When Miss Pennsylvania 2012 was hit with a $5 Million judgment for stating that the 2012 Miss USA pageant was rigged, it was not just her choice of words that landed her in hot water, it was her choice of lawyer. That’s what Judge J. Paul Oetken, of NY’s Southern District Federal Court, ruled yesterday in upholding the large defamation award.
When Sheena Monnin was crowned Miss Pennsylvania in 2012, she signed an agreement requiring her to compete in the Miss USA Pageant owned by blowhard real estate developer Donald Trump. She also signed an agreement when she appeared in the Miss USA pageant, which required all disputes to be resolved by arbitration.
On the night of the pageant, the 51 contestants were quickly whittled down to 16; Miss Pennsylvania was not one of the 16 as you probably surmised. When she was backstage, Miss Florida told her that she had seen a piece of paper with the top 5 finishers written down on it. That’s when Monnin lost it. Apparently her talent was not exiting gracefully because she repeatedly posted on her Facebook page that the competition was rigged setting off a media frenzy. The pageant organization immediately hand delivered a letter to her telling her to cease and desist or face a defamation action.
But you don’t get to the top of the beauty pageant world by listening to the haters, so she went on the Today Show and repeated her allegations to Ann Curry on national television. Predictably, the pageant filed for arbitration seeking damages for the defamatory statements.
Her lawyer Richard Klineburger, of Klineburger & Nussey in Haddonfield, N.J., and Philadelphia, claimed she was not obligated to arbitrate and she had resigned on June 4, terminating her contractual obligations. He ignored the notices to arbitrate, did not participate in any pre-trial hearings or meetings and never advised Miss P to participate. He told her that he could not represent her anyway because he was not admitted to practice in NY where the arbitration was pending. But at the same time, he did notify the other side that he was representing Monnin with respect to this dispute and received and never rejected any of the notices and filings related to the arbitration that were piling up on his desk.
In upholding the $5 Million judgment of the arbitrator, the court rejected Monnin’s arguments that the sins of the lawyer should not be cast upon the client stating:
“While it is unfortunate and perhaps unfair that Klineburger, likely in violation of the Model Rules of Professional Conduct, failed to communicate with his client for several months, despite receiving repeated entreaties and status updates regarding the Arbitration, it is well established that notice to an attorney constitutes notice to the represented client,”
This quote says a lot of the justice system. First of all, the judge declares what I often tell my law students on their first day of class. The justice system is not about what’s “fair.” It’s about what’s right under the law,which can be very unfair to one side.
Secondly, it highlights what it means when a lawyer “represents” someone. It means they stand for you, they take your place in the dispute and they are the face of your case to the judge and jury.
Therefore, choose wisely.
The judge was not done however. He went on to add that the attorney boycotted the arbitration “without any apparent consideration for the consequences of non-participation” and that
it does well to note that Monnin was repeatedly advised by counsel that she need not participate in the Arbitration. Blindly, but perhaps understandably, Monnin put her trust in her attorney, believing that he would represent her interests to the best of his ability throughout the Arbitration process. Unfortunately, Klineburger chose to ignore the responsibilities owed to his client, along with the ethical duties governing his profession. And while the notice given to Monnin and Klineburger was legally valid, and the arbitral process fundamentally fair, Monnin is now faced with dire consequences due, in no small part, to her counsel’s ineptitude, which constitutes a harsh result.
Important safety tip to the lawyers reading this blog post: You don’t want a federal judge calling you inept in a published decision, so maybe you should think carefully about ignoring arbitration clauses in contracts and get local counsel to protect your client’s interests when receiving Notices to Arbitrate, etc. Second important safety tip: If you choose to ignore the first safety tip, make sure your malpractice insurance premiums are paid and up to date.
I leave you with one last quote from the decision which is a stark reminder of the responsibility a lawyer takes on when representing a client and the need for diligence and a well-reasoned approach as well as being a reminder of the need to sometimes get a second opinion to make sure your lawyer is going down the right path:
The Court does not take lightly that Monnin is compelled to pay what is a devastating monetary award. Moreover, Monnin undeniably is suffering from her poor choice of counsel, who unconscionably chose to absent himself from the Arbitration proceedings, advised Monnin to do the same, and presented no evidence on her behalf over the course of several months. Although Monnin should have initially engaged in mediation and later, remained diligent over the course of the Arbitration process, it is clear from the record that she was woefully unaware of both the consequences of her disengagement and the severity of the allegations in the Statement of Claim.
That being said, a court’s role in reviewing an arbitration award is necessarily limited, and such decisions may be set aside only in certain, enumerated circumstances. Accordingly, the Court is bound by the law, and its review may not exceed the scope defined for it by this Circuit’s precedent. Sympathy, or apparent inequity, may play no role in a court’s legal analysis, and here, the law is clear.