‘Scheme to extort’ or zealous advocacy?
A controversial San Rafael attorney, known for filing hundreds of lawsuits
based on the Americans with Disabilities Act, defended his actions during a
trial before the State Bar Court last month, denying a series of allegations
by the bar and calling about a dozen witnesses who said they could not believe
he acted improperly. THOMAS E. FRANKOVICH [#74414], 62, is
accused of three counts of misconduct stemming from what the bar characterizes
as “a scheme to extort money from defendants.” He also faces a
fourth charge after a federal judge found he improperly communicated with a
defendant who was represented by a lawyer in another case.
In 2005, Frankovich was ordered by the Central District of California to file
no further ADA-based lawsuits without obtaining court permission. U.S. District
Judge Edward Rafeedie earlier declared Frankovich’s frequent client,
Jarek Molski, a vexatious litigant after he filed 156 ADA lawsuits in one year.
The Ninth Circuit upheld the lower court order in 2007 after Frankovich appealed.
The Supreme Court declined to hear the case.
Under the ADA, private litigants can sue in federal court for injunctive relief
and, if successful, can obtain attorneys fees and costs. In California, plaintiffs
also can win money damages under the Unruh Civil Rights Act and the California
Disabled Persons Act. The damages can be significant — $4,000 per violation.
Rafeedie, since deceased, found that Frankovich’s client made false
claims and that his litigation strategy was designed to “coerce defendants
into quick settlements.” Further, Rafeedie said that Frankovich typically
waited a year after the alleged injuries to file suit in order to maximize
damages. Only one Molski matter had gone to trial, he said, indicating a “quick
desire for settlement.”
In addition to barring Frankovich from filing any more suits in the central
district, Rafeedie referred him to the State Bar for discipline.
The bar accuses Frankovich of three counts as a result of Rafeedie’s
order: seeking to mislead a judge and two counts of moral turpitude — engaging
in a scheme to extort and alleging that a client suffered bodily injury without
appropriately apportioning each defendant’s responsibility for the injuries.
According to the bar charges, Frankovich filed at least 223 lawsuits in federal
courts in California in 2004 alleging violations of the ADA. In addition to
the suits filed for Molski, 40 were filed on behalf of either Les Jankey, an
individual who uses a wheelchair, or Patrick Connolly, a disabled individual
who is president of Disability Rights Enforcement Education Services (DREES).
DREES also was a co-plaintiff. A total of about 400 lawsuits were filed on
Molski’s behalf between 2003-07 against various businesses alleging ADA
violations.
Reviewing more than 200 cases filed by Frankovich, Rafeedie concluded that
many of the claimed injuries were contrived in order to invoke the personal
injury provisions of the defendants’ insurance policies. Frankovich filed
numerous complaints alleging that Molski sustained similar or identical injuries
at multiple establishments on a single day. In 2004, for example, he claimed
to have received two or more injuries on the same day 37 times, three or more
injuries on the same day 19 times and four or more injuries the same day nine
times.
Frankovich said the allegations are not based on facts and insisted that disabled
persons can easily suffer repeated injuries on a daily basis. “That’s
what these people face and that’s what happens to them if they face architectural
barriers,” he testified.
The complaints reviewed by the court sought damages of $4,000 per day from
the date a plaintiff visited the defendant business to the date repairs were
completed, according to the bar charges. “The court found that it was
[Frankovich’s] regular practice to wait up to one year before filing
a lawsuit, during which time the requested daily damages continued to accrue,” according
to the charges. For example, in a case in which Molski sued Mandarin Touch,
a Solvang restaurant, for violating access requirements, damages could total
more than $1.4 million, the court said. Frankovich denied making any settlement
demands for daily damages and called the $1.4 million “a mathematical
calculation by Judge Rafeedie to, in my opinion, fit his own agenda.”
After filing suit, the charges allege, Frankovich sent a copy of the complaint
to the defendant with a letter “that could be viewed as intimidating
as well as misleading and inaccurate.” Frankovich, however, called the
letters “educational” and said they instructed plaintiffs how to
repair architectural barriers and reduce their exposure to damages. But the
bar alleges that by making “misleading statements to defendants about
hiring counsel, the merits of their defense and discussing whether their insurance
might cover any claims,” Frankovich committed acts of moral turpitude.
Filing complaints that allege bodily injury without any facts to support the
claims amounted to misleading a judge, the bar charges.
The federal court also noted that only one of Molski’s 400 cases went
to trial and cited the high settlement rate as “an indication of extortion
scheme.”
During a six-day trial last month, Frankovich was unrepentant and instead
mounted a spirited defense of his practices that included testimony from several
clients with disabilities as well as opposing counsel. In a lengthy narrative
presentation from the witness stand, Frankovich said his motive always has
been to “be of service to people with disabilities.” Aside from
admitting to a small error in one complaint, the pony-tailed lawyer denied
all the charges and said he is a target because of his high profile and extensive
media attention.
Rafeedie is to blame for his problems with the bar, Frankovich said: “He
had a political agenda, he took everything out of context, he twisted everything.” Motions
to declare his clients vexatious litigants have been brought and denied in
other federal districts in California, he said, and the courts have offered
conflicting decisions about his cases. “When the opportunity presents
itself,” Frankovich said, he will resume filing cases in the central
district “with a vengeance.”
Undaunted by death threats and hate mail, he added, “nothing is going
to stop me from going forward. Period. I’m not going to back off.”
In 2006, Frankovich also was suspended for six months by another judge in
the central district for communicating with a represented party. The facts
of that case are considered conclusive and the bar court can impose punishment
ranging from a reproval to a suspension.
The trial is expected to wrap up this month but a decision is not likely for
several months. Bar prosecutor Erica Dennings said she expects to ask that
Frankovich’s license be suspended. Any findings by a bar court judge
must be approved by the Supreme Court.
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