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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. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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