Judge Resolves the Largest Work Comp Fee Dispute in California History With a Scathing Rebuke of One Firm and Affirmation of Another
LOS ANGELES, May 7, 2019 /PRNewswire/ -- According to Asvar Law, P.C., with the issuance of his "Findings of Fact and Order Re Attorney Fee Division Issues; Opinion on Decision" ("Order"), administrative Judge Daniel Dobrin of Los Angeles Workers' Compensation Appeals Board (WCAB) has concluded the long-standing trial of the largest workers' compensation attorney fee dispute in California history in Enriquez v. Willies Painting, SCIF (ADJ2137779).
In January of 2012, attorney Chris Asvar, formerly of Asvar, Odjaghian & Associates, APC ("AOA"), concluded what was then the highest workers' compensation settlement and award in the nation at $8.9 million. Asvar substituted into the case in September of 2009. Prior counsel, Shandler & Associates had the case from May of 2004 to September of 2009.
AOA was founded by former partners Chris Asvar and Tina Odjaghian. Shandler & Associates was comprised of husband and wife attorneys Jaclyn Shandler and Garrett Shandler. Mr. Enriquez was a young painter who had suffered a "mild" traumatic brain injury in 2004 when his scaffolding had given way, causing a 20-foot fall from a ladder.
The fee dispute arose when Jaclyn Shandler demanded most of the $1,335,000 attorney fee on the case, strictly based on her time of "representation." The problem was that in the 5-plus years of allegedly handling the case, neither Jaclyn Shandler nor Garrett Shandler ever met their client. The client and his father had gone to Shandlers' office some 35 times to speak with "an attorney," always to be told no attorney was available. The first time Jaclyn Shandler ever met her client was at the March 2013 deposition that she set for him as an adverse witness in the fee dispute.
The fee dispute trial took 14 court days, separated by months in between, taking three years and two months to complete. The trial itself was preceded by three and half years of highly litigious pretrial discovery, during which time Jaclyn Shandler refused to submit to a deposition to explain the basis of her fee claim. Ms. Shandler was assisted by her daughter Jannell Shandler, of no formal title or status. Attorney Ron Feenberg represented the AOA partnership throughout the three-plus years of the WCAB fee trial.
In a remarkable 37-page opinion, Judge Dobrin detailed the basis for his award of 89% of the attorneys' fee to Mr. Asvar's firm, and the remaining 11% to Shandler & Associates, despite Shandlers having the case for 70% of the time. In his Order, the judge applied the Bentley v. IAC, 11 CCC 204 criteria, focusing on the responsibility assumed by the attorney; care exercised in representing the applicant; time involved; and results obtained.
The judge concluded that there was a "significant contrast" in the responsibility assumed by Mr. Asvar compared to that by the Shandler firm. According to the judge, "AOA took an 'A to Z' approach to the case and rendered an extraordinarily wide range of services…. The contrast in assumption of responsibility on the part of Shandler and Associates begins with the initial opening of the file," Judge Dobrin wrote. "A preponderance of evidence leads me to conclude that at no point in the handling of Enriquez's case did an in-person or even a telephone meeting take place with either Mr. or Ms. Shandler, the only two attorneys regularly associated with the firm."
Commenting on Garrett Shandler's conspicuous absence, the judge wrote: "Mr. Shandler…as per the 'paper trail' placed in evidence, never prepared or signed a single document that I am aware of other than a typewritten signature on a one page letter advising SCIF and [employer] Willies' Painting (but not the client) that he would be taking over the case as of the date of Ms. Shandler's State Bar suspension."
In 2006, some two years into her alleged representation of Mr. Enriquez, Jaclyn Shandler was suspended by the State Bar for willfully violating the Rules of Professional Conduct by intentionally, recklessly or repeatedly failing to perform legal services competently, failing to communicate with her clients, for disobeying court orders, and for committing acts of moral turpitude against her former client Karen Salvatierra; and for multiple wrongs committed against another of her former clients, Jose De La Cruz. The former clients' complaints to the State Bar about Shandler's failure to communicate with them mirrored Enriquez's complaints against Shandler in this case.
Here, the judge surmised: "Thus, the long and short of it is that during five years of handling of a matter that, per Shandler, was 'destined to be a high value case'… no individual from the firm with any clear credentials or expertise in workers' compensation law ever met with the applicant or his father and future guardian."
The judge also criticized Shandler for never advising the client about his potential third-party remedies on a catastrophic claim related to the collapse of the scaffolding at the time of injury. Judge Dobrin stated, "In this regard, the overall handling and posture of the Shandler firm toward any potential third party liability is of particular concern to this judge in light of the known facts in this case."
The judge also commented on the time factor, indicating that the actual amount of skilled attorney time devoted by AOA greatly exceeded that spent by the Shandler firm. The judge states, "[I]t would truly surprise me if even 40 hours of actual attorney time, implying the equivalent of a solid work week of attorney labor, was devoted to [Enriquez's] case. Assuming this many hours were spent, which I am compelled to question, this [award] works out to nearly $4000 per hour, which amply awards the Shandler firm's actual attorney services..." By this calculus, Shandler was seeking fees exceeding $20,000 per hour.
As to the results obtained, Shandler repeatedly questioned the adequacy of the $8.9 million award. At trial, under a grueling cross-examination by Asvar, Shandler admitted that despite some 38 years of practice and handling thousands of cases, her record best settlement of all time was perhaps $500,000.
In this regard, Judge Dobrin writes, "The dollar amount of the $8.9 million settlement speaks for itself…[I]t strikes me that a settlement of this sum on behalf of an individual with a normal brain MRI, a paucity of neurological findings as per AME Richman, and an ability to acquire fluency in English language… and appear at trail as a very presentable and fairly articulate (in his non-native language) individual strikes me as a notable achievement in advocacy. Moreover, the settlement was provided to him not just as a lump sum dumped on a disabled person ill-equipped to handle it but rather through a carefully worked out plan involving some money for a structure, other sums which enable the applicant and his guardian to buy a house free and clear and some devoted to necessary conservatorship services to see to it that the money was handled responsibly."
In response to the favorable outcome, Mr. Feenberg stated: "The case represented 'A Tale of Two Cities' or more appropriately 'a Tale of Two Law Firms'. A compassionate, caring, thorough law firm rightfully prevailing over an unfocused, legal mill who never even met its client during five years of questionable representation."
Commenting on the Outcome, Mr. Asvar stated, "This trial encompassed in excess of 135 exhibits, thousands of pages of records and over one hundred hours of witness testimony. Judge Dobrin's depth, breadth and detailed knowledge of the case, evident in his meticulous 37-page ruling is nothing short of astonishing. I am truly grateful for his acknowledgment of the work that was put into this case."
As to Mr. Feenberg's invocation of the Dickens classic, Asvar said: "Ron is amazing and I am so thankful for his representation. For me, the work that kept coming to mind, especially in that tough first year, was Hemingway's The Old Man and the Sea. After so much care, time and labor, having finally caught the 18-foot marlin for your client, you're nearly home when the sharks attack to chew off the fame and fortune brought on by your work. To have this judge go back with such great care to chronicle the details of what actually occurred in this case, is a profoundly spiritual moment."
"I'm also grateful for the patience and the fortitude my clients showed throughout this long process," Asvar said. "In order to spare them the harassment of this fee dispute, I offered Ms. Shandler a considerable sum of money at the very start, far in excess of what she was awarded here. But unfortunately, people are who they are."
Reflecting on the litigants personally, Judge Dobrin wrote, "Though I would freely admit that my interactions with both sides in this lengthy fee dispute were vexing at times, I nevertheless believe that AOA lead attorney Asvar took a deep personal interest in the welfare and well-being of his client Enriquez."
The Enriquez case remained the highest workers' compensation settlement and award in the nation until 2017, when Asvar and his firm, Asvar Law, P.C., broke his prior record and obtained a new national record of $10,000,000 on behalf of his client in TBC v. Ernst & Young; The Insurance Co. of the State of Pennsylvania. Asvar Law represents victims of catastrophic injury throughout California.
SOURCE Asvar Law, PC
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