In re Andry
| Decision Date | 08 October 2020 |
| Docket Number | MISCELLANEOUS ACTION NO. 15-2478 |
| Parties | IN THE MATTER OF JONATHAN B. ANDRY ATTORNEY-RESPONDENT |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is the Lawyer Disciplinary Committee's ("LDC") Motion to Disqualify Opposing Counsel1 Leslie Schiff and his co-counsel, Steven Scheckman,2 Herbert Larson, and Joseph Bruno.
This proceeding initially arose from the conduct of attorney Jonathan B. Andry and others in connection with the case captioned In re: Oil Spill by Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, 2:10-MD-2179 ("MDL 2179"), the Deepwater Horizon multi-district litigation. The Court Supervised Settlement Program ("CSSP") was created in the MDL to supervise the payment of economic damages claims following the Deepwater Horizon oil rig disaster.3 In connection with that program, Andry was found to have violated the canons of ethics by making improper payments to attorney Lionel Sutton and by making false statements during the investigation.4 This ultimately led to the filing of this disciplinary proceeding against Andry.
Patrick Juneau ("Juneau") was appointed by Judge Carl Barbier to be the Claims Administrator of the CSSP in MDL 2179.5 Juneau, in that capacity, ran the Claim's Administrator's Office ("CAO"). On May 28, 2013, an anonymous whistleblower conveyed a tip to David Welker, the Director of Fraud, Waste, and Abuse at the CAO, prompting Juneau to initiate an internal investigation into potential improprieties in the CSSP.6 On June 18, 2013, British Petroleum ("BP") hand-delivered a letter to Juneau informing him that two whistleblowers had incriminating information and documents concerning corruption at the CAO.7 In a July 1, 2013 letter to Judge Barbier, Juneau detailed the whistleblower's allegations as "(1) Mr. Sutton had been referring claims to the Andry Law Firm in exchange for "kickbacks" from any recovery on those claims to be paid by the Program to the Andry Law Firm; (2) Some claims may have been initially filed by Mr. Sutton or Ms. Reitano and were later transferred to the Andry Law Firm; (3) Mr. Sutton had recently opened a separate checking account to place the money received from the Andry Law Firm; (4) Mr. Sutton and John Andry had been in business together in the past and continued to own a business together; (5) Mr. Sutton was writing policies within the Program that ultimately may benefit himself and his friends who are attorneys; and (6) Mr. Sutton attempted to influence a claim filed by the Andry Law Firm."8
According to a memorandum to his file dictated by Leslie Schiff,9 Schiff received a call from Juneau on June 18, 2013, during which Juneau asked Schiff to investigate thewhistleblower's allegations on behalf of the CAO.10 On the call, they discussed the issues raised by the whistleblower generally and made plans to meet in New Orleans the following day.11
On June 19, 2013, Schiff arrived in New Orleans and met Juneau at the CAO, where they discussed the matter with Michael Juneau, a CAO employee, and Steve Scheckman, Schiff's partner.12 On June 19, 2013, around 4:00 p.m., Schiff and Juneau met with Judge Barbier and Magistrate Judge Sally Shushan to disclose the information received from the whistleblower.13 The meeting "included a discussion of the underlying factual concerns as well as a discussion of the June 18, 2013 letter received by Mr. Juneau from BP,"14 which had been reviewed by Schiff earlier that day. The letter contained BP Mark Holstein's request for an internal investigation of the CSSP.15 Later in the day, on June 19, 2013, Schiff had dinner with Juneau. Juneau relayed information to Schiff regarding the preliminary report from Welker.16 The report referenced the results of Welker's search of Lionel (Tiger) Sutton's computer email for the keywords "Andry" and "Thonn."17 Juneau relayed to Schiff that Juneau had immediately upon receipt disclosed the contents of Welker's preliminary report18 to Judge Barbier.19 In his affidavit dated September 17, 2020, Schiff attests the results of the email searches for Andry and Thonn were not disclosed to him.20
At 7:30 a.m. on June 20, 2013, Schiff and Juneau met with Judge Barbier and Magistrate Judge Shushan in Judge Barbier's chambers.21 During the meeting, Welker's preliminary report was discussed.22 Also, during the meeting, Magistrate Judge Shushan informed Schiff and Juneau that she had spoken with Mark Holstein from BP and made arrangements for a meeting at 2:00 p.m. that day.23 Judge Barbier requested that Schiff and Juneau attend the meeting with Judge Shushan at which members of the Plaintiffs' Steering Committee, BP representatives, and representatives of the CAO were to be in attendance.24
At 9:00 a.m. on June 20, 2013, Schiff called his partner, Steve Scheckman, and asked Scheckman to join Schiff at the CAO to assist with interviews of the claims department personnel.25 Scheckman arrived at the CAO shortly thereafter. Schiff and Scheckman then met with the claims office staff and conducted interviews of nine staff members.26,27 Additionally, at some point after lunch, but before the scheduled 2:00 p.m. meeting, Schiff and Juneau were provided with a final report prepared by Welker datedJune 20, 2013.28 Schiff attended the 2:00 p.m. meeting during which he informed Judge Barbier that Juneau had requested Schiff commence an investigation into the allegations presented by the whistleblower as well as the allegations in the June 18, 2013 letter from BP.29 Schiff further informed Judge Barbier that Schiff would return to the CAO to commence further interviews of the CAO personnel.30 Those present at the 2:00 p.m. meeting included Eugene Fendler and Mark Holstein representing BP, Steven Herman and James Roy representing the Plaintiffs' Steering Committee, and Juneau and Michael Juneau of the CAO.31 Keith Moskowitz of BP also participated via telephone.32 During the meeting, Welker's final report including supporting documentation was given to all present.33
On June 21, 2013, Schiff returned to his home in Opelousas, Louisiana.34 On the way there, Schiff received a call from Michael Juneau regarding BP press releases about the investigations into the CAO.35 On the call, Schiff also learned that Sutton had submitted his written resignation from the CSSP.36 Upon reaching his office, Schiff reread the Welker report in more detail.37 Later in the day, Schiff received a phone call from Juneau inquiring as to whether Schiff was willing to conduct an independent review of the claims process and procedure as well as other issues raised by Juneau and those raisedby BP in its June 18, 2013 letter.38 After conferring with his law partner and taking inventory of his availability and resources, Schiff let Juneau know he was "ready, willing, and able to undertake"39 the project. Juneau agreed to retain Schiff and a meeting was scheduled for Monday, June 24, 2014.40
On June 24, 2013, Schiff and Scheckman met with Juneau to disclose to him interests their firm, and Schiff personally, had in MDL 2179.41 Schiff represents these interests had not previously been disclosed to Juneau or Judge Barbier "in any significant detail."42 Schiff states in his memorandum43 and declaration44 that only after conferring with his partner Julie White and reviewing documents did he realize he had conflicts with potential BP litigation, including the firm's representation of one claimant and his own claims based on his ownership of a share of stock in Tahiti East, Inc. (a camp in Grand Isle, Louisiana,45), a BP claimant.46 Schiff disclosed these conflicts to Juneau and Michael Juneau and they all agreed the involvement would be disclosed to Judge Barbier.47 Judge Barbier ultimately appointed Louis Freeh as Special Master in MDL 2179.48 No further work for the CAO was performed by Schiff or Scheckman.
The LDC represents it was not made aware of Schiff's involvement in the initial investigation of the CAO until August 3, 2020.49 Schiff states in his declaration that he had not produced his memorandum to his file earlier because he had forgotten it existed until very recently, when he was reminded of it in an August 1, 2020 phone call with Scheckman.50 In Schiff's declaration, Schiff states Scheckman reminded Schiff of the existence of the memorandum on August 1, 2020, after Scheckman accessed the Schiff, Scheckman & White Dropbox.51 Schiff represents the entirety of the information gained from his involvement in the investigation is included in his memorandum to his file dictated shortly after his interactions with Juneau concluded in June 2013.52 Schiff represents the first time Schiff's co-counsel, Scheckman, Larson, and Bruno, saw Schiff's memorandum was immediately before it was disclosed to the LDC on August 3, 2020.53
During his seven-day representation of the CAO, Schiff was given multiple documents, was included in several meetings and telephone conversations, and performed nine interviews of CAO claims department staff. With respect to various sources of information, Schiff was told about the whistleblower's allegations and either provided copies of or given access to various documents, including:
From June 18, 2013 to June 24, 2013, Schiff attended several meetings, including:
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