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Choi, P. J., H. S. Sutherland, A. S. T. Tong, A. Blaser, S. G. Franzblau, C. B. Cooper, M. U. Lotlikar, A. M. Upton, J. Guillemont, M. Motte, L. Queguiner, K. Andries, W. Van den Broeck, W. A. Denny and B. D. Palmer, Synthesis and evaluation of analogues of the tuberculosis drug bedaquiline containing heterocyclic B-ring units. Bioorganic & Medicinal Chemistry Letters (2017) 27(23): 5190-5196.
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De Leon-Rodriguez, L. M., Y. Hemar, A. K. Mitra and M. A. Brimble, Understanding the metal mediated assembly and hydrogel formation of a [small beta]-hairpin peptide. Biomaterials Science (2017) 5(10): 1993-1997.
De Leon-Rodriguez, L. M., Y. Hemar, G. Mo, A. K. Mitra, J. Cornish and M. A. Brimble, Multifunctional thermoresponsive designer peptide hydrogels. Acta Biomaterialia (2017) 47: 40-49.
Ding, X. B., D. P. Furkert and M. A. Brimble, General synthesis of the nitropyrrolin family of natural products via regioselective CO<inf>2</inf>-mediated alkyne hydration. Organic Letters (2017) 19(19): 5418-5421.
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Harris, P. W. R., G. M. Cook, I. K. H. Leung and M. A. Brimble, An Efficient Chemical Synthesis of Lassomycin Enabled by an On-Resin Lactamisation-Off-Resin Methanolysis Strategy and Preparation of Chemical Variants. Australian Journal of Chemistry (2017) 70(2): 172-183.
Hobbs, J. K., W. T. Jiao, A. D. Easter, E. J. Parker, L. A. Schipper and V. L. Arcus, Change in Heat Capacity for Enzyme Catalysis Determines Temperature Dependence of Enzyme Catalyzed Rates. ACS Chemical Biology (2017) 12(3): 868-868.
Hung, K. Y., P. W. R. Harris, A. Desai, J. F. Marshall and M. A. Brimble, Structure-activity relationship study of the tumour-targeting peptide A20FMDV2 via modification of Lys16, Leu13, and N- and/or C-terminal functionality. European Journal of Medicinal Chemistry (2017) 136: 154-164.
Jamieson, M. L., N. Z. Brant, M. A. Brimble and D. P. Furkert, Remarkable Influence of Cobalt Catalysis on Epoxide Ring-Opening with Sulfoxonium Ylides. Synthesis (Germany) (2017) 49(17): 3952-3956.
Jayasinghe, T. N., C. Hilton, P. Tsai, B. Apple, P. Shepherd, W. S. Cutfield and J. M. O'Sullivan, Long-term stability in the gut microbiome over 46 years in the life of Billy Apple®. Human Microbiome Journal (2017) 5-6: 7-10.
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Kalia, N. P., E. J. Hasenoehrl, N. B. Ab Rahman, V. H. Koh, M. L. T. Ang, D. R. Sajorda, K. Hards, G. Grüber, S. Alonso, G. M. Cook, M. Berney and K. Pethe, Exploiting the synthetic lethality between terminal respiratory oxidases to kill Mycobacterium tuberculosis and clear host infection. Proceedings of the National Academy of Sciences of the United States of America (2017) 114(28): 7426-7431.
Kamato, D., P. Mitra, F. Davis, N. Osman, R. Chaplin, P. J. Cabot, R. Afroz, W. Thomas, W. Zheng, H. Kaur, M. Brimble and P. J. Little, Gaq proteins: molecular pharmacology and therapeutic potential. Cellular and Molecular Life Sciences (2017) 74(8): 1379-1390.
Kavianinia, I., S. H. Yang, H. Kaur, P. W. R. Harris, R. C. J. Dobson, A. J. Fairbanks and M. A. Brimble, Synthesis and incorporation of an advanced lipid peroxidation end-product building block into collagen mimetic peptides. Chemical Communications (2017) 53(60): 8459-8462.
Kazantseva, M., N. A. Hung, S. Mehta, I. Roth, R. Eiholzer, A. M. Rich, B. Seo, M. A. Baird, A. W. Braithwaite and T. L. Slatter, Tumor protein 53 mutations are enriched in diffuse large B-cell lymphoma with irregular CD19 marker expression. Scientific Reports (2017) 7(1): 1566.
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Kim, Y., J. M. Griffin, P. W. R. Harris, S. H. C. Chan, L. F. B. Nicholson, M. A. Brimble, S. J. O'Carroll and C. R. Green, Characterizing the mode of action of extracellular Connexin43 channel blocking mimetic peptides in an in vitro ischemia injury model. Biochimica et Biophysica Acta - General Subjects (2017) 1861(2): 68-78.
Kueh, J. T. B., N. J. Stanley, R. J. Hewitt, L. M. Woods, L. Larsen, J. C. Harrison, D. Rennison, M. A. Brimble, I. A. Sammut and D. S. Larsen, Norborn-2-en-7-ones as physiologically-triggered carbon monoxide-releasing prodrugs. Chemical Science (2017) 8(8): 5454-5459.
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Ladyman, S. R., M. A. MacLeod, Z. Khant Aung, P. Knowles, H. R. Phillipps, R. S. E. Brown and D. R. Grattan, Prolactin receptors in Rip-cre cells, but not in AgRP neurones, are involved in energy homeostasis. J Neuroendocrinol (2017) 29(10): e12474.
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Lutteroth, K. R., P. W. R. Harris, T. H. Wright, H. Kaur, K. Sparrow, S. H. Yang, G. J. S. Cooper and M. A. Brimble, Incorporation of 'click' chemistry glycomimetics dramatically alters triple-helix stability in an adiponectin model peptide. Organic and Biomolecular Chemistry (2017) 15(26): 5602-5608.
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Mittelstädt, G., W. Jiao, E. K. Livingstone, G.-J. Moggré, A. R. Nazmi and E. J. Parker, A dimeric catalytic core relates the short and long forms of ATP-phosphoribosyltransferase. Biochemical Journal (Epub 2017) DOI: 10.1042/BCJ20170762.
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Nakatani, Y., W. T. Jiao, D. Aragao, Y. Shimaki, J. Petri, E. J. Parker and G. M. Cook, Crystal structure of type II NADH:quinone oxidoreductase from Caldalkalibacillus thermarum with an improved resolution of 2.15 angstrom. Acta Crystallographica Section F-Structural Biology Communications (2017) 73: 541-549.
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Namanja-Magliano, H. A., G. B. Evans, R. K. Harijan, P. C. Tyler and V. L. Schramm, Transition State Analogue Inhibitors of 5'-Deoxyadenosine/5'-Methylthioadenosine Nucleosidase from Mycobacterium tuberculosis. Biochemistry (2017) 56(38): 5090-5098.
Naysmith, B. J., P. A. Hume, J. Sperry and M. A. Brimble, Pyranonaphthoquinones-isolation, biology and synthesis: An update. Natural Product Reports (2017) 34(1): 25-61.
Nyunt, W. W., S. T. Aung, G. M. Cook and H. L. Aung, Evaluation of the genotype MTBDRsl test for detection of second-line drug resistance in drug-resistant Mycobacterium tuberculosis strains in Myanmar. Infectious Diseases (2017) 49(11-12): 865-866.
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Pantin, M., J. G. Hubert, T. Söhnel, M. A. Brimble and D. P. Furkert, Stereochemical Characterization of Polyketide Stereotriads Synthesized via Hydrogen-Mediated Asymmetric syn-Crotylation. Journal of Organic Chemistry (2017) 82(20): 11225-11229.
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Radcliff, F. J., F. Clow, M. Mahadevan, J. Johnston, T. Proft, R. G. Douglas and J. D. Fraser, A potential role for staphylococcal and streptococcal superantigens in driving skewing of TCR Vbeta subsets in tonsillar hyperplasia. Med Microbiol Immunol (2017) 206(4): 337-346.
Rewcastle, G. W., S. Kolekar, C. M. Buchanan, S. A. Gamage, A. C. Giddens, K. Y. Tsang, J. D. Kendall, R. Singh, W. J. Lee, G. C. Smith, W. Han, D. J. Matthews, W. A. Denny, P. R. Shepherd and S. M. F. Jamieson, Biological characterization of SN32976, a selective inhibitor of PI3κ and mTOR with preferential activity to PI3κα, in comparison to established pan PI3κ inhibitors. Oncotarget (2017) 8(29): 47725-47740.
Rizwan, M. Z., S. Mehlitz, D. R. Grattan and A. Tups, Temporal and regional onset of leptin resistance in diet-induced obese mice. Journal of Neuroendocrinology (2017) 29(10): e12481.
Salio, M., O. Gasser, C. Gonzalez-Lopez, A. Martens, N. Veerapen, U. Gileadi, J. G. Verter, G. Napolitani, R. Anderson, G. Painter, G. S. Besra, I. F. Hermans and V. Cerundolo, Activation of Human Mucosal-Associated Invariant T Cells Induces CD40L-Dependent Maturation of Monocyte-Derived and Primary Dendritic Cells. J Immunol (2017) 199(8): 2631-2638.
Schumacher, C. E., P. W. R. Harris, X. B. Ding, B. Krause, T. H. Wright, G. M. Cook, D. P. Furkert and M. A. Brimble, Synthesis and biological evaluation of novel teixobactin analogues. Organic and Biomolecular Chemistry (2017) 15(41): 8755-8760.
Siow, A., K. y. Hung, P. W. R. Harris and M. A. Brimble, Solid-Phase Synthesis of the Peptaibol Alamethicin U-22324 by Using a Double-Linker Strategy. European Journal of Organic Chemistry (2017) 2017(2): 350-354.
Speir, M., A. Authier-Hall, C. R. Brooks, K. J. Farrand, B. J. Compton, R. J. Anderson, A. Heiser, T. L. Osmond, C. W. Tang, J. A. Berzofsky, M. Terabe, G. F. Painter, I. F. Hermans and R. Weinkove, Glycolipid-peptide conjugate vaccines enhance CD8(+) T cell responses against human viral proteins. Sci Rep (2017) 7(1): 14273.
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Stubbing, L. A., I. Kavianinia and M. A. Brimble, Synthesis of AHMOD-containing aminolipopeptides, unique bioactive peptaibiotics. Organic and Biomolecular Chemistry (2017) 15(17): 3542-3549.
Thompson, A. M., P. D. O’Connor, A. J. Marshall, V. Yardley, L. Maes, S. Gupta, D. Launay, S. Braillard, E. Chatelain, S. G. Franzblau, B. Wan, Y. Wang, Z. Ma, C. B. Cooper and W. A. Denny, 7-Substituted 2-Nitro-5,6-dihydroimidazo[2,1-b][1,3]oxazines: Novel Antitubercular Agents Lead to a New Preclinical Candidate for Visceral Leishmaniasis. Journal of Medicinal Chemistry (2017) 60(10): 4212-4233.
Tong, A. S. T., P. J. Choi, A. Blaser, H. S. Sutherland, S. K. Y. Tsang, J. Guillemont, M. Motte, C. B. Cooper, K. Andries, W. Van den Broeck, S. G. Franzblau, A. M. Upton, W. A. Denny, B. D. Palmer and D. Conole, 6-Cyano Analogues of Bedaquiline as Less Lipophilic and Potentially Safer Diarylquinolines for Tuberculosis. ACS Medicinal Chemistry Letters (2017) 8(10): 1019-1024.
Tun, T., K. S. Aye, W. W. Nyunt, J. A. Crump, C. Nakajima, Y. Suzuki, K. K. Thinn, G. M. Cook and H. L. Aung, Genotypic diversity of Mycobacterium tuberculosis strains in Myanmar. Infectious Diseases (2017) 49(3): 237-239.
Wang, S. E., A. E. S. Brooks, B. Cann and A. Simoes-Barbosa, The fluorescent protein iLOV outperforms eGFP as a reporter gene in the microaerophilic protozoan Trichomonas vaginalis. Molecular and Biochemical Parasitology (2017) 216: 1-4.
Wood, J. M., D. P. Furkert and M. A. Brimble, Total Synthesis and Stereochemical Revision of the 2-Formylpyrrole Alkaloid Hemerocallisamine i. Journal of Natural Products (2017) 80(6): 1926-1929.
Xu, J., S. J. Church, S. Patassini, P. Begley, H. J. Waldvogel, M. A. Curtis, R. L. M. Faull, R. D. Unwin and G. J. S. Cooper, Evidence for widespread, severe brain copper deficiency in Alzheimer's dementia. Metallomics (2017) 9(8): 1106-1119.
Zhang, S., L. M. De Leon Rodriguez, E. Lacey, A. M. Piggott, I. K. H. Leung and M. A. Brimble, Cyclization of Linear Tetrapeptides Containing N-Methylated Amino Acids by using 1-Propanephosphonic Acid Anhydride. European Journal of Organic Chemistry (2017) 2017(1): 149-158.
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PROSSER and BUTLER, Jr., JJ., did not participate.
For the respondent-appellant there were briefs by Richard J. Cayo and Halling & Cayo, S.C., Milwaukee; and Mark Hazelbaker and Hazelbaker & Associates S.C., Madison, and oral argument by Richard J. Cayo and Mark Hazelbaker.
For complainant-respondent there was a brief and oral argument by Thomas J. Basting, Sr., retained counsel, Madison.
¶1 PER CURIAM. Attorney Gary R. George appeals a referee's recommendation that his license to practice law in Wisconsin be revoked for professional misconduct consisting of committing criminal acts that reflect adversely on his honesty, trustworthiness and fitness as a lawyer. The referee also recommends that Attorney George pay the costs of the disciplinary proceeding. The sole issue on appeal is the appropriate level of discipline.
¶2 We approve the referee's findings of fact and conclusions of law and we adopt them. We conclude that a lengthy suspension is the appropriate level of discipline in this proceeding, and we impose the costs of the proceeding.
¶3 Attorney George was admitted to the practice of law in Wisconsin in 1979. He has no prior disciplinary history. On April 1, 2004, this court summarily suspended Attorney George's license to practice law in Wisconsin pursuant to SCR 22.20(1) upon notification that Attorney George had been convicted in federal court, on entry of a guilty plea, of one count of conspiracy to commit offenses against federal program funds in violation of 18 U.S.C. § 371.
¶4 His license to practice law remains under suspension.
¶5 Attorney George served in the Wisconsin Senate for 23 years. During that time, he developed a professional relationship with Milwaukee attorney Mark Sostarich (Sostarich), and Carl Gee (Gee), the former executive director of the Opportunities Industrialization Center of Greater Milwaukee ("OIC"), an entity that held contracts to administer Wisconsin's welfare-reform program, popularly known as W-2 (for "Wisconsin Works").
¶6 Attorney George, Sostarich, Gee and others entered into business arrangements that eventually gave rise to federal conspiracy charges. In 2003 Attorney George was indicted on charges that he accepted kickbacks in exchange for exercising his political influence over federal grants as well as programs financed by state revenues. See United States v. George, 403 F.3d 470 (7th Cir. 2005). Attorney George pled guilty to the first count of the indictment pursuant to a plea agreement. The remaining charges were dismissed but read into the record. Attorney George was sentenced to 48 months' imprisonment and was ordered to pay $568,596.48 in restitution.
¶7 We summarize the facts underlying the charge to which Attorney George pled guilty. Attorney George and Sostarich undertook joint legal representation of the OIC and various OIC subsidiaries with the OIC's knowledge and consent. The parties entered into a written fee agreement, whereby Sostarich served as the attorney of record.
¶8 Between approximately October 1997 and August 2002, the OIC paid a monthly retainer to Sostarich, usually in the amount of $5,834. Sostarich, in turn, would deposit the retainer check into his bank account and then write two checks——one to his law firm and one to Attorney George. The amount Attorney George received varied from four-fifths of the total monthly retainer ($4,667.20) to one-half of additional legal payments the OIC made to Sostarich. Attorney George performed no legal work in exchange for this money; neither the OIC nor Sostarich filed tax documents showing how the monthly fee was allocated.
¶9 The OIC also "invested" $200,000 of an affiliate's money in a corporation controlled by Attorney George's family, whose sole asset was a television station in the Virgin Islands. The "investment" never appeared on the corporation's books. The federal court observed that "[t]he money seems to have gone straight to George's pocket, with the OIC receiving his goodwill and political patronage rather than an equity interest in a business." United States v. Gee, 432 F.3d 713, 714 (7th Cir. 2005). Attorney George eventually received over $400,000 in various payments from the OIC. In addition, the indictment alleged and Attorney George has admitted that he used state employees to perform personal work for him, and that he failed to disclose the fees received from the OIC arrangement on his Statement of Economic Interests.
¶10 On August 2, 2005, the Office of Lawyer Regulation (OLR) filed a disciplinary complaint against Attorney George alleging that by virtue of his conviction in federal court he had violated SCR 20:8.4(b), which provides that it is professional misconduct to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."
¶11 A hearing on the attorney disciplinary matter was conducted on April 20, 2006. On December 12, 2006, the referee, Gene B. Radcliffe, filed his report recommending revocation. This appeal followed. The Wisconsin Supreme Court conducted oral argument on December 13, 2007.
¶12 Attorney George does not challenge the referee's finding that his federal conviction established a violation of SCR 20:8.4(b). Therefore, the sole question before the court on appeal is the appropriate discipline for Attorney George's professional misconduct. The OLR acknowledged at oral argument that any discipline should be imposed retroactive to the date Attorney George's license to practice law was summarily suspended.
¶13 It is this court's responsibility to determine the appropriate discipline to be imposed for an attorney's misconduct. In making that determination, we are free to impose discipline more or less severe than that recommended by the referee. In re Disciplinary Proceedings Against Elliott, 133 Wis. 2d 110, 394 N.W.2d 313 (1986); In re Disciplinary Proceedings Against Reitz, 2005 WI 39, 279 Wis. 2d 550, 694 N.W.2d 894.
¶14 We consider the seriousness of the misconduct, the need to protect the public, courts and the legal system from repetition of misconduct, the need to impress upon the attorney the seriousness of the misconduct, and the need to deter other attorneys from engaging in similar misconduct. See In re Disciplinary Proceedings Against Arthur, 2005 WI 40, 279 Wis. 2d 583, 694 N.W.2d 910.
¶15 Attorney George acknowledges the seriousness of his misconduct, but asserts that a lesser sanction than revocation is warranted. The crux of Attorney George's argument is that the federal court decisions overstate the nature of the conspiracy and, while he concedes it was wrong to use state employees for personal work and wrong to fail to disclose the payments he received on his Statement of Economic Interests, the payments he received from the OIC were fairly obtained. He maintains that he did not exert his influence improperly on behalf of the OIC. He maintains that the payments he received were for legitimate services rendered to the OIC. Despite Attorney George's protestations to the contrary, this characterization of the events was clearly not accepted by the referee who stated, "In spite of his arguments that he was convicted because of technicalities and the general coercive nature of the criminal . . . system and that he really did provide legal services to the entities for which he received kickbacks, the record clearly indicates otherwise." (Emphasis added).
¶16 We decline to disturb the referee's factual finding on this point and note that it is fully consistent with Attorney George's statements made at his plea hearing, where the federal court described the allegations contained in count one of the indictment and asked, "Are those the facts to which you are pleading guilty here today as they——as those facts relate to you?" Attorney George responded, "Yes, your Honor."
¶17 Similarly, we are not persuaded by Attorney George's suggestion that his discipline should not be significantly more severe than that imposed on Sostarich. There is substantial record evidence that both Sostarich and Gee benefited far less than Attorney George from the scheme. Attorney George's effort to characterize his culpability as on par with that of Sostarich is simply not compelling.
¶19 The referee stated, "In imposing discipline in these cases, most courts impose disbarment on lawyers who are convicted on serious felonies." The referee added that Section 5.21 of the ABA Standards for Imposing Lawyer Sanctions provides that "disbarment is generally appropriate when a lawyer in an official or governmental position, such as [Attorney George], knowingly misuses the position with intent to obtain a significant benefit or advantage for himself."
¶20 We are not persuaded that by these statements, the referee erroneously assumed revocation was the only sanction he could recommend to this court.
¶21 However, while we decline to accept Attorney George's characterization of the events giving rise to his conviction, neither are we persuaded that revocation is a necessary sanction in this instance.
¶22 In considering the appropriate discipline, we consider prior Wisconsin precedent, the ABA Standards for Imposing Lawyer Sanctions, the mitigating and aggravating circumstances involved in this matter, and the specific circumstances of Attorney George's misconduct.
¶23 Ultimately, each disciplinary case turns on its specific facts. See, e.g., In re Disciplinary Proceedings Against O'Byrne, 2002 WI 123, 257 Wis. 2d 8, 653 N.W.2d 111. We have considered the cases cited by both parties and commend counsel for providing the court with a thorough analysis of relevant case law. See, e.g., In re Disciplinary Proceedings Against Burke, 2007 WI 46, 300 Wis. 2d 198, 730 N.W.2d 651 (suspension); In re Disciplinary Proceedings Against Chvala, 2007 WI 47, 300 Wis. 2d 206, 730 N.W.2d 648 (suspension); In re Disciplinary Proceedings Against Paulus, 2004 WI 71, 272 Wis. 2d 143, 682 N.W.2d 326 (consensual revocation); In re Disciplinary Proceedings Against Hausmann, 2005 WI 131, 285 Wis. 2d 608, 699 N.W.2d 923 (suspension); O'Byrne, 2002 WI 123 (revocation); In re Disciplinary Proceedings Against Kortsch, 225 Wis. 2d 235, 591 N.W.2d 841 (1999) (revocation); In re Disciplinary Proceedings Against Hinnawi, 202 Wis. 2d 113, 549 N.W.2d 245 (1996) (revocation); In re Disciplinary Proceedings Against Wright, 180 Wis. 2d 492, 509 N.W.2d (1994) (revocation); In re Disciplinary Proceedings Against Smith, 145 Wis. 2d 632, 428 N.W.2d 547 (1988) (revocation).
¶24 Revocation is the most extreme sanction this court can impose upon an attorney who has violated the Rules of Professional Conduct for Attorneys. It is reserved for the most egregious cases of professional misconduct, cases where we conclude that the nature and extent of the misconduct renders an attorney wholly unfit to be licensed by this court to represent others in the legal system.
¶25 Revoking a lawyer's license to practice law does not, however, preclude that person from ever practicing law in Wisconsin again. One whose license has been revoked may seek reinstatement "at any time commencing five years after the effective date of the revocation." SCR 22.29(2).
¶26 In seeking a lesser sanction than revocation, Attorney George offered, as a mitigating factor, his lengthy public service, including 23 years in the Wisconsin Senate, and his involvement since the 1970s in Wisconsin Special Olympics and other charitable and professional works benefiting underprivileged youth.
¶27 At the oral argument on this matter, however, counsel for the OLR persuasively argued the other side of that same coin, emphasizing that Attorney George was not only acting as an attorney, but also as an elected official when he committed the misconduct at issue here. As such, Attorney George's misconduct not only involved dishonesty, it violated the public's trust and served to undermine the public's confidence in its elected officials.
¶28 This is a difficult case and one this court considered very seriously. We share the OLR's concerns about the serious violation of public trust committed by Attorney George, and we agree that substantial discipline is warranted to address that misconduct. At the same time, we are mindful that our role is not to duplicate the punishment Attorney George has already received for his actions, which includes a felony conviction, a lengthy prison sentence, and a very substantial restitution obligation that must be paid.
¶29 Ultimately, we have concluded that while Attorney George's misconduct was, indeed, extremely serious, it does not warrant the harshest penalty of revocation. We are influenced by the fact that this is the only disciplinary complaint filed against Attorney George since he was admitted to practice law in Wisconsin some 29 years ago. We are influenced by Attorney George's public service to the citizens of Wisconsin. His service long preceded the events giving rise to this disciplinary matter. Ultimately, while we agree that Attorney George has committed serious misconduct, we are persuaded that his prospects for rehabilitation are real.
¶30 Therefore, we have concluded that a lengthy suspension is appropriate discipline for Attorney George's violation of SCR 20:8.4(b). Attorney George's license to practice law will be suspended for a period of four years and three months. This is, perhaps, the most lengthy suspension imposed by this court in an attorney disciplinary matter.
¶31 Consistent with our past practice in other cases involving criminal convictions, we make the suspension retroactive to the date on which Attorney George's license was summarily suspended. We further conclude that Attorney George should be required to pay the costs of the proceeding which total $14,064.72 as of December 17, 2007.
¶32 We emphasize, moreover, that a petition for reinstatement, whether it follows a suspension or a revocation, is not an automatic procedure. See, e.g., Reinstatement of Eisenberg, 206 Wis. 2d 264, 556 N.W.2d 749 (1996). In all cases of revocation or license suspension of six months or more, the individual's eligibility and fitness to practice law is carefully scrutinized, first by the OLR, then by a referee, and finally by this court. The person seeking reinstatement must demonstrate that he or she has the moral character to practice law, that his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, and the person seeking reinstatement must also demonstrate compliance with various other conditions as set forth in the rules or by order of the court. See, e.g., SCRs 22.29-22.33.
¶33 IT IS ORDERED that Gary R. George's license to practice law in Wisconsin is suspended for a period of four years and three months, retroactive to the date of his summary license suspension imposed April 1, 2004.
¶34 IT IS FURTHER ORDERED that, if he has not already done so, Gary R. George comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.
¶35 IT IS FURTHER ORDERED that within 60 days of the date of this order Gary R. George pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay those costs within that time, the license of Gary R. George to practice law in Wisconsin shall remain suspended until further order of the court.
¶36 DAVID T. PROSSER, J., and LOUIS B. BUTLER, JR., J., did not participate.
 SCR 22.20(1) provides: Summary license suspension on criminal conviction.
(1) Summary suspension. Upon receiving satisfactory proof that an attorney has been found guilty or convicted of a serious crime, the supreme court may summarily suspend the attorney's license to practice law pending final disposition of a disciplinary proceeding, whether the finding of guilt or the conviction resulted from a plea of guilty or no contest or from a verdict after trial and regardless of the pendency of an appeal.
 These contracts brought in about $40 million annually.
 More specifically, the indictment alleged that Attorney George conspired with Sostarich and others to commit offenses involving federal program funds under 18 U.S.C. § 666 and to commit mail and wire fraud offenses in violation of 18 U.S.C. §§ 1341, 1343 and 1346; conspired with Sostarich and others to corruptly provide Attorney George with kickbacks from legal fees paid by the Police Athletic League ("PAL"), a nonprofit subsidiary of the OIC in violation of 18 U.S.C. §§ 666(a)(1)(B), 1341 and 1346; knowingly and intentionally misapplied property of PAL by rigging the bid process for a $5 million construction project in Milwaukee in violation of 18 U.S.C. §§ 666(a)(1)(A) and 2; corruptly solicited and accepted $2,500 from Sostarich intending to be rewarded in connection with a State of Wisconsin transaction in violation of 18 U.S.C. § 666(a)(1)(B); and knowingly conducted a financial transaction using the proceeds of specified unlawful activity in violation of 18 U.S.C. §§ 666, 1341, 1343, 1346 and 1956(a)(1)(B)(i).
 The Seventh Circuit Court of Appeals affirmed his conviction and sentence, but remanded with directions to review the original $613,746.36 restitution award. The decision after remand, reducing the restitution award to $568,596.48, was affirmed on appeal. See United States v. George, No. 03-CR-259, Memorandum Decision (E.D. Wis. May 3, 2006), aff'd after remand, United States v. George, 198 Fed. Appx. 552 (7th Cir. 2006).
 Gee was convicted of conspiring with Attorney George and Sostarich to obtain OIC contracts corruptly and of causing the OIC to pay kickbacks to Attorney George, in violation of 18 U.S.C. §§ 666 and 371. Gee was sentenced to 24 months' imprisonment and ordered to pay restitution of some $473,000. See United States v. Gee, 432 F.3d at 714.
Sostarich was convicted, following entry of a plea, to one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371. Sostarich was sentenced in federal court to three years probation, conditioned on 150 days of home confinement. Sostarich was also ordered to make restitution to an OIC subsidiary in the amount of $42,649 and to perform 75 hours of community service. Sostarich’s license to practice law was summarily suspended following his conviction, and his license was ultimately suspended for 18 months. In re Disciplinary Proceedings Against Sostarich, 2005 WI 97, 282 Wis. 2d 712, 698 N.W.2d 711.
 An objection to the specific amount of costs is not presently before this court. See SCR 22.24.


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In a ruling that reshapes how to calculate patent infringement damages based on a reasonable royalty, the Federal Circuit Court of Appeals rejected the 25% rule which was “widely accepted” by lower courts for many years. Uniloc USA, Inc. v. Microsoft Corp., Case No. 2010-1035, Jan. 4, 2011 (Fed. Cir. 2011)(available here). The Court found that it had “passively tolerated” the 25% damages rule which generally stated that, in order to calculate reasonable royalty patent damages, a hypothetical willing licensee would accept a license for the patented product or method if the license fee was 25% of the licensee’s marginal profit for the product. In greater detail, reasonable royalty patent infringement damages involve an analysis of a hypothetical negotiation between a willing licensor and a willing licensee immediately before defendant infringed the patent. In practice, the licensor’s and licensee’s marginal profits are base line factors. In Uniloc, the patentee’s expert started with the widely accepted 25% rule to render his expert opinion regarding patent damages.
After reviewing the scientific basis and literature, the Court decided that the 25% rule was not based upon reasonable scientific evidence and should no longer be used to measure reasonable royalty patent infringement damages.
The Uniloc decision presented the Court’s view on a number of topics which several blog entries cover. The remaining topics include (a) whether a patent claim divides infringement between two parties which may require the presence of two defendant parties in the suit and the importance of drafting patent claims to “structure a claim to capture infringement by a single party;” and (b) willful patent infringement and a review of some basic procedural concepts.
This blog discusses the 25% damages rule.
The Patent Statute “provides that on finding infringement of a valid patent, damages shall ‘in no event [be] less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.’ 25 U.S.C. sec. 284. In litigation, a reasonable royalty is often determined on the basis of a hypothetical negotiation, occurring between the parties at the time that infringement began. Wang Labs Inc. v. Toshiba Corp., 993 F.2d 858, 869-70 (Fed. Cir. 1993). A reasonable royalty is the predominant measure of damages in patent infringement cases.” Uniloc slip opn. at p. 35-36 (herein “Uniloc p. 35-36″).
District courts have the responsibility to ensure that all expert testimony must pertain to “scientific, technical, or other specialized knowledge” under Federal Rule of Evidence (“FRE”) 702, which in turn requires the judge to determine that the testimony is based on a firm scientific or technical grounding. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 589 – 90 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999). See Uniloc p. 41.
Under Daubert, the district court must exercise a “gatekeeper” function to ensure that scientific testimony is relevant and reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 137 (1999) (discussing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 589 (1993)).
“To be admissible, expert testimony opining on a reasonable royalty rate must ‘carefully tie proof of damages to the claimed invention’s footprint in the market place.’ ResQNet, 594 F.3d at 869. This court has sanctioned the use of the Georgia-Pacific factors to frame the reasonable royalty inquiry. Those factors properly tie the reasonable royalty calculation to the facts of the hypothetical negotiation at issue. This court’s rejection of the 25 percent rule of thumb is not intended to limit the application of any of the Georgia-Pacific factors. In particular, factors 1 and 2—looking at royalties paid or received in licenses for the patent in suit or in comparable licenses—and factor 12—looking at the portion of profit that may be customarily allowed in the particular business for the use of the invention or similar inventions—remain valid and important factors in the determination of a reasonable royalty rate.” Uniloc p. 46; see Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970).
The Court noted that the evidence of damages must tie the Georgia-Pacific factors “to the relevant facts and circumstances of the particular case at issue and the hypothetical negotiations that would have taken place in light of those facts and circumstances at the relevant time.” Uniloc at p. 46. The 25% rule was not tied to the relevant factors in the Uniloc case.

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Federal capital cases have been prosecuted, since 1988, pursuant to 21 U.S.C. § 848(e) et seq., the Anti-Drug Abuse Act of 1988, and, since 1994, pursuant to 18 U.S.C. § 3591 et seq., the Federal Death Penalty Act of 1994. Commonly referred to as the “drug king-pin” statute, the 1988 passage of § 848(e)-(q) ushered in the modern federal death penalty era. Enactment of the 1994 statute marked an unprecedented expansion of the federal death penalty and revived every pre-Furman death penalty provision still in existence.
As a result of the Federal Death Penalty Act of 1994, virtually every homicide occurring within federal jurisdiction is now death-eligible. Other statutes relating to the prosecution of capital cases include 18 U.S.C. § 3005 (appointment of two attorneys for defense in capital cases); 18 U.S.C. § 3281 (no time limitation on instituting proceedings in capital cases) and 18 U.S.C. § 3432 (requiring disclosure of government witnesses and list of veniremen at least three days before trial); 18 U.S.C. § 3235 (venue in capital cases); 18 U.S.C. § 3599(appointment of counsel and authorization of reasonably necessary investigative, expert and other expenses).


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As a judgment creditor, Florida law provides numerous methods through which you can collect the sum owed to you from the judgment debtor. There are numerous ways by which judgment creditors find the assets of their judgment debtors. One of the principal ways is through legally mandated disclosures. Typically, your final judgment will state that the court retains jurisdiction to ensure that the judgment debtor accurately completes a fact information sheet within 45 days. This form will identify all of the debtor’s real and personal property. If the debtor does not complete the form within the 45 days then the debtor may be subject to contempt proceedings and can be jailed or fined at the judge’s discretion. This fact information sheet should provide you with information regarding all of the judgment debtor’s assets. If you suspect that the debtor holds other real property that it has not divulged, you can always search the property records in neighboring counties via public, online databases. Nearly all Florida counties maintain online searchable property records whereby you can enter the debtor’s name and discover if he owns real property in that county. View databases for Florida counties.
In addition to the fact information sheet that the judgment debtor is required to complete, you have the right to conduct proceedings supplementary. This allows you and/or your attorney to send discovery to the debtor, including questions regarding the debtor’s assets and a request for copies of all documents regarding the same. You may discover that the judgment debtor transferred assets to third parties pre- or post-judgment in order to avoid collection procedures. More specifically, you could find that the judgment debtor sold real property during the litigation or near the time that the debt to you was incurred. With any information of this nature, you can subpoena and question “any” third party under oath who may now hold such property. If it can be shown that a transfer was made to delay, hinder, or defraud your collection methods, the judge has the power to void asset transfers and order the sheriff to levy assets wrongfully held. Per Florida law, the judgment debtor may ultimately be held responsible for the cost of these supplemental proceedings and collection efforts, although you would have to advance these costs and then seek reimbursement.
Judgment liens attach to real property by obtaining a certified copy of the judgment and recording the judgment in the property records of the county in which the judgment debtor’s real property is located. The judgment must contain your current address or in the alternative, you must attach an affidavit to the certified copy which contains your current address. Certified copies can be obtained from the County Civil Clerk for a minimal fee. While the civil clerk previously docketed and recorded your judgment, it is necessary that you obtain a certified copy of the judgment and file it with the clerk yourself, as required by Florida statutes. After this process is completed, any real property owned by the defendant in that county will be subject to your judgment lien for ten years and one renewable period of 10 years. A certified copy of the judgment should be filed in every county in which the judgment debtor owns property. You should also file a judgment lien certificate with the Florida Department of State which gives you priority over any other judgment creditors who file the certificate after you.
Moreover, each year Florida sets interest rates payable on judgments. Currently, the fixed interest rate is 4.75% per annum until it is paid or renewed. Note also that an unsatisfied judgment does not last forever. An unsatisfied judgment in the state of Florida will last for 20 years from the stamped date. If the judgment remains unsatisfied nearing the 20th year, it is advisable that you bring an “action on the judgment” in the same court in order to obtain a new judgment. This procedure will extend the judgment for another 20 years. At that point, you may be entitled to the new interest rate assigned for that year. Although your judgment is valid for twenty years, as stated above, it is only a lien on real property for ten years and then you must re-record for the lien to attach to the property for the one ten year renewable period that is allowed. There are different requirements as it relates to personal property which can be found in Florida Statute Section 55.204.
Once you attach a lien to the judgment debtor’s property and foreclose on said lien, there will be a judicial sale of the property. The proceeds from the sale will be distributed as stated in the Final Order which usually provides that costs are paid and then you will receive your judgment amount, subject to any superior lien being satisfied first. Any surplus will first go first to those lien holders that are junior to your lien and then to the purchaser of the property. However, the purchaser of the property will have to take it subject to any senior lien holders who have priority over your judgment lien. This is a summary of how to collect on a judgment in Florida. Please be advised that there are certain types of property that are exempt from collection and other requirements as it relates to collecting on a judgment and you should contact an attorney regarding the same.
In today’s diverse and dynamic tech industry, strong intellectual property (“IP”) protection is key to establishing and accumulating value in your business. With the Apple, Inc. v. Samsung Electronics Co., Ltd. case inundating the tech news over the past few weeks, understanding that it is difficult to prevent a competitor from attacking your IP, we started thinking about what businesses can do to minimize IP problems from the inside out. We wanted to share a few of these items in today’s blog.
File for and monitor federal and/or state registrations. Depending on the level of protection desired and the availability of financial resources, you may consider registering some of your IP with applicable federal or state governing bodies. The process can take anywhere from a couple of days (e.g. for certain state trademark offices) to several years (e.g. for issuance of a federal patent), but an issued registration imparts a presumption that your business holds exclusive rights to the registered IP.
Check your employment and consulting agreements. Any time a business engages an employee or consultant, the business must make sure that their employment and consulting agreements convey sole ownership of any work product to the company. While there is a legal presumption that the company would own any work product that its employees produce, such a presumption does not exist with respect to independent contractors who, absent a written agreement to the contrary, will be deemed to have sole ownership to any work they produce for you. To be safe, for both employees and independent contractors – get it in writing.
For more recommendations or for a complete assessment of the intellectual property used in your businesss, contact the attorneys at ShuffieldLowman.
With more project owners demanding the use of Building Information Modeling (BIM), project delivery is necessarily carried out through greater contributions of design input by the general contractor and the major trade subcontractors. The design professionals are no longer the sole authors of the project design. This collaborative project delivery method has been called integrated project delivery (IPD). The contribution of design input from each of the various project players using IPD is a significant break from the traditional division of responsibility recognized in the standard design-bid-build project delivery method. Players who never participated in the project design now face potential risk of professional liability. Additionally, the new, cutting-edge technologies being used for BIM expand the types of risks born by the design professional if there are errors and omissions within the computer modeling system or the improper management of the computerized data.
BIM involves computerized design software tools that help create a model that reflects all of the building components’ geometric and functional qualities. The general contractor and trade subcontractors provide product-specific information for building components and that data is inputted into the model, including performance specifications, connection details and cost data. However, the model is more than a mere representation of the design in a three-dimensional computer graphic. Embedded within the design programs are rules that define each of the components’ relation to the other components. The model is dynamic. If there is a change to one component, then the computer program would automatically and immediately revise the design to accommodate the ripple effect caused by the change. During the pre-construction phase, the project team can input different design options to facilitate value engineering and budgetary decisions, material estimation, and even long-term maintenance costs of the facility. In theory, assuming that the information provided by the various project players is accurate and the rules embedded in the model are correct, BIM should reduce errors and omissions, resulting in an aggregate reduction in professional liability and errors & omissions claims. Additionally, it should reduce the demand for change orders during the project, as the design should have fewer ambiguities and inconsistencies. Yet, if the assumptions embedded in the computerized model prove false, then the result would be a costly problem that all concerned should hope is covered by insurance.
IPD using BIM technology is becoming more prevalent with many predicting that it will become standard. In 2003, the U.S. General Services Administration’s (GSA) Public Building Service set a goal to require BIM on FY06 projects and beyond in support of improving design quality and construction delivery. One reason for the use of BIM was a lack of GSA staffing to review design documents and to ensure conformance to building standards. Additionally, GSA was concerned with anticipated sustainability goals for federal buildings with respect to energy efficiency and long-term maintenance costs. GSA sought to rely upon the new BIM software tools to provide solutions to these problems. Since that time, GSA has employed BIM successfully on numerous projects. The GSA is not the only project owner to use IPD using BIM technology. General Motors has constructed at least six projects using this delivery method. Also, the United States Coast Guard and the United States Army Corp or Engineers has implemented BIM software in its recent projects. The expected industry trend is that this delivery method will not be reserved only for complex projects, but rather will start being used for simpler projects on a wider scale.
The construction industry is only beginning to catch up with the contractual liability issues that arise from the non-traditional roles played by the various project participants. For example, there has been the 2008 release of the ConsensusDOCS 300 Series for use on IPD projects using BIM technology. Also, the American Institute of Architects (AIA) has developed IPD Agreements AIA C196-2008 Standard Form of Agreement between Single Purpose Entity and Owner for Integrated Project Delivery and AIA C197-2008 Standard Form of Agreement between Single Purpose Entity and Non-Owner Member for Integrated Project Delivery. The AIA contractual agreements incorporate a separate Exhibit (AIA Document E202 – 2008) that might also be used with their other, more traditional contract documents on IPD projects using BIM technologies. The new AIA documents allow the parties to define the standard of care for BIM, as such would be difficult to define given the short history of this technology. They also attempt to allocate responsibility for managing the computer model, e.g. data storage, transferring model files, granting and withholding access to model files, validating completeness and usability of files, among other things. Also, the Exhibit provides a chart listing standard building components that is to be filled out by identifying who will author each listed element of the model design. These contractual means of defining the standard of care and allocating responsibility may impact a design professionals’ liability for professional negligence.
The collaboration of general contractors and trade subcontractors in the design on IPD projects may result in liability exposure arising from errors in each parties’ contribution that result in defects in the project design. Accordingly, these parties must approach the IPD similarly to a design-build project and obtain professional liability coverage and errors & omissions insurance. Moreover, the general contractor must recognize that it would face contractual liability to the owner for the errors contributed solely by its subcontractors – errors which could be very difficult to detect by the general contractor. Thus, the general contractor would be well advised to demand in its subcontracts that those subcontractors who contribute to the project design obtain coverage. Yet, the specific type of coverage that expressly contemplates the allocation of responsibility and risk inherent in IPD may not yet be on the market.
The consensus seems to be that IPD using BIM technology will result in an overall reduction in design errors. Yet, to the technophobe, an over-reliance on computer models with decreasing human over-sight could also spell disaster. What responsibility should the design professional have for errors in the data inputted by the various parties? What if there are errors in the rules embedded in the model or the internal mechanisms for transferring data or any other number of possible computer glitches? The contract with the company creating the modeling software likely limits liability for such errors to an amount far less than the damage that could be created by the error. The design professional must consider insuring that gap. To address these questions and issues, the design professional should discuss the potential IPD exposures with their broker and to what extent they are insured for same.
IPD not only requires additional contributions to design from the contractor, but may also involve greater involvement by the design professionals on the construction side. Design professionals may find themselves more active in the development in the means and methods of construction given the overall integrated approach on these types of projects. “Means and methods” are often excluded in professional liability policies. This raises the question of whether the design professional should purchase general liability insurance to cover damages resulting from negligent construction practices.
IPD using BIM technology is changing the relationships between the various players on such construction projects. As a result, the standard construction contracts and their allocation of responsibility and risk may no longer be equitable or reflect reality. Accordingly, before participating in this type of project, all parties should consult with their attorney to review their contracts to address these issues. In addition to the need for revised construction contracts for these types of projects, all parties are strongly advised to meet with their insurance brokers and discuss the new risks arising from this project delivery method.
There are several different factors that can frustrate the general contractor’s right of set-off. In some jurisdictions, state statutes may prohibit the general contractor from withholding from the subcontractor the amounts received from the owner for the subcontractor’s work, such statutes holding that those funds are held in trust for the benefit of the subcontractor. Some states might even find the withholding of funds received by the owner for the subcontractor’s work to be statutorily criminal. On projects covered by a payment bond, courts in some jurisdictions have held that even if the general contractor has a contractual right to set-off, the Surety may not. As a result, in those jurisdictions, notwithstanding the contractor’s contractual right of set-off, the subcontractor may be entitled to recover the full amount on Project B (from our scenario above) from the Surety without any deduction of the amounts the subcontractor owes on Project A. Given that the general contractor must almost always indemnify the Surety, such a result has the practical effect of eliminating the contractual benefit of a right of set-off. Additionally, in certain circumstances, by the discretion afforded to judges under the rules of civil procedure, courts have required the two competing claims to be handled by separate lawsuits independently and without regard to the general contractor’s claim of set-off. This article discusses these scenarios and others that impact the right of set-off.
Basic surety law holds that a surety assumes only the liability of its principal and generally has the same defenses against a subcontractor suing on a payment bond as the principal/ general contractor. So, it would seem that if a general contractor has a contractual right of set-off against amounts otherwise owed to a subcontractor on a bonded project, the surety’s liability to the subcontractor on that bonded project should be reduced by the amount of the set-off. However, a federal district court in Virginia disagreed when addressing that situation on a federal project on which a federal Miller Act payment bond was issued. In U.S. ex. rel. Accoustical Concepts, Inc. v. Travelers Casualty and Surety Company of America,635 F. S. 2nd 434 (E.D. Va. 2009), the court held that general principals of suretyship law that conflict with the Miller’s Act’s terms and purposes (i.e. ensuring that subcontractors are paid promptly for labor, materials and services furnished on federal construction projects) must give way to the Act.
Before paying any amount due to the Subcontractor as provided hereinabove, the Contractor is hereby authorized to deduct therefrom and offset an amount equal to any and all sums or obligations owing by the Subcontractor to the Contractor and … any and all claims liquidated or unliquidated, by the Contractor against the Subcontractor , arising hereunder, under any other contract or agreement between the Subcontractor and the Contractor….
Were defendants [general contractor and Surety] allowed to interpose a setoff defense involving facts and circumstances relating to a non-federal project, plaintiff subcontractor would be forced to litigate with defendant sureties a dispute that plaintiff has with its general contractor that is nowhere a part of the payment bond or the Miller Act. The result can only be the kind of delay and complexity the Miller Act was designed to avoid. By contrast, preventing sureties from asserting a setoff defense leads to the sensible result – contemplated by the Miller Act – that a subcontractor [on a federal construction project] receives timely payment for providing labor and materials to [that project]. Defendant sureties may then seek to recover from [its principal] the full amount paid to plaintiff [subcontractor], and [the general contractor/principal] may then litigate the unrelated, non-federal dispute with plaintiff. In other words, the result reached here maintains a sharp division between the Miller Act’s remedy for subcontractors on federal construction projects and disputes between subcontractors and prime contractors arising from non-federal construction projects that are not governed by the Miller Act.
The argument can be raised that courts would apply this same reasoning in cases involving the states’ various Little Miller Acts on non-federal public projects or with respect to projects protected by statutory private payment bonds.
Several states have enacted statutes that hold that money received by the general contractor from the owner for the labor, materials, and services provided by subcontractors and suppliers (and lower-tiered subcontractors and suppliers) are held by the general contractor in trust for their benefit. The purpose of such legislation is to ensure that the subcontractors and suppliers that actually provide the work get paid. They may also potentially result in the frustration of the general contractor’s right of set-off.
The New York Lien Law then outlines a statutory cause of action to enforce such a trust.
This statute was addressed in the New York federal case of Universal Maintenance, Inc. v. Amherst Painting, Inc. 1997 WL 160157 (W.D.N.Y.). In that case, the subcontractor sued the general contractor for amounts due on Project A – amounts that the general contractor had already received from the owner for the work performed by the subcontractor. The subcontractor argued that the funds received by the general contractor were held in trust pursuant to the New York Lien Law. The general contractor filed a counterclaim and raised as a defense that it had a right of set-off for back-charges arising from that same Project A, as well as, a back-charge arising from an unrelated subcontract on Project B. The court ruled that the general contractor indeed had a right of set-off as it related to the back-charges arising from the same Project A, holding: “the relief available in a Lien Law trust action encompasses the contractor’s right as trustee to offset against the trust fund amounts sums due from the subcontractor to the contractor with respect to the project.” Id. at 7 (Emphasis added). However, the court struck the general contractor’s counterclaim and defense of setoff for back-charges arising from the unrelated Project B, holding as follows: “The policy reasons for allowing the contractor to set off sums due from the subcontractor apply only to claims for sums due with respect to the project in question, not unrelated projects.” The court reasoned that a set-off claim arising from the unrelated Project B was not a compulsory counterclaim (i.e. one that must be brought in the same lawsuit pursuant to the rules of civil procedure) and can be pursued in another forum.
All money paid by the State of New Jersey … or by any county, municipality or school district in the state, to any person pursuant to the provisions of any contract for any public improvement … shall constitute a trust fund in the hands of such person as such contractor, until all claims for labor, materials and other charges incurred in connection with the performance of such contract shall have been fully paid.
The Subcontractor agrees … that Contractor shall have the right to set off against any moneys due Subcontractor under this Subcontract any claim or claims against Subcontractor, whether arising under this Subcontract, or any other Subcontract or Subcontracts between the parties hereto.
In an attempt to circumvent The New Jersey Trust Fund Act, the general contractor argued that the above-cited contractual right to set-off on unrelated projects constituted a waiver by the subcontractor of any rights otherwise bestowed by the Act. However, the court rejected that argument stating that the contract language was not “clear and unmistakable” evidence of the subcontractor’s knowing waiver of its statutory rights, in part because the contractual provision did not reference the statutes. It should be noted, however, that the case holding suggests that, with more specific waiver language, a subcontractor can waive such statutory rights.
Set-off as a Felony Crime?
(b) Any person who knowingly and intentionally fails to comply with paragraph (a) is guilty of misapplication of construction funds, punishable as follows: 1. If the amount of payments misapplied has an aggregate value of $100,000 or more, the violator is guilty of a felony of the first degree, punishable as provided in s. 775.082 [i.e. by a term of imprisonment not exceeding 30 years].
This provision arguably limits a general contractor’s right to withhold payment for a back-charge (i.e. a bona fide dispute regarding the amount due) to only the project on which that back-charge arose. This is because the statute limits bona fide disputes to “disputes regarding the amount due, if any, for such services, labor, or materials”. A strong argument can be made that this language could be interpreted to mean “such” services, labor, or materials provided on that project only. If so, there would not be any right to set-off on unrelated projects if the contractor has received payment for the work by the subcontractor on the unrelated project on which the subcontractor performed satisfactorily; it would be criminal to withhold such payment because of a claim on an unrelated project. A general contractor could try to argue otherwise, but at the risk of committing a statutory felony crime punishable by jail time.
The rules of civil procedure might also assist a subcontractor to avoid a general contractor’s right of set-off on unrelated projects. If the subcontractor sues a general contractor for amounts owed on a project, and the general contractor has a back-charge arising from that same project, the general contractor must assert the back-charge through a counterclaim in that same lawsuit; it is deemed a compulsory counterclaim. However, the same is not true for a back-charge arising from a separate contract. In such instances, the general contractor’s counterclaim is deemed a permissive counterclaim. It is within the court’s discretion whether a permissive counterclaim is to be addressed in the same lawsuit or separately.
This scenario was addressed in Turner Construction Co. v. E&F Contractors, Inc., 939 So. 2d 1108 (Fla. 3rd DCA 2006). In that case, the general contractor conceded that the subcontractor was due the amounts sought, but for the general contractor’s claim to a right of set-off for back-charges arising from three other unrelated projects. Importantly, the subcontractor had filed four separate lawsuits – one for each of the projects. In the lawsuit at hand, the general contractor claimed that its back-charges on the other three projects exceeded the amount that the subcontractor was owed on the subject project. Accordingly, the general contractor filed a counterclaim and affirmative defense in the subject lawsuit, asserting a claim of set-off arising from its back-charges on the other projects.
The affirmative defense of set-off in the instant case is in the nature of a permissive counterclaim, and is the subject of other pending suits between the parties…. It is within a trial judge’s discretion to sever a permissive counter-claim from the main claim if there is no evidence of prejudice…. Here, the trial court’s order does not prejudice [the general contractor] because [the general contractor] still has the opportunity to fully litigate its set-off claims in the pending lawsuits arising out of its other subcontracts with [the subcontractor]…. Furthermore, the trial court’s order striking the set-off claim promotes the interests of judicial economy, and avoids the potential of inconsistent rulings.
Based upon the results of this case, legal counsel for subcontractors facing this scenario may want to consider filing separate lawsuits. The lawsuit concerning the project on which the back-charge arose may take years to litigate given the likelihood of numerous contested factual issues that must be investigated through discovery. Conversely, the lawsuit concerning the project on which the amount due is undisputed (but for the set-off claim arising from the other project) could be won through summary judgment much sooner. The subcontractor might be able to collect quickly on the undisputed project, allowing it to build its legal war chest to fight the battle on the disputed project.
While it may seem absurd to require Party A to pay Party B when Party B owes Party A, the courts may nonetheless require it depending upon which states’ law governs, whether the job is bonded, or other circumstances. Accordingly, when there are set-off claims arising from separate and unrelated projects, it is strongly recommended that parties consult and retain local counsel.
As a seasoned attorney, I have recently felt compelled to share some personal reflections on the practice of law. It’s well understood that all lawyers must follow a code of professional ethics and obey the rules established under law. But beyond that, experienced attorneys will no doubt be aware of the existence of unwritten rules which they may or may not choose to apply to their own standards of practice. These unstated principles should be of particular interest and importance to younger attorneys, sometimes informally referred to as “baby lawyers”, who are still in the developmental stages of learning and growing in their particular fields.
It’s useful to remind oneself that the practice of law is just that: practice. The guidelines I’m about to share with you are guidelines that many of you may already use. They have been developed over years of practice (in both senses of the word) and are mine in the sense that they come from the heart. Unfortunately, I have had to formulate these principles the hard way, through many years of trial (sometimes literally) and error. It was certainly part of a process of making, and hopefully correcting, many mistakes. It also involved the good fortune of having worked with gracious attorneys and patient judges who have helped to lead and shape me. And it was also learned by the inevitable unfortunate encounters with some not-so-gracious attorneys, whether in adversarial or non-adversarial cases.
My father, who coincidentally or not also happens to be an attorney, was fond of telling me to “never underestimate the power of a bad example.” Many times, we do learn simply by learning exactly what not to do. I have always tried to bear this simple concept in mind as I navigate through the sometimes rough waters of the legal profession.
Recently, I sat down and attempted to express in writing the ways in which I have tried to conduct my day-to-day practice, applying the perspective of what I myself would have liked to have known when I was starting out as an attorney. Keeping one’s focus can make the practice of law something gratifying rather than just grueling. My goal is to encourage other lawyers to embrace the practice of law as I have learned to do. Ideally, new attorneys will be able to retain both a strong sense of self as well as a healthy self-awareness of why they chose to become lawyers in the first place. My hope is that these basic concepts will illuminate their career pathways just as they have helped to shine a light on mine.
■ In other words, give other practitioners the benefit of the doubt, knowing how difficult this job can be. The clients and cases are difficult. The lawyers need not be.
■ Whether it is in correspondence, a report to the Court or within pleadings, stick with the facts and the legal arguments that are on your side. After all, that is what we do. There is no need to make things personal with the other attorney or with clients. “Zealously representing a client” does not mean being a jerk.
■ This applies in Court, or otherwise. The buck stops with the attorney. It is cheap for attorneys not to take responsibility for mistakes.
■ Young attorneys tend to view this as a sign of weakness, but it is quite the opposite. We do not need to know all of the answers; we just have to have the ability to spot the issues and we need to care enough to look for solutions.
■ Attorneys are servants. We are listeners. When we refuse to listen to our clients, or to care about their needs, our practice becomes malpractice. Put yourself in your client’s shoes. How would you feel after reading a letter from your counsel? Is it sarcastic? Is it unclear? Would you appreciate a call beforehand, or some explanation? The practice of law is foreign to many. As attorneys, we need to be cognizant of this fact.
■ Introduce yourself to opposing counsel over the phone. It is much more difficult to be mean to someone when you realize that he or she is a human being. E-mail is impersonal and not always the best way to communicate.
■ If you bring in work that you do not know how to do, do not be afraid to send it to someone who does. Do not take on something that could give you malpractice heartburn. It is not worth it, and it is not the best thing for your client.
■ You were a baby once.
■ If you are getting paid over $200.00 per hour, look professional. Dignity within the profession and perception are important.
■ He never takes off.
Often when acting as the prime on a construction project, the design professional is asked to review, comment or even craft insurance and bonding specifications for the project. With an increasing number of general contractors and subcontractors experiencing financial difficulties due to the poor economy over the last couple of years, it becomes increasingly important for owners to protect themselves as much as possible through commercial general liability (CGL) policies and performance bonds. This article distinguishes between the nature of liability insurance and suretyship, analyzes the scope of coverage and protections afforded by each – including recent case law that arguably expands CGL coverage – and discusses how owners and general contractors might better protect themselves using these tools. This article also includes a brief description of owner-controlled insurance policies (OCIP) which may be appropriate for large construction projects.
A performance bond issued by a Surety is not insurance. Liability insurance is a contract pursuant to which the insurer agrees to indemnify and defend the insured against certain claims for damages, specifically losses covered under the insurance policy, for which the insured is otherwise liable to third parties. If the insurer pays out under the policy, it may not later seek indemnity from the insured. This is not the case with a performance bond. A performance bond is a three-party agreement issued by a Surety who guarantees to an obligee (i.e. the protected party) that the principal (i.e. the entity whose performance the Surety guarantees) will complete the work required under the bonded contract. Also, if the bond incorporates by reference the bonded contract, the Surety may become liable for post-completion damages such as repairs necessitated by latent defects.
While performance bonds are usually obtained by the general contractor for the protection of the owner, general contractors may also require their subcontractors to obtain performance bonds. Owners too may require the general contractor to demand its subcontractors to provide performance bonds. While doing so will increase the contract price, it has the benefit of excluding lower quality and financially struggling subcontractors who cannot obtain such bonding, as well as provide the bond protection.
Unlike liability insurance, if the Surety is required to incur costs to complete the contract or otherwise pay out under the performance bond due to the principal’s default of the underlying contract, the Surety will seek indemnity from the principal. Moreover, as a condition of issuing the performance bond, the Surety likely will have required a general agreement of indemnity from not only the principal, but the individual stakeholders of the principal corporate entity and their wives. Also, the Surety has no duty to defend its principal against claims made against the performance bond.
It is important for the parties protected by the bond to recognize this distinction because it should alert them of the need to have counsel review the performance bond form being used on a project. Given the additional liability exposure to the principal under a performance bond and those individuals who signed a general agreement of indemnity to obtain the bond, the principal has an obvious incentive to propose a bond form that provides as little protection as possible. As discussed below, the protection afforded by a performance bond may differ significantly depending upon the bond form used.
However, the Surety will not be liable to the obligee for all damages arising from the principal’s default. Absent certain language in the bond form, there may be several types of contractual damages for which the principal may be contractually liable but that the performance bond will not cover. Unless the bonded contract is expressly incorporated into the performance bond, the Surety may not be liable for the correction of defective work or the performance of contractually required warranty work. Also, in certain jurisdictions, even though a principal is adjudicated liable for actual delay damages resulting from its breach of the contract, the Surety will not be held liable for such damages under the performance bond absent express terms in the bond form stating otherwise. See American Home Assurance Co. v. Larkin General Hospital, Ltd, 593 So. 2d 195 (Fla. 1992). Similarly, a performance bond Surety may not be held liable for lost profits or rents on the project arising from the principal’s breach of the bonded project – again, even if the principal is found liable for such damages – absent express terms in the bond form stating otherwise. The scope of the performance bond will be limited to its express terms. However, through the negotiation of the bond form, the terms might be expanded to include these types of contract damages, thus expanding the obligee’s protection beyond merely the completion or correction of work.
As commonly understood, the purpose of CGL insurance is to provide protection for personal injury or for property damage caused by an occurrence, such as the negligent performance of construction work, but not for the replacement and repair of such negligently performed work or the cost to complete unperformed work. For example, if a roofing contractor negligently constructs a roof on a building which results in damage to property located inside the building, then a CGL policy issued to the roofing contractor may cover the damage to the property inside the building but not the cost to replace the roof.
However, CGL policies may include riders and endorsements that limit coverage otherwise provided by a standard policy, such as exclusions for mold or residential construction. Such exclusions could be devastating if they are indeed a potential risk. Design professionals working as the prime on a project should strongly encourage their owner clients to have the controlling CGL policy reviewed before the contract is entered. Most construction contracts merely require that a certificate of insurance be provided to establish proof of insurance. However, the certificate of insurance does not identify the scope of coverage. Only through a review of the insurance policy itself can the scope of coverage be determined.
While a standard CGL policy is not typically understood to cover the cost to repair and replace the insured’s own defective work, a Supreme Court of Florida case holds that such a policy issued to the general contractor may provide coverage for the cost to repair and replace the damage to a completed project caused by a subcontractor’s defective work. U.S. Fire Ins. Co. v. J.S.U.B., 979 So. 2d 32 (Fla. 2007). The court’s analysis of the CGL policy could be argued in other jurisdictions beyond Florida.
In the J.S.U.B. case, a general contractor constructed homes on soils that were not adequately compacted (such compaction being the responsibility of one of the subcontractors), resulting in settlement cracks to the homes, as well as, items placed in or affixed to the homes, such as wallpaper. The insurer argued that workmanship deficiencies that resulted in later damage to the homes constructed by the insured/ general contractor should not be considered the result of an accident and, thus, should not be deemed an “occurrence” which is covered by the insuring agreement. However, the court disagreed and determined that there was coverage for the damaged homes.
In reaching its holding, the court found that settlement damage to the homes caused by improper compaction of the underlying soil was an “occurrence”. As defined in the policy, an “occurrence” is “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The court held that when the term “accident” is undefined in a liability policy, as was the case, the term includes not only “accidental events” but also damages or injuries that are neither expected nor intended from the viewpoint of the insured – such as the negligence of its subcontractors. The court also recognized that there is a difference between a claim for the costs of repairing or removing defective work, which is not a claim for “property damage,” and a claim for the costs of repairing damage caused by the defective work, which is a claim for “property damage.” As for the “your work” exclusion, the operating policy included the following exception to that exclusion: “Paragraph (6) of this exclusion [i.e. the “your work” exclusion] does not apply to ‘property damage’ included in the ‘products-completed operations hazard.” The operating policy had products-completed operations hazard coverage.
The more expansive coverage provided by the Florida court’s interpretation of the post-1986 ISO CGL policy arguably overlaps the protections afforded by a performance bond. Given the indemnity obligations of the principal on the bond, it should be expected that principals will likely use this case law to shift liability away from its Surety and towards the CGL carrier when there is damage to the project due to a subcontractor’s deficient work.
It should be noted that the ISO has begun to issue an endorsement that may be included in a CGL policy which arguably eliminates coverage for the cost to repair and replace the damage to another subcontractor’s work necessitated by the insured’s negligent performance, thus negating the Florida court’s expanded interpretation of the standard post-1986 standard ISO CGL policy. Such an endorsement is not in the owner’s or general contractor’s interest. Accordingly, if an insurer has included this endorsement as a part of the CGL policy, an owner and general contractor would be advised to determine if the endorsement can be stricken and, if so, find out the cost for doing so and perform a cost/risk analysis. Further, the case high-lights the importance of obtaining products-completed operations hazards coverage as part of the CGL policy, i.e. coverage for occurrences that arise after the project is complete.
Owners should be advised to demand that they be named as an “additional insured” on all CGL policies protecting the project. Further, they should ensure that the insurer actually issues the endorsement naming them as an additional insured, as an action against a potentially insolvent subcontractor for breach of contract for failing to obtain the contractually required endorsement may not afford a sufficient remedy. An additional insured can make a direct claim against the policy and sue for a declaratory judgment establishing coverage. Absent being named an additional insured, only the insured can sue the insurer before the insured’s claim is resolved. Additionally, many states allow the prevailing party to recover their attorney’s fees in an action to recover against their own carrier for an insured loss.
An owner-controlled insurance policy (OCIP), often referred to as a “wrap-up” policy, is a policy obtained by an owner to provide coverage for all of the project participants on very large construction projects or a combination of related projects. Such a policy typically provides commercial general liability insurance for all parties, as well as, workers compensation, employer’s liability, personal injury and property coverage. Such policies can also include professional liability and builder’s risk coverage. The potential advantage of OCIP is to avoid multi-insurance lawsuits seeking recovery for various claims between the owner, architect, engineer, contractor, subcontractors and suppliers. However, unlike individually obtained policies, OCIP coverage typically expires at the end of the project – before liability exposure of project participants ends. Accordingly, the owner may be advised to require project participants to obtain additional coverage in excess of the wrap-up policy to address that concern. Given the complexities of these wrap-up policies, they should be purchased only after consulting with an experienced insurance broker and legal counsel.
While owners may believe they have protected themselves by requiring CGL insurance and a performance bond for a project, a design professional acting as prime should advise their owner clients to conduct a more thorough review and negotiated modification to the insurance policy and bond form with the help of their legal counsel and insurance broker. Further, owners should be advised of the possible advantages of obtaining an OCIP or “wrap up” policy. Doing so can significantly expand their protections and increase the likelihood of a successful and profitable project.

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