar prepared a false affidavit for Dell Liebreich in December, 2000, asserting that there was no agreement to give the bulk of the proceeds to LMT. This was part of Dandar's effort to demonstrate that Minton was not interfering in the litigation, again, to shut down discovery. This affidavit was used as an exhibit to Liebreich's deposition in January, 2001, in this case without comment or correction from Dandar. (Pl. Hrg. Ex. 57; Pl. Hrg. Ex. 33). $ The false Liebreich affidavit was filed with the Second DCA in support of Dandar's petition to quash the order compelling Dandar to produce information on Minton's payments in the wrongful death case. Dandar was successful in quashing the order, and the Second DCA relied upon these findings, based on false assertions by Liebreich, to deny the discovery in the instant case. (Pl. Hrg. Exs. 88 & 90). $ Dandar instructed Minton to not disclose the existence of the $500,000 payment on May 1, 2000, represented by the UBS check. (Ex. A, April 9, pp. 9, 20-22). $ Minton was under a subpoena in the breach case for his October, 2001, deposition and under court order for contempt to produce documentation showing payments to Dandar. In compliance with Dandar's request to not disclose the $500,000 UBS check, Minton destroyed his financial records. (Ex. M, Depo., pp. 25, 26, 32, 34-36, 38-42, 46-48, 51-55). $ Dandar testified on January 25, 2001, in his deposition in this case herein that Minton gave him $1,050,000, failing to disclose the $500,000.00. (Pl. Hrg. Ex. 27, p. 44). $ Dandar relied on this testimony in his petition to the Second DCA and the court relied on earlier rulings to make its ruling denying discovery herein. As to the 1999 meeting to add David Miscavige as a defendant in the wrongful death case, this is an issue in the instant case on the tortious interference claim. Namely, who is it that caused the Estate to breach the 1997 agreement? Dandar argues that since the meeting in his office occurred after the first, unsuccessful attempt to add Mr. Miscavige, it follows that the meeting occurred after the breach which is in dispute herein and therefore that meeting, which lead to the second breach, not at issue in this case, is irrelevant. This is wrong. Had Minton honestly disclosed this meeting respecting discussion of adding Mr. Miscavige on the second motion to amend, that would have naturally led to a line of inquiry about prior involvement by Minton or his paid witnesses - Brooks and Prince - about the first breach, the one that is in dispute in this case. Therefore, Dandar's argument is wrong because by lying about the meeting that did occur before the Second DCA, it effectively prevented deposition inquiry in this case as to similar meetings, similar involvement by Minton, Brooks, etc. If nothing else, the meeting about the second motion to amend the complaint is close enough in time to establish a pattern of Minton's involvement in strategic decisions involving the wrongful death case, including the first breach. In other words, if the plaintiff could show that Minton was involved in various other aspects of litigation strategy in the wrongful death case, if it could show that was a pattern, it would be relevant evidence to show that he was involved in the decision to breach the first time. Influence and control of this case is material, because plaintiff specifically pleaded a claim against Minton for tortious interference. The perjury about the meeting, and about the underlying agreement about the disposition of proceeds, is material to the issues in this case. 3. Dandar's Position That the False Testimony and Affidavits Must Meet the Criminal Definition of Perjury to be "Material" is Erroneous In addition to Dandar's incorrect assertion that neither he nor this court need be concerned with his misconduct occurring outside the strict confines of this case, Dandar also seeks artificially to limit this court's inquiry by claiming that whatever false testimony he encouraged in this case cannot serve to disqualify him because it did not fulfill the elements of criminal perjury. This argument is dead wrong. Neither the Florida Rules of Professional Conduct nor the cases addressing disqualifications have any such limitations and indicate that disqualification may be imposed in a wide array of circumstances involving no criminal conduct. Florida Rule of Professional Conduct 4-3.3(a), provides that a lawyer shall not knowingly "(4) permit any witness, including a criminal defendant, to offer testimony or other evidence that the lawyer knows to be false," and does not limit this prohibition to material false evidence. Likewise, without regard to materiality, Rule 4-3.4 provides that a lawyer shall not "(b) fabricate evidence, [or] counsel or assist a witness to testify falsely" and prohibits payments to witnesses other than reasonable expenses and reasonable lost compensation. Rules 4-8.4(c), (d) prohibit a lawyer from "engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation" or "engag[ing] in conduct in connection with the practice of law that is prejudicial to the administration of justice," without any reference to materiality. The Supreme Court in The Florida Bar v. Agar, 394 So.2d 405 (Fla. 1980), explicitly held that attorney misconduct need not be relevant to the merits of the case to constitute serious misconduct under the Florida Rules of Professional Conduct. In Agar, an uncontested divorce proceeding, the attorney for the husband arranged for the wife to testify to the husband's residency; he suggested to her that she conceal her identity, testify under a false name, and state that she knew the husband because she had done bookkeeping for him. Agar, 394 So.2d at 405. Acceding to the request, she testified falsely, in accordance with the instructions of the attorney. Id. Based on these facts, the court disbarred the attorney, rejecting his argument that the finding of misconduct was inappropriate because the dishonesty was irrelevant to the ultimate outcome of the proceeding: It matters not, despite respondent's arguments to the contrary, whether the testimony is capable, in and of itself, of affecting the outcome of the case in question. What is relevant is that respondent, by his own admission, allowed his client to perpetrate a fraud upon the court and, according to the testimony of his client and the false witness, was the one who suggested the fraud in the first instance. Id. at 406 (emphasis added). As the court explained, "No breach of professional ethics, or of the law, is more harmful to the administration of justice or more hurtful to the public appraisal of the legal profession than the knowledgeable use by an attorney of false testimony in the judicial process. When it is done it deserves the harshest penalty." Id. Moreover, the law is clear that, even as to those rules with an explicit materiality requirement, the issue of materiality focuses not on the merits of the underlying case, but on the specific proceeding in which the alleged misconduct occurred. Thus, in The Florida Bar v. Lathe, 774 So.2d 675 (Fla. 2000), the Florida Supreme Court suspended an attorney who made false statements of facts which were material to the court's specific inquiry, even though that inquiry was immaterial to the underlying merits of the case. The attorney falsely stated to the court that he could not attend a deposition because another judge had ordered him to attend a pretrial conference. Lathe, 774 So.2d at 676. Although this false statement was irrelevant to the merits of the underlying case, the Florida Supreme Court found that the attorney's statement constituted a violation of Rule 4-3.3(a)(1), that says a lawyer shall not make a false statement of material fact or law to a tribunal. Lathe, 774 So.2d at 677. Dandar's misrepresentations to this court regarding his purported hearing conflicts, parallel those of the disbarred lawyer in Lathe, and Dandar's other misconduct is far worse than that recounted in Lathe, regarding: his own false statements concerning the UBS checks; subornation of perjury of Minton regarding the checks; subornation of perjury of Minton regarding the meeting to add parties; and false statements and subornation or perjury regarding Minton's interference in this case and agreement to receive the proceeds thereof. Florida courts possess the inherent power to remove an attorney from a case based on the attorney's serious misconduct short of actual perjury. See Burns v. Huffstetler, 433 So.2d 964, 966 (Fla. 1983) (affirming, under court's inherent powers, "removing petitioner as counsel"); Carnival Corp. v. Beverly, 744 So.2d 489, 493-95 (Fla. 1st DCA 1999); Henriquez v. Temple, 668 So.2d 638, 638-39 (Fla. 3rd DCA 1996) (affirming disqualification for attorney's ethical improprieties in acquiring documentary evidence in violation of a court order). Likewise, the court has explicit power to find a party in contempt for failure to comply with discovery orders, and the capacity to disqualify counsel in particularly egregious cases. See Fla. R. Civ. P. 1.380(b)(2)(D); Henriquez v. Temple, 668 So.2d 638, 639 (disqualifying attorney in part on the basis of her contravention of orders regarding the privileged status of documents, and stating, "This activity has at the very least created an appearance of impropriety inconsistent with the proper administration of justice . . ."). This judicial power to disqualify an attorney for serious misconduct is not limited to criminal perjury, situations in which future proceedings may be tainted, or to conflicts of interest or improper acquisition of confidential information. Rather, disqualification is appropriate based solely on past acts of serious ethical improprieties that may be unrelated to the merits of the case. In Burns, for example, defense counsel attempted to delay a criminal trial by requesting continuances upon false grounds and by improperly having the criminal defendant admitted into a psychiatric hospital. 433 So.2d at 964. The trial court removed him from the case and suspended him from the practice of law. Id., at 965. On a petition for a writ of prohibition, the Florida Supreme Court held that the trial court lacked the power to suspend or disbar attorneys, but that it did have the "inherent power . . . to impose contempt sanctions on attorneys for lesser infractions." Id. In particular, the court held that there was "no basis in this record to vacate the order removing petitioner as counsel" arising out the misconduct therein. Id. at 966. Several state and federal decisions within the Eleventh Circuit likewise establish that disqualification is an appropriate sanction for serious attorney misconduct, unrelated to conflicts of interest, access to confidential information, or future taint. In the leading case, Kleiner v. First Nat. Bank of Atlanta, 751 F.2d 1193 (11th Cir. 1985), the court upheld both a $50,000 fine against the attorney and the disqualification of defendant's lead trial counsel where counsel advised his client to contact plaintiff class members to encourage them to opt out of the plaintiff class. The Eleventh Circuit held that the district court had the power to impose any appropriate sanction short of disbarment under the court's "inherent power to discipline counsel for misconduct ... without resort to the powers of civil or criminal contempt." Id. at 1209 (citing Flaksa v. Little River Construction Co., 389 F.2d 885, 888 (5th Cir. 1968)). Kleiner did not require the attorney misconduct to concern a matter directly relevant to the underlying proceedings or to have tainted future proceedings. Rather, Kleiner explicitly held that "a court can order disqualification based solely on past improprieties without regard for future taint affecting the outcome of the proceeding." Id. at 1210. Likewise, the court in Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. 651 (M.D. Fl. 1992), aff'd, 43 F.3d 1439 (11th Cir. 1995), applied Florida ethics law in disqualifying a law firm for serious misconduct. In Clos v. Pugia, 420 S.E.2d 774 (Ga. App. 1992), the Georgia state court, also applying Kleiner, upheld the disqualification of an attorney who improperly communicated with an opposing represented party outside the presence of that party's counsel, in violation of the Georgia rules of professional conduct. The court held the disqualification proper even in the absence of any suggestion of future taint and despite the trial court's finding that the ethical violation was not willful. Clos, 420 S.E.2d at 844. The sanction of disqualification was necessary because "the appearance of impropriety . . . outweighed [the parties'] interest in being represented by their counsel of choice." Clos, 420 S.E.2d at 775 (citing Kleiner, 751 F.2d at 1210); see also Knox v. Hayes, 933 F.Supp. 1573, 1585-86 (S.D. Ga. 1995), aff'd w/o op., 108 F.3d 343 (11th Cir. 1997) (disqualifying counsel and law firm and imposing an award of attorneys' fees where counsel prepared and knowingly used a false witness affidavit); Essex County Jail Annex Inmates v. Treffinger, 18 F.Supp.2d 418 (D.N.J. 1998) (disqualifying plaintiffs' counsel for providing her clients, inmates in Essex County jails, with a memorandum describing staffing deficiencies in the jails, thereby creating a security risk). This court absolutely has the capacity to disqualify Dandar as counsel for suborning and making false statements to the court. Even if Dandar's claim of a materiality requirement were correct, however, this would not save him. 4. The Plaintiff Has Standing to Seek Disqualification Arising Out of Theft and Commingling of Funds Dandar takes the position that plaintiff cannot raise as an issue in his disqualification proceeding his theft and/or commingling of client funds. In essence, he tells the court that, if he wishes to steal money from the investor in this litigation - loaned to his clients - and to suborn perjury in this case on the issue, it is no business of plaintiff or this court, as long as the client doesn't complain. Once again, Dandar fails his ethics examination by completely misunderstanding the fundamental nature of the interests protected in a disqualification proceeding. As explained above, among the real parties in interest are the court and the public. See Beiny, 522 N.Y.S.2d at 523 ("[I]t is not only the interests of the parties which are implicated . . . , but the considerable interest of the courts and the public in maintaining the integrity of the judicial process . . ."). This court always has standing to sanction or disqualify an attorney whose conduct, regardless of its source, threatens to impugn it and the administration of justice. See Henriquez, 668 So.2d at 639 (finding disqualification in "a situation rife with the possibility of discredit to the bar and the administration of justice"); Rentclub, 811 F. Supp. at 654 ("A [trial] court has the responsibility for controlling the conduct of attorneys appearing before it ..."). Plaintiff has a direct interest in Dandar's misconduct. Since Dandar is an attorney appearing before this court, in this case, and he has engaged in extreme misconduct with and towards parties and witnesses involved in this case, his acts cast a pall of impropriety over this proceeding. See Henriquez, 668 So.2d at 639 (finding disqualification in "a situation rife with the possibility of discredit to the bar and the administration of justice"); Rentclub, Inc. v. Transamerica Rental Fin. Corp., 811 F. Supp. 651, 654 (factoring likelihood of public suspicion into disqualification decision). If Dandar is converting money that only has to be paid back at the conclusion of these and other proceedings, Dandar has a motive unnecessarily to continue to protract this litigation to the detriment of plaintiff. Accordingly, plaintiff has a direct and real interest in his misconduct and his disqualification. Dandar's objection that plaintiff has not proven that he actually put any of his client's funds to personal use is of no moment. (See Def's Closing Br., p. 72). Again, Dandar fails his ethics exam: actual theft or conversion of funds is not the threshold at which misuse of client funds begins. The simple act of commingling funds between business, personal and trust accounts, which Dandar readily concedes, regardless of whether a client is actually hurt, is a breach of ethics and subjects the attorney to punishment. In The Florida Bar v. Breed, the Florida Supreme Court disciplined an attorney who had used money from his clients' escrow account but promptly made restitution. Breed, 378 So.2d 783, 785 (Fla. 1979). [M]isuse of clients' funds is one of the most serious offenses a lawyer can commit. We find that in this instance a two-year suspension with proper proof of rehabilitation before readmission is the appropriate penalty. We give notice, however, to the legal profession of this state that henceforth we will not be reluctant to disbar an attorney for this type of offense even though no client is injured. Id. (emphasis added). This proposition was reaffirmed in The Florida Bar v. Simring, 612 So.2d 561 (Fla. 1993). See Simring, 612 So.2d at 570 ("This court is not reluctant to disbar a lawyer for misappropriating client funds, even though no client is injured."). Having deposited funds intended for his client directly into personal bank and mutual fund accounts (Pl. Hrg. Exs. 5, 58A, 6, 59, 8-11, 13-15, 81; Ex. D, Dandar, April 19, p. 199). Dandar has committed a disbar-able offense, one that certainly rises to the level of threatening to discredit the bar and the administration of justice. Moreover, the Plaintiff has standing to address the misconduct arising out of the theft of funds and commingling of the estate's funds by virtue of Dandar's misrepresentations to the Second DCA that impaired the Church's ability to conduct discovery. As this court is aware, three nearly identical decisions were issued by the Second DCA cutting off the Church's discovery as to funds received by the estate and Dandar, and Dandar's expenditures for this case. In resisting up to the Second DCA, Dandar repeatedly represented to the courts that the Minton money came with "strings," i.e. that it was to be used only for the estate's costs in the wrongful death case, and that to compel the estate to make financial disclosure and reveal to the Church, its adversary, how much it had left to spend in that case was unfair. Yet these representations were made despite Dandar's claim before this court that from the beginning his agreement with Minton was that there were never any "strings" on the money (Dandar's first story), despite even Dandar's alternative claim (his second story) that the "no strings" deal was made in 1998. Critically, the "yes, strings" story was essential to Dandar's arguments against discovery in each of these motions because the core premise, fundamental to Dandar's position, was that all Minton money was to be spent on the estate's expenses, so that disclosure that Dandar had e.g., one million dollars of Minton money left, a priori, would disclose the amount of money the Estate had left for expenses in litigating the wrongful death case. Accordingly, Dandar did not tell the Second DCA his "it's my money, no strings" tale because that would have destroyed his very argument. Specifically, had Dandar told that story, replete with his testimony before this court that he alone, in his sole discretion, decides how much to spend or not to spend for expenses in the wrongful death case, it would have been immediately apparent that disclosure of how much of Minton's money Dandar had left could not possibly disclose how much was available to the Estate for the wrongful death case because that figure is one that Dandar and Dandar alone will determine in the future. To get those three orders, including in this case before Judge Baird, it is clear from the decisions that the court had to accept the proposition, presented by Dandar, that all of the money belongs to the estate and is to be used exclusively for its expenses in the wrongful death case. Conversely, if, as Dandar says now, the money was loaned to him with no strings, for him to use however he wanted, then the whole syllogism of the appellate court falls apart. Dandar misrepresented this to the appellate court. This misrepresentation, together with the rest of his various misconduct, impacts upon plaintiff, upon the bar, upon the public and upon the courts. The law authorizes and requires his disqualification. CONCLUSION The disqualification of Dandar should be ordered and plaintiff should be awarded attorneys' fees for the time and money expended on this motion. Plaintiff is submitting detailed, annotated Findings and Conclusions with this brief to aid the court in considering the disposition of this matter. I HEREBY CERTIFY that a true copy hereof has been furnished by HAND DELIVERY to Thomas John Dandar, Esq. and Kennan G. Dandar, Esq., Dandar & Dandar, P.A., P.O. Box 24597, Tampa, FL 33623-4597; and by REGULAR U.S. MAIL to Anthony P. Battaglia, Battaglia, Ross, Dicus & Wein, P.A., First Union Building, 980 Tyrone Boulevard, P.O. Box 41100, St. Petersburg, FL 33743-1100; Thomas H. McGowan, P.A., 150 Second Avenue North, Suite 1500, St. Petersburg, FL 33701; and Luke Lirot, Esq., 112 East Street, Suite B, Tampa, FL 3360, this 13th day of September, 2002. JOHNSON, BLAKELY, POPE, BOKOR, RUPPEL & BURNS, P.A. By: ___________________________ F. Wallace Pope, Jr. Post Office Box 1368 Clearwater, Florida 33757 Tel: (727) 461-1818 Fax: (727) 441-8617 SPN #00002797 Samuel D. Rosen PAUL, HASTINGS, JANOFSKY & WALKER LLP Park Avenue Tower 75 East 55th Street, New York, New York 10022 Telephone: (212) 318-6000 Telecopier: (212) 319-4090 Attorneys for Plaintiff

To Life and Death of Lisa McPherson