Smearing Opposing Counsel Costs Lawyer $175,000

By Samson Habte

Dec. 12 — A Texas lawyer was hit with a $175,673 sanction for fabricating an e-mail to gain an edge in a discovery dispute and drafting “myriad court filings” that falsely accused an opposing attorney of “racism, cowardice, and anti-Semitism” ( Deutsch v. Henry , 2016 BL 407244, W.D. Tex., No. A-15-CV-490-LY-ML, 12/7/16 ).

The sanction was prompted by what a federal magistrate judge in Texas described as a campaign of “systematic character assassination” that Omar W. Rosales, a lawyer who filed nearly 400 disability discrimination lawsuits against Austin businesses, conducted against James C. Harrington, a civil rights attorney who defended six of those businesses.

According to the sanction order, Rosales made “outrageous attacks on Harrington’s character” in over 100 court filings. In one filing—a document styled “Motion for Sanctions: Further Racist Comments by Defense Counsel”—Rosales claimed Harrington took a “covert racist jab” at him by setting a deposition at a Mexican restaurant.

Harrington said he set the deposition at the restaurant because it was one of the businesses Rosales had sued on behalf of a disabled client.

In other filings Rosales alleged that Harrington used “racist and anti-Semitic terms against minorities,” and that he “treats Hispanics like servants and ‘noble savages’ that need his superlative help and guidance.”

Harrington testified that he spent 10 years representing farm workers after graduating from law school; he later became the legal director for the Texas Civil Liberties Union, where he litigated numerous anti-discrimination cases.

“[Rosales] used the federal judiciary’s public filing service to conduct a systematic character assassination of one [of] Austin’s most dedicated defenders of the rights of the marginalized,” U.S. Magistrate Judge Mark Lane wrote in his 49-page sanction order. Lane said “sanctions are not only warranted, but imperative to remedy the damage caused by Rosales’ serious and pervasive misconduct in these causes.”

Defamation and More

According to the court, Rosales also falsely accused Harrington of “stalking” and “making terroristic threats against him.” Those claims “mainly stemmed from a comment Harrington made to Rosales during a deposition that he knew Rosales drove an expensive car,” the court said.

Additionally, Rosales “actively misled the court by falsifying a document which he submitted as evidence to influence a judicial ruling,” Lane said. The fabricated document, submitted during a dispute over a motion to compel, was a purported e-mail in which Rosales said he asked Harrington to provide dates for depositions.

Rosales’s attacks on Harrington were not limited to claims of racism. In one motion, he said Harrington appeared to be “schizophrenic.” The court also quoted an e-mail in which Rosales called Harrington a “lying draft dodger” and a “coward.”

Spotlight on ‘Abusive ADA Litigation.’

Harrington said he agreed to defend some of the businesses Rosales had sued because he thought Rosales was undermining the ADA.

“He will be a poster child of a congressional attempt to amend and weaken the ADA,” Harrington testified at a hearing. “I’ve done a large number of ADA cases myself, but they have always been systemic cases, nothing like this just to make money. And the danger in my view . . . is that this sort of scheme and nonsense is going to lead to a very drastic weakening of the ADA.”

Lane echoed that sentiment, expressing concerns about “abusive ADA litigation of the Rosales mold” that is “clogging district courts from Florida to California.” Rosales, he said, “has abused both the letter and the spirit of one of our nation’s landmark antidiscrimination statutes, debasing its purpose and trivializing the needs and rights of those it was enacted to protect.”

$175,673 Award

The court found that Harrington and lawyers he hired to represent him as the sanction dispute developed were entitled to more than $175,000 in combined attorneys’ fees and costs.

Lane said that although the fee amounts the lawyers claimed were “significant,” Rosales “picked this fight” and was in no position to complain.

“Rosales cannot repeatedly hurl offensive and baseless allegations at Harrington and then expect to avoid the financial consequences when Harrington obtains top-flight representation to defend against this character assassination,” Lane wrote. “As Rosales has made his bed, he must lie on it.”

Rosales, of Austin, appeared pro se. Charles F. Herring Jr. and Jason M. Panzer of Herring & Panzer LLP, Austin, represented Harrington.

To contact the reporter on this story: Samson Habte in Washington, D.C. at shabte@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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