Two Freshwater attorneys ask to withdraw

| 66 Comments

In the federal suit brought by the Dennis family against the Mt. Vernon school district and John Freshwater, the district’s insurer employed two attorneys to represent the district and1 Freshwater in addition to R. Kelly Hamilton, who is employed by Freshwater himself. Today those attorneys, Robert H. Stoffers and Jason R. Deschler of the law firm Mazanec, Raskin, Ryder & Keller Co., L.P.A., filed a request with the court to withdraw as trial attorneys for Freshwater. They say

On April 23, 2010 circumstances arose which prevent Robert H. Stoffers, Jason R. Deschler and Mazanec, Raskin, Ryder & Keller, Co., L.P.A. from continuing to represent Defendant Freshwater in the within case in accordance with Ohio Rules of Professional Conduct. Defendant Freshwater continues to be represented by R. Kelly Hamilton. Attached hereto are the Affidavits of Robert H. Stoffers and Jason R. Deschler which attest to there being good cause, pursuant to the Ohio Rules of Professional Conduct, which require them and Mazanec, Raskin, Ryder & Keller Co., L.P.A. to withdraw as Trial Attorneys for Defendant Freshwater.

After some identifying information, the identical affidavits say only that

4. On April 23, 2010 I became aware of circumstances which prevent me from continuing to represent Defendant Freshwater in the above-referenced case in accordance with the Ohio Rules of Professional Conduct.

5. There is good cause, pursuant to the Ohio Rules of Professional Conduct, for me to withdraw from my representation of Defendant Freshwater in the above-referenced case.

I learned of this only a few hours ago, and have not yet found out what those circumstances are.

The federal trial was due to start on May 24, but this will no doubt delay that. We don’t yet know what effect, if any, this will have on the administrative hearing on Freshwater’s termination, which is due to resume April 29.

Added in edit: Hamilton has now requested that the hearing be closed to spectators and media, claiming that potential jurors in the federal trial may be unduly influenced by media coverage of the hearing. PDF of the request (4.6 MB) here. (Hat tip to Accountability in the Media.)

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1I’ve since learned that a lawyer named Sara Moore represented the district defendants (BoE and administrators) in the Dennis family’s suit against the district, while Deschler and Stoffers were assigned to represent only Freshwater. So the potential conflict of interest hypothesis advanced below doesn’t hold up.

66 Comments

I thought the Dennis family and the school had all ready settled?

They settled with the school but not with Freshwater, and since the allegations deal with Freshwater’s behavior in the school in his capacity as a teacher the insurer is still on the hook.

I’ve learned that the hearing is still scheduled to resume April 29, and that Hamilton has asked the school treasurer to issue 17 more subpoenas. There are two days scheduled in April, and then no more scheduled until early June. Since Freshwater last year exercised his right to suspend the hearing when school is not in session, that means that June 7 is the last day hearings can be scheduled until late August if he exercises that option again this year.

I also heard from an independent source that Hamilton had a student in the high school passing out his cards and soliciting testimony from other students. My (possibly incomplete) understanding is that the high school principal put a stop to that on the ground that the district doesn’t allow solicitation and/or passing out unapproved material in the school. That’s a single-source story, so I can’t completely vouch for it.

Here’s my uninformed conjecture: Either Freshwater and Hamilton are suing their own team, or they’re involved in something so unethical that the attorneys don’t want to be associated with it.

I’m actually taking a break from studying the Ohio Rules of Professional Conduct for an exam tomorrow… I’m thinking it’s likely that the attorneys discovered that there’s a conflict between the school district and Freshwater, and the attorneys can’t represent both when there’s a conflict.

Since there seems to be no apparent incentive to conclude the hearing, it could go on for a very long time.

Those attorneys don’t represent the school, only Freshwater. The school has their own insurance lawyers.

unoit said:

Those attorneys don’t represent the school, only Freshwater. The school has their own insurance lawyers.

These lawyers, Deschler and Stoffers, were hired by the school’s insurers to represent all the school defendants (the Board of Education, several administrators, and Freshwater) in the Dennis family’s federal suit against that array of school-related defendants. The insurance company settled with the Dennis family on behalf of all the defendants except Freshwater, so they continued to represent him in the federal suit, along with Hamilton, until their request to be allowed to withdraw today.

That was in error. They represented only Freshwater, not the other district defendants who were represented by Sara Moore.

Tim said:

I’m actually taking a break from studying the Ohio Rules of Professional Conduct for an exam tomorrow… I’m thinking it’s likely that the attorneys discovered that there’s a conflict between the school district and Freshwater, and the attorneys can’t represent both when there’s a conflict.

I won’t speculate publicly, but I myself suspect that there’s something more serious than that going on.

This is going to make such a great movie, a la “The Informant”.

Gotta be a Coen brothers film.

See the amendment and addition to the OP above. The two withdrawing attorneys represented only Freshwater, not the other district defendants, and Hamilton has requested that the administrative hearing be closed.

I wonder if Steve P intends to pop into this thread to continue insisting that Freshwater is still coming out ahead, then whine about how we’re all so mean for disagreeing with him, too.

Hmm. I wonder if the insurer plans to sue Freshwater to recoup their losses…

Okay, this is (informed) speculation on my part, as I am a lawyer who has faced ethical problems with clients before, which this sounds like here.

While Tim is right that a conflict between the school district and Freshwater might well have caused a request to withdraw from representing both Freshwater and the district, the settlement by the district should have ended that problem.

Another possibility is that the insurance company has disclaimed and decided that it has no duty to defend Freshwater, though that may be unlikely because an insurance company’s “duty to defend” is broader than its “duty to indemnify.” Generally speaking, if the claim even arguably fits within the coverage, the insurance company has to provide a defense.

As to Daffyd ap Morgen’s suggestion that the carrier intends to sue Freshwater, that is highly unlikely. There are strong prohibitions against carriers suing anyone who arguably are their own insureds.

There is one distinct possibility (that I am in no way suggesting is true in this case): a lawyer who has good reason to believe that a client may commit perjury is required to ask to be relieved without revealing the basis for the request.

Ultimately, whether or not the lawyers are relieved, we are unlikely to learn why. Courts usually keep that a closely guarded secret.

Having made one of these “noisy withdrawals” myself at one time, I think there’s both more and less here than meets the eye.

First, this is probably not a conflict issue; if it was, the nature of the conflict would be disclosed in the affidavit, the identity of the parties affected would be disclosed in the affidavit, and there would be a specific mention of whether waiver was considered.

So, then, what does that leave? Most probably one of three things:

* personality conflicts have made it impossible to continue with the representation (although I consider this unlikely given that the affidavit names a specific date);

* the client has fallen so far behind on billings that the lawyers must withdraw to keep from doing the equivalent of throwing good money after bad (unlikely, but possible if 23 April was somehow linked to an arrearage date); or

* on 23 April, the attorneys came into actual knowledge of actual or intended perjury, or of actual or intended process without a colorable legal basis, that the client demanded the attorneys present to the court

“Noisy withdrawals” like this are intended to call the court’s attention to the attorney’s discomfort, and also to protect the attorney from later bar discipline. The hows and whys are… complex (and, as Tim will no doubt agree, needlessly so, particularly under Model Rules 8.3 and 8.4). Basically, they’re a message to the judge along the lines of “Something is rotten, here, Your Honor. I can’t tell you about it; but don’t blame me when you get pissed off about it later, because I’m warning you as loud as I can that something is rotten with the administration of justice in this matter (and it’s not just last month’s egg salad sandwich in a broken refrigerator), and I’m withdrawing as soon as I know about it.”

C.E. Petit said:

[SNIP]

First, this is probably not a conflict issue; if it was, the nature of the conflict would be disclosed in the affidavit, the identity of the parties affected would be disclosed in the affidavit, and there would be a specific mention of whether waiver was considered.

AFAIK neither of the withdrawing attorneys represents (nor represented earlier) anyone else associated with the case. My original post said they did, but that was mistaken. They have represented only Freshwater on behalf of the insurance company.

So, then, what does that leave? Most probably one of three things:


* personality conflicts have made it impossible to continue with the representation (although I consider this unlikely given that the affidavit names a specific date);

* the client has fallen so far behind on billings that the lawyers must withdraw to keep from doing the equivalent of throwing good money after bad (unlikely, but possible if 23 April was somehow linked to an arrearage date); or

* on 23 April, the attorneys came into actual knowledge of actual or intended perjury, or of actual or intended process without a colorable legal basis, that the client demanded the attorneys present to the court

The personality conflict need not be with Freshwater. Recall that Hamilton, Freshwater’s attorney in the administrative hearing, was also the attorney on Freshwater’s counterclaim in the federal case (the counterclaim that was dismissed a week or two ago in a summary judgment) but has not been listed in the papers filed in the defense against the Dennis family’s suit. If he has been pushing for a more active role in that defense it might have caused issues. The specific date, though, is peculiar given that hypothesis. So one is led to wonder about one of the two remaining speculations. There I have no information beyond the observation that the attorneys were retained by the insurer, so a massive arrearage on a date certain seems unlikely (unless the insurer was AIG :)).

A subhead of the third conjecture above, of course, is actual knowledge of actual or intended subornation of perjury. Again, this is all conjecture and speculation.

I can’t beleive that this has been going on for almost TWO YEARS! What the hell is wrong with our school systems and courts?! This should have been resolved within a few months! Freshwater belongs in jail!

Remember how this all started? http://pandasthumb.org/archives/200[…]-intell.html

Dale Husband said: What the hell is wrong with our school systems and courts?!

This isn’t a court problem, its an administrative hearing problem. The guy running this show doesn’t know how to say “no” when the attorneys ask for more time.

He’s probably worried that limiting Freshwater’s time to present evidence (to 1.5 years!) would result in a legal suit or appeal based on the claim that Freshwater wasn’t given a fair hearing - and that this would end up costing the district more money than the endless extensions will. But sometimes one can be too risk-averse. IMO this is one of those times.

Eric wrote:

“He’s probably worried that limiting Freshwater’s time to present evidence (to 1.5 years!) would result in a legal suit or appeal based on the claim that Freshwater wasn’t given a fair hearing…”

That’s probably right. However, I would pay cash money to hear Freshwater argue in court that two years was not sufficient time for him to present his case. Of course the answer is simple, just set a deadline after which he will incur all costs of the proceedings. That should wrap the matter up nicely.

Hamilton has now requested that the hearing be closed to spectators and media, claiming that potential jurors in the federal trial may be unduly influenced by media coverage of the hearing.

It isn’t often that hearings are closed, either administrative or court. Our whole system of justice is based on fair and open trials. There are exceptions though, juveniles and witnesses in fear of their life. I would expect they would have a hearing just to determine if closing the hearing is appropiate.

If conducting the administrative hearing will conflict with the federal court case, they might as well just suspend it. Freshwater and his attorney are just stalling and stalling anyway so it will go on for another few years.

While we don’t know why the two lawyers withdrew, perjury and obstruction of justice on Freshwater’s part are certainly possibilities. These are criminal acts, felonies and a good way to turn a civil case into a prison sentence.

At Dover, the creationists perjured themselves in the federal case. They could have been charged but weren’t. Hovind managed to turn a civil tax case into an 8 1/2 year prison sentence. Despite xian claims that religion is the basis of morality, they never seem to demonstrate that.

The apparent absence of conflict and the request for closed hearing seem to point to an ethical problem. Most likely, Freshwater has demanded to be put on the stand and the lawyers have good reason for believing that he will perjure himself. There are ways to handle such a situation, but they require that the attorneys treat their own client as a hostile witness. Another possibility is that the attorneys have become aware of solid facts that would destroy their client’s case, either entirely or as to a claim that the client has demanded to be asserted.

Subpoena requests

I mentioned above that Hamilton has requested additional subpoenas be issued. I’ve obtained the subpoena request. He is demanding additional material from the district that is apparently from Freshwater’s classroom. He is also requesting that subpoenas be issued to 16 additional witness, many of them students.

One requested witness is Ian Watson, former President of the Board of Education who was not re-elected to the Board last fall. Seven months ago the Ohio Supreme Court denied Hamilton’s request for a writ of mandamus to compel Watson to testify when he was a member of the Board. I don’t know whether that still holds now that Watson is no longer on the Board, but Hamilton’s current request looks essentially identical to the one that was denied by the Supreme Court, requesting both Watson’s testimony and a variety of documents including Watson’s appointment calendar for a specified period in 2008-2998.

Olorin said:

The apparent absence of conflict and the request for closed hearing seem to point to an ethical problem. Most likely, Freshwater has demanded to be put on the stand and the lawyers have good reason for believing that he will perjure himself. There are ways to handle such a situation, but they require that the attorneys treat their own client as a hostile witness. Another possibility is that the attorneys have become aware of solid facts that would destroy their client’s case, either entirely or as to a claim that the client has demanded to be asserted.

Freshwater has already testified under oath twice in the administrative hearing. He originally testified in October, 2008, during the Board’s case in chief, and then again early this year during the presentation of his case. In fact, he’s still on the stand: the hearing was recessed before his re-cross examination by the Board’s attorney.

I don’t know if he wanted to testify in the federal suit, though his attorney has suggested that in a radio interview. In his deposition for the federal suit in which he is a defendant he invoked his 5th Amendment rights to decline to answer some questions, so I wonder if he’d testify in court under those circumstances.

RBH said:

Subpoena requests…including Watson’s appointment calendar for a specified period in 2008-2998.

*That’s* going to take some doing!

Guestion. Would the testimony in a closed adminstrative hearing be subject to subpoena and be admissable in a related civil trial?

Request to close hearing denied

Juicyheart said:

Guestion. Would the testimony in a closed adminstrative hearing be subject to subpoena and be admissable in a related civil trial?

I don’t know, but it’s moot. The referee has denied Freshwater’s request to close the hearing. So we’ll all be there bright and early tomorrow morning.

For those keeping score, we can add the defection of two of Freshwater’s attorneys and the denial of his request to close the hearing to Steve P’s list of losses to rationalize.

RBH said: The referee has denied Freshwater’s request to close the hearing. So we’ll all be there bright and early tomorrow morning.

What if Freshwater isn’t there? Or Hamilton?

Paul Burnett said:

What if Freshwater isn’t there? Or Hamilton?

Makes no difference if Freshwater himself isn’t there. If Hamilton is present he serves as Freshwater’s representative. If neither is there I have no idea. Hamilton has subpoenaed witnesses for tomorrow, so if he doesn’t show and they do I could see a contempt citation on the horizon.

Maybe they figure he already perjured himself. How much talking has he done on the stand? It doesn’t take much if you’re a creationist. Has he said more than two words yet?

Stuart wrote:

“That won’t work. Either they go after folks like Freshwater, or parents pissed off that their kids are being proselytized will sue.

Either way, school districts face legal action. Damned if they do, damned if they don’t.”

Right. So the only way out is to make sure that your teachers are following the law in the first place. What a concept.

Stuart Weinstein said:

DS said:

Marion wrote:

“I still think THE story is whether or not this can set a precedent for abusing teacher’s union rules and teaching contracts to basically make an example of Mt. Vernon school district - to demonstrate that it’s easier to let a kamikaze teacher slip creationism into science class than to try to get rid of him on those grounds.”

That may be what is really going on here. Maybe everyone realizes that the jig is up. Maybe everyone realizes that Freshwater must be made a sacrificial lamb. Maybe everyone realizes that unless he is fired that things are really going to get bad for everyone involved. But maybe they are all trying to show how costly and time consuming it can be to actually do anything about teachers who place their religious convictions above their teaching responsibilities. Maybe it is all one big conspiracy!

Even when Freshwater is finally and irrevocably terminated, after five years of legal battles and ten million dollars in court costs, won’t that just encourage others who are already getting away with illegal activity to be more vocal? After all, they can always point to the Freshwater case and say “see, do you want that to happen here?”

That won’t work. Either they go after folks like Freshwater, or parents pissed off that their kids are being proselytized having crosses burned onto them with a Tesla coil by some old man with a sick fetish will sue.

Either way, school districts face legal action. Damned if they do, damned if they don’t.

Sorry, had to fix that.

I find it amusing that a group that is aligned with econonomic conservatives is so intent on waisting taxpayer money with so many sham lawsuits and legal proceedings. I also think it’s a shame that people like Freshwater feel like they have a right to use their authority as educators to bully kids into adopting their respective religious ideology.

J . Biggs said:

I find it amusing that a group that is aligned with econonomic conservatives is so intent on waisting taxpayer money with so many sham lawsuits and legal proceedings. I also think it’s a shame that people like Freshwater feel like they have a right to use their authority as educators to bully kids into adopting their respective religious ideology.

No expense is too high, and no crime is too low if that’s what it takes to glorify Jesus.

J . Biggs said:

I find it amusing that a group that is aligned with econonomic conservatives is so intent on waisting taxpayer money with so many sham lawsuits and legal proceedings. I also think it’s a shame that people like Freshwater feel like they have a right to use their authority as educators to bully kids into adopting their respective religious ideology.

Religious righteous groups and creationists couldn’t give a damn about the public schools. They’ll piss on this school district, like Dover, etc., and use it as an example of why the taxpayer should be footing the bills for their religious schools is their way of thinking.

DavidK said:

Religious righteous groups and creationists couldn’t give a damn about the public schools…

When the Religious Right(eous) aren’t out and out condemning public schools as being tools of unbelievers, Anti-Christians, and allies of the Devil.

About this Entry

This page contains a single entry by Richard B. Hoppe published on April 27, 2010 4:14 PM.

Australopithecus sediba and the creationist response was the previous entry in this blog.

Freshwater April 29 & 30: Exploiting kids is the next entry in this blog.

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