Sealed Lawsuit Against Ex-Miccosukee Lawyer Raises Questions
ALM Media
Updated
The Miccosukee Tribe appears to be suing its former lawyer under seal using a pseudonym despite Florida courts setting a high standard for openness.
The professional malpractice lawsuit, styled Association ABC v. Bernardo Roman III et al., was filed by tribe attorney Robert Saunooke in Miami-Dade Circuit Court last month. The filing came weeks before a referee found Roman guilty of breaking 14 Florida Bar rules while representing the tribe.
A lawyer for former U.S. Attorney Guy Lewis and his law partner Michael Tein, who are suing the tribe for damaging their law firm and personal reputations through frivolous litigation pursued by Roman, discovered the June 9 lawsuit and confirmed with the tribe's counsel that the Miccosukees filed it, according to a court filing. The Miccosukees' response to that filing does not dispute the idea that the tribe is "Association ABC."
"The tribe offers no details about its new lawsuit, nor any explanation why it was filed 'under seal' and under a pseudonym," Coral Gables attorney Curt Miner of Colson Hicks Eidson wrote in a July 5 filing before the Third District Court of Appeal, where he recently argued on Lewis and Tein's behalf that the tribe is not protected from litigation by sovereign immunity.
Florida's rules of judicial administration require the reason for a lawsuit's confidentiality to be made public. It's incredibly unusual for a business to file litigation under seal using a "Jane Doe"-style pseudonym like "Association ABC," media lawyer Tom Julin said.
"I've never seen anything like that," said Julin, a Gunster partner in Miami. "Usually, you're talking about victims of sexual assault or some other, similar problem that would mean disclosure would be very embarrassing or somehow intrude on their privacy. But companies have very limited privacy rights, if any privacy rights, in filing a lawsuit."
It's possible the courts might consider Native American tribes differently when it comes to confidentiality, Julin said, but there is no reference to any such idea in the rules of judicial administration.
"As a general matter, Florida courts are supposed to be open," he said. "The only exceptions are set out in this rule."
In noncriminal cases, rule 2.420 says a party must file a motion requesting a determination of confidentiality that specifies the basis for secrecy. Within 30 days, the judge must hold a hearing on the motion, followed by an order to be posted prominently in the courthouse and on the clerk's website.
In the Association ABC lawsuit, a motion for determination of confidentiality was filed under seal June 9. Such a motion should be public, Julin said. It does not include any of the information that the party wishes to be kept secret.
Staff at the Miami-Dade County Clerk's Office did not immediately unseal the motion after a request from the Daily Business Review on Tuesday, pending approval from in-house counsel.
And although more than 30 days have passed since the motion was filed, Miami-Dade Circuit Judge Peter Lopez's office confirmed he has not scheduled a hearing because neither party requested one.
Miner, who declined to be interviewed because of the pending litigation against the tribe, argued in his filings that the Miccosukees are trying to have their cake and eat it, too.
He noted the sealed lawsuit was filed in state court, not tribal court, and came only after the Third DCA heard oral arguments in the Lewis Tein case. (The Miccosukees appealed a ruling from Miami-Dade Circuit Judge John Thornton finding the tribe waived the sovereign immunity defense through its bad-faith conduct.)
"The recently filed complaint is against the Miccosukee Tribe's former tribal counsel [Roman], and not against Lewis Tein," Miner wrote with his Colson Hicks colleague, former U.S. Attorney Bob Martinez. "However, it was the tribal counsel who did the Miccosukee Tribe's bidding over a five-year period and repeatedly injected the Miccosukee Tribe into the state and federal court system in an attempt to destroy Lewis Tein. It is incongruous for the Miccosukee Tribe to claim sovereign immunity over the conduct it jointly undertook with its tribal counsel but then, at the same time and in the same court system, sue that same tribal counsel."
The filing asks the Third DCA to take judicial notice of the Association ABC lawsuit. Judicial notice would not require the tribe to turn over the complaint to Lewis Tein, which the tribe told Miner it could not do without permission from its business council.
The tribe responded that the request for judicial notice was improper and irrelevant, arguing Roman is not a party in the Lewis Tein matter and the lawsuit against him doesn't have anything to do with the sovereign immunity issue.
"The filing of one lawsuit does not waive tribal sovereign immunity for another lawsuit," wrote Saunooke and Alston & Bird attorneys George Abney, Daniel Diffley and Michael Barry of Atlanta. Alston & Bird does not appear to be involved in the Association ABC lawsuit.
Saunooke did not respond to requests for comment by deadline. He is with the Saunooke Law Firm in Miramar and has done legal work for several tribal governments, including the Eastern Band of Cherokee Indians and the Seminole Tribe.
The Miccosukee Tribe's legal department declined to comment on any matter related to Roman.
Roman did not respond to a request for comment. He is awaiting a judge's recommendations to the state Supreme Court after the Florida Bar asked last week for his disbarment.
