Garcias Answer Scientology’s Attempt to Disqualify Their Attorneys in Fraud Lawsuit

Two weeks ago, the Church of Scientology pulled a classic maneuver from its bag of litigation tricks. Using the declaration of ex-church member Brian Culkin — who had signed the document reportedly in order to obtain a large refund — Scientology attempted to get the attorneys for Luis and Rocio Garcia disqualified in their federal fraud lawsuit against the church.

Tonight, the Garcias answered back with a coldly logical and narrowly focused briefing, which we’ve posted below.

As our legal analyst Scott Pilutik explained to us earlier, the church’s best argument for disqualifying Ted Babbitt and Ronald P. Weil — the principal attorneys representing the Garcias — was to point out that another attorney, Robert Johnson, has been helping out the Garcia team even though he used to do work for the Church of Scientology itself. This was an ethical breach, the church argued, and should get Babbitt and Weil bounced from the case.

In order to bolster their case, the church submitted declarations from Scientology officials who recounted Johnson’s work for the church, and also submitted the declaration from Culkin, in which he described his understanding of Johnson’s interactions with the Garcia team.

But in their response, Weil and Babbitt generally ignore Culkin and instead explain that Johnson’s involvement in the case is tangential and in no way violates Florida court rules. While Johnson did, fifteen years ago, handle church matters such as land purchases, the Garcia lawsuit is about fraud.

Scientology’s attorneys had also objected to the involvement of former church officials Marty Rathbun and Mike Rinder in the Garcia team. But as neither of them are attorneys, Pilutik told us he didn’t think Judge James Whittemore would take that part of the church’s motion very seriously.

In their memorandum, Weil and Babbitt wrangle numerous Florida court precedents to make their case that not only is Johnson’s involvement not a breach of court rules, but that disqualification of counsel is an extreme measure that would be inappropriate anyway.

Are they right? We’ve been waiting for Judge Whittemore to rule on Scientology’s previous motion — to compel the Garcias to use the church’s internal arbitration process and remove the case from court — and now we have to wonder which of the two motions he’ll rule on first.

At this point, Culkin may breathe a sigh of relief that the Garcias did not make more of his declaration or his credibility. But we were told that an evidentiary hearing may result from this motion, so we’ll see if Culkin does get dragged into Whittemore’s court.

As ever, we’re interested in the attorneys in our commenting community to give us their thoughts on these documents…

 

Garcia: Opposition to Disqualify

 
Robert Johnson’s affidavit. Says our Scott Pilutik about this document…

The two most interesting pieces of information in the Johnson declaration are that (1) Johnson’s firm has already been adverse to Scientology in a bankruptcy case (Rene Piedra, a Miami dentist I think was profiled by Tobin & Childs); Scientology had an opportunity to conflict Johnson’s firm out and didn’t. This is significant because Scientology’s own tortured logic disqualifying Johnson here would’ve likely applied there; and (2) Johnson denies being on the conference call Culkin alleged he was certain Johnson was on. To my mind, the conference calls was the most potentially damaging information to Scientology’s claim that Johnson was effectively “co-counsel” to Babbitt. It’s actually pretty weak in and of itself, but it was better than what else they were alleging. Here, Johnson flatly denies it.

 

Robert Johnson Declaration

 
Additional thoughts from Pilutik on Johnson’s declaration…

It’s also worthwhile to note that in paragraph 34 of Johnson’s declaration he points out five instances which his own account contradicts Culkin’s version of events. He’s calling Culkin a liar, and the contradictions between the two are of the easily verifiable sort–e.g., number of phone calls, number of emails, letters or documents sent or not sent. Since Scientology’s legal argument rests *entirely* on facts provided by Culkin, the judge could call a hearing to determine the credibility of Culkin, and if found to be lacking, dismiss the motion without even addressing the legal argument. And to the extent Scientology’s lawyers obtained Culkin’s declaration without conducting what the Federal Rules of Civil Procedure refer to as a “reasonable inquiry” into the veracit y of the facts provided, they may wind up in a heap of trouble and get sanctioned under F.R.C.P. 11(b) (Babbitt would likely have to file a motion). Additionally, Culkin himself may also be liable for contempt.

 
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Posted by Tony Ortega on May 28, 2013 at 19:00

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