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Over Courtroom Wisecrack By Daniel Ostrovsky June 21, 2007 MIAMI -- U.S. Bankruptcy Judge Laurel Myerson Isicoff opted for leniency in the case of a prominent Chicago lawyer who told her she was "a few french fries short of a Happy Meal." She decided not to bar McDermott Will & Emery partner William P. Smith from practicing in South Florida bankruptcy court. Instead, Isicoff ordered him Wednesday to take an online course in professionalism administered by the Florida Bar, even though he's not a Bar member in Florida and was practicing as a visiting lawyer. "There is no jurisdiction in the U.S. -- including the district where Mr. Smith regularly practices — where the expression and tone Mr. Smith used on May 7 would fall in the bounds of acceptable behavior," a solemn Isicoff said from the bench in front of a packed courtroom. Prior to the ruling, Smith's lawyer, Paul J. Battista of Genovese Joblove & Battista in Miami, told the judge Smith had voluntarily stepped down as the head of McDermott's bankruptcy practice following his courtroom remark. According to Battista, Smith already completed the Florida Bar's professionalism course and agreed to complete at least 200 hours of pro bono work in Chicago. Smith also decided to make a financial contribution to the Center for Ethics and Public Service at the University of Miami law school, Isicoff's alma mater. "He is here principally to express his deepest and sincere apologies to your honor," Battista said, adding that his client's remark May 7 was "inappropriate, disrespectful to the court and simply wrong." Following Smith's comment to the judge last month, his client, Mount Sinai Medical Center & Miami Heart Institute, dropped him and McDermott and hired Akerman Senterfitt's Francis Carter to represent it in the Chapter 11 bankruptcy case of South Beach Community Hospital in Miami Beach. Isicoff said she accepted the apologies of both Smith and McDermott Will & Emery chairman Harvey Freishtat, the head of the Chicago-based, 1,000-lawyer firm, who also appeared in front of her to beg her pardon. Isicoff said she hoped the widely reported incident would start a discourse in the legal community about the appropriate way for lawyers to address judges, clients and each other. Smith spoke after Battista, saying he was sorry for failing to deliver "an appropriately phrased argument." Freishtat later told the judge Smith's comment was "unprofessional and unacceptable, whatever his intention may have been." He added he personally found Smith's remark to be "baffling." Freishtat said his firm has committed to increase its pro bono involvement in South Florida in the wake of the May 7 incident. After hearing from Battista, Smith and Freishtat, Isicoff asked Smith and his lawyer whether his pro hac vice license had ever been revoked in any jurisdiction and whether he had ever made the same comment in any other courtroom. Smith answered no to both questions. Isicoff then took a five-minute recess before delivering her ruling. Smith, who has a national bankruptcy practice, stood to lose a lot from Isicoff's possible sanction, because if the judge were to pull his license in that court, he would have to disclose that every time he sought pro hac vice admission elsewhere. Firm's
Top Lawyer to Offer Aplogy's New York Lawyer MIAMI -- Chicago attorney William P. Smith says he's very, very, very sorry for telling U.S. Bankruptcy Judge Laurel Myerson Isicoff she was "a few French fries short of a Happy Meal" during a May 7 court hearing in Miami. The chairman of McDermott Will & Emery, the Chicago-based firm whose bankruptcy practice Smith heads, is ready to prostrate himself before the judge as well. According to a recent motion filed by the law firm, Harvey Freishtat, who heads the 1,000-lawyer firm, plans to fly to Miami for a hearing on Smith's comment. The motion states Freishtat will personally express "on behalf of the entire firm, to this court, to the other lawyers in this case, and to the other honorable judges of this District Court, [his firm's] sincere and deepest apology for the words used by Mr. Smith." The hearing is scheduled to take place June 20 at 11 a.m. before Isicoff. On May 21, Isicoff issued a show cause order summoning Smith to explain why he should not be suspended from practicing before the court for his comment, and why his pro hac vice status as a visiting attorney should not be suspended. In his motion responding to the order, Smith wrote he "expresses his heartfelt, sincere apologies to Judge Isicoff, this honorable Court and the parties present in the courtroom on May 7, 2007." He said he "fully intends to present himself to the Court at the hearing on the order to show cause and at that time will personally express his apologies to all involved." Smith is represented by Paul J. Battista and Allison R. Day of Genovese Joblove & Battista in Miami. "It is not Mr. Smith's intention to offer any justification for his statements or argue that they should not be viewed as offensive to the Court," Smith's motion states. "Simply stated, he is truly sorry for what he said, understands that his statements were improper and regrets the inconvenience to the Court." Smith did not return a call for comment. Battista, his lawyer, declined to comment. McDermott Will & Emery, through its Miami partner Steven E. Siff, filed its own motion seeking permission to participate in the hearing on the order to show cause. The firm's motion states Smith's "words were improper and do not conform to the standards of professionalism, civility, respect and courtesy to which MWE subscribes and which all of the Firm's lawyers and other personnel are required to observe." Furthermore, according to the motion, chairman Freishtat will advise Isicoff of "remedial measures that have been taken and that will be taken by the Firm, separately and together with Mr. Smith, in light of this incident and to ensure that conduct of this nature is not repeated." Isicoff granted both Smith's motion to expedite the hearing on the show cause order -- which was originally scheduled to take place June 25 -- and the law firm's motion to participate in that hearing. Soon after the show cause order, the client, Mount Sinai Medical Center & Miami Heart Institute in Miami Beach, which was contesting the sale of South Beach Community Hospital in a Chapter 11 bankruptcy case, retained a new law firm. The hospital hired Francis Carter, who is of counsel at Akerman Senterfitt in Miami. Mindy Mora, a partner in the bankruptcy group at Bilzin Sumberg Baena Price & Axelrod in Miami who is not involved in the case, said it's critically important for Smith's practice to convince Isicoff not to take away his pro hac vice license to practice in the U.S. Bankruptcy Court for the Southern District of Florida. She said it would be difficult for Smith to maintain a nationwide bankruptcy practice if Isicoff pulls his license here, because that has to be disclosed every time he seeks pro hac vice admission elsewhere. Mora also said Smith's motion to move up the hearing on the show cause order may have been motivated by his and his firm's desire to "reduce the size of the audience" for that hearing. Smith's comments have been widely discussed by legal blogs around the country. Bad
Lawyer Joke: By Daniel Ostrovsky The comment already has cost Chicago-based McDermott Will & Emery partner William P. Smith his client -- Miami Beach's Mount Sinai Medical Center & Miami Heart Institute. Bankruptcy Judge Laurel Myerson Isicoff in Miami also slapped the hospital with a restraining order at the same hearing where Smith made his fast-food quip. She found Mount Sinai's anti-competitive actions in the bankruptcy case of South Beach Community Hospital violated bankruptcy law. During a May 7 hearing, Smith told Isicoff, "I suggest with respect, your honor, that you're a few french fries short of a Happy Meal in terms of what's likely to take place." Smith's comment and a show-cause order against him were first reported by the legal blog Above the Law. Smith did not return calls for comment, and Mount Sinai spokeswoman Kathleen Dorkowski declined to comment on the case. McDermott Will & Emery issued a statement, saying: "We expect our lawyers to observe established rules and protocols of professional conduct in the courtroom. Any departure from that standard is of concern to us, and we look forward to a resolution of this matter." Isicoff issued the show-cause order May 21 summoning Smith to explain why he should not be suspended from practicing before the court and why his pro hac vice status as a visiting attorney should not be suspended. Isicoff also distributed her order to her colleagues on the district's bankruptcy bench. Prominent South Florida bankruptcy lawyers say Smith's comment reflects a superior attitude that out-of-town lawyers sometimes display in South Florida courts. Smith, who heads the national bankruptcy practice at McDermott, has retained the Miami bankruptcy boutique Genovese Joblove & Battista to represent him before Isicoff on the show-cause order set for hearing June 25. Francis L. Carter, who is of counsel at Akerman Senterfitt in Miami, confirmed Tuesday that he has been retained to take over representation of Mount Sinai in the bankruptcy proceedings, which delve into the cutthroat world of hospital competition. Isicoff issued a temporary restraining order against Smith's client for willfully violating bankruptcy law by interfering with a debtor's assets outside the bankruptcy case. Smith and McDermott's Miami-based partner Gary Matzner were representing Mount Sinai on a small bankruptcy claim against the shuttered South Beach Community Hospital, which filed for protection in February 2006. Miami lawyer Alan L. Goldberg is the trustee of the former Alton Road hospital that operated at the foot of the MacArthur Causeway about three miles from the much larger Mount Sinai. South Beach Hospital, formerly South Shore Hospital, was in danger of losing federal funding because of a Medicare overbilling case when it filed for bankruptcy. A 10-story portion of the building was heavily damaged by Hurricane Wilma and forced hospital operations into an adjacent three-story building. Mount Sinai got involved in the Chapter 11 bankruptcy case by buying a $483 claim filed by MedGluv, a manufacturer and distributor of medical supplies. Once in court, the 955-bed Mount Sinai opposed Goldberg's plan to sell the operating license of the 148-bed community hospital to Hospital of South Beach for $2.4 million plus $600,000 in assumed debt. Mount Sinai also asked state regulators to reverse a license renewal and opposed transferring the license to new owners, Isicoff found at the May 7 hearing. In response, Goldberg filed a motion to hold Mount Sinai in contempt for violating an automatic stay -- a basic tenet of bankruptcy law -- prohibiting creditors from interfering with a debtor's assets outside bankruptcy proceedings. Isicoff concluded Mount Sinai violated the stay and issued an order Friday saying she would schedule a hearing on sanctions later. Smith acknowledged Mount Sinai was motivated by a desire to stop a competitor from reopening in Miami Beach. "If this transaction closes, that will in aggregate compete against the lines of business which Mount Sinai currently occupies in a service area where Mount Sinai currently cannot fill its beds," Smith told Isicoff on May 7. "Does Mount Sinai desire that this doesn't take place? Of course we do." After listening to arguments from several parties, Isicoff ruled Mount Sinai violated bankruptcy law. She issued a temporary restraining order prohibiting Mount Sinai from interfering with South Beach's licensing without her approval. "The court finds that Mount Sinai's violation of the automatic stay was willful and in fact arrogant," Isicoff said from the bench. Her order Friday bars Mount Sinai from contacting any government agencies or news media about the license or hospital sale without her permission. Isicoff was sworn in as the district's first woman bankruptcy judge in February 2006. She graduated from the University of Miami School of Law in 1982 and spent 14 years as partner at Kozyak Tropin & Throckmorton in Coral Gables, Fla. In interviews, South Florida bankruptcy lawyers praised her judicial abilities and her decision to hold Smith accountable for his words. The lawyers said Smith's comment showed disrespect for the judge and the district. "People come to the Miami and Fort Lauderdale courts, and they think that it's a second-class court system when they come from New York or Chicago or places like that," said Charles M. Tatelbaum, national chairman of the bankruptcy litigation and secured transaction practice at Adorno & Yoss in Fort Lauderdale, Fla. "I am pleased because it would have been a lot easier for her to simply ignore it and do nothing, and this is the kind of person she is because she is going to say, 'I am not going to stand for that.'" Tatelbaum said the bankruptcy bar backed Isicoff's appointment to the bench and described her as a "no-nonsense person" and a "super lawyer" with a "very good sense of humor." Prominent bankruptcy attorney Paul S. Singerman, co-chief executive officer of Berger Singerman in Miami, said Isicoff is an "even-tempered, polite and patient" judge. "Sometimes I observe lawyers that come from larger cities than Miami and who perceive that their home city is a more sophisticated commercial center do bring with them, sometimes unintentionally, an air of superiority or arrogance," Singerman said. Mindy Mora, a partner in the bankruptcy group of Bilzin Sumberg Baena Price & Axelrod in Miami, said she was shocked when she learned Smith was an experienced head of a practice group at a top national firm. "She's not temperamental, she is not a diva, she is not any of the things that I have seen written about her in the blogs," Mora said of Isicoff. In court, Mora said, it is particularly important for an attorney to gain respect from judges to effectively represent clients. "Clearly, if I was putting myself in the shoes of a client, the one thing you want is you want your counsel to be respected by the court because, after all, in bankruptcy court the judge is the trier of fact," she said. "There are very few jury trials in bankruptcy court." |
