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Pigford v. Veneman

January 3, 2005

TIMOTHY PIGFORD, ET AL., PLAINTIFFS,
v.
ANN VENEMAN, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANT.
CECIL BREWINGTON, ET AL., PLAINTIFFS,
v.
ANN VENEMAN, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

On December 22, 2004, Mr. James Myart, Esq. filed, on behalf of his client, Mr. Thomas Burrell, a "Notice of Unprofessional Conduct by Michael Sitcov in Connection with Allegations of Department of Justice/Attorney Misconduct in Direct Relation to Class Members Cases and Defendant's Appeals of Arbitrator Awards." This is not the first document captioned "Notice" that Mr. Myart has filed in this case, and the Court is less than pleased at counsel's repeated use of the Court's docket as a forum for what are, in essence, press releases. This most recent "notice" has crossed a line that the Court will not ignore. Because the Court finds this notice to be unprofessional, harassing and irrelevant to this litigation, the Court will order, sua sponte, that it and another notice filed the following day be stricken from the record.*fn1 The Court will not reach into the past to strike other inappropriate notices that have been filed, but admonishes counsel against the use of such mechanisms in the future in this, or any other, case.*fn2

Mr. Myart's "notice" appears to complain that Mr. Sitcov will not speak with him on the telephone concerning the recent concerns raised regarding Margaret O'Shea, an individual who participated in the Department of Justice's work regarding the implementation of the Consent Decree. Mr. Myart claims that "[i]n spite of the urgency of this matter, Mr. Sitcov refuses to communicate with Counsel justifying his refusal to communicate and insistence on hanging up in Counsel's face." Notice at 2. As noted, Mr. Myart's filing is a notice, not a motion requesting relief from the Court.*fn3 Indeed, the Court notes that Mr. Myart has already filed both a notice to bring the Court's attention to the matter of Ms. O'Shea and multiple motions on the same topic.*fn4 Thus, the "notice", if it involved only the matter of Ms. O'Shea, at the very least would be redundant.*fn5

The focus of the "notice," however, is not the matter of Ms. O'Shea, but rather Mr. Sitcov's refusal to speak with Mr. Myart on the telephone. The Court notes that this is not the first time Mr. Myart has raised this complaint. In a hearing for a temporary restraining order in Bradshaw v. Veneman, Civil Action No. 04-1422, on October 8, 2004, Mr. Myart advanced similar concerns regarding Mr. Sitcov's alleged failure to communicate. After explaining his reasons for refusing to speak to Mr. Myart over the telephone, including Mr. Myart's previous suspension from the Texas State Bar, Mr. Sitcov explained:

I have told him that I will accept e-mail from him or letters or faxes. And when it suits his purpose, which is almost every day, he sends me one of his e-mails. But when he wants to create what he views as some sort of issue about me not talking to him, he calls me. Now, I am not lead counsel in any one of these cases. As I think Your Honor is aware by this time, I supervise a practice area that, one little corner is a farm services agency. The practice involves HUD, it involves the V.A., it involves FEMA; it is nationwide in scope. The way our office operates, there are trial attorneys, and the trial attorneys are personally and primarily responsible for litigating those cases.

Mr. Myart knows who the trial attorney on Pigford is. It's Liza [Goitein]. He has her number. He calls her, she calls him. If he wants to talk to somebody by phone about a motion, he can call her. And when it suits his purpose, he does.

So if he is going to stand up here and lie to you that there is no way for us to communicate, that is simply false. And if he is going to say to you that there is no way for us to communicate other than by e-mail, that's false as well, because he can call Ms. [Goitein], who is the person that he should call.

In other cases, he calls the lawyers who are assigned to them. There is a case called Williams that's being handled by Josh Rabinovitz. He regularly calls Mr. Rabinovitz. There's a fellow named Cowden in the United States Attorney's Office who is in several cases. Mr. Myart regularly calls Mr. Cowden. So the notion that I am some sort of roadblock is just a lie. And it is in keeping with, and I'm just going to quote now, what, "the Texas Bar found that it was conduct that was deceitful and fraudulent in those proceedings." And it is deceitful and fraudulent in these.

October 8, 2004 Motions Hearing in Bradshaw v. Veneman, 04-1422 ("Bradshaw Hearing") at 9-11. Mr. Myart knows that Mr. Sitcov prefers to communicate with him in writing in connection with this case. This is not a "refusal to communicate." It is merely a refusal to communicate by telephone. It is certainly not uncommon, in contentious cases, for prudent attorneys to prefer that their communication with opposing counsel be memorialized in writing.

The Court notes that, during that same hearing, Mr. Myart essentially accused Mr. Sitcov of racism, saying: "[I]f I am being treated any differently than any other lawyer or white lawyer that he deals with, that I'd consider that to be discriminatory," and, later in the hearing, when handing Mr. Sitcov a document said "yes sir, yes sir" in what Mr. Sitcov described as the patois of a slave speaking to a master, Bradshaw Hearing at 9, 26, to which Mr. Sitcov responded: "I don't have to be treated like dirt privately in e-mail and I don't have to be treated as dirt by Mr. Myart here."*fn6 Id. at 27. In response, the Court, acknowledging the contentious nature of this case, noted its agreement with Mr. Sitcov on this point, id., and admonished all counsel to conduct themselves courteously and professionally, stating:

Mr. Myart, you are both, everybody in this case is going to have to conduct themselves professionally. There are a lot of lawsuits where people don't, lawyers on the other side don't like each other. There are a lot of lawsuits where there is a history between lawyers on the other side. But they still both have an obligation. All have an obligation to try to act professionally toward each other and try to act professionally in their filings and in the courtroom.

I just don't think it is appropriate to, and I heard what you said. I don't think that was appropriate, the way you addressed Mr. Sitcov just now. There may be other things that are not appropriate, too. You've identified some things that you think are inappropriate on his side and things that he has done. As I say, there have been other things as well. This has been a contentious matter for a long time.

But it seems to me that it is the responsibility of the lawyers in the case, and the neutrals in the case, and the professionals in the case to try to keep the level of contentiousness and bad blood down and the level of civility and professionalism up. And I don't know if that is ever going to be repairable between you, Mr. Myart and you, Mr. Sitcov. And it does not have to be repaired. But people ...


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