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Allen deposition transcript from the Shapiro bankruptcy case (December 19, 2011 deposition)
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NCAA investigation, go ahead, ask me...
- Thread starter DapperSlapper
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Allen deposition transcript from the Shapiro bankruptcy case (December 19, 2011 deposition)
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Consigliere
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Wow for a Bankruptcy case, that is really irrelevant.
1 Dinner, 1 FUCCCCCKING Dinner where NS wasn't present, where there is no indication he paid for dinner or anything in connection therewith. Wow, how did the bankruptcy trustee/creditors allow this line of questioning? Seems like a further waste of time/assets etc.
1 Dinner, 1 FUCCCCCKING Dinner where NS wasn't present, where there is no indication he paid for dinner or anything in connection therewith. Wow, how did the bankruptcy trustee/creditors allow this line of questioning? Seems like a further waste of time/assets etc.
JimmyJohnsonsHair
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Is the NCAA under any legal obligation to reject Allen's testimony? In other words, what liability is the NCAA exposing themselves to by using Allen's testimony since it was obtained in this manner?
Consigliere
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You should read the article from yesterday.
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It would be interesting if the NCAA paid for the cost of the videotaping...
The bankruptcy trustee already said that they had absolutely no use for the Allen testimony. There is really no explanation for the deposition other than to obtain info for the NCAA. I suspect that this true purpose was never explained to Allen.
The NCAA could argue that Allen did not object to being deposed. They could also point out that Allen later told it and the Herald the same things although he would not likely have spoken to either but for the fact that he had already divulged these things in the deposition where he feared being jailed for perjury.
The bankruptcy trustee already said that they had absolutely no use for the Allen testimony. There is really no explanation for the deposition other than to obtain info for the NCAA. I suspect that this true purpose was never explained to Allen.
The NCAA could argue that Allen did not object to being deposed. They could also point out that Allen later told it and the Herald the same things although he would not likely have spoken to either but for the fact that he had already divulged these things in the deposition where he feared being jailed for perjury.
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The entire segue to the Bridgewater-Golden questions is so contrived it is laughable. She was obviously determined to ask those questions even though there was no basis for a nexus to Shapiro
Q. Do you ever remember if Arthur Brown or Teddy Bridgewater ever won any of those [Lucky Strike] tournaments?
A. No. I don't remember Teddy being there. And to be honest I don't remember Arthur Brown being there either.
Q. Did you ever give either Mr. Brown or Mr. Bridgewater any money on behalf of Mr. Shapiro, at his direction?
A. I don't remember doing that.
Q. Do you know if anybody else did at his direction?
A. I don't know. If they were the winner of the event. But Teddy, I don't even understand why he would have been there.
Q. Why do you say that?
A. Because he wasn't on the UM football team.
Q. But he was an acquaintance of Mr. Shapiro?
A. No. I guess he would have been an acquaintance of some of the players, so perhaps he was there.
Q. Which player?
A. The group as a whole, you know, they all know each other.
Q. Did you ever take Mr. Bridgewater to either meet with Coach Golden or Coach Fisch at anytime? (first mention of Golden and Fisch in the deposition)
Q. Do you ever remember if Arthur Brown or Teddy Bridgewater ever won any of those [Lucky Strike] tournaments?
A. No. I don't remember Teddy being there. And to be honest I don't remember Arthur Brown being there either.
Q. Did you ever give either Mr. Brown or Mr. Bridgewater any money on behalf of Mr. Shapiro, at his direction?
A. I don't remember doing that.
Q. Do you know if anybody else did at his direction?
A. I don't know. If they were the winner of the event. But Teddy, I don't even understand why he would have been there.
Q. Why do you say that?
A. Because he wasn't on the UM football team.
Q. But he was an acquaintance of Mr. Shapiro?
A. No. I guess he would have been an acquaintance of some of the players, so perhaps he was there.
Q. Which player?
A. The group as a whole, you know, they all know each other.
Q. Did you ever take Mr. Bridgewater to either meet with Coach Golden or Coach Fisch at anytime? (first mention of Golden and Fisch in the deposition)
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http://www.sbnation.com/college-football/2013/1/24/3907888/ncaa-miami-investigation-scandal
Q: Holy crap! How will everyone be penalized?
A: Well, Shapiro's lawyer will probably be disbarred. A court has already said she's incompetent, and now she's crooked too. Dave Barry articles have taught me that the bar for being a lawyer in South Florida is set pretty low, but this should be the end of the line for her legal career.
The NCAA investigators who used Shapiro's lawyers could face criminal penalties. They could be charged with obstruction of justice for interfering with a bankruptcy proceeding. Or they could be held in contempt of court, which allows judges broad discretion to penalize people who interfere with court matters. An NCAA employee could go to jail for his actions during the Miami investigation.
And then there's the NCAA, which could get sued by Miami for fraud. Fraud means you lied or deceived someone for your own gain, and the NCAA sure as **** did that when it used a criminal defense lawyer to ask people questions about infractions of its rules under oath. Now, fraud probably isn't a crime in this instance, but it sure as **** is a civil offense.
If you ask your local trial attorney what he thinks about fraud lawsuits, you'll see a Cheshire cat grin come across his face. Why? Because fraud is an intentional tort. Typically torts publish negligence, like if you hit someone while you were driving too fast. But when someone intentionally causes harm in a tort case (i.e. fraud or assault), then courts get a lot more liberal with damages, as we want to penalize people for causing harm on purpose.
Q: So Miami could take the NCAA to the cleaners?
A: Oh **** yes. Even if the actual damages aren't that great (for example, due to ACC rules Miami actually makes more money when they don't go to a bowl), the prospect of a fraud lawsuit is terrifying. At the very least, a suit by Miami would proceed to the discovery stage. And that means Miami could force Mark Emmert to testify, under oath, what exactly he did to take them down.
Of course, it'll never get to that. Miami has just as much to lose from protracted litigation. Likely the NCAA will settle and Miami will probably avoid punishment.
Q: Holy crap! How will everyone be penalized?
A: Well, Shapiro's lawyer will probably be disbarred. A court has already said she's incompetent, and now she's crooked too. Dave Barry articles have taught me that the bar for being a lawyer in South Florida is set pretty low, but this should be the end of the line for her legal career.
The NCAA investigators who used Shapiro's lawyers could face criminal penalties. They could be charged with obstruction of justice for interfering with a bankruptcy proceeding. Or they could be held in contempt of court, which allows judges broad discretion to penalize people who interfere with court matters. An NCAA employee could go to jail for his actions during the Miami investigation.
And then there's the NCAA, which could get sued by Miami for fraud. Fraud means you lied or deceived someone for your own gain, and the NCAA sure as **** did that when it used a criminal defense lawyer to ask people questions about infractions of its rules under oath. Now, fraud probably isn't a crime in this instance, but it sure as **** is a civil offense.
If you ask your local trial attorney what he thinks about fraud lawsuits, you'll see a Cheshire cat grin come across his face. Why? Because fraud is an intentional tort. Typically torts publish negligence, like if you hit someone while you were driving too fast. But when someone intentionally causes harm in a tort case (i.e. fraud or assault), then courts get a lot more liberal with damages, as we want to penalize people for causing harm on purpose.
Q: So Miami could take the NCAA to the cleaners?
A: Oh **** yes. Even if the actual damages aren't that great (for example, due to ACC rules Miami actually makes more money when they don't go to a bowl), the prospect of a fraud lawsuit is terrifying. At the very least, a suit by Miami would proceed to the discovery stage. And that means Miami could force Mark Emmert to testify, under oath, what exactly he did to take them down.
Of course, it'll never get to that. Miami has just as much to lose from protracted litigation. Likely the NCAA will settle and Miami will probably avoid punishment.
Soul Cane
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I disagree with Dapper.
There's some legal ethicial violations occuring here.
She's not being truthful to the bankruptcy tribunal by asking questions 100% irrelevant to the bankruptcy proceeding. And her claims are not meritorious at all. Asking NCAA questions about what Golden was doing for dinner has nothing to do with Shapiro's bankruptcy. You can't use a legal proceeding for one your client's to go on a fishing expedition for another of your client's who has no subpoena powers. And the fact she was getting paid by the NCAA nails her on this.
I believe the bankruptcy judge and the Florida bar would have grounds to reprimand her on this if it's brought to their attention.
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Not sure that she broke any ethical rules. Perhaps, this is the closest.
Rule 4-3.4 Fairness to Opposing Party and Counsel
"A lawyer shall not (g) present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter."
Did Perez threaten Allen (arguably an opposing party) with perjury in order to obtain an advantage for the NCAA in its investigation (possibly a civil matter)?
Rule 4-3.4 Fairness to Opposing Party and Counsel
"A lawyer shall not (g) present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter."
Did Perez threaten Allen (arguably an opposing party) with perjury in order to obtain an advantage for the NCAA in its investigation (possibly a civil matter)?
AlexCane
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It is irrelevant, but the onus is then on the lawyer representing the deponent to object. If the attorney doesn't object, objection may be waived.
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Attorneys have lots of leeway in the subject matter of their deposition questioning. Whether something is relevant is typically sorted out after the fact. Here are the most relevant points on depositions from the Florida Bar's Guidelines on Professional conduct.
1. Depositions should be taken only when actually needed to ascertain facts or information or to perpetuate testimony. Depositions never should be used as a means of harassment or to generate expense.
5. Counsel should not inquire into a deponent's personal affairs or integrity when that inquiry is not relevant to the subject matter involved in the pending action.
Soul Cane
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Rule 2004. Examination
(a) Examination on Motion. On motion of any party in interest, the court may order the examination of any entity.
(b) Scope of Examination. The examination of an entity under this rule or of the debtor under §343 of the Code may relate only to the acts, conduct, or property or to the liabilities and financial condition of the debtor, or to any matter which may affect the administration of the debtor's estate, or to the debtor's right to a discharge.
She made false claims to the bankruptcy tribunal. Her signing of motion for the subpoena request delienated that as an officer of the court, her questions would relate the acts of her client - Shapiro. And yet she asked questions from Pee Wee that has no relation to Shapiro.
Of course, attorneys in depositions ask irrelevant questions all the time. But in this case, she was paid by another client to ask irrelevant questions in the bankruptcy proceeding that the other client (NCAA) would not have been privy to.
I'm not sure how you could argue that Shapiro's attorney was ethical in her NCAA questions of Pee while being paid by the NCAA. Evidently, Emeritt has the same ethical concerns as well.
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Background - Allen was represented (apparently pro bono) by counsel (UM grad) at the deposition "on the limited basis for his appearance for 2004 Examination" (bankruptcy code not a year reference). He really didn't object to any of the questions other than as to form.
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Soul Cane
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Of course they have lots of leeway in depositions.
The smoking gun problem here is Shapiro's attorney was paid by the NCAA to ask irrelevant questions about the bankruptcy in order to garner information for her second client - the NCAA. This is not a typical matter. Believe me, judges don't like attorneys playing games like this in their courtroom.
AlexCane
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Soul: It's skeezy. It's scummy. But a bar violation? Don't see it. If the depositions were being used as a fact-finding tool for the NCAA, it's on Pee Wee's attorney to move to suspend the deposition and get a protective order from the court limiting the scope of the discovery. I haven't read the deposition testimony, but if the attorney stayed silent, then what?
AlexCane
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It doesn't matter what the lawyer is being compensated. If deposition was a fishing expedition for the NCAA, it ought to have been terminated and counsel ought to have moved for a protective order.
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The question is not whether she was ethical but whether she broke any of the rules of ethics which is not necessarily the same thing. Rule 2004 is not an ethics rule but is a bankruptcy rule.
I'm not defending her by any means. She was clearly duplicitous and arguably deceitful. I just haven't found a specific ethics rule(s) that she violated.
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