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Summary judgment affirmed in favor of attorney

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An attorney who withdrew as counsel for two related family-owned businesses did not make false and defamatory statements in explaining his withdrawal, the Indiana Court of Appeals held.

In James Gagan, Fred Wittlinger, Jack Allen and Eugene Deutsch v. C. Joseph Yast, No. 45A05-1107-CT-377, James Gagan had claimed that C. Joseph Yast made defamatory statements in a conversation with Gagan’s son, Jamie. Yast is an attorney and was close friends with the Gagan family for nearly 30 years. Yast represented the Gagans and their various businesses in numerous lawsuits during a 20-year period. In 2006, Gagan, founder of DirectBuy, offered Yast a position as the company’s vice president and general counsel, and Yast accepted. Yast’s employment contract allowed him to work on outside projects, and Yast represented Jamie Gagan’s company ThinkTank in various litigation matters.

In 2007, Gagan and the minority shareholders in DirectBuy sold the company to Trivest, a holding company, for $550 million. Gagan and the other shareholders had taken $17 million in member merchandise money as a dividend, and Trivest challenged that withdrawal under the merger. DirectBuy’s highest ranking officers contacted Gagan to explain their concerns, believing the withdrawal was inconsistent with the company’s core values.

When Trivest and Gagan and the other sellers were unable to reach an agreement, Yast withdrew his appearance for Gagan in federal litigation, believing that representing Gagan presented a conflict of interest. Yast also determined that his conflict with Gagan created a conflict of interest in continuing to represent ThinkTank. Yast called Jamie to explain why he was withdrawing from ThinkTank litigation.

Two days later, Jamie filed a disciplinary grievance against Yast, challenging the manner in which Yast withdrew his representation. Jamie argued that Yast’s disclosure of his conflict of interest in their telephone call on April 23, 2008, was inappropriate because Yast’s purpose was to leverage his withdrawal to force Gagan to capitulate in his dispute with Trivest. The Disciplinary Commission determined that Jamie’s grievance did not raise a substantial question of misconduct and dismissed the matter on April 1, 2010.

In its opinion, the COA held that Gagan and the other sellers set forth no designated evidence demonstrating that they have suffered any reputational harm or actual damage from Yast’s statements to Jamie during the telephone call and that no evidence supported the claim that Yast abused his qualified common interest privilege. The COA concluded that the trial court properly granted Yast’s motion for summary judgment on this basis.

 

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  1. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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