by Gwen Moritz
Posted 12/13/2011 03:19 pm
Updated 11 months ago
"There is no justification for the actions of Mr. Solomon" or his client, USA Drug scion Jason LaFrance, Wilson wrote in a 23-page order. "Mr. Solomon's conduct is a classic case of a lawyer setting professionalism aside and posturing for a longtime friend and valued client."
Wilson's order followed a day-long hearing on Nov. 28 at which Solomon, his partner David Martin and federal prosecutors attempted to explain what Wilson called "shenanigans" before and during the deposition of LaFrance by Little Rock attorney Pat James.
Martin was cleared of any wrongdoing, and Wilson said LaFrance "appears to have acted under the encouragement of Mr. Solomon; therefore I will not impose sanctions for his poor manners."
"We respectfully disagree with the court's conclusions," Steve Joiner, managing partner of Rose Law Firm told ArkansasBusiness.com. The firm, he said, is considering Solomon's options, which include appealing the sanctions.
James, on the other hand, said he and his clients, former USA Drug executive Garret Sorensen and his wife, Katherine, "are gratified by the court's decision and feel vindicated."
The Rose law firm has already paid about $3,300 for the court reporter and videographer who recorded Jason LaFrance's Nov. 7 deposition, but James said he would also file for "substantial attorneys fees."
James represents the Sorensens in a civil lawsuit filed by the pharmacy chain's holding company, Stephen L. LaFrance Holdings Inc. They - along with Katherine's sister, Shannon Walters - were accused by the LaFrances in civil court and by a federal grand jury in criminal court of secretly setting up an advertising placement business to which Garret Sorensen steered USA Drug commissions.
Wilson had denied the Sorensens' request to depose witnesses in the criminal case. But two Pulaski County Circuit Court judges, Ernest Sanders and Wendell Griffen, had refused to stop depositions from proceeding in the civil case. Federal prosecutors, in what Wilson noted was "an attempt to avoid legitimate discovery in a civil action," then unilaterally moved the LaFrances' civil case out of state court and into federal court. Wilson, however, refused to stop the civil depositions.
In his order, Judge Wilson reiterated his ruling from the bench at the end of the Nov. 28 hearing: Federal prosecutors had no authority to move the civil case into federal court. He suggested that the Sorensens and their attorney might successfully petition for sanctions against the government, which has already been ordered to pay the cost of having the case sent back to state court.
Wilson seemed to hint that the government may have been "judge shopping" when Assistant U.S. Attorney Angela Jegley insisted that the court clerk combine the civil case with the existing criminal case, in which Wilson had denied depositions.
"Perhaps the judges of this district should consider amending Local Rule 40.1 to make an exception for this particular situation. Until that time, however, Local Rule 40.1 should be followed - especially in view of this district's long-standing opposition to judge shopping," Wilson wrote.
A burning desire by both the LaFrances and federal prosecutors to avoid depositions and other discovery was obvious, Wilson found.
"Considering the evidence as a whole, including the actions of Mr. LaFrance and Mr. Solomon, I am convinced beyond peradventure that Plaintiffs were willing 'to do the necessary' to avoid discovery - even if that meant flouting court orders. This is all the more troubling since Plaintiffs initiated the civil case, choosing thereby to subject themselves to the discovery that is a standard part of any civil case," he wrote.
And later: "I remain puzzled at the Government's angst at the prospect of legitimate discovery - and at its extensive attempts to block it. The Government's standard argument against expanded discovery in criminal cases is 'danger to witnesses.' While this is obviously a legitimate concern in some cases, there is no suggestion of this in this 'white collar' case. Would the sky fall if the Government's key witnesses were required to answer questions under oath?"
He rejected U.S. Attorney Chris Thyer's argument that moving the civil case to federal court had precedent in the 1999 case of former state Sen. Mike Todd, and his wording suggests that the prosecutors should have known better:
"After ample time to reflect, the Government continues to rely on United States v. Todd to support its decision to remove this case to federal court. This case is inapposite, and clearly so," Wilson wrote.
Todd's case involved a joint state-federal investigation and questions about the federal Freedom of Information Act. LaFrance v. Sorensen didn't involve the federal government at all, a point Wilson belabored: "[T]here is no federal officer or agent involved in the civil case; no federal statute is involved; no party was acting at the direction of a federal officer or agent; the Government had not been sued; there was no judicial power invoked against the Government; and Defendants were not seeking information from the Government."
The deposition of Jason LaFrance was supposed to start at 9 a.m. on Monday, Nov. 7, and to be followed over the next two days by similar depositions of his father and brother, Stephen L. LaFrance Sr. and Stephen L. LaFrance Jr.
But the Rose lawyers, Solomon and Martin, moved to dismiss the civil case literally at the last-minute - 4:59 p.m. on Friday, Nov. 4. Pat James, the Sorensens' attorney, insisted that the deposition continue since Wilson had not ruled on the motion.
After four telephone conferences with the vacationing Judge Wilson, the deposition was taken in the garage of Jason LaFrance's $2.5 million home on Edgehill Road in Little Rock. It was complicated by the presence of LaFrance's 1-year-old son, his wife's pregnancy and his ultimate decision to ban James and Garret Sorensen from entering his house even to use the bathroom.
Wilson found much to question and criticize, including representations that LaFrance's pregnant wife had been ordered to stay in bed. Instead, the judge noted, she had traveled to Fayetteville for a Razorback football game the previous weekend, had posed for a family portrait that morning and had lunched on a "hamburger and milkshake" with her husband, who was supposed to be submitting to a deposition.