Legal malpractice case could resurrect asbestos lawyer feuds

Steve Korris Jan. 23, 2009, 6:19am



John Simmons of East Alton and the firm where he used to work seek to delay a trial that would recall his stormy departure and explore the murky world of asbestos litigation.

On Jan. 9, Simmons and Mark Goldenberg's firm in Edwardsville asked Madison County Circuit Judge Barbara Crowder to pick a new date for a trial she set for Feb. 9.

"Through no fault of any of the parties, the parties have not been able to meet the various deadlines," their attorneys wrote.

Simmons and Goldenberg face a claim that their negligence reduced the value of an asbestos claim that Judy Buckles hired them to pursue.

Roy Dripps of Lakin Law Firm in Wood River represents Buckles, for the moment at least.

Goldenberg has moved to disqualify the Lakin firm for conflicts of interest from way back, and Crowder hasn't made up her mind about it.

On Dec. 16 she held a hearing on disqualification and on a motion from Simmons for summary judgment, and she continued both motions to Jan. 30.

Now she has added the motion for a new trial date to the Jan. 30 docket.

Buckles sued in 2006, reinstating a suit that all parties had agreed to dismiss without prejudice in 2005.

Tom Lakin filed the original suit in 2001, against the Hopkins Goldenberg firm, Goldenberg, John Hopkins, David Antognoli, Elizabeth Heller and William Miller.

Chief Justice P.J. O'Neill assigned Circuit Judge Andy Matoesian to the case, but Miller moved for substitution.

In Illinois any party can remove a judge once, without cause, if the judge has not made a substantial ruling.

O'Neill assigned Circuit Judge Nicholas Byron, but he recused himself when Hopkins Goldenberg moved to sue Simmons and Randy Bono as third parties.

Simmons worked at Hopkins Goldenberg from 1997 to 1999, and represented Buckles before and after he started his own firm.

Circuit Judges George Moran and Philip Kardis recused themselves, leaving O'Neill without any judges.

O'Neill asked the Illinois Supreme Court for help, and the Court sent Effingham County Circuit Judge Steven Seymour.

Hopkins Goldenberg moved to disqualify the Lakin firm from representing Buckles due to close ties between the Lakins and Simmons.

Simmons appeared and still appears on Lakin letterhead as, "of counsel."

At a hearing on disqualification Dripps said, "Mrs. Buckles has indicated she does not wish to sue the Simmons firm and she has waived any potential conflict."

Seymour asked if Simmons could be a witness, and Dripps said he could.

"The only way I see that Mr. Simmons of your firm can continue is if you tell me that you will accept a ruling that Mr. Simmons will not be called upon to testify for you in the case in chief, in rebuttal or for impeachment purposes," Seymour said.

When Dripps tried to separate Simmons from the Lakin firm, Seymour said, "He is of counsel. What does that mean?"

"In the context of this case I don't think it means a thing," Dripps said.

Seymour said, "Isn't that an appearance of impropriety?"

Dripps said, "It's not, because I know the relationship, your honor."

Seymour stalled, ruling that disqualification at that stage might cause serious harm.

He ordered affidavits from Simmons and the Lakins that Simmons had no interest in the outcome of the suit and didn't share in the firm's gross profits.

When Dan Konicek deposed Simmons for Hopkins Goldenberg, Simmons said the Lakin firm paid him $5,000 a month for advice on class actions.

When Konicek asked Simmons about referrals, Tom Lakin answered.

"I don't introduce him generally to clients," Lakin said.

"I introduce him, take him, before building trades, various organizations with business agents, and the clients generally come from those unions, those organized labor," he said.

Konicek asked Simmons how many cases he had in the last year from relationships with other people on which the Lakin firm got fees.

Simmons said, "I'm estimating three hundred."

"Wow," Konicek said.

He asked how much money that generated, and Simmons said he had no idea.

"Over a million?" Konicek said.

Simmons said, "That's a good guess right there."

In 2002, Buckles added Simmons as a defendant.

Simmons responded with a substitution motion that knocked Seymour off the case.

Once again O'Neill had run out of circuit judges, but this time he didn't ask the Supreme Court for help.

He assigned the case to Associate Judge Ralph Mendelsohn.

Konicek, deposing Buckles about her decision to sue Simmons after all, asked what "bowling grown survey" meant.

Buckles said, "I told them the story of what happened to us and offered my support to the family," she said.

Konicek didn't follow the point until she said, "Bowling Green. It was Chrysler, I think. It was a car maker."

She said Simmons offered her to do screenings with him.

"I was the main speaker there," she said.

"I told the story of our life and I begged them to be tested," she said.

She said they did screenings in St. Louis with auto dealers about brake pads.

The case bogged down, and Mendelsohn delayed trial twice.

On July 13, 2005, with trial nine days away, Goldenberg's firm renewed the motion to disqualify the Lakin firm.

Konicek argued that representations made to Seymour were no longer accurate.

"At the time and still today, Mr. Simmons is directly affiliated with the Lakin Law Firm," Konicek wrote.

"He is listed on the letterhead, his office is in the same building as the Lakin Law Firm, he is paid in excess of $5,000/month by the Lakin Law Firm on some sort of retainer agreement that has never been fully explained by either Simmons or the Lakin Law Firm, and he is known throughout Madison County as one in the same with the Lakin Law Firm's asbestos litigation," he wrote.

He wrote that Seymour would have granted disqualification if facts had come to light.

"The only way they could utilize Mr. Simmons as a material witness in this legal malpractice action was to disqualify Judge Seymour," he wrote.

He claimed that Buckles sued Simmons as a ruse to disqualify Seymour.

Buckles moved the next day to continue the trial, and Mendelsohn pushed it back to Sept. 12.

On Sept. 1, Konicek turned things upside down by proposing to bring Seymour back.

He notified Mendelsohn that he would ask the Illinois Supreme Court to vacate his assignment and reassign Seymour.

After a hearing the next day Mendelsohn wrote that on his own motion, parties could file briefs on the issue of Supreme Court assignment.

On Sept. 8, Mendelsohn asked Chief Judge Edward Ferguson for direction.

Before Ferguson could respond, Dripps moved to dismiss the suit without prejudice, with leave to reinstate in a year.

Ferguson signed the order.

Ten months later, Buckles started it over with a new complaint against Goldenberg's firm, Simmons and his firm, and Miller.

Matoesian took the case but recused himself in 2007 after Konicek moved to disqualify the Lakin firm.

Chief Judge Ann Callis assigned Circuit Judge Daniel Stack, but Miller moved for substitution and Stack granted it.

Callis assigned the case to Crowder, who set trial for last September.

The parties jointly moved in July to amend the schedule, and Crowder set trial Feb. 9.

No transcript of her Dec. 16 hearing exists because no one asked for a court reporter.

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