david johnson's florida bar ordeal

8/20/2019 David Johnson's Florida Bar Ordeal

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MIAMI MIRROR – TRUE REFLECTIONS

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FROM ‘THE MALICIOUS PROSECUTION OF DAVID JOHNSON’ by David Arthur Walters

WOE UNTO THOSE WHO FILE BAR COMPLAINTS

Allen Libow Esq. actually threatened David Johnson with “CAPE FEAR”

“It is truly not an exaggeration to state that in the combined twenty-five (25)

years of legal experience as a litigator and judge that this court has not seen a

more contentious and unfortunate case history as the instant litigation”. “The

instant litigation has not been aided by the fact that the Libow firm has been

primarily represented by Allen Libow’s father-in-law, Arthur W. Tifford, Esq. and

Mr. Libow’s sister-in-law, Alexandra L. Tifford, Esq. Unfortunately, their

involvement has only served to increase the personal tension between themselves

(inclusive of Mr. Libow) and David Johnson.”

What would you do if you found yourself in a situation where you were being forced by anaffluent and well connected member of the legal profession to choose between succumbing to hislegally and ethically questionable demand to pay $100,000 for a $1,621 legal bill you believedyou did not owe in the first place, or else submit to his inordinate power as a wealthy officer ofthe court to financially ruin you? What if you thought his demand was a form of extortion, i.e. a




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coercive threat to wrench or twist money out of you, a threat that used to come under the broaderheading of “libel” in the old days?

What, indeed, would you do? Do you think you would complain to the agency responsible forlicensing and disciplining attorneys, all of whom must be members in order to practice in the

state? Think again, after taking the following into consideration.

The attorney may not hesitate to use every means at his disposal including his professionalmonopoly’s privileged access to the courts to bludgeon you into silence, using the statements inyour complaint to the disciplinary counsel to sue you for multiple counts of libel, deliberately prolonging the abusive process with flurries of motions in thousands of pages, and rewriting thehistory of the case as it progresses by misstating what had been averred before, until yourdefense funds are almost exhausted and you are thoroughly intimidated.

What? What happened to your constitutional right of free speech? What about your civil right toaddress the government for redress of grievances? After all, lawyers are officers of the judicial branch of government, are they not? And you sought redress from that branch of government,never mind its inherent conflict of interest.

You might think that complaints filed with public agencies are absolutely privileged; that is, youcannot be sued by the person you complain about even if you make defamatory statements to theofficials. Mind you that your allegations in your case were not otherwise published except that afew of them were made to the attorney’s assistants during the course of business. This is not aquestion of publishing true or false statements to a third party about private persons that happento harm their reputations.

Yes, you have your constitutional rights, and you may win your case in the end because thelawsuit was frivolous and apparently maliciously prosecuted. But exercising your rights might

cost you a pretty penny. You prevail but that does not mean you will recover fees and expenses,not if your attorney inadvertently botches the “offers of settlement agreement” leaving you tofind an attorney to sue your own attorney for malpractice, and that attorney makes a mistake thatcosts you your claim. What bad luck! Your fees exceed $250,000, which you raised by takingout mortgages on your home, but now you are left empty-handed, and are afraid to say anythingfurther about the matter to the Florida Bar lest you get slapped with another suit for petitioningthe government for redress of your grievances.

Knowing that this could happen to you, knowing that perhaps the attorney you complain about tothe disciplinary authority will use every means at his disposal including making false allegationsand manufacturing evidence to shut you up and ruin you financially, would you fight for your

constitutionally protected ground at all costs?

And what would you do if you decided to be a good citizen at all costs, and therefore pursuedyour complaint, only to receive a response from the regulators clearly indicating that they had no problem whatsoever with their licensee’s conduct?




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The message thereby conveyed to members of the Florida Bar by the Florida Bar would be that itis all right to sue critics into silence; indeed, the Bar’s decision would encourage lawyers to do just that with the blessing of their regulatory agency.

The dismissal of your complaint may come as a shock to you if you filed it in Florida, because,

before you filed it, the Florida Bar advised you to read its Consumer Information Pamphlet,wherein ones find precautionary words under the heading “A Word About Confidentiality andImmunity.” If you “limited your inquiry and communication about it to Bar staff,” reads theclause, “investigators and grievance committee members; you should not be successfully sued .While, generally, you cannot be successfully sued if you do not act in bad faith or with malice,we emphasize successfully. The Bar cannot guarantee that the lawyer will not attempt to bringlegal action against you.”

As a matter of fact, the common law of Florida established in Stone v. Rosen, 348 So.2d 387(Fla. 3d DCA 1977) and Tobkin v. Jarboe, 710 So.2d 975 (Fla. 1998) held that complaintsagainst lawyers filed with the Florida Bar are absolutely privileged. To wit, complainants areimmune from liability even though they acted in bad faith or with malice. The Florida Bar, whichhas a monumental conflict of interest inasmuch as it is the “arm” of the self-regulating court withinherent power to promote the interests of the legal profession as well as discipline memberswho do not march in lockstep with it, will make no such guarantee simply because it wants toweasel out of responsibility for selectively if not randomly enforcing its Rules against unethicalconduct.

Kenneth Marvin, Director of Lawyer Regulation for the Florida Bar, will be glad to send you aletter with the text of Tobkin v. Jarboe attached so that you will know you are absolutely immunefrom retaliation for filing a complaint, but he will not attach The Florida Bar v James DanielEckert, File No. 2009-11,071 (6C), which shows that there is in fact a Rule than can be appliedand was in fact applied by the Bar to discipline a lawyer who threatened to sue a person for

defamation for filing a complaint with it.

What will the Florida Bar do if a lawyer actually brings such an action? Apparently nothing ifyou are David Johnson or some other hapless victim of professional misconduct. Should notthere be a Bar Rule against such prosecutions, subjecting the attorney to suspension ordisbarment? Why has not the Bar done something to prohibit such travesties of justice? After all,the Florida Supreme Court readily recognizes “the inequitable balance of power that exists between an attorney who brings a defamation action and the client who must defend against it,”so why does it not have its Bar arm nip such suits in the bud before they bloom in the courts?Again, the Bar and the Court are one; what hypocrisy!

And what is the meaning of, “if you do not act in bad faith or with malice….” The courts havehad difficulty forging an adequate definition for those terms. Besides, you thought that absolute privilege in making complaints to the government is supposed to protect you from liability forstatements thus defined. But witness how the pettifogging sophists cavil at their ownconvenience, to make right seem wrong and wrong seem right, to manipulate facts to make twoentirely different things out of one, to prove that English law, no matter how civilly codified isinherently irrational and absurd!




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A frivolous lawsuit by some attorney you complained about may cost you a quarter-milliondollars and your home to boot, not to mention years of emotional distress and perhaps your joband family. Oh, my, it is sure nice to know that it was unsuccessful!

The Bar’s Attorney/Consumer Assistance Program may try to dissuade you from filing a

complaint against an attorney. Be careful of whom you complain about if the Bar does notdismiss the complaint out of hand. The attorney may sue you and ruin your life if the Bar decidesto conduct an inquiry.

There are thousands of complaints filed against attorneys each year. The vast majority of themare routinely dismissed. Forget about ascertaining a pattern of misconduct from dismissed cases:The self-serving administrative rules require that all records including records that there wererecords be destroyed in a year where no probable cause to charge an attorney is found; therefore,if you go to the website and look up an attorney who may have had dozens of complaints filedagainst him, all of which the Bar tossed or found no probable cause to prosecute, his page willstate that there has been no disciplinary action against him. Thus the Bar may also hide its ownnegligence and malfeasance.

Complainants are at a disadvantage right out of the gate: they have to file their complaints under penalties of perjury, but the lawyers do not have to respond under penalty of perjury – the BarRules will supposedly keep them from lying. You may be charged with perjury if you lie in yourcomplaint, for your absolute privilege only protects you from the person you may have defamed; but try to prove that the attorney lied and you may be sued again.

If you believe the above is too bad to be true and is merely hypothetical, you are mistaken: justsee Allen H. Libow and Libow & Shaheen LLP v David Johnson and Jane Johnson, decided inthe defendants’ favor by the Fifteenth Judicial Circuit in Palm Beach County, a decision roundlyaffirmed by Florida’s Fourth District Court of Appeal (Circuit Case No. 2005 CA 003299 AI,

and District Case Nos. 4D06-2242 & 4D08-1014).

In this case a win has thus far been a loss. Mr. Johnson will never recover from the emotionaldamage Libow et al have done, but he has managed to find a lawyer to represent him in acomplaint against the Libows and the Libow law firm for malicious prosecution and abuse of process, filed in the Palm Beach circuit court on January 24, 2011, Case No.502011CA001121XXXXMB). It could take years to win or lose the case, and a win might beanother staggering loss, a pyrrhic victory leaving him and his family destitute.

To whom can one turn to for defense and then plead for recompense for injustice if he hasalready exhausted his family’s savings protecting his family from a malicious prosecution?

Naturally, we might not feel very sorry for the family that has a quarter-million dollars if wehave much less than that, at least not until it has nothing, and even then the envious will be gladabout the loss. Your nest egg may be modest, say, a quarter million dollars, enough to tide youover, perhaps until death if you are protected from catastrophic illness by a good insurance policy. But there is no catastrophic insurance to protect you from unscrupulous lawyers willingto bring a meritless suit against you and put you into financial straits from which you may neverrecover. So forget your principles, pay the sophisticated thugs their protection fee.




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It is with that derogation in mind that we are left wondering whether the Johnsons should havelaid their principles aside to begin with. Maybe they should have coughed up the $100,000 cashMr. Libow and his affluent counsel and father-in-law Arthur W. Tifford demanded to drop thecase in the beginning or else—or else they would use the full extent of their professional privilege to practice law to persecute him for filing a complaint against Libow et al with their

regulatory agency. After all, what good does it do to win a suit against you and lose your life’ssavings and peace of mind?

The 30,000 or so pages public documents are available to anyone who can afford to travel to thePalm Beach County Court and invest a few weeks perusing them, or who can afford to pay$30,000 or so to have the clerk send along images of the pages—the circuit court there like allcircuit courts in Florida other than pioneering Manatee County Circuit Court would rather nothave the public view its documents online although attorneys can e-file their documents. Thefilings in Libow v. Johnson amply demonstrate how persons privileged with licenses to practicelaw in Florida can use the judicial process in Florida to intimidate, silence and virtually destroyanyone who files grievances against them with the government agency responsible for

disciplining them, and may do so without interference from and even with the tacit condonationof the Florida Bar.

The Bar dropped one of Mr. Johnson’s serial complaints the day he admonished its staff to getoff their “bureaucratic asses” before the case wound up on the six-o’clock news. Bar counsel didnot like his “tone” that day; it was summarily decided then and there, as his malicious prosecution at the hands of its licensed members was mounting, that there was no probable causefor his complaint.

Mr. Johnson is admittedly vexatious when vexed; this Southern boy is not someone to wranglewith. He was justly indignant, but indignation over injustice counts for nothing nowadays. Properappearances and correct attitudes are everything nowadays; superficies are everything, the

substance matters not. Displaying the correct attitude can win or lose a cause regardless of itsmerits, a lesson many of us have forgotten since we learned to count to ten. His chances mayhave been a lot better with some tone-counseling. Yes, he could be more even-toned, reasonable,and even complaisantly ingratiating before petitioned authority no matter what imagined and realabuses he might be suffering at the time of his plea, only reverting to an outraged, politicallyincorrect tone off the record, well out of authority’s earshot. Mr. Libow would certainly not be agood tonality tutor. During his perverse legal ordeal, Mr. Johnson observed how Mr. Libowsuddenly changed from cool cucumber in public court to a malignant madman in privatearbitration, using a purportedly bipolar disposition to his Rambo-like lawyer advantage.

However that may be, Mr. Johnson’s trenchant tone, caustic as it may be, should have bounced

off an experienced, buffeted bureaucratic ass like water off a duck’s back. But the Florida Barsat on its thumbs. Mr. Johnson refused to pay tribute to the powers that be, and now he continuesto be stretched to agonizing lengths on the judicial rack. The legal process does not seem torhyme with justice, but he is all in now, pursuing its rotating principle in the judicial casino. Willthe ball land on white or on black? Only fickle fortune can tell at this point.




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Series: The Johnson Ordeal

AN EXEMPLARY LAWYER

BY DAVID ARTHUR WALTERS

Nothing in our series of articles on The Johnson Ordeal is intended to assert or to imply that any

of the lawyers and judges concerned actually committed crimes or breaches of professionalethics in regards to the Johnsons. The Johnson Ordeal is merely a description of what Florida

lawyers may do for a living with the consent and condonation of the Supreme Court of the State

of Florida and its Florida Bar. The issue has been referred to the Florida Legislature inconjunction with its efforts to amend the statute inhibiting Strategic Lawsuits Against Public Participation.




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―David Johnson is a dead man!‖ Col. Arthur W. Tifford, Esq. concluded to himself out loudafter reviewing the plan he had sketched on the big white dry-eraser board erected in the Miamioffice that he called his War Room. His motto was scrawled in red capital letters at the top of his

eraser board, and below that rubric was outlined the battle plan for Libow v. Johnson.

T KE NO PRISONERS

Recruit Judge Hafele – Palm Beach Country ClubPlay Zip Code GameUse Sawyer’s Zip Code - Move Case to Judge HafeleDismiss Small Claim - Fool The Johnsons into thinking it’s overReopen Claim Without Notice – Have Clerk Insert into Docket LaterRewrite History of Case – Fabricate or Twist Facts as Needed

Move to Strike Johnson’s Pleas & to Hold Him in Contempt for FraudNotice of Service to Circular FileSet Hearing for Ex parte Ambush In AbsentiaReview Barred Discovery Docs With Hafele In ChambersHafele Affirms The Johnsons FraudTake Fraud Judgment to Circuit CourtDamn Forever The Johnsons For Fraud on Courts.

The litigious warrior in his tailor-made Brooks Brothers suit turned away from the planning board and paced the office as he was wont to do, circling his war room counter-clockwise withhis hands clasped Napoleon-like behind his back. He paused along the way to gaze affectionatelyat his diplomas from Queens College and Brooklyn Law School, and his admissions to the NewYork and Florida bars and to federal courts including the military court. One plaque on the wall,commending him for his special service to the Treasury Department, delights him the most; helikes to confide to clients that it is really from ―The Agency,‖ to thank him for going on ―specialassignments‖ behind enemy lines in Vietnam. Is there is any truth to that, or to the rumor thatthe Treasury Department actually honored him for turning in a client, the bagman for the BlackTuna Gang, to the Internal Revenue Service?

In any case, he completed his tour of the office behind his desk, where he momentarily stood asif he were a captain on the bridge of a Navy destroyer. He made sure all the pens and the staplerthereon were perfectly aligned with one another before he sat down, and then he proceeded to

examine some papers. He extracted his gold-plated scissors from a top drawer and cut the oneshe did not want into 16 squares before shuffling and discarding them into his wastebasket. Hewithdrew a compass and a Navy SEAL survival knife from a bottom drawer, gazed for a momentat the compass as if to get his bearings, and then sharpened the knife with fierce intent, as if preparing to butcher his worst enemy.

―Yes, indeed, I have him bagged. Johnson‘s a dead man!‖




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The artful representation above is based upon statements provided by a disgruntled intimate whofiled complaints about our exemplary lawyer with the Florida Bar.

The Johnsons‘ hard-earned assets were small potatoes in comparison to Tifford‘s big wins, but a private dick looked at Johnson‘s house, and it was supposed that Johnson would rather cough up

$100,000, what is known in the trade as ―the sweet spot,‖ rather than shell out $250,000 in legalfees to protect his family from the malicious prosecution of the attorneys, who had the enormousadvantage of a legal education and the comradeship of judges, and did not have to hire unrelatedattorneys to prosecute their side of the case. Besides, this Libow v. Johnson case was a familymatter: his daughter Melissa was involved. Wherefore Tifford appears to have masterminded thesearch-and-destroy mission against Johnson and his wife Jane on behalf of his son-in-law, AllenH. Libow, Esq.

On August 24, 2004, the Libow firm filed a complaint against Johnson in small claims court for$1,621 in legal fees after offering to drop them if only Johnson would allow Libow firm tocontinue to represent him instead of allowing Cynthia Becker, an attorney leaving the firm, totake the case with her. Johnson had already paid a $5,000 retainer; the $1,621 was net of several

substantial adjustments made to the account, including a charge for simply calculating the feesand costs, and for a court appearance that was not made. But the balance still included chargesfor research that Johnson had expressly forbade the firm to conduct without his prior consent,which he had not given. Fighting the small claim alone without benefit of counsel and beingoutmaneuvered by Tifford would eventually cost him the small amount claimed plus anassessment of $44,000 in fees and costs for the other side. He made the mistake of filing a privileged complaint with the Florida Bar, for which he was pursued with a specious defamationsuit.

Little did Johnson know that he would be hounded by a bevy of nine attorneys in small claimscourt, and then, after having his motion for a speedy trial dismissed, and after waiving a jury trial

in order to finally get a trial date set, that he would be hoodwinked by Tifford into thinking hiscase had been dismissed so he would not appear for Tifford‘s ex parte ambush, a nd have his caseassigned to a certain small claims court judge recruited for the purpose by Tifford, Judge Donald.J. Hafele, despite his desperate pleas to return it to a judge sympathetic with his disadvantageagainst the bevy of licensed predators, Judge Johnson, who had barred the lawyers fromintroducing discovery documents from circuit court into the county small claims court.

Neither did he suspect that he and his wife would eventually be facing six attorneys at a trial,wherein Judge Hafele, after allegedly being recruited by Tifford for the prior ex parte ambush,dismissed two of the three witnesses Johnson had subpoenaed, and refused to grant acontinuation so Johnson could serve the most important one, Allen Libow himself, who hadmanaged to evade service. Nor did he suppose that the trial judge would ignore the fact that thelaw firm had stated that the file on which the fees were based had been stolen yet also swore thatthe file had been reviewed, and would then doom Johnson, awarding the ravenous pack ofattorneys nearly $44,000 in fees and costs.

Now the layman may think it incredible that a small claims case on a $1,621 claim, where thedefendant is representing himself, would be pursued for over three years, and then more duringthe collection process, by nine attorneys. After all, Rule 7.010 (a) of the Florida Small ClaimsRules reads: ―Title. These rules shall be cited as Florida Small Claims Rules and may be




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abbreviated ‗Fla. Sm. Cl. R.’ These rules shall be construed to implement the simple, speedy, andinexpensive trial of actions at law in county courts.‖ David Johnson‘s fate in small claims courtis sad but true: he was crushed by Goliath.

Our exemplary lawyer, then licensed to practice in Florida and New York, but now disbarred in both states, overcompensates for his slight build and baggy suit jackets with an invisible virtualepaulette or gilded chips on his shoulders. He poses on his website in front of a bookcase filledwith uniform rows of law digests, advertising himself on his virtual shingle as a ―Military Judge‖and as ―Judge Advocate General‖ as if he were in truth no less than General Arthur W. Tifford.

Capt Arthur Tifford, far right, being sworn in as special court-martial military judge with others on August 1, 1969, at the First Marine Division Headquarters in Da Nang

In truth there happens to be only one Judge Advocate General at a time in the Navy, and Tiffordhas never been one. He graduated from law school in 1967 and enlisted. He may have beenrather short but he was tall enough for the United States Marines to mightily boost his self-esteem. He was made a captain and appointed a special-court-martial magistrate attached to the1st Marine Division in Vietnam. A special two-week training course, usually conducted in thePhilippines, was required to become a military magistrate as part of a last-ditch effort to curb




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rampant disrespect for authority and indiscipline among the troops, a state of affairs described asa near collapse of the army.

Tifford is wont to claim that the Marines would have made him a general if only he hadcontinued with his special assignments in the jungles, where he says he personally put many men

into body bags. But he said his wife ordered him to stand down and decline the generalship because she feared gravely for his life. Responsible for the successful court martial of two dozensoldiers including three commissioned officers for marijuana offenses, he was already the mostlikely JAG officer to be fragged by friendly snipers.

Capt. Tifford‘s task as a military judge in Vietnam would normally have been to handlerelatively minor offenses such as marijuana and insubordination. We painfully recall that drugand alcohol abuse was widespread as a means of escape from the anxieties of the Vietnam War.Insubordination was running rampant among the demoralized and disgruntled grunts that madeup most of the ground force actually fighting the war, which seemed from their perspective to bea war on the peasantry on behalf of the Asian feudal landlords supported by Westernreactionaries for whom the promotion of mandatory communal sharing at their expense was a

capital offense.

Lawyers schooled in the English tradition may consider communist affiliations as treasonoussince a communist state has no ―independent‖ judiciary to protect the interests of the propertiedclass. As Blackstone has wisely pointed out, the beginning of the study of English law shouldappertain to its original service to land lords, asserting their legal right to their holdings howevergotten. That is, the prime objective of early English law was to maintain and enhance thedominion of the lords over the realm, with necessary concessions to the populace governed.Sadly, the gentleman lawyer and statesman, left to his own devices in competition with his kindas organized against the rest, becomes a scourge on society as the profession becomes merely a power-hungry, money-grubbing trade.

Vietnam was an opportunity for officers to accelerate their advancement, depending on the bodycounts returned by search-and-destroy missions: the more kills, the higher the pay. If an officerdid not perform in terms of body counts, he would be rotated out for good. Officer tours wereonly half the duration of enlisted men, anyway, which did not suit the rank and file. The casualtyrate among the high ranking officers was very low and the number of officers was large. Thanksto the draft, there was plenty of fodder to risk in procuring higher enemy body counts. Fraggingswere on the rise along with insubordination, which had gotten so widespread that commandershad to negotiate with troops to induce them to go into battle on some occasions, instead of court-martialing and sentencing them to death for refusing to do so.

Capt. Tifford, who left the service as a colonel, claims to have contributed to higher body counts.

He was wont to brag to visitors to his Miami law office War Room that he worked in Vietnam asan interrogator with the CIA, that he always got the information from prisoners that he wanted before they were dispensed with. The notorious Phoenix program to which he seems to alludewas described by its critics as an indiscriminate assassination and arbitrary mass murderoperation designed to terrorize people into submission to dominant authority. Conspiracytheorists claim that the program was rooted in covert operations that included, for example, theassassination of Martin Luther King for his opposition to the Vietnam War, and the assassinationof John Fitzgerald Kennedy shortly after he had decided to withdraw troops from Vietnam. Of




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course patriotic lawyers refer to the Phoenix ―murders‖ as ―extra- judicial killings‖ if not―perfectly legal executions,‖ legal at least according to the law of the land in which the waroccurs. Of course the ancient commandment is ‗Thou shalt do no murder‘ and not ―Thou shaltnot kill,‖ so legalized killing is not murder.

Tifford returned to Florida after a brief stint as an instructor at the Newport Naval Justice School.He then served as an Assistant U.S. Attorney in the Criminal Division of the Southern District ofFlorida, where he specialized in fraud and racketeering. He went into private practice in 1972 asa criminal defense lawyer, defending, for example, members of the infamous Black Tuna Gangaka the Square Groupers in reference bales of marijuana, whose operations stretched fromFlorida and the Caribbean up to Cape Fear — 22,000 pounds of pot on one of their boats wasseized off Cape Fear. But that was a drop in the bucket: according to a defendant in UnitedStates v. Phillips (664 F.2d 971), the gang handled a million pounds of pot in only one of thefour years covered by the indictment. Pot dealers are heroes today; Tifford himself stars in themovie widely acclaimed by potheads, Square Groupers – The Godfathers of Ganja.

Scene from Square Grouper (marijuana bales)

When it became more and more difficult to assert certain civil rights defenses for drug dealers,Tifford turned to representing persons charged with white collar crimes including stock fraud. Hetouts a few big financial kills in the law business, including, most notably, the ones listed in the National Law Journal‘s ‗Top 100 Verdicts‘ for 2001, 2003, and 2005. The awards total in thehundreds of millions of dollars, probably more that the total take of the Black Tuna Gang, but theliquidated value was far less. Suffice it to say that Tifford should be a multimillionaire today.

Civilian judges familiar with him call him ―Colonel Tifford.‖ We do not have his service record

at present, but it appears from the autobiographical material on his website that he was on activeduty for about four years. During the planned March 26, 2007, ex parte ambush of the Johnsons,he represented to Palm Beach County Court Judge Donald W. Hafele that he is a retired colonel,having serving the nation in the Marines for thirty years:

―Now, Mr. Johnson's portraying himself as ignorant and the victim of an overreaching law firm,frankly, is part of his modus operandi, which goes beyond what is relevant to the Small Claimsdispute,‖ he averred. ―We've confronted (the) Circuit Court action almost to a disgusting level.




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And I would use that word even if he was standing here facing me during this hearing. What hedoes is he attacks attorneys. He even attacked me three times during the first two sessions of hisdeposition, calling me a — I'll use the abbreviation — AH, calling me a convicted felon, accusingme of being in prison and having a cell mate, and on and on. I could only say that when I retiredmy commission from the United States Marine Corp. (sic) I'm a Reserve, as a colonel, I didn't

think anybody at headquarters Marine Corp., during my 30 years with the Corp., ever thought Iwas in prison and had a cell mate with a cell number, but that's another story for another day.‖

As a matter of fact, we can say today that Colonel Tifford was arrested, jailed, and convicted bya jury in 1975 of two felony counts for conspiring to aid his client A.K Bronstein avoid detectionand arrest, and thus was charged with being an accessory after the fact. By virtue of a federalwrit of habeas corpus, he was released from the custody of the Florida Department of OffenderRehabilitation in 1978. The state appealed and lost. The Supreme Court of Florida said thefederal decision was tantamount to an acquittal, but the Florida Bar was free to make inquiries before reinstating Tifford to the bar. No inquiries were made, possibly because there was sometruth to the rumors that he was protected by the CIA or Treasury. He was reinstated without anyinquiry.

No doubt Tifford was projecting his Vietnam experiences onto Johnson, whose attacks onattorneys, namely on the bevy of attorneys banded together to pursue him and his wife to helland back in the small claims, circuit, and appellate courts, constituted a sort of insurgencyagainst the noble patriotic profession rightfully dominating the nation.

Tifford‘s paranoia around the enemy led him to believe that Mr. Johnson had directly referred tohim in anal terms because Johnson had said that, although he was not a proctologist, herecognized an ―asshole‖ when he saw one.

―So, it's your word against Mr. Libow as to whether or not you threatened him and his wife and

his children in that phone conversation?‖ asked Tifford, referring to Libow‘s allegation, whichhe had made to the police — Johnson was not charged with anything, and claimed to the FloridaBar that Libow had made a false police report to put further pressure on him to settle theirdispute.

―He never made any allegation that I did,‖ Johnson answered.

―He didn't?‖

―No.‖

―Well, what was that police report all about?‖

―He made the police report because he didn't realize they were going to ask him for hisdocumentation.‖

―Really?‖

―Yes.‖

―In addition to self -education, are you also a clairvoyant, Mr. Johnson?‖




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―Objection as to form, argumentative,‖ interjected Mark Perry, Johnson‘s lawyer.

―No.‖

―The facts are---―

―I'm not a proctologist either, Tifford, but I recognize an asshole when I see one.‖

―Well, stop looking at me when you speak those words.‖

―How apropos.‖

―Do you have anger issues, Mr. Johnson?‖

Johnson had every right to be angry with his flame-throwing provocateur — some rabbis say it isa good thing to hate your persecutors, especially when they want to cut your throat and sacrificeyou to the pagan gods in a holocaust — the primitive priests got the fat, liver, and kidneys, whilethe gods got the smoke. Besides, Johnson was simply reciting a wisecrack bandied about by

wiseacres. At the very most the anal reference might refer to any lawyer, or to Alaska residents because it is a term of endearment in that state. But the term stuck to Mr. Tifford as far as Tiffordwas concerned. He took it as a personal offense, and would indignantly complaint to JudgeHafele about it. He and the judge no doubt thought that the vocalization had slandered everymember of bar and bench, as if an asshole were their common denominator.

The proctology statement came during a December 22, 2006, deposition Tifford took of Mr.Johnson in the related circuit court case, where he was representing his son-in-law‘s firm. Thelaw firm of his son-in-law, Allen Libow, had sued both Mr. and Mrs. Johnson for defamation because Mr. Johnson had filed a disciplinary complaint against him with the Florida Bar for hisaggressive fee collection tactics, comparing him to the notorious outlaw, Jesse James. Johnson‘simpassioned letter of complaint to the Florida Bar deserves quoting in full:

August 16, 2005

The Florida Bar

651 E. Jefferson Street

Tallahassee, Florida 32399-2300

To Whom It May Concern:

On January 20, 2004 I retained the legal services of Ms. Cynthia Becker to

represent me as the Plaintiff in a civil action against a Realtor. Ms. Becker was at

the time of retention an associate of the law firm of Libow & Muskat LLP in BocaRaton, Florida. On or about June 4, 2004, I received a phone call from Cynthia

Becker, informing me that she was leaving the firm of Libow & Muskat and

starting her own practice. She advised me that she was taking, “her clients” with

her and asked me if I was amenable to that. I had a five-figure sum of money

invested in this litigation and a very important motion scheduled for hearing just

days away.




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This, after a four-month delay, which was the result, I am told, of the failure to

file the proper documentation with the court in a timely manner. That delay was

coupled with an additional $3000+ in legal fees. However, I acquiesced and a

retainer agreement and substitution of counsel was e-mailed to me the same

day by Ms. Becker.

Shortly thereafter I received a telephone call from Allen Libow. Up to that point I

had never had any interaction or communication whatsoever with anyone at

Libow & Muskat other than Ms. Becker.

The phone call from Mr. Libow turned out to be a concentrated effort by him to

talk me out of allowing Ms. Becker to represent me. Initially, Mr. Libow limited

his sales pitch to expounding on the virtues of “his firm’s” legal expertise and

resources. It soon digressed into defamatory remarks about the integrity and

competence of Ms. Becker, whom he claimed was working out of a suitcase. His

derogatory remarks about a fellow attorney caught me off guard.

Please keep in mind that I had an important hearing that was scheduled just days

away. According to invoices received from Libow & Muskat, most of the

additional fees were for “legal research” done by Ms. Becker in preparation for

the impending hearing. This hearing was originally scheduled for February. I was

originally told that the hearing had to be rescheduled because of some faux pas

by opposing counsel. Mr. Libow was eager to tell me that the hearing had

actually been rescheduled because Ms. Becker had failed to file the proper

documentation with the court in a timely manner. Mr. Libow spent the better

part of half an hour trying to convince me to let his firm represent me. His sales

pitch consisted primarily of disparaging remarks about Ms. Becker’s competency

and integrity. When I mentioned the excessive fees, he told me that Ms. Becker

had a bad a habit of “over billing her clients for legal research”. He told me that I

was only one of many clients of Ms. Becker that had complained about excessive

fees. He went on to tell me that because of that, he was forced to make

“adjustments” to the bills of some clients. I was told that in one case that the

“adjustment” was nearly $11,000. During our conversation, Mr. Libow

repeatedly offered to “wipe the slate clean”, saying that I wouldn’t “owe him a

dime”. The more I resisted letting Mr. Libow represent me, the more

defamatory his remarks with regard to Ms. Becker became.

He told me of how ungrateful she was, as he had made a lot of effort toaccommodate her “special needs”. (Ms. Becker uses a wheelchair.) He told me

she was, “fired from her last job for incompetence”, and, that if I had any hope

of prevailing in my litigation then I would let him and “his firm” represent me.

The insults poured out of this man like rain. It didn’t take me long to develop a

strong dislike for Mr. Libow. I politely terminated the phone call from Mr. Libow

with a promise to call him back after speaking with my wife about the




Page 10 of 23

developments. His parting comment was, “remember, you won’t owe me a

thing, we will start with a clean slate”.

My wife and I were devastated by these developments. We had all this time,

money, aggravation and emotion tied up in this litigation and through no fault of

our own here we were in the middle of a war between two attorneys. I waitedmore than an hour before calling Ms. Becker. I needed the time to gain my

composure and get in the frame of mind to decide how I was going to handle this

situation.

My wife and I decided that, at this time, it would serve no purpose to inform Ms.

Becker of all the venomous comments of her old boss. We needed Ms. Becker to

represent our interests at this upcoming hearing and we didn’t want to say or do

anything that might detract her from that task.

When I finally phoned Ms. Becker I did tell her that we had been contacted by

Mr. Libow.

Without going into very much detail I told her that her old boss was not very

happy about her sudden departure. I also told her of some of his comments and

of his offer to “wipe the slate clean”. She told me that Mr. Libow had phoned her

as well and that the phone call had ended up in a screaming match. We talked

about many issues including the upcoming hearing. Ms. Becker was very

confident of our position and the probabilities of prevailing. As such, we told her

to e-mail us her Retainer Agreement and the consent To Substitution Of Counsel.

She did, we signed them both and faxed them back to her.

As promised, I phoned Mr. Libow back to advise him of our decision. To say theleast, he was not happy. It was more of the same. I had had just about as much

of Mr. Libow and his venom as I could stand. I told him so, and hung up the

phone. Mr. Libow’s quest for revenge began almost immediately. He refused to

sign the consent form for substitution of counsel. In an effort to glean more fees

and drive up my expenses he set what would ordinarily be a routine matter for

docket and hearing before the court.

On 7/7/2004 I received the attached demand letter (exhibit A) from Chad Laing,

an associate of Libow & Muskat. My problems with this demand letter were

twofold: 1) Per Mr. Libow, I was “over-billed” by Ms. Becker, and 2) when last

we spoke, Mr. Libow told me that in light of said “over-billing” that, “I didn’t owehim a dime”. I sent the attached response by e-mail (exhibit B) to Mr. Laing the

same day I received his demand and asked him to substantiate his claims.

A week later I received the requested information. Attached are the last two

pages of that document (exhibit C). You will notice that Mr. Libow seeks to

charge me $397.57 for efforts that his associate(s) allegedly made to comply

with my lawful request for substantiation of their claim. According to the revised




Page 11 of 23

bill it took his associate(s) 1.80 hours at $200 an hour to mail me a 13-page

computer generated document. You will also notice that the alleged work was

done on 6/29 and 6/30, a full week before my request of 7/7/2004. As you know,

State and Federal law mandates that Mr. Libow is statutorily obligated to invoice

his clients without benefit of remuneration. Mr. Libow also knows that.

Jessie James used a horse and a six-gun to carry out his robberies. Mr. Libow

uses a computer and the United States Mail to carry out his. I have since been

told by Ms. Becker that what happened to me was not unique, but was in fact

standard practice with regard to what Mr. Libow considered to be his “less

sophisticated clients”.

In response to Mr. Libow’s revised demand, I sent him a certified letter (exhibit

D) advising him that among other thing I did not consider his invoice to be a valid

debt. I cautioned him of the likely consequence should he persist in his demands.

At the same time, I e-mailed a copy of that letter to his office. When Mr. Libow

and/or his associates tried to contact me by phone that same day I sent themthe attached e-mail (exhibit E) dated 7/15/2004, advising them that all

communications between us should be reduced to writing. My experience with

these people up to that point was a strong indication that they could not be

trusted. In light of that I thought it best that all communications between us

should be in writing, and so they were.

Mr. Libow persisted with his demands and a torrent of e-mails went back and

forth between us. My impression of Mr. Libow was that he was a spoiled brat

that was accustomed to getting his way. He had no regard for whom he hurt,

whom he slandered or whom he stole from. Mr. Libow was the center of his own

universe and everything revolved around him. It was becoming equally apparent

that there was no depth to which this man would not stoop to gain some

advantage. At one point Mr. Libow accused me of being anti-Semitic. (exhibit F)

In another, he accused Ms. Becker of among other things, civil theft (exhibit G).

The only thing I ever threatened Mr. Libow with was legal action if he did not go

away and leave us alone. I never once threatened to do anything unlawful or

physical to Mr. Libow or anyone else. At this point all communication between

us had been via e-mail, so, this is an easily verifiable fact. However, that fact

would not prevent Mr. Libow from contacting the Boca Raton Police Department

and the Jacksonville Police Department, concocting a story and filing a falsepolice report. He claimed that I had made physical threats against him and that

he and his family were in eminent danger of physical violence from me. (exhibit

G “1”)

This attorney, made a calculated effort to gain some advantage in this civil

controversy and at the same time avoid his ethical obligations as dictated by

(DR-7-105 rules; 4-3.1, 4-4.4, 4-8.4 (c) and 4-8.4(d)). Apparently this pathetic




Page 12 of 23

excuse for a man went home and convinced his wife that she and her children

were in eminent physical danger from me. This obviously had the desired effect

on Ms. Libow and a police report claiming imminent physical violence was filed

against me with the authorities.

This incident speaks volumes as to the character and total absence of ethics inMr. Libow. Now one of two things has happened. Either this man had no

compunction whatsoever about frightening his wife and children in a calculated

attempt to gain some advantage in this controversy, or his wife is his co-

conspirator. I don’t believe the latter to be the case. I suspect that it is possible if

not probable that Mr. Libow modified (forged) some of the e-mails in order to

accomplish the desired effect on his wife. Also, I am told that his wife is on the

verge of divorcing him for other transgressions; perhaps this is why he had no

compunction about scaring her and involving her in this controversy.

An example of Mr. Libow’s propensity for and expertise at twisting the truth to

suit his psychotic agenda can be found on exhibit “G”. After convincing his wifeto file a (false) police report on me, he says, “I too will be forced to provide an

information statement concerning your physical threats of “taking me task ” etc”.

Well, on the third from last paragraph of exhibit “D” you will find the quote that

he refers to. In total it says that I will, “seek every lawful remedy available to me

under every relevant authority to take you to task for your transgressions.”

Now, you have to be a pretty creative, twisted, lying son of a bitch to convince

your soon to be ex- wife to report that to the police as a “ physical threat ”. This

man deserves to be disbarred. He is a pathological liar. He is intellectually and

emotionally unfit for his position of trust in the community. And he is a disgrace

to his profession.

I have just learned that on August 4, 2004 Mr. Libow sued my wife and I in Palm

Beach County Court. He could have simply filed his threatened charging lien. But

no, that wouldn’t allow him to inflate the costs and expenses would it?

Mr. Libow has wrought untold damage on my wife and I. The litigation that we

are so heavily invested in is falling apart, thanks in very large part to Mr. Libow.

Something needs to be done to protect the public from the likes of Mr. Libow

and his band of thieves. I believe that’s your job.

Sincerely,

David & Jane Johnson

Cc Florida Attorney General’s Office

The Federal Trade Commission

Governor Jeb Bush




Page 13 of 23

Mrs. Johnson had not actually signed the Bar complaint, but apparently Mr. Johnson had signedhis name alone at the bottom between ―Sincerely‖ and “David and J ane Johnson,‖ so Libowadmittedly made her a party to the suit in hopes of getting all the Johnson property whether held jointly or severally, something that would irk David Johnson to no end.

Johnson would later infer from court records that Libow‘s firm, with the assistance of Arthur W.Tifford, Libow‘s father -in-law, appeared to have quite a racket going, and he supposed that hewas one of their unwitting victims. All told, he said that 81 of clients of Libow‘s firm wouldeventually be sued after their lawyers departed the firm. For example, one lady who allegedlyowed only $187 wound up settling for $11,000 rather than pay an attorney to defend a claim formore. As for departing attorneys, Johnson said he counted 12 attorneys who sued Libow afterthey departed. That information was reported to the F.B.I. in 2014, along with hearsay allegingthat Tifford asked his son-in-law to help him set up an offshore account to keep Tifford‘s fortunesecure.

Johnson did not actually send copies of the letter to the Florida attorney general and governor,and the Federal Trade Commission. Even if he had done so, reasoned the appellate court in his

favor, the publication to agencies besides the Florida Bar would not make the communicationactionable as defamation because we cannot expect people to know exactly what governmentoffices are responsible for handling particular complaints. Indeed, many complaints feel like ping pong balls after being paddled back and forth between government agencies.

Johnson‘s counterclaim against the Libow‘s firm was that it had violated debt collection andtrade practices law.

Fee shakedowns were nothing new to Florida at the time. David J. Stern would become notoriousfor running a mammoth ―robotic litigation‖ operation, signing and filing false affidavits inforeclosure cases after the Great Recession led by Florida‘s overheated real estate collapsed. As

far back as 2000, Stern had been ripping off clients for excessive fees. Characteristically, theFlorida Bar did not follow through back then on its original suspicions that Stern had actedcontrary to honesty and justice, collecting excessive fees and making false statements, and otherunethical behavior. The Florida Bar via the Florida Supreme Court merely doled out the lowest possible discipline, a public reprimand. He settled a class action suit regarding questionable feecollections for $2.2 million in 2000. Another class action suit filed 2009 in Palm Beach County,the very county where Libow was operating, sought damages under Florida‘s debt collections practices statute and Florida‘s Deceptive and Unfair Trade Practices Act. Other causes of actionstated by various plaintiffs included causes under the Federal Debt Collections Practices Act,Racketeer Influenced and Corrupt Organizations Act, and securities fraud. So, while Stern‘s business grew to have 1,200 employees, becoming, in 2010, the largest foreclosure filer inFlorida, processing upwards of 75,000 cases a year, with each lawyer handling 2,500 cases at atime, he was gaining a reputation for malpractice violation of ethical standards.

During the course of the Libow vs. Johnson small claims court litigation, at the February 1, 2005,hearing in the Palm Beach County Court, one Eric J. Stockel, a lawyer with Libow‘s firm, Libow& Shaheen LLP, now representing Libow‘s former firm, Libow & Muskrat LLP, and alsocounter-defendants and counter-plaintiffs Allen and Melissa Libow, against whom the Johnsonshad filed a counterclaim which they had to counter, indicated that the Libows were counteringthe Johnsons counterclaim against them with a suit against the Johnsons for defamation, claiming




Page 14 of 23

damages in excess of $15,000, an amount that would require moving the case to the circuit courtwhere the complicated rules of procedure would apply. That would force David Johnson, whowas appearing pro se without benefit of counsel, to go to the expense of hiring a lawyer todefend himself and his wife, while the Libow firm kept the case in house at no expense to thefirm other than court costs. Stockel said that since the small claim had been filed on August 4,

2004, a great deal of correspondence had gone back and forth between the parties, therefore thedefamation counterclaim for relief in excess of the court‘s $15,000 jurisdiction.

Judge Debra Moses Stephens said she could not see how there could possibly be more than$15,000 in damages. Stockel responded that, according to the rules of general pleading, theactual amount of damages does not have to be stated: all you have to do is say they are more than$15,000.

THE COURT: Okay. If you would please be patient with me and help me tounderstand, I do not understand how you can get yourself into Circuit Courtwithout saying specifically what your damages are that bring you there.

MR. STOCKEL: Again, the general rules of pleading and it‘s a notice state, asYour Honor is aware, you just need to present the allegations that the claim is being brought in excess of the minimum jurisdictional requirements of that court.In this case for defamation we‘re seeking, you know, the damages sought thereto,the publication of that, the filing of certain documents with both the Florida Barwhich is permitted but Governor Jeb Bush, the Federal Trade Commission, otherareas where that was sent…..

THE COURT: Thank you. And the reason I‘m going over this with you socarefully is because the last time we were here Mr. Johnson had filed acounterclaim which claimed a jurisdictional amount that would have put it in the

Rules of Civil Procedure and he withdrew that jurisdictional amount because he believed that if he went into – if they used the Rules of Civil Procedure that hewould be completely lost.

MR. STOCKEL: Okay.

THE COURT: And so it seems strange that now we come back and have a -- nowa lawsuit filed in which in effect takes it into Circuit Court. I have to be very surethat – and this is no reflection on you but just to state because the Court has to beneutral, I have to be sure that bringing this into Circuit Court is not a ruse to getwhere you want it to be prior to this.

MR. STOCKEL: I understand, and I anticipated Your Honor questioning me onthat. Subsequent to that hearing in the meantime there have been severalcorrespondences back and forth via e-mail and regular mail. This is not a matterof the record at this point in time, and I present it to Your Honor with theacknowledgment that Mr. Johnson has not seen a copy of this document. We believe this is a letter that Mr. Johnson prepared and sent to Melissa Libow andwould support this evidence of the def amation claims….




Page 15 of 23

THE COURT: Mr. Johnson, it‘s probably time to get you in on this. Did you senda letter to Mrs. Libow?

Mr. JOHNSON: No, ma‘am, I certainly did not.

THE COURT: You haven‘t sent anything to her?

MR. JOHNSON: No, ma‘am, I certainly did not.

THE COURT: You haven‘t sent anything to her?

MR. JOHNSON: No, ma‘am. And if you‘d like to swear me in, I‘ll swear to it.

David Johnson had already been worried to no end by the lawyer who had engaged him in thecomplicated legal process. He sat down and wrote another letter to the Florida Bar, referencingemail exchanges with Libow:

October 12, 2004

The Florida Bar

5900 N. Andrews Avenue

Cypress Financial Center, Suite 900

Fort Lauderdale, Florida 33309

Attention: Lillian Archbold and Joel Klaits

Re: Recent Threats and Extortion Demands from Allen Libow.

See attached e-mails

Dear Ms. Archbold and Mr. Klaits:

Attached are the most recent e-mails between Allen Libow and myself. Please

take note that Mr. Libows threats have taken on a more psychotic tone. Mr.

Libow initiated contact, I responded.

The first e-mail is from Allen Libow to me. It is dated 10/08/2004 @ 2:25pm. Mr.

Libow has taken exception to one of the nine grounds for a change of venue that

are enumerated separately within said motion for change of venue. He threatens

me with a 57.105 action unless I agree to withdraw the motion in total. Attached

as Complainants exhibit “Z” is a copy of the motion to which Allen Libow refers.

The second e-mail is from me to Allen Libow. It is dated 10/09/2004 @ 6:10pm. I

respond to Mr. Libows threats. I advise him that I acted in good faith. I advise

him that the alleged agreement that he attached to his civil suit was in fact an

un-dated un-executed copy. I felt that an undated unsigned agreement would be

unenforceable, so, I included that position as one of nine (9) enumerated within

my motion for a change of venue. In the e-mail, I go on to expound that, my

allegation (the one he took exception to) was supported by his evidence and




Page 16 of 23

thus a lawful point to be made. I suggest that he do some case research to verify

same. Mr. Libow does not take any exception to that argument. I advise him that

I hope to see him in a court of law here in Jacksonville. In describing his chances

of success with regard to his civil suit against my wife and I, I carelessly used the

word “doom”. I temporarily forgot Allen Libow’s propensity for twisting

whatever someone says into something that will f it within his “psychoticagenda” du jour.

The third e-mail is from Allen Libow to me. It is dated 10/11/2004 @ 10:53am.

Mr. Libow wastes no time twisting my words. He has seized upon an opportunity

to revive his wild accusations of “physical harm or death”. He insinuates that I

plan to smuggle a weapon to court and reminds me that they have a, “metal

detector”. He goes on to say that he will enlist the services of a police officer to

escort he and his associate from the parking lot to the courthouse. Not

surprisingly his position is an exaggeration to the extreme. I believe him to be

mentally unstable. That makes him dangerous to himself and others.

The forth e-mail is from me to Allen Libow. It is dated 10/11/2004 @ 11:38am. I

make an effort to set the record straight. The e-mail speaks for itself.

The fifth e-mail is from Allen Libow to me. It is dated 10/11/2004 @ 4:06pm.

This e-mail also speaks for itself. Mr. Libow is delighted that we (my wife and I)

“never really had a lawyer”. He subsequently DEMANDS that I provide him, “with

available deposition dates for you and your wife over the next three weeks”.

This, for a $1,600.00 lawsuit in small claims court that he reasonably should

know has no such provision or requirement. He further advises that should I fail

to succumb to his demands that. “I will unilaterally set the dates for you and

your wife”. He then proceeds to try and extort money from us. He says, “my wife

and I will walk away for $100.000.00”. He ends by claiming that his extortion

attempt is in fact “a proposal for settlement” and thus “inadmissible in any

proceeding before a court of law”

How much longer is Bar Counsel going to permit this psychotic misfit to abuse

the process of law. This lawyer is totally out of control and uses the legal system

not as a tool for resolution but as a weapon of harassment and intimidation. This

is without a doubt one of the most psychologically disturbed individuals that I

have ever encountered. Something must be done to protect my wife and I and

the rest of the public from this mentally un-balanced individual.

PLEASE ADVISE, ASAP

I remain sincerely,

David Johnson




Page 17 of 23

CC by fax to the law office of Libow & Muskat

Attention: Allen Libow

Libow and Johnson had exchanged several other rather heated if not flaming emails inconjunction with the small claims case. Libow offered to settle the case for $100,000 or else,

implying that he would bury Johnson in the perverse legal process if he refused. At one point, aswe have seen, he called the police to say he had been threatened, and he even accused Johnson ofa hate crime because he, Libow, happened to be Jewish.

Libow even went so far in one of his email communications to identify Johnson with the January2005 murderer of Libow‘s babysitter, Shanette Jones, and her two daughters, Ashley and JoannaRobinson — the family had made a lot of money in real estate; Libow would represent ShanetteJones‘ parents in the wrongful death civil suit. Most alarming was Libow‘s ―CAPE FEAR‖ emailto Johnson. Johnson did not realize that he was dealing with a legal mafia whose main stock intrade is legalized extortion, so he filed the complaint with the Florida Bar.

Little did Libow and Tifford know that Johnson would rather die in battle than abandon his ship

to a piratical Black Beard carrying letters patent — a law license. The defamation case in circuitcourt dragged on and on, as did the small claims case in the county court, thanks to the dilatoryand vexatious tactics of the Libow faction in its futile effort to shake Johnson down. A smallclaims case is supposed to be resolved in at least six months, but over four years passed while allthe while Johnson was begging for a speedy trial. Still, Johnson was not about to be extorted bythe legal profession: he was a pitbull clenching the bone of justice, far worse in terms of tenacitythan the lawyers the Bar tried to discipline for advertising themselves as pitbulls. He himself hadsaid he would be willing to use the lawyer‘s tactic, burying his opponent in legal minutia, ratherthan pay a bill that was not due, although he had not actually done that in the small claims casenor had his attorney Mark Perry resorted to it in the circuit court case.

Johnson, being deposed by Tifford on December 22, 2006, was referred to what he had written inan email exchange with Libow in 2004:

"Buy yourself a helmet. Before I send you $2,000 that I don't owe you, I'll spend ten times thatmuch to bury you so deep in litigation and legal minutia that you won't have time to scratch yourass."

Recognizing legal extortion for what it was, extortion, Johnson had even dared to pronounce it assuch during the deposition:

―If you think I'm going to roll over and write you a check,‖ he explained, ―you have got anotherthing coming. You better prepare yourself for a battle, because I'm letting Mr. Libow know that I

am not going to be like the other 20 people that you and he managed to extort some settlementout of by threatening them.‖

―Did you just accuse me of extortion, Mr. Johnson?‖ Tifford asked, as if his professional had notlegalized extortion for its own benefit as well as its clients, twisting arms behind people‘s backevery day so that the wealthy power elite with superior resources might win their cases without atrial.

―What are we sitting here for right now?‖




Page 18 of 23

―Excuse me, Mr. Tifford,‖ interjected Johnson‘s attorney, trying to interrupt a line of questioningobviously intended to imply that Johnson was defaming him by accusing him of the feloniouscrime of extortion, although knowing full well that Johnson had resorted to what is known in thedefamation trade as hyperbole, which is not actionable in Florida defamation cases if the judge inhis infinite wisdom feels he wants it to be hyperbole instead of a statement of fact. As far as

Johnson was concerned, it was defensible as a true statement; extortion is what lawyers regularlydo and have a license to do: they extort concessions from people, which is perfectly legal andethical according to the courts and bar associations. But lawyers have difficulty calling a spade aspade when they are the spade.

No doubt former judge advocate Tifford was convinced that he had an insurgent, a ‗Charlie,‘ before him on the grill, one that should be bulldozed into a pit with the others after being grilledand stripped of his life.

―Is what we are doing today extortion, Mr. Johnson?‖

―Mr. Tifford…‖ Perry tried to intercede again.

―Oh, my God, yes,‖ Johnson confessed.

―Okay, continue….‖

Now Tifford had more ammunition he could use against Johnson, purportedly a confession thatJohnson was not only a ―contenacious‖ (sic) person but a slanderer as well! The circuit courtcase was all about defamation. And Tifford would introduce this circuit court deposition in smallclaims court at the March 26, 2007, ex parte hearing before Judge Hafele, contrary to three courtorders prohibiting him from introducing any discovery whatsoever.

Furthermore, during the December 22, 2006, deposition, Col. Tifford, the Rambo litigator posing

as a gentleman lawyer, would imply that Johnson was what any insurgent worth his rice paddymust be, an armed terrorist. Tifford dwelled on Johnson‘s email advice to Libow after Johnsonhad perceived that Libow was trying to extort money from him:

"Once your threatened bullet has left the barrel, no matter what you do, you can't recall it. If youare of a mind to take that shot, then that is your prerogative. Be advised that after you do, youshould clear your calendar and buy yourself a helmet."

Of course Tifford knew very well from his history lessons that our modern trials evolved fromtrial-by-combat, where might rather than right proved the case, and he was determined to beatJohnson to a pulp over his metaphors, pretending they were not metaphors.

―Do you know what a metaphor is, Mr. Tifford?‖ posed Johnson.

But of course Tifford knew what a metaphor was — an opportunity to take it literally to prove aman mad enough to assault a lawyer ala Cape Fear .

―I'm asking you, what was the helmet for, Mr. Johnson?‖ Tifford persisted, no doubt recallingthe feel of the helmet he sometimes wore in Vietnam.

―Do you know what a metaphor is, Mr. Tifford?‖




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―Are you going to answer my question?‖

―It was a metaphor.‖

―Was it really a metaphor?‖

―Yes.‖

―It wasn't a threat, Mr. Johnson, to do physical violence? Was it a threat to do physical violence,Mr. Johnson?‖

―No.‖

―You didn't have a flashback to any of those earlier assaults and batteries…‖

―Objection.‖

―…you told me about, Mr. Johnson?‖

―Objection. Don't answer the question. We'll go to court on that one.‖

―Did you have a flashback to those earlier assault and batteries?‖

―No.‖

―Not a single one?‖

―No, because, you see, Mr. Tifford, unlike your client, I'm not psychotic. I don't take any psychotic drugs.‖

―David, just answer his questions.‖

―I don't smoke dope. I don't take Effexor or things like Xanax…‖

―Keep it coming, Mr. Johnson.‖

―…or smoke dope and hashish. I don't do any of those things.‖

―You just take people in the back yard and beat them up, if they have got it coming.‖

―Let's take a break,‖ Perry suggested, noting that the proceeding was becoming too argumentative.

No doubt former U.S. Marine judge advocate Tifford, perhaps himself having an acidic―flashback‖ to Vietnam given the popularity of LSD back then, must have figured he was bringing out the ‗Charlie‘ in Johnson. After all, Johnson had emailed Libow that arrogance andstupidity go hand in hand, and that he had ―taken to school‖ several people who could only learn by experience, spending considerable time and money in doing so. He stated in the depositionthat he was referring to a company he worked for; that it took debtors to court; that he made thedecision whom to pursue, taking into account any legitimate excuses the debtors might have, butif someone told him to go to hell, refusing to pay, he sent them to school i.e. court.




Page 20 of 23

The drug references were related to Libow‘s admission to taking prescription drugs to allay hisanxiety, and to rumors from alienated partners that he had inhaled; the legal profession‘s―grunts‖ are as disposed to resort to such escapes from combat fatigue and hysteria as were thegrunts in Vietnam — the Florida Bar diverts lawyers to rehab programs to salve the symptomsinstead of disbarring them, but that does not extirpate the roots of the contention disease, for that

would end the practice of law as we know it. Alas that drugs prescribed by psychotherapists canmake the cure worse than the disease. Johnson had no sympathy for Libow after an attempt atChristian charity was rebuffed, but an examination of the public records in this case gives ussome cause for sympathy with Libow, whom Johnson called ―crazy as a shithouse mouse‖ in thedeposition, and to wonder why his father-in-law did not get the beleaguered lawyer into rehabinstead of a monumental defamation case.

As for the Tifford‘s reference to assault and batter ies, Johnson had gotten into fisticuffs betweenwhat he would call ―consenting adults‖ some thirty years prior, brawls that he referred to astaking opponents to school in the alley. He would insist that they were harmless fights which the police broke up, arresting him for brawling, but no one was hurt, and his record is clean becausehe was never convicted of assault and battery.

Now Tifford might have been pleased with the results of his interrogation of Johnson in thecircuit court case at the time, for he would some of the results as ammunition in his ambush.Mind you that it was not going well at all for Libow or Tifford when Tifford decided to ambushJohnson in absentia at the March 26, 2007, ex parte hearing in the small claims court. JudgeHafele was either defrauded in that hearing or had been enlisted into the plot by the Libowfaction, perhaps at a country club if not elsewhere.

Bar counsel sat on the Johnson‘s complaints and follow ups, causing Johnson to refer to their bureaucratic asses, a reference that appears to have forever doomed his complaints to the circularfile from which they could not retrieved after one year.

The defamation case would wind up in the circuit court and the fee claim would stay in the smallclaims court. Ultimately Johnson would lose the fee case, and the defamation case would be pursued against him in the circuit and appellate courts until he finally won years later.

Although another small claims court judge, Judge Johnson (no relation), had expressly prohibitedLibow from introducing information discovered in the circuit court process in small claims court,Tifford, with small claims court Judge Hafele on board, planned all along to use material from aDecember 22, 2006, circuit court deposition Johnson in an March 26, 2007, in a small claimscourt ambush. The masterful trickster had led Johnson to believe the small claims court case had been dismissed, but he had the case switched over to Hafele over in the North Palm BeachCounty courthouse for an ex parte hearing, surreptitiously reopening it behind Johnson‘s back.

The Honorable Donald W. Hafele, who had served in the county small claims court since 1999,would be referred to as the ―Big Fixer‖ after he was appointed in 2008 to the Palm Beach CircuitCourt by Governor Crist (who was a great friend of now imprisoned fraudster-lawyer Scott W.Rothstein) allegedly for the express purpose of hearing litigation over the governor‘s grandiose$2 billion plan to restore the Everglade‘s ―missing link‖ by buying all of U.S. Sugar‘sagricultural land there so it could be returned to a more or less pristine state in order to allowwater to flow naturally, south from Lake Okeechobee to the Everglades. According to




Page 21 of 23

anonymous West Palm Beach detractors venting on the Internet, the judge is so dishonorable,dishonest, abusive, unethical, prejudiced, biased, and ego-maniacal that he has been called ananti-Christ in some judicial corridors. He allegedly accepted biased testimony from businessassociates and fixed cases for friends. Further, he is allegedly erratic, angers quickly, and isgenerally a jerk whom West Palm Beach voters should have gotten rid of long ago when he

berated jurors for acquitting someone. He is allegedly a racist, a white Yankee boy who thinks black churchgoers near his home make too much noise during services. Furthermore, thegovernor and the good old boys of the Florida Bar, which he has served as a referee overdisciplinary cases, love him dearly.

Honorable Donald W. Hafele

On the other hand, we hear from Judge Hafele‘s anonymous supporters that he is acompassionate and caring human being who volunteers his time helping people with drugaddiction and keeping juveniles away from drugs and crime. He said he enjoyed doing pro bonowork so much that he decided to get out of private practice and become a judge so he could dothe community some good on a full time basis. He allegedly enjoyed sitting in criminal cases

because he felt he was helping people, particularly the drug addicts whom he diverted to rehabinstead of sentencing them to jail. He is so beloved by some convicts that they thank him forconvicting them. His order of priorities is God, family and friends, and job satisfaction, Not onlyis he kind and considerate, it is said, but he is man of integrity, a great jurist, an asset to the bench who deserves in every way to be called Your Honor.

In any case, Tifford was with good reason anxious to get his son-in- law‘s small claims case before Honorable Judge Hafele in order to prolong Johnson‘s misery. If Tifford did not dosomething soon, both the small claims case and the circuit court case would be done with, andthe predators would lose their prey altogether and be subject to a suit for malicious prosecutionand abuse of process, not to mention their potential liability for fees and costs. Mind you that 38of the 41 counts of defamation against Johnson had already been dismissed in the circuit court

and affirmed on appeal. The dismissal of the remaining defamation counts was a foregoneconclusion if Johnson could not be strong-armed into settling pretty soon. The last three countswould indeed be dismissed and affirmed on appeal as well, but at great additional cost toJohnson as a result of Tifford‘s ploy before Judge Hafele. Yes, Johnson was the ―winner‖ incircuit court but Florida like most states does not have a ―loser pays all‖ law, so the winner isoften the loser. Johnson‘s attorney had unfortunately botched the wording of an agreement orsort of wager between the parties for settlement of attorney‘s fees depending on the outcome ofthe suit. In order to recover his damages, exceeding $250,000 not counting his psychological




Page 22 of 23

injuries and such, Johnson would have to sue the Libow faction for malicious prosecution andabuse of process, which he would do on January 24, 2011. He declined to name Tifford as a party in that filing, on the advice of counsel; Libow settled with him after an appeal was denied.

Judge Hafele would throw Johnson to the wolves in small claims court, awarding the predators

around $42,000 for a $1,621 fee claim. Indeed, the honorable judge took it upon himself in smallclaims court to join his colleague-at-arms, Col. Tifford, ostensibly to defend the bar and benchagainst this contemptuous insurgent, whom both he and Tifford described during the ex partehearing as a ―contenacious‖ (sic) person—―contentious‖ perhaps being a term reserved forlicensed lawyers who prosecute vexatious lawsuits with impunity. He would hear Tifford‘smotion to strike Johnson‘s pleadings on the ground that they were fraudulent, as well as hismotion to hold Johnson and his wife, who had had nothing to do with the case and whose namehad been removed as a defendant, in contempt of court — Libow had admitted she was namedonly to get at her assets on judgment. He would allow Tifford to introduce the December 22,2006, circuit court deposition although another small claims court judge had barred discoverythree times. He would swallow, hook, line, and sinker, everything Tifford said includingmanufactured and misinterpreted facts.

Nothing in our series of articles on Johnson Ordeal is intended to assert or to imply that any ofthe lawyers and judges concerned actually committed crimes or breaches of professional ethicsin regards to the Johnsons. The Johnson Ordeal is merely a description of what Florida lawyersmay do for a living with the consent and condonation of the Supreme Court of the State ofFlorida and its Florida Bar. As for Libow, he is estranged from his wife hence involved in protracted litigation with hundreds of actions already docketed. For all we know, he was a victimof his father-in-law in whom he saw his missing father. He has previously decline comment.

The Florida Bar was made well aware of the Johnson case via several complaints that constitutea long-running, extensive complaint over several years. Indeed, Johnson revived his complaints

against three of the lawyers after he won his causes at a financial loss to himself, and his mostrecent were summarily dismissed by Florida Bar counsel in 2015 in a manner that appears toviolate Bar Rules supposedly upheld by the Florida Bar, as if Bar counsel were defense counselfor the attorneys complained about. Paul Hill, general counsel for the Florida Bar, has been askedto reopen the complaints, and to support legislation that would inhibit lawyers from bringingdefamation suits against people to shut them up or extort monies from them.

Suffice it to say that the Florida Bar, by its dismissals and silence, has condoned the sort of deedsJohnson and hundreds of thousands of bar critics complain about, and so did the judges whotolerated or assisted with the behavior in their courts. Wherefore we may consider the behaviorordinary and ethical according to the professional standards as interpreted by lawyers and judges.In fact, that is why we consider Arthur W. Tifford to be a good example of the actual standards,and celebrate him as an ―exemplary lawyer‖ of the Rambo-type.

Bred to jungle warfare, the noble-minded professionalism of the so-called public-spirited lawyer-statesman has devolved into a sordid business to obtain filthy lucre. Gideon Kanner identifiedRambo litigation with "scorched earth," "take no prisoners," and "Godzilla" litigation (‗WelcomeHome Rambo: High-Minded Ethics and Low-Down Tactics in the Courts‘, 25 LOY. L.A. L.RHV. 81-82 – 1991). Robert N. Sayler captures the essence of "Rambo" litigation in six traits:(1) A mindset that litigation is war and that describes trial practice in military terms; (2) A




Page 23 of 23

conviction that it is invariably in your interest to make life miserable for your opponent; (3) Adisdain for common courtesy and civility, assuming they ill-befit the true warrior; (4) Awondrous facility for manipulating facts and engaging in revisionist history; (5) A hair-triggerwillingness to fire off unnecessary motions and to use discovery for intimidation rather than fact-finding; and (6) An urge to put the trial lawyer on center stage rather than the client or his case.

(‗Rambo Litigation: Why Hardball Tactics Don't Work‘, A.B.A. J., March 1988, at 79).

True, the public and the profession itself are increasingly convinced that lawyers are a plague onsociety. But adherents to the side of class warfare that exacts economic rent or tribute from theother side consider him and thousands of others like him to be heroes and patriots withal. In anycase, who would not want a successful gunslinger on his side?




Page 1 of 7

Frame from Alfred Hitchcock’s Blackmail ‐ All the books in the world will not save the guilty from chaos

THE INSTITUTIONAL BLINDNESS OF THE FLORIDA BAR

A PERFECT

EXAMPLE

BY

DAVID ARTHUR WALTERS




Page 2 of 7

March 16, 2015

The Florida Bar, the disciplinary arm of the Supreme Court of the State of Florida, is living up to

its reputation for defending select members against bar complaints.

On Feb.

16,

2015,

Annemarie

Craft,

Bar

Counsel,

acting

as

a virtual

defense

lawyer

for

Allen

Libow, instead of diligently investigating his conduct for her finding of no probable cause,

dismissed David Johnson’s complaint against Libow for allegedly trying to extort $100,000 out

of him and his wife to settle what began with a bogus $1,621 suit against him for legal fees

after he had already paid the firm around $9,000..

“This appears to be the third Bar complaint you filed against Mr. Libow. The initial Bar

complaint as I understand it was regarding an allegation that Mr. Libow charged you an

excessive fee.”

Bar Complaint

14

‐17717

only

“appears”

to

be

the

third

bar

complaint

to

her

because

the

previous complaints were also dismissed. The policy of the Florida Supreme Court is to have

dismissed cases destroyed along with any record that they existed and were destroyed, a year

after findings of no probable cause. That way, there will be no record available that may tend to

demonstrate patterns of misconduct by attorneys, who are “officers of the court,” in marked

contrast to the retention policy in force for police officers employed by the executive branch.

It is unlikely that anyone besides the complainant will know of a bar complaint since the

investigations are secret, and the public is not notified when complaints are dismissed. Since no

record is retained, the Florida Bar can claim ignorance of records including records of its own

misconduct, unless someone can prove receipt of the bar file during the one‐year period.

In any event, the Bar and its parent, the Florida Supreme Court, are absolutely immune from

liability for misconduct. Thus the only assurance of “integrity” that the public has is that the Bar

and the Court are “integrated” or are as one, the Bar being the rib or wife of the almighty court.

Only god on high enjoys more immunity from being held accountable.

The Florida Bar is naturally overloaded with complaints against attorneys. The majority of them

involve fee disputes, so thousands if not hundreds of complaints are rejected as fee disputes

even

though

they

may

involve

unethical

conduct.

The

Florida

Bar

has

a

gatekeeper

who

does

his or her best to dissuade people from filing and pursuing complaints. Our previous

investigation turned up conflicting information from Bar staff regarding the number of

complaints recognized as complaints and logged in as public records. That may depend on

capitalization of the word: only Complaints, not complaints, may be honored as worthy of

recordkeeping. That makes statistical analyses, another way of holding the Florida Bar,

unreliable.




Page 3 of 7

David Johnson would not let the Florida Bar forget what happened to him at the hands of a

certain bevy of related attorneys whom he has pursued now for eleven years.

To begin with, Johnson was bound and determined to have Allen Libow disciplined by the

Florida Bar, so he filed a bar complaint against him for harassment on August 16, 2004.

Cynthia Becker, the wheelchair‐bound attorney who had actually handled Johnson’s case had

left the Libow firm. Libow called Johnson and demanded a supposed balance due of $5,014, but

said he would forget the amount supposedly due if Johnson kept his case with his firm instead

of following the departed attorney. After all, he reportedly said, there had been mistakes in the

billing, like charges for a court appearance not even made. Anyway, the attorney had a

reputation for overbilling.

Johnson demurred. He felt he owed nothing, and that Libow’s plea to keep him with the firm

was reprehensible. Wherefore the aggressive collection tactic proceeded. The $5,014 amount

was reduced to $2,086 because of the irregularity, and that to $1,621 because of a $200 per

hour charge for itemizing the invoice, reclassified as a debt collection fee. Incidentally, Allen is a

CPA as well as a license attorney, so he is good with numbers.

Two months after Johnson filed the Bar complaint in 2004, Libow also sued him and his

innocent wife for defamation, offering to settle everything for $100,000.

Johnson would later infer from court records that Libow’s firm, with the assistance of Arthur W.

Tifford, Libow’s father‐in‐law, appeared to have quite a racket going, and he supposed that he

was one of their unwitting victims. All told, 81 of clients of Libow’s firm would eventually be

sued after their lawyers departed the firm. For example, one lady who allegedly owed only

$187 wound up settling for $11,000 rather than pay an attorney to defend a claim for more. As

for departing attorneys: Johnson said he counted 12 attorneys who sued Libow after they

departed.

In his original complaint about billing and collection practices, Johnson said that “Jessie James

used a horse and a six‐ gun to carry out his robberies. Mr. Libow uses a computer and the

United States Mail to carry out his.” As for the departing attorney, wheelchair‐bound Cynthia

Becker, “I have since been told by. Ms. Becker that what happened to me was not unique, but

was in

fact

standard

practice

with

regard

to

what

Mr.

Libow

considers

to

be

his

'less

sophisticated clients.'"

That information was reported to the F.B.I. in 2014, along with hearsay alleging that Tifford

asked his son‐in‐law to help him set up an offshore account to keep Tifford’s fortune secure. It

is unknown whether an investigation into the alleged racket was conducted since F.B.I.

investigations are secret.




Page 4 of 7

“On that (original) bar complaint,” continued Craft, “there was a ‘cc’ to various entities however

you did not actually send the Bar complaint to those entities. As a result of the ‘cc’ and also

some emails Mr. Libow sued you and your wife for defamation.”

That alone should have given Craft sufficient cause to have the complaint prosecuted instead of

dismissing it

as

she

was

probably

instructed

to

do.

Time

and

time

again

Johnson

had

pointed

out that the Florida Supreme Court, in Tobkin v. Jarboe (710 So.2d 975), had decided on May

28, 1998, that Bar are absolutely privileged against defamation suits because “Bar complainants

must be encouraged to step forward with legitimate complaints, which will further the

important public policy of disciplining attorney misconduct.”

And surely Craft is not blind to the fact that threatening to sue people for defamation for filing

Bar complaints is prohibited by Bar Rule 4‐8.4(d)—Conduct prejudicial to the administration of

justice, as is evident in Florida Bar v. Daniel James Eckert, Case SC10‐1308 TFB NO. 2009‐11,071

(6C). Every

attorney

is

supposed

to

know

that.

The “various entities” to which the original complaint was not sent were the Attorney General

of the State of Florida, the Federal Trade Commission, and the Governor of the State of Florida.

Whether the copies were received by the government entities, and they were not, does not

abrogate absolute privilege.

As the Fifteenth Judicial Circuit Court held, on May 11, 2006, striking most of the counts alleged

in Libow and Shaheen LLP’s defamation case against David Johnson and Jane Johnson

(502005CA003299), that disciplinary concerns “dictate that a complaint directed to the wrong

agency of

government

should

not

forfeit

the

privilege.

Otherwise,

a potential

complainant

may

choose not to pursue a claim because of doubt as to whom it should be directed. Further, while

the affected attorney may suffer additional embarrassment caused by having a complaint,

which may be totally without merit, published to yet another person, government agencies

have systems in place to direct a complaint to the proper channels. The possibility a complaint

will be misused by a governmental entity or necessarily republished is minimal. Consequently,

the letters to The Bar were privileged.”

As for Johnson’s hyperbole comparing Allen to Jessie James, the court held that, “Any

reasonable reader would understand that Mr. Johnson disputes Mr. Libow's billing practices,

characterizing them as 'attempted robbery' and indicative of a ‘larcenous agenda’: Those

statements are not actionable.” Neither is the allegation that he ‘overbills,’ since that is a

matter of opinion

Craft was made aware that Mrs. Johnson was named as a defendant in the suits; she knew that

David Johnson was awfully sore about having his wife sued for a bar complaint that she was not




Page 5 of 7

a party to. Allen had revealed that he named her in the suit in order to execute any judgment

against their joint property. That too should have caused Craft to have Johnson’s complaint

prosecuted.

After most of the counts in the defamation suit had been dismissed by the circuit court, Allen

was willing

to

settle

for

$50,000

instead

of

$100,000.

Johnson

refused,

so

the

case

was

pursued

with a vengeance.

“The defamation case resulted in lengthy and costly litigation,” Craft wrote. “Much of your

complaint is about things that happened during the course of the litigation. In essence, you

seek to obtain sanctions against Mr. Libow which you were unsuccessful in obtaining though

the trial court.”

The lawyers did not see Johnson coming, thinking he would lie down and cough up like the

other dogs they kicked. Interestingly, what offended him most of all was the attack on his wife,

who was not a party to the bar complaint, so they could get at her savings. He had to lay out

around $250,000 to defend himself as the case dragged on and on for a decade.

Besides the money, he and his family suffered from stress comparable to that experienced by

the victims portrayed in the movie Cape Fear , a movie actually Allen mentioned in his email to

Johnson. Murder, guns, police reports, drugs, mental instability would all have a place in a

movie about this true event.

The Florida Bar is not supposed to mollycoddle miscreants as it is inclined to do for the good of

the profession, yet it is supposed to reach out to help its members when they are under severe

psychological distress, not only to protect them but to protect the public from irrational and

unlawful behavior.

Johnson is not shedding crocodile tears over Allen’s current estrangement from his wife and his

father‐in‐law. However, anyone examining the record and speaking with Johnson and Allen will

have some sympathy for Allen as a victim of Tifford, who played the role of a much needed

father to him, and who appears as the mastermind who deviously manipulated not only Allen

but others to his own ends. Now that the legal issues have been resolved, Allen, who previously

declined to be quoted because of pending litigation, may relate his perspective on the events to

us in

the

near

future.

Johnson may be a dog to kick, but he is a hound from hell when wronged. He told the lawyers

he would “take them to school” and he did just that. He made certain the Florida Bar and the

New York Supreme Court knew all about Tifford, how he had operated for impunity for years,

arousing suspicions that he was indeed an Agency man back in Vietnam hence untouchable by

the Florida Bar, the F.B.I., and the Department of Treasury.




Page 6 of 7

Someone else finally got to Tifford on the sort of case the Florida Bar cannot claim blindness

too because numbers do not lie: blatant discrepancies in a client’s trust account. Others had

complained of financial irregularities as well. Rather than conduct a full Bar investigation of

Tifford, which might have uncovered other misconduct, he was allowed to petition the Florida

Supreme Court

for

voluntary

disbarment.

The

Court

would

not

hear

objections

by

a party

who

tried to intervene because she wanted a thorough investigation. His petition was granted.

Johnson made sure the New York Supreme Court became aware of that, and Tifford’s license

was pulled in New York.

The second paragraph of Craft’s finding of no probable cause illustrates the institutional

blindness of the Florida Bar to misconduct right under its nose:

“With regard to the lawsuit filed by Mr. Libow you indicated that the trial court used phrases

such as ‘frauds on the court’, ‘malicious’, ‘frivolous’, ‘an abuse of the process’, ‘twisted', ‘a

ruse’, ‘a

trick’

and

‘a

ploy’.

However

the

record

is

devoid

of

any

finding

that

the

lawsuit

was

frivolous or that a fraud upon the court was committed. There were several appeals taken in

this case by the plaintiffs. The appellate court did not find any of those appeals to be frivolous.

This is important because the jurisdiction of the circuit courts is concurrent with that of The

Florida Bar under the Rules of Discipline. The Court could have used their jurisdiction to disciple

Mr. Libow but did not do so. You sued Mr. Libow for malicious prosecution and that lawsuit was

settled. Consequently the court never ruled on the issues you raised in that case.”

So the court saw what Libow was up to, and it was evil, but hardly surprising in that context

because rarely disciplined by the Bar. The abuse of process included burying the court in

thousands of pages of documents to protract the litigation and make it increasingly expensive

for the Johnsons, who had to hire lawyers, while the lawyers being sued defended themselves

gratis. Officers of the court even lied in some of those documents.

Well, too bad for Johnson and his wife and the public because the honorable judges did not sit

down and file formal reports with the Florida Bar, something that judges rarely do much to the

dismay of aggrieved parties. What judges say about lawyers in court can be proactively

followed up on by the Florida Bar; do not count on it.

All of the appeals were lost. Johnson turned around and sued Libow, and Libow lost an appeal

based on an argument that lawyers should be absolutely privileged to abuse their clients. And

then Libow finally settled.

Yes, there is something wrong with that picture, but that is picture of what members of the

Florida Bar can do, so beware.




Page 7 of 7

Craft did not have to be crafty. Do not blame her, as she was probably just following orders. She

merely continued the very policy that Johnson had complained about in an insulting way when

the Bar sat on his past complaint about the attorneys many years prior. He said that Florida Bar

officials were sitting on their bureaucratic asses. He has been a pain in the ass ever since.

# #

BAR FILE ATTACHED



THE MIAMI MIRROR – TRUE REFLECTIONS

Page

1 of 15

FROM THE MALICIOUS PROSECUTION OF DAVID JOHNSON by David Arthur Walters

FLORIDA BAR V. ECKERT – THOU SHALT NOT BLACKMAIL LITIGANTS

Blackmailer in frame from Hitchcock’s ‘Blackmail’

In The Florida Bar v James Daniel Eckert, File No. 2009-11,071 (6C), The Florida Bar averredthat Mr. Eckert had represented Jean Camposecco in post dissolution of marriage proceedings,and that, while the case was pending, the opposing party, Robert Camposecco, filed anInquiry/Complaint form against the lawyer with The Florida Bar, which it received on March 4,2009, alleging that Mr. Eckert had blackmailed him, and had personally called him at homealthough he was represented by an attorney, one Phillip McLeod.

Mr. Camposecco withdrew the complaint on March 21, 2009, stating that, although he believedMr. Eckert was somewhat unethical, he did not believe he originated the “blackmail” suggestion,attributing that to his ex-wife. On June 4, 2009, the Florida Bar advised Mr. Camposecco that the

file had been closed per his request.

However, on June 11, 2009, Mr. Camposecco asked that the withdrawn complaint be reopened,saying he regretted having asked that the case be closed. He said he had done so because hisattorney, Mr. McLeod, had been upset that he had filed the Bar complaint against his fellowattorney behind his back without telling him about it; consequently, Mr. McLeod resigned fromhis case; but he wanted Mr. McLeod to stay with the case because he knew it so well, and he did




Page

2 of 15

not want to go to the expense of hiring another attorney. He still felt that Eckert was guilty of“blackmail” and that the facts should come out.

“Blackmail” is an old term that once meant the evil rent (‘mail’) exacted by tribal chiefs inScotland in return for not pillaging farms; i.e., blackmail referred to protection money or bribes

extorted from people. Taxation is said to be the modern form of blackmail – fines and prisonsentences are exacted for failure to “voluntarily comply.” Blackmailers are despised by all but afew libertarians who believe in absolutely free trade, and their fate in popular fiction can be farmore horrible than a slap on the wrist by the state bar association or a year in federal prison or afew years in a state prison.

In Alfred Hitchcock’s 1929 ‘Blackmail’, a girl named Alice visits an artist’s studio and stabs himto death when he tries to rape her. Her boyfriend Frank, a homicide detective assigned to thecase, finds one of her gloves at the scene, recognizes it, and while discussing the homicide withher, Tracey, a petty thief who saw her at the artist’s studio, interrupts them with a blackmailattempt, and Frank warns him that his blackmail attempt is doomed. The landlady then identifies

Tracey as the man she saw at the scene, so he is the chief suspect now. He flees and climbs upthe dome of the British Museum and falls to his death through a glass panel of the dome. Thesymmetrical order of some of the spaces within the museum initially provided him with a senseof control, but he soon lost it and panicked. Of particular interest to lawyers who blackmail people is the scene in the angular library; all the books in the world will not save a miscreantfrom chaos, no matter what defensive angle he takes.

Today anything of value besides money may be blackmail. For example, an interestingdiscussion of blackmail takes place during the rape scene in the 1962 Cape Fear movie: theconvicted rapist Max Cady told the lawyer’s wife that, if she consented to his having his waywith her, then he would leave her daughter alone. “No, that’s not consent; it’s blackmail!” she

cried – she meant her consent would be coerced. Cady, an experienced jailhouse lawyer, wouldnaturally have a ready defense since there were no witnesses: “No, it’s not blackmail; you onlythink I’m going after Nancy.” Alas for Cady that his self-taught law had always failed him; hewould not even appear in court in this case; instead, he found himself at the bottom of the river.

Now blackmail is a form of extortion variously defined by federal and state statutes, and may bedistinguished from extortion when it is said that blackmail involves a threat to commit an act thatis not independently illegal, such as revealing information about the commission of a crime:Give me money or I'll tell the police what you did. Since the information is usually true, it is notthe revelation of the information that would be criminal, but demanding money to withhold it.On the other hand, it may be said that “extortion” involves a threat to commit a violent act that is

independently illegal, such as inflicting physical injury: Give me money or I'll break your arm.

Blackmail or extortion is apparently a kind of stock in trade of the legal profession itself becausewe often hear from litigants that officers of the court are blackmailing them, extorting money andother advantages from them. They may not threaten physical violence, but they can otherwiseruin lives.




Page

3 of 15

For example, in the case of Allen Libow v. David Johnson, Allen Libow, Esq. thought that it was perfectly legal for a member of The Florida Bar to sue David Johnson and to allude to Cape Fearunless he coughed up a $100,000 “sweet spot” settlement on a trumped-up claim of $1,621 forlegal fees. Mr. Johnson certainly believed he had received an extortionate threat when hereceived email on October 11, 2004, from Mr. Libow in regards to the Libow law firm’s $1,621

small claims county court suit for legal fees:

“Mr. Johnson: Seeing that you never really had a lawyer and are representingyourself and your wife, pro se, please provide me with available depositiondates…. As a proposal for settlement, my wife and I will walk away for $100,000.Anything short of that, and we will fully prosecute our case. We will amend ourcomplaint, and remove to the Circuit Court for all available relief and remedies….For outside counsel, you may contact Arthur W. Tifford, Esq. or Alexandra L.Tifford….”

To make matters worse, Johnson did not capitulate: instead, he filed a complaint with TheFlorida Bar wherein he called the threat “extortion” and the lawyer a “miscreant” among otherthings. Mr. Libow then sued Mr. Johnson for defamation, with the condonation of The FloridaBar even though that sort of conduct is prohibited by the Bar, as we shall soon see from theEckert case. That he called Florida Bar investigators “bureaucratic asses” for sitting on hiscomplaint while its members abused him and his family did not help his cause.

Blackmail under Florida law is a felony, referred to indirectly by definition of “extortion” under§836.05 Fla. Stat. (2010):

“Threats; extortion, - Whoever, either verbally or by a written or printed communication,maliciously threatens to accuse another of any crime or offense, or by such communicationmaliciously threatens an injury to the person, property or reputation of another, or maliciously

threatens to expose another to disgrace, or to expose any secret affecting another, or to imputeany deformity or lack of chastity to another, with intent thereby to extort money or any pecuniaryadvantage whatsoever, or with intent to compel the person so threatened, or any other person, todo any act or refrain from doing any act against his or her will, shall be guilty of a felony of thesecond degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

As for the Rules of Professional Conduct that lawyers are theoretically supposed to abide by, the particular rule appertaining to the blackmail allegedly participated in by Mr. Eckert would be:“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 anadvantage in a civil matter….”

The background for the blackmail accusation in Eckert was that Mr. Camposecco, during hisattempt to get his alimony payments reduced again or just terminated, said he had filed, onFebruary 23, 2009, a request for a domestic violence injunction (DVI) against his former wife because she had threatened him. And then he was led to believe, by correspondence from hislawyer, that she would, through her lawyer, a close associate of his own lawyer, reveal that hehad sent her email asking her to get illegal pills for him; that is, unless he withdrew his requestfor a DVI. The evidence offered in support of that so-called blackmail, were as follows:




Page

4 of 15

In a letter dated February 25, 2009, Mr. McLeod authorized Mr. Eckert to call Mr. Camposeccofor certain information, but said that discussion about illegal pill email was off limits:

“You wished to take my client’s deposition but I also provided his telephone

number so you may discuss the case, his income and the DVI if you make anappearance in it as I will not attend his deposition at this time. The additionalissues regarding their relationship, emails about pills, are off limits. If you need todiscuss any of that, then the deposition under oath is necessary.”

On the same day, via email to Mr. Camposecco, Mr. McLeod explained thereference to the pills: “Bob, I did not put it in the letter but he claims unless youdrop the DVI she has numerous emails from you asked her to get you pillsillegally. Just FYI as I do not care nor does it deserve a response. See attached.”

The Devil’s Advocate might argue from this slight evidence that Mr. Camposecco had probablecause to believe that he was being blackmailed, at least as that term is employed in common parlance; the blackmailer, in order to gain some advantage, threatened to reveal somethinguntoward about him unless he did or did not do something. We may infer from Mr. McLeod’semail that he did not consider the threat of revealing a request to obtain pills illegally much of amenace; he apparently saw little cause for alarm or probability of harm to his client’s case if theex-wife and/or her attorney had revealed that request. Still, he must have perceived something base or foul in the request since he did not consider it worthy of a response, and warned Mr.Eckert the matter was off limits.

The threat, if actually made or participated in by Mr. Eckert was probably an idle one. Perhapshe felt obliged to mention the wife’s alleged threat to Mr. McLeod. For all we know, that sort ofexchange may casually occur in the litigious trade, which engages itself in a great deal of

legalized blackmail – incidentally, complaints in lawsuits used to be called “libels” whereinlawyers would throw the libels or books at people whether or not the accusations within themwere true.

Tampa Pill Mill 2010 Doctor House Largo Drug Sweep 2009

If the claim about illegally getting pills were in fact true, then so what? Who knows, the ex-wifeherself might herself be implicated in uncomely behavior. We do not see the black-email on the public record provided to us, so we can only speculate about its nature after getting a whiff of blackmail.




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Would Doctor House be committing a crime by merely asking a colleague to illegally procuresome painkilling pills for him? In the case at hand, perhaps it was feared that if it could be shownthat the petitioner for reduction in alimony was spending $600 per month in obtaining drugsillegally, the alimony should not be reduced accordingly. But what if the man, like DoctorHouse, was in excruciating pain, and was getting licensed doctors in so-called pill mills to

prescribe them, doctors who had not been convicted of illegal drug distribution crimes? Then hemight claim a reduction in his income instead of an increase in his ex-wife’s income as justification for a reduction of alimony.

Or a person might feel some shame of being exposed for taking illegally obtained pills inFlorida, although the state is known as Pill Popping Paradise. Would you let a surgeon operateon you if you knew he was taking illegally obtained painkillers not only because he was addictedto them but to make sure that his pain would not interfere with his control of the scalpel?

In any event, Mr. Camposecco’s sensitivity is not surprising in a milieu that family lawyers mayfind normal but is unusually provocative, hostile and deeply offensive to the litigants themselves.We can certainly understand why a lawyer or two might find allusions to blackmail distasteful.Perhaps only an unsophisticated party would take the veiled threat seriously; Mr. McCleod, whohad a duty to tell his client about it, and even to report his colleague to the The Florida Bar, hadin effect told his client not to worry about it.

Mr. Eckert denied the “blackmail” charge. He said he had discussed the matter with his longtimecolleague Mr. McLeod, and he concurred that there had been no threats as claimed. He said hecertainly would not make such a threat to Mr. McLeod; after all, he had known him for decades,had been employed by his father and even became a partner of his father.

It is reasonable to infer then that he knew such a threat would be unethical or criminal. Knowingsomeone for a long time does not preclude one from engaging in unethical behavior; it may even

indispose one to report it as per “RULE 4-8.3 REPORTING PROFESSIONAL MISCONDUCT(a) Reporting Misconduct of Other Lawyers. A lawyer who knows that another lawyer hascommitted a violation of the Rules of Professional Conduct that raises a substantial question asto that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform theappropriate professional authority.”

He said that he had conferred personally with Mr. Camposecco only at the request of Mr.McLeod even though that was a procedure contrary to almost any case he had had in his career.As a matter of fact, the Rules of Professional Conduct permitted the communication: “RULE 4-4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL (a) In representinga client, a lawyer shall not communicate about the subject of the representation with a person the

lawyer knows to be represented by another lawyer in the matter, unless the lawyer has theconsent of the other lawyer….”

He denied that he had had anything to do with Mr. McLeod’s withdrawal from the case; besides,Mr. McLeod had taken that case to trial for Mr. Camposecco anyway.

In any case, Mr. Eckert was obviously deeply offended by the blackmail accusation. On June 24,2009, in a letter to The Florida Bar, he objected to the reinstatement of a complaint that had been




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closed, and especially to the charge of blackmail which he claimed was defamatory. On July 9,2009, he wrote a letter to Mr. Camposecco, threatening to sue him for defamation and damagesunless he withdrew his Bar complaint and issued a letter of apology within five days.

“You have filed a baseless complaint against me with the Florida Bar, charging

me, among other things, with bribery and extortion. This letter, then, is to put youon notice, that unless you withdraw such charges, plus issue a letter of apology,within 5 days from July 10, 2009, which is the statutory time, you will be sued fordefamation of character, among other matters, and you will be held responsiblefor all damages. Please consult with an attorney of your own choosing about thesematters, but I hereby advise you that Mr. Phillip McLeod, Esq., will be called as awitness by my attorney. Please be governed accordingly.”

It appears that Mr. Eckert may have intended his reference to “the statutory time” to appertain to§836.07 Fla. Stat. under the main heading “Defamation; Libel; Threatening Letters and SimilarOffenses”:

“836.07 Notice condition precedent to prosecution for libel. – Notice condition precedent to prosecution for libel. – Before any criminal action is brought for publication, in a newspaper periodical, of a libel, the prosecutor shall at least 5days before instituting such action serve notice in writing on defendant,specifying the article and the statements therein which he or she alleges to be falseand defamatory.”

Defamation is a misdemeanor offense of the second degree under the criminal statute.However, there is a way out:

“836.08 Correction, apology, or retraction by newspaper. – (1) If it appears uponthe trial that said article was published in good faith; that its falsity was due to anhonest mistake of the facts; that there were reasonable grounds for believing thatthe statements in said article were true; and that, within the period of timespecified in subsection (2), a full and fair correction, apology, and retraction was published in the same editions or corresponding issues of the newspaper or periodical in which said article appeared, and in as conspicuous place and type aswas said original article, then any criminal proceeding charging libel based on anarticle so retracted shall be discontinued and barred.”

Mr. Camposecco only published his complaint to The Florida Bar; it was not published in anewspaper for which Mr. Camposecco was responsible, so it is difficult to understand why Mr.Eckert would refer to an inapplicable statutory limit of five days as provided by the criminalstatute. In our lay opinion, a defamation action does not have to be based on a criminal statute, but may be a tort action appertaining to an injury not due to a breach of contract, hence may be brought as a civil suit, where the statute of limitation is far more than five days. There is asimilar reference to a 5-day period in Chapter 770 of the Florida Statutes (“Civil Actions forLibel”), and that chapter is also very clearly limited to newspapers, radio and broadcast media.




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The Devil’s Advocate might argue that Mr. Eckert added to the blackmail originally alleged withmore blackmail; that he wished to imply that Mr. Camposecco had committed the crime of libelor the tort of defamation, accusing him of such in order to get him to drop the complaint. Butthen his demand, if maliciously made, might constitute an extortionate letter or blackmailaccording to the same §836.05, which is punishable as a felony.

Mr. Camposecco was frightened by the threat: he withdrew his Bar complaint on July 13, 2009:

“Mr. Eckert, after further thought and consideration, I have decided not to pursuemy complaint against you with The Florida Bar. At this time of my life there aremuch more important things to take care of and so little time left to do it all. So,once again, consider this matter closed as far as I’m concerned. Perhaps youshould consider closing the debt matter against me as well.”

Nevertheless, on December 30, 2009, the Sixth Judicial Circuit Grievance Committee found probable cause for further disciplinary proceedings, that the Respondent had violated Florida

Bar: Rule 4-8.4(d), stating that a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice. The probable misconduct wasstated as: “On or about July 9, 2009, Respondent wrote a letter to a complainant threatening tosue him for defamation and damages unless he withdrew his Bar complaint and issued a letter ofapology within five days.”

Apparently no probable cause was found that “blackmail” or “extortion” or “bribery” had beencommitted as originally alleged or that the personal contact with opposing counsel with Mr.Camposecco was unethical. We find nothing on the public record provided to us actually

discussing and dismissing those charges. At this writing (May 3, 2011) The Florida Bar ischecking its files to see if part of the public file was not made available to us.

On December 11, 2010, Mr. Camposecco tendered a Conditional Guilty Plea. The referee in thecase recommended that Mr. Camposecco be found guilty, that he be publicly reprimanded and pay $1,366.50 expenses in the case. On January 27, 2011, the Supreme Court approved theuncontested referee's report and reprimanded Mr. Eckert.

So here we have, in The Florida Bar v. James Daniel Eckert, a finding of probable cause and aguilty plea for an infraction that was not part of the original complaint but occurred during thecourse of the investigation. Therefore it appears that the complaint as to this particular offensewas probably initiated orally by someone at the Florida Bar who was familiar with the leadingcases, Stone v. Rosen and Tobkin v. Jarboe, although the public bar record we have on handmakes no mention of those cases or to the Florida common law expressed therein that complaintsto the Florida Bar about lawyer misconduct are absolutely privileged if not published elsewhere,therefore the complainant is immune from defamation and/or malicious prosecution suitswhether his allegations are true or false. Given the Bar finding against Mr. Eckert, we suspectedthat Bar counsel, at the behest of their director, who had written about this particular kind ofunethical behavior and was apprised of the Johnson case, had discriminated against Mr. Johnsonin his case, making it necessary for him to lay out nearly $250,000 to defend himself frommalicious prosecution and abusive process, and for his family to suffer a great deal of distress




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besides. Since Mr. Johnson had won his case and was suing Mr. Libow, we wondered whether healso had grounds to sue The Florida Bar for a few million dollars.

When Karen Boroughs Lopez, the bar counsel or prosecutor in the Eckert case, and KennethMarvin, Director of Lawyer Regulation, were asked who initiated the charge upon which the

guilty plea was had, they would only respond with a copy of Rule 3-7.4(c) under “GrievanceCommittee Procedures” – “Investigation. A grievance committee is required to consider allcharges of misconduct forwarded to the committee by bar counsel whether based upon a writtencomplaint or not.” The record of our communication with Ms. Lopez is as follows:

WALTERS: I have reviewed the public record on the Eckert case, and see nothingtherein that would indicate who brought the particular charge on which Mr.Eckert was found guilty i.e. of threatening Mr. Camposecco with a defamationsuit. Apparently no probable cause was found for charging Mr. Eckert for theaccusations brought by Mr. Camposecco, that of "blackmail" and that ofcontacting him without benefit of counsel present. The threatening letter, you willrecall, came much later, after the case was reopened. Therefore, I am leftwondering if the Bar itself, under its own initiative, brought the charge for whichMr. Eckert was disciplined, and if so, whom? Your good self? Mr. Marvin?

LOPEZ: Under the rules established by the Supreme Court (copy appears below,)all matters are considered by the grievance committee. Those matters that result ina probable cause finding are then brought before the Supreme Court via acomplaint process that is also outlined in The Florida Bar Rules Regulating TheFlorida Bar. The Florida Bar becomes the complainant at that level, also per rule.I hope this answers your questions. All of the Rules can be found on the FloridaBar's website.

WALTERS: Yes I understand. My question is, in context of the discussion withMr. Marvin, as to who knows such threats of defamation-malicious prosecutionare barred? Mr. Eckert and his attorney with 80 years of experience between themdid not know. So who at the Bar knew and proposed the charge against Eckert? Iam writing a book about how the Bar ignored a horrendous case where thecomplainant directly accused the lawyer in his complaint of this kind of implicitly prohibited behavior, yet his complaint was purportedly dismissed because he wasrude because the Bar did nothing for months, even when latent death threats andfalse police reports were added to the complaint. Further, my suggestion to add aRule barring lawyers from making defamation and/or malicious prosecutionthreats have been ignored by the Bar and Supreme Court. I can tell you that manylawyers know nothing of the common law prohibition. Given that neither theraising nor the discussion of the issue appears anywhere on the Eckert file, it is afair question of WHO knew, WHO brought it up? That way I can give credit tothe person who knew, as this matter is becoming a matter of nationwide interest.Thanks!

LOPEZ: I am not sure what you are asking. However, Mr. Camposecco filed thecomplaint.




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WALTERS: Mr. Camposecco did not complain about letter threateningdefamation suit, at least not on the record. I am asking WHO at the Bar decided to press that issue? Thanks.

LOPEZ: Bar counsel can send matters to the Grievance Committee and as per therules, the committee considers all matters even if the complainant does notcomplain about a particular aspect of a case. There is an investigative process thatoccurs and is conducted in each case. Each case is different as and unique, even ifat first brush, it might look the same. It can be confusing but when dealing withhuman conduct there are many variables. I hope this helps.

WALTERS: Thank you. Do you recall when you yourself found out thatthreatening Bar complainants with defamation and malicious prosecution isagainst RULE 4-8.4(d)? Or that common law provides absolute privilege for Barcomplaints hence such threats would be unethical?”

LOPEZ: No.

I noticed that Mr. Eckert was admitted to the Bar in 1965, which gave me cause to wonder if hewas up to date on case law involving the defamation/malicious prosecution of persons who filecomplaints against attorneys. In an April 25, 2011, email to Kenneth Marvin, whose name wason the Eckert documents and who had sent out letters in the past citing and attaching copies ofthe decision in Tobkin v Jarboe, I wondered if all attorneys had been advised on thedevelopments by way of continuing education, and why a specific Bar Rule had not been promulgated on that point instead of reliance on a the prosecutor’s discretion of what prejudicesthe administration of justice – a sort of catch-all rule – noting that my suggestions for such a rule

had been ignored. Threatening someone with a lawsuit for making a Bar complaint certainlywould seem to be “prejudicial to the administration of justice,” but it would seem that whateveris definitely known to be prejudicial should be specified so all may know in advance what therule is. Otherwise, god-like discretion is afforded the prosecutor. By way of analogy, could acriminal prosecutor charge someone with obstructing justice because s/he filed a complaintagainst an officer of the court with the court’s disciplinary arm?

“How would all Florida attorneys know that complainants have absolute immunity in respect tocomplaints filed against them?” I inquired of Mr. Marvin, and asked him for a copy of the Barfile.

“Good question,” he responded. “How does anyone know what the law is? Yet, we are allresponsible to conform our conduct to the law's requirements.”

“When I was a kid,” I said, “the judge who made me wash police cars said that ignorance of thelaw is no excuse. I wonder that so many laws are being passed every day that I must be breakingsome of them without knowing it.”




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“If you look at the volume of Florida Statutes it is overwhelming. I doubt that any citizen wouldknow 50% of what’s in there,” said Mr. Marvin – I believe the percentage would be more like10%).

Once I had the Eckert file in hand, the first thing I laid eyes on were certain remarks made by the

attorney representing him in the case, one George M. Osborne. On August 1, 2010, in his answerto the complaint against his client, he addressed Bar Counsel Karen B. Lopez and KennethMarvin. He said he knew Eckert very well, that they were both graduated and admitted to the Barin 1965 and had practiced law a half block from each other for forty years. He said that Eckertwas a great lawyer, and cited his virtues at length. As for the immunity someone had against being sued for defamation for filing a complaint with the Bar:

“I did not know of the immunity established in the case you kindly provided….Jim is clear that he should not have written the letter. Had he known the rules itwould have been him delivering a retraction and apology despite having been besmirched.”

Furthermore, in a September 1, 2010, letter to Karen Lopez:

“Do you give any credence to the points of my Answer, or do you think as amatter of fact and law that not knowing about immunity and writing a letterdemanding a retraction of defamation and threatening suit for failure to retractdefinitely and automatically and unqualifiedly subjects a lawyer to discipline? Ifyou do, there’s the rub, and I would like to know how you get to that conclusion. Iawait your response with great interest – I am still open at this age to learnsomething new…. I trust you understand I am hard pressed to think that the Courtexpects a lawyer to be perfect. In 45 years at the Bar, neither of us ever heard ofthis, never were exposed to it in required ethics CLE, and believe that this is true

for most attorneys.”

And we find this within the August 1, 2010 Answer to Complaint made by Mr. Osborne for Mr.Eckert:

“…. the Inquiry/Complaint was false and wrongfully impugned Respondent'sintegrity, and was withdrawn by him, Robert Camposecco, while the post-dissolution matter was pending for reasons other than, are at least in addition to,his receipt of the letter identified in paragraph 4 of the subject complaint. Further, before he withdrew his Complaint, Mr. Camposecco was advised by The FloridaBar in substance that he could not suffer civil liability for having made a

complaint, and he communicated this information to Respondent who accepted itas true, and, of course, took no action against Camposecco although he did notthen know that unqualified immunity had been decided by The Supreme Court ofFlorida. It submitted that it is fair to note that none of the 100 plus cases citedunder Rule 4-S.4(d) involve a holding that the "administration of justice" as usedand intended in the Rule is operative when an Inquiry/Complaint has been filed,and your Respondent's undersigned attorney has found no case that establishessuch a Rule, and respectfully suggests that the plain meaning and intent of the




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Rule does not appear to include the concept that the administration of justice is atwork initially when an Inquiry/Complaint has been filed….

“….Respondent says further that had he known that unqualified immunity protected even a wrong-headed or improperly motivated Inquiry/Complaint he

would never have even considered suit, much less written a demand for retractionand apology…. Respondent denies any implication or inference that he knowinglyor with reckless indifference, indeed, with any indifference, took action that wascontrary to proper practice and inconsistent with the highest aspirations of the profession. However, Respondent answers further that he certainly knows it isfundamental that a lawyer should not threaten an action which he knows cannot be effective as a matter of fact or of law, and, if as a matter of law the Courtdetermines that he should have known about the principle of unqualifiedimmunity, then he was not simply in error but would be in the wrong to send theletter and if it is also determined that the Rule is operative at the stage of anInquiry/Complaint, then he is subject to discipline….

“…. Respondent regrets his ignorance of unqualified immunity, and wishes thathe knew it had been determined. He respectfully observes that he believes manylawyers are not aware of it, and having served as chair of the Pinellas Countygrievance committee for three years, and as a ten year member of a committee ofthe St. Petersburg Bar Association to long ago deal with grievance matters,respectfully relate that the idea and issue never arose. He believes theInquiry/Complaint was not only unjust, but was improperly motivated as a tacticin his case and by his animosity toward his former wife and his aversion to paying….”

Apparently Mr. Osborne was unaware of the fact that the complaint withdrawn by Mr.Camposecco was reasserted by him and officially re-opened by The Florida Bar. We found noanswer to Mr. Osborne’s questions on the defamation subject put to Ms. Lopez, and we found noexoneration of Mr. Eckert on the accusations of wrongful communication and blackmail, so we presented this letter to The Florida Bar:

May 03, 2011

Kenneth MarvinDirector of Lawyer Regulation

Karen Boroughs LopezBar CounselTHE FLORIDA BAR

Re: Rule 4-3.4(g)

Florida Bar v. James Daniel Eckert (SC10-1308)Florida Bar v. Knowles (SC09-403)




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Dear Counselors:

As you know, Robert Camposecco accused Mr. Eckert of two violations of theBar Rules in his complaint: blackmail, and wrongful communication with anopposing lawyer’s client. However, neither of those accusations were addressed

and disposed of on the public record that was provided to me. Instead, counselinitiated a third accusation and made it a charge; that Mr. Eckert, during thecourse of the investigation, threatened to sue Mr. Camposecco for libel for petitioning the Bar for redress of his two grievances. Mr. Eckert pled guilty to thatcharge and was reprimanded.

It is obvious that the wrongful communication accusation was not an ethicalviolation inasmuch as the Rules provide for communication with an opponent’sclient provided that his lawyer permits it, as the lawyer did in this case. Still, thereis nothing on the public record provided to me that exonerates Mr. Eckert inregards to the complaint that he wrongfully communicated with Mr. Camposecco.

Of more serious concern is the blackmail charge, which I think should have been pursued, based on the evidence presented by the complainant, according to Rule4-3.4(g), A lawyer shall not…. (g) present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter….”

As we see in Florida Bar v. Knowles, “the respondent was guilty of threatening to present criminal charges solely to obtain an advantage in a civil matter, conductwhich is expressly prohibited by Rule Regulating the Florida Bar 4-3.4(g). Suchmisconduct by its very nature causes harm to the legal system. The respondentwas chargeable with knowledge of the rule prohibiting this misconduct.”

I suppose one might call the conduct prohibited a kind of “extortion” or“blackmail.”

In Florida Bar v. James Daniel Eckert, the defendant and his attorney had neverheard of the prohibition against threatening Bar complainants with defamationsuits, nor was that behavior expressed barred by the catchall Rule barring conduct“prejudicial to the administration of justice.”

In Eckert, there is no dispositive discussion of the blackmail issue on the publicrecord that I have obtained. Usually one would find on that record at least a letterto the complainant stating that there was no probable cause to charge and try the

accused, along with the reasoning behind that decision. Since the “blackmail”accusation is itself on the public record, and blackmail is a serious crime, I believethat the accusation should not be dropped into the abyss without wordsexonerating the accused; at least the public record should include a declarationthat there was no probable cause to bring the charge, and the reasoning behindthat decision should be provided.




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Coincidentally, the reasoning behind the common law foundation of the chargeMr. Eckert pled guilty to is that, although baseless accusations against lawyersmay still damage their reputations when the cases against them are dismissed and published, that is outweighed by the greater good of encouraging complainants tocome forward without fear of retaliation; innocent lawyers have some solace in

knowing that their exoneration is also published .

For all I know, the blackmail accusation may still be under investigation, or perhaps The Florida Bar did not forward the entire public record to me asrepresented. I certainly do not want to put this matter to bed thinking that the prosecutorial power has in any way been arbitrarily or capriciously exercised. Iwould rather believe that I am ignorant of the law and its processes and that mysources are inadequate, or that some honest mistake has been made. It is to thatend that I pray for enlightenment and stand by for your response.

Sincerely,

David Arthur WaltersJournalist

Mr. Marvin advised us that Ms. Lopez had voluntarily left The Florida Bar and that he had sentour letter to her supervisor to determine whether we are missing some of the public record. Whatwas purportedly the complete file was then forwarded to us. Some of the material previously sentwas not therein, and some of the material in the file had not been received previously. However,the question remained, and was resubmitted to Mr. Marvin with a proposed answer:

WALTERS: Is this statement correct? A Florida Bar prosecutor does not have toformally investigate accusations brought and provide a formal finding of no probable cause on each one of them, but can simply ignore the original complaintsif s/he wishes and initiate and prosecute another complaint instead. So the publicrecord may have, for example, (blackmail) written all over it, with no declarationthat the accused was exonerated. The public is simply to construe the absence ofan investigation and charges on accusations as findings of no probable cause.

MARVIN: Please see the last section of the rule [below], however you shouldnote that this case was not dismissed and that it would be inaccurate for you tothink that because certain allegations of the complainant were not pursued that

means that the case was dismissed. You have no reason to state that bar counselignored the original allegations. They were investigated and it was found thatthere was insufficient evidence to proceed further. While I agree that it wouldmake a cleaner record if there were some documentation that the originalallegations were dismissed, it is also clear that the matter was sent to thegrievance committee on one rule violation and it is also clear that the complainantwas sent a copy of the formal complaint.




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Last Section of Rule 3-7.3 (d) Dismissal of Disciplinary Cases. Bar counsel maydismiss disciplinary cases if, after complete investigation, bar counsel determinesthat the facts show that the respondent did not violate the Rules Regulating TheFlorida Bar. Dismissal by bar counsel shall not preclude further action or reviewunder the Rules Regulating The Florida Bar. Nothing in these rules shall preclude

bar counsel from obtaining the concurrence of the grievance committee chair onthe dismissal of a case or on dismissal of the case with issuance of a letter ofadvice as described elsewhere in these Rules Regulating The Florida Bar. If adisciplinary case is dismissed, the complainant shall be notified of the dismissaland shall be given the reasons therefor.

There we have it from the Director of Lawyer Regulation’s mouth: the case itself was notdismissed because the complaint brought by The Florida Bar itself was pursued and resulted in aguilty plea, and the complainant was sent a copy of that complaint. The original two accusations brought by Mr. Camposecco were allegedly investigated and dismissed for lack of probablecause, although there is no written record of the investigations and dismissals – to the best of our

knowledge, based on two versions of the public record, no letters advising that no probable causewas found to bring charges on the first two accusations were issued as per the Rules. Of coursethe record would be cleaner with documentation; that is, people interested in the conduct of TheFlorida Bar and the regulation of the legal profession could get a clearer picture of what is goingon.

Mr. Marvin could not say exactly how many charges had been brought against attorneys forthreatening to sue or actually suing Florida Bar complainants for defamation or malicious prosecution for bringing complaints against them. He said there is no code for that type ofoffense, and that, from the “seat of his pants,” he could say that not many such complaints had been made. According to George M. Osborne’s study, none had been made prior to the charge brought against his client Mr. Eckert. If that is true, we may have a leading Florida Bar case inThe Florida Bar v. Eckert.

Requests to the Florida Bar and the Supreme Court of Florida to promulgate an actual Bar Ruleor to amend Rule 4-8.4(d) to expressly prohibit retaliatory SLAPP-like suits (Strategic LawsuitsAgainst Public Participation) are routinely ignored. Further, the lawyer-packed Floridalegislature is prejudiced against any constitutional measure that might effectively restrain the“inherent powers” of the “independent judiciary.” Any effort to transfer lawyer discipline to theexecutive branch, as was done in the mother country recently, would be treasonous blasphemy.

The Florida Bar will merely state that defamation suits against those who lodge complaintsagainst its licensed attorneys may not be successful provided that the complainant does not

publish the complaint elsewhere – even so, the publication may be privileged since a Barcomplaint in Florida is a public record. That is, if you have the immediate means to defendyourself, several hundred thousand dollars, against the malicious prosecution of suits, you maynot be “successfully” prosecuted for defamation.

Now, then, in the Eckert case, since we have no way of knowing from the file why the prosecutor dismissed the original accusations, and the matter is left to the traditionallyrevolutionary press because the establishment’s media is too cowardly to criticize the institution




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that protects it, we shall dismiss them ourselves; to wit: In respect to the allegedly impropercommunications with an opponent’s clients: the communication was had with the consent of theclient’s lawyer, which is proper according to Rule 4-4.2(a). As for the allegation of blackmail i.e.threatening to introduce a criminal matter to obtain advantage in a civil matter: although therevelation of a request to obtain illegal pills may have been embarrassing if such a request were

actually made, such a request in itself may not constitute a crime; if the request to obtain illegal pills were a criminal matter, the revelation of that matter in the civil case would be proper because the criminal matter and the civil matter were related inasmuch as spending money onillegal activities, which are presumably unnecessary since prohibited by law, would have a bearing on the ability of the petitioner in the civil case to make alimony payments to his ex-wife.The petitioner’s attorney properly limited any discussion of the illegal pills matter to the publicrecord, i.e. the deposition. Mr. Eckert denied that he intended to or did make an illegal threat. Ifthere were any extortion here, it is legalized by American Bar Association Opinion 92-363. TheABA abjures extortion but would not carefully define it since that might unduly restrain theextortionate trade.

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INFLUENTIAL LAWYER SUED FOR MALICIOUS PROSECUTION

The Florida Bar sat on its "bureaucratic asses" while an influential member

maliciously prosecuted a client for complaining to it

By David Arthur WaltersThe Miami MirrorJune 27, 2011

MIAMI BEACH – David Johnson and his wife Jane Johnson, former residents of Palm BeachCounty, have filed a complaint in the circuit court of Palm Beach County against Palm Beachattorney Allen H. Libow, his wife Melissa Libow, and Boca Raton law firm Libow & ShaheenLLP et al, for malicious prosecution, conspiracy to commit malicious prosecution, and abuse of process, in regards to a defamation action first asserted by the defendants against the Johnsons in

2004 for filing an absolutely privileged complaint against Libow with The Florida Bar, theagency of the Florida Supreme Court that licenses lawyers in the state, regulates their conduct,and represents their political and economic interests.

The defamation suit against the Johnsons was prosecuted by Mrs. Libow’s father, affluent Miamiattorney Arthur W. Tifford, who has not yet been named as a defendant in the Johnsons’malicious prosecution complaint, and who has now appeared to defend his son-in-law from thatcomplaint. According to the court docket, attorneys Lisa Weiss and Bruce L. Udolf of BocaRaton law firm Udolf Libow have appeared to defend Mrs. Libow. The Johnsons are represented by Steven Jeffrey Rothman. (See case 502011CA001121XXXXMB).

Mr. Johnson’s long-running Bar complaint, originally filed on August 16, 2004, alleged that Mr.Libow attempted to extort a $100,000 settlement for a disputed legal fee amounting to $1,621including nearly that amount for unauthorized research. His research of court dockets allegedlyrevealed that the Libow law firm had sued up to eighty-one former clients, one of whom hediscovered was forced settle a $3,000 bill for $30,000 rather than shell out more money fordefense. Mr. Johnson, however, said he was determined not to submit to the apparently legalcoercion.

The amount of his own bill had been reduced from $5,014 after he had already paid severalthousand dollars in fees, demanded an accounting, and discovered that he had been billed for hisattorney’s failure to appear for him in the case. The law firm even billed Mr. Johnson another$397 for itemizing the bill at the hourly rate of $200, a billing that Mr. Johnson believed in itselfwas contrary to the rules regulating professional conduct.

At one point, Mr. Libow, who is also a certified public accountant, allegedly admitted to Mr.Johnson that clients at his firm had been overbilled for research by his lawyer, that downwardadjustments to one client’s bill had been $11,000, and that he, David Johnson, did not owe thelaw firm a dime. But he changed his mind when Johnson decided to let that wheelchair-boundattorney, who had withdrawn from the Libow law firm and whom Mr. Libow had allegedly




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disparaged in a vulgar, misogynist manner in his conversation with Mr. Johnson, continue tohandle his case.

The action for the $1,621 balance allegedly due was brought in the small claims court, whereEric Stockel, an attorney for the Libow law firm, stated to the judge that Mr. Johnson’s

complaint to the Bar was privileged, i.e. immune from retaliatory legal action. Nevertheless, Mr.Libow asserted a defamation cause of action as a counterclaim in small claims court although itshould have been an independent action in the circuit court. The issue was eventually removed tothe circuit court (see Libow v. Johnson and Johnson, 05-3299 CAA1,502005CA003299XXXXMB) where it was prosecuted by Mr. Tifford, forcing Mr. Johnson toengage an attorney to defend himself and his wife until the defamation case was dismissed.

The perversion of the judicial process would cost the Johnsons in excess of a quarter-milliondollars. Mrs. Johnson was named in the defamation suit although she had not signed the Barcomplaint against Mr. Libow and other members of his firm; Mr. Libow admitted incorrespondence with Mr. Johnson that he named her simply to get at her property however it was

held. Since the defamation claim was not a proper counterclaim inasmuch as it was not in thecontext of the small claim for fees, but was really a separate claim, and was filed with no legal basis whatsoever since Mr. Johnson’s complaints to the Bar were absolutely privileged, the behavior of Mr. Libow and his father-and-law laid the ground for the current malicious prosecution and abuse of process suit.

Mr. Johnson’s Bar complaint stated that Mr. Libow said Mrs. Libow had put him up to making a police report against Mr. Johnson — no arrest was made and no charges were brought becausethere was no evidence of wrongdoing. And he complained that Mr. Libow was delusional, wasmaking ―over t death threats‖ including an email allusion to the movie Cape Fear — the protagonist, doomed to drown in that movie, was a jailhouse lawyer who filed a complaint with

the Bar against his lawyer for ignoring evidence that would have him acquitted although he wasguilty. Mr. Libow implied in one email that he, Mr. Johnson, was a mass murderer, likening hisBar complaint with the January 2005 murder of Mr. Libow’s babysitter, Shanette Jones, and hertwo daughters, Ashley and Joanna Robinson; the girls’ step-father, who had attempted suicide,was suspected in the shooting. The family had made a lot of money in real estate; Mr. Libowwould represent Shanette Jones’ parents in the wrongful death civil suit.

Mr. Johnson disparaged Mr. Libow’s character in his complaint to the Bar, stating, for example,that, while ―Jessie James used a horse and a six-gun to carry out his robberies, Mr. Libow uses acomputer and the United States Mail to carry out his.‖ He further claimed that Mr. Libow carriedout said robberies on ―less sophisticated clients‖; had a ―total absence of ethics‖; was guilty to

―concocting a story and filing a false police report‖; ―modified (forged)‖ email; was a pathological liar predisposed to ―wild accusations‖; overbilled and used unlawful collectionsmethods; abused the legal process; was a ―psychotic misfit‖ with a ―psychotic agenda,‖ besides being a ―creative, twisted, lying son of a bitch.‖ After nine months had passed since Mr. Johnsonfiled the original complaint, he besought the Bar, which had yet done nothing, to ―get off your bureaucratic asses and do something before this twisted madman lands us all on the six o’clocknews.‖




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The defamation suit against the Johnsons was ultimately dismissed by the circuit court and thedismissal was affirmed on appeal. The lower court held that most of the statements made weremere opinions or were hyperbole not to be seriously construed as statements of fact, and thatother assertions were not otherwise actionable. The few fact-like statements that would beactionable if false were protected or absolutely privileged because they were made in a complaint

to public officials for redress of grievances. Therefore there was nothing to be taken to trial. Butthat was not the end of the duress for the Johnsons, who refused to be slapped into silence andwho claimed they had fronted nearly a quarter million dollars to defend themselves, which theywere at a loss to fully recover.

As for The Florida Bar, it took no action against Mr. Libow or other lawyers at his firm oragainst his father-in-law, Mr. Tifford, even though threatening to file or filing a suit againstsomeone for bringing an inquiry or complaint to The Florida Bar is a prima facie violation of theethical standards promulgated by the Bar.

For example, in The Florida Bar v James Daniel Eckert, File No. 2009-11,071 (6C), The Florida

Bar averred that Mr. Eckert had represented Jean Camposecco in post dissolution of marriage proceedings, and that, while the case was pending, the opposing party, Robert Camposecco, filedan Inquiry/Complaint form against the lawyer with The Florida Bar, which it received on March4, 2009, alleging that Mr. Eckert had blackmailed him, and had personally called him at homealthough he was represented by an attorney, one Phillip McLeod. Those complaints weredropped or dismissed by the Bar although it did not create a record explicitly discharging them.

However, the Bar on its own initiative charged Mr. Eckert with threatening to sue Mr.Camposecco with defamation for bringing the complaint. On December 30, 2009, the SixthJudicial Circuit Grievance Committee found probable cause for further disciplinary proceedings,that the Respondent had violated Florida Bar: Rule 4-8.4(d), stating that a lawyer shall not

engage in conduct in connection with the practice of law that is prejudicial to the administrationof justice. The probable misconduct was stated as: ―On or about July 9, 2009, Respondent wrotea letter to a complainant threatening to sue him for defamation and damages unless he withdrewhis Bar complaint and issued a letter of apology within five days.‖ The lawyer and his attorneyclaimed ignorance of the Rule and the common law involved, and copped a plea.

The Florida Bar has not yet been sued for its apparent gross negligence or otherwise taken to taskfor its dereliction of duty in the Libow v. Johnson matter although it has been aware of theinfraction of its Rules since 2004 (the Bar has as recently as this 2011 reviewed documents in thematter) yet did nothing to stop the malicious prosecution of the Johnsons, which would havesaved the courts and everyone else concerned a great deal of aggravation, time and money.

It is reasonable to assume that the power elite at the Bar have a favorable relationship withMssrs. Libow and Tifford, or that the persons involved at the Bar are incompetent; in either casethey should be discharged from their offices forthwith, as they would be if they worked for agood law firm, and perhaps subjected to Bar investigations themselves. That is highly unlikely tohappen, however, unless the Press, the so-called fourth branch of government, is willing to shedlight on the matter, something that two major mainstream publications have failed to do, despite being fully informed of the particulars of the public record over the past year, presumably




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because professional journalists dare not alienate the judiciary, the source of their press shieldand one of their main news sources.

# #




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FROM ‘THE MALICIOUS PROSECUTION OF DAVID JOHNSON’By David Arthur Walters

Scene from Shay’s Rebellion - Classroom Clip Art

“KILL THE LAWYERS”

The Florida Bar, the “arm” of the Florida Supreme Court responsible for the licensing anddisciplining for Florida lawyers and for looking out for their political-economic interests,advertises on its website that a person who files a complaint with it against a lawyer may not besuccessfully sued for doing so providing it is not published elsewhere. Kenneth Marvin, Directorof Lawyer Regulation for the Florida Bar, has also stated as much in writing to inquirers. Heattached to his statement the decision in Tobkin v. Jarboe, 710 So.2d 975 (Fla. 1998), which

holds that a person’s complaint to the Bar against its member is absolutely privileged hence notsubject to retaliatory litigation such as suits for malicious prosecution and defamation, even if theallegations therein are defamatory and maliciously made, to support the Bar’s position.

Therefore lawyers are presumably held to a higher standard than others, in the interest of protecting the public from abuses of the extraordinary power they wield as officers of the court.The Florida Bar relied on that common law, in The Florida Bar v James Daniel Eckert, File No.2009-11,071 (6C), when it prosecuted an attorney for threatening to sue an opposing litigant for




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defamation of character for filing a complaint with the Bar against him. The aggrieved partywithdrew his complaint; nevertheless, on December 30, 2009, the Sixth Judicial CircuitGrievance Committee found probable cause for further disciplinary proceedings, that theRespondent had violated Florida Bar: Rule 4-8.4(d), stating that a lawyer shall not engage inconduct in connection with the practice of law that is prejudicial to the administration of justice.

The probable misconduct was stated as: “On or about July 9, 2009, Respondent wrote a letter toa complainant threatening to sue him for defamation and damages unless he withdrew his Barcomplaint and issued a letter of apology within five days.” Neither Mr. Eckert nor his attorneyhad heard of any such a rule in their decades of practicing law in the state, so ignorance of therule of “unqualified immunity” i.e. “absolute privilege” was pled and a slap on the wrist was theresult.

As every serious inquirer knows very well, The Florida Bar’s enforcement of its Rules isselective, to say the least, if not random. Smalltime lawyers are disbarred for conspicuousinstances of theft. Complaints against some of the most affluent and trusted lawyers in the statewere passed over until they were recently arrested, prosecuted, convicted, and sent to prison by

the federal government. Inconsequential lawyers who kowtow to the Bar are likely to get offeasy when the Bar pursues complaints against them, but woe unto any lawyer who persistently bucks the system and therefore makes an ass of himself before the Bar by criticizing it or the judicial elite. Woe unto any lay complainant who does likewise, going so far as to call the Bar anass—we recall how Marguerite Porete was burned at the stake on June 1, 1310, after she calledthe university law professors asses.

The most glaring example of the Florida Bar’s hypocrisy in respect to the well settled law ofabsolute privilege for complaining to the Florida Bar and other government authorities is itsfailure to prosecute Allen H. Libow, Esq. and his bevy of attorneys for the malicious prosecutionof David Johnson and his wife for bringing a complaint against him for defamation of character.

Mr. Johnson alleged in his running complaint to the Bar that Mr. Libow, among other things, hadtried to shake him down for $100,000 over trumped up legal fees that had, after Mr. Johnsondisputed them, been reduced by Mr. Libow to $1,621 before he filed his claim in Palm BeachCounty Court, after it was pointed out to him that Mr. Johnson had been charged for anappearance not even made.

The fee dispute arose after Mr. Johnson’s attorney had withdrawn from the Libow law firm; Mr.Johnson decided that she should take his case with her after Mr. Libow flew into a rage on thetelephone and vulgarly disparaged his former, wheelchair-bound associate. Mr. Libow wanted tokeep the case in house, and at one point he said he would waive whatever balance was due if hisfirm was allowed to keep it.

Mr. Johnson, after he was sued for $1,621, checked the court’s docket, and, noticing that claimsfor fees had been filed against a great number of the Libow firm’s clients, claims that werethereafter settled, may have had good reason to believe that Mr. Libow, with the advice andassistance of his lead attorney and father-and-law, Arthur W. Tifford, were running some sort ofshakedown racket.




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Mr. Tifford began his illustrious career as a judge advocate judging minor cases includingmarijuana cases in Vietnam, and then made a great deal of his fortune defending drug dealersand white-collar fraudsters. We note that he was a sort of house counsel for the notorious SquareGroupers, and has recently starred in a documentary about them. He implies from the huge judgments he has won that his fortune is grand. However, the grandness of his portion is dubious

because large default judgments against bankrupt firms may be uncollectible, and shares of stocktaken as fees may be worthless. Nevertheless, and despite the recording of several federal taxliens, he possesses considerable assets and is apparently, at least, an affluent lawyer withconsiderable influence on what is called “the Good Old Boys” of the bar.

The case Mr. Libow brought against Mr. Johnson, to retaliate for the Bar complaint andobviously to give him further incentive to fork over $100,000, was first brought in the countycourt and then removed to the circuit court, is variously styled, and can be found in the circuitcourt as Libow & Shaheen LLP v. David Johnson & Jane Johnson, brought in the FifteenthJudicial Circuit in and for the County of Palm Beach, Case 502005CA003299. The lawsuit was broken into two parts and both parts were won in the circuit court by the Johnsons, affirmed on

appeals, at a cost to them of nearly $250,000.

The case, which runs into many thousands of pages due to the dilatory and deceptive tactics ofthe Libow lawyers, is a monumental demonstration that the Florida Bar will unashamedly stand by and watch a petitioner who complains about one of its members be bullied and beaten to a pulp without lifting a finger to protect him from the utter disregard of the very common law and bar rule it cites in his favor, particularly if Bar counsel does not like the presumably disrespectful“tone” of the complaint, which might seem offensive to the highly self-esteemed profession atlarge. We are mindful here of some of the things that Mr. Johnson said about Mr. Libow, Esq. ashe desperately pressed the Bar to get off its “bureaucratic ass” and do something to protect hisfamily and the public. Unfortunately for the likes of David Johnson, it is up to the costly andcumbersome courts and not The Florida Bar to protect the complainants from retaliation forfiling complaints when the Bar has cause to sit on its “bureaucratic ass.”

Mr. Johnson’s complaint to the Bar accused Mr. Libow of extortion among other things, and wasmade pursuant to and in accordance with the Rules Regulating the Florida Bar. His letter ofcomplaint indicated that copies had been sent to other public officials whom he thought wereresponsible for regulating the behavior that he complained about; he later swore that no suchcopies were actually sent – he would allege that Mr. Libow and his attorney Arthur W. Tiffordknew those copies were not sent but would nevertheless insist that they were, in order to furtherdistract the court and dilate the proceedings. The complaint was not made nor signed by Mr.Johnson’s wife; she was, according to Mr. Johnson, malevolently named in the suit simply tofurther harass him. Both wives were brought into the fray early on: Melissa T. Libow was made

a plaintiff at one time because Mr. Johnson had said in his complaint to the Florida Bar that hewas “told” that she was on the verge of divorcing her husband for “other transgressions” – thecircuit court tossed out that defamation count because the plaintiff left out the “I am told” portionof the statement, and did not allege that the statement was substantially untrue. Curiously, afterthe Johnsons won their case and turned around and sued the Libows in 2011 for malicious prosecution and abuse of process, Mrs. Libow sued her husband for divorce but then dropped thesuit.




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It does appear from Mr. Johnson’s grievances that we are dealing with a stereotypical lawyerreminiscent of revolutionary times, when “Kill the lawyers and burn down the courthouse” wasthe outraged plea, an outcry that eventually led the judiciary to circle its wagons and “integrate”the bar with the bench to bring the former to heel and better repute. Of course, the revolutionwould not have succeeded nor would it have established and maintained our great nation without

lawyers to resolve conflicts short of actual violence; wherefore we should give lawyers their dueregard for fighting on one side, for liberty from the dictates of the other. Still, so foul then wasthe public opinion of the legal profession that a lawyer accused of the below might not take thecomplaint too personally.

According to the public record in the circuit court case, Mr. Johnson complained to the FloridaBar that Mr. Libow had a “psychotic agenda”, was “mentally unstable,” “mentally un-balanced,”“intellectually and emotionally unfit for his position of trust in the community,” which “makeshim dangerous to himself and others.” Furthermore, he was a “psychotic misfit” who “abuses the process of law,” and was “totally out of control,” using “the legal system not as a tool forresolution but as a weapon of harassment and intimidation,” that he was “one of the most

psychologically disturbed individuals [you] have ever encountered,” who “poses a threat” to the public, and has the “perverted logic of a psychotic madman.” Moreover, he had a “larcenousagenda” and of “attempted robbery” in regards to his “overbilling habits.” His “antics” hadallegedly forced Mr. Johnson to settle a claim for pennies on the dollar. In addition, he said, thelawyer was “an unethical miscreant”, one “filled with ignorance, hatred and vengeance,” whose“motives in pursuing this matter are in fact malicious and thus unethical.”Mr. Johnson hadwritten that “Jessie James used a horse and six-gun to carry out his robberies. Mr. Libow uses acomputer and the United States Mail to carry out his.” Further, the Complaint specified that Mr.Johnson stated that a lawyer with Mr. Libow’s firm said that Mr. Libow, as a “standard practice,”“performs these robberies on his less than sophisticated clients.” If that were not enough said, hemakes “a calculated effort to…avoid his ethical obligations,” and has a “total absence of ethics.”

Further, he “concocted a story and filed a false police report,” and “uses unlawful [business] billing practices”, “unlawful and unethical collection methods,” “twists facts and concocts lies,”and that certain email he sent out is a “forgery.”

Even today most attorneys, although bothered by the characteristically caustic stereotyping oflawyers, would not stoop to address let alone try to silence such caustic criticism, at least notunless there were considerable money to be had. Why sue someone for defamation and haveyour name dragged through the mud ever the more? You are a lawyer; someone calls you acrook and a liar; so what? What sort of damage could you possibly suffer in the public eye sincelawyers have been categorically thought of as thieves and liars since ancient times? All that doesnot detract from flip side of the contempt for lawyers, from the admiration of their ability tomake a great deal of money by virtue of the vicious sophistication of the Socratic Method;making wrong seem right, making the worst argument seem the better, and doing whatever elseone can get away with to make a buck, including intimidating people in depositions andarbitration, picking and choosing facts and concealing evidence.

And the fewer holds barred by The Florida Bar the better; what professional organization in itsright mind would want to restrain the trade of its professionals, for instance, with a Ruleexpressly prohibiting them from suing people who complain about them to their regulatoryagency? It is no wonder that the majority of competing lawyers are so demoralized that they




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regret they became lawyers in the first place. Little did David Johnson know when he filed hisinitial complaint that the Florida Bar, notwithstanding its arbitrarily enforced token rules, couldreally care less about people being roughed up by malicious attorneys, for is not that whatlawyers are licensed to do for a living? In a February 10, 2005, letter to Lillian Archbold andJoel Klaits, Bar Counsel at the Fort Lauderdale office of The Florida Bar, referencing Florida

Bar case numbers 2004-50,223 (15A) and 2005-50,281 (15A), David Johnson desperately pleaded that some action be taken to protect him and his wife.

“In an overt attempt to intimidate me and deter me from reporting his unethical and irrational behavior to the Florida Bar, Allen Libow continues his threats, just as he has done in dozens of previous e-mails. Libow continues to threaten to ‘sue’ me for ‘libel, slander, defamation,’ etc,etc, etc. He has claimed to the court that the Bar Complaint filed by me was defamatory andtotally false.”

Mr. Johnson complained about the purportedly meritless lawsuit the Libow firm had filed againsthim for $1,621 in fees, and recited the behavior that had caused him and his wife to fear for theirlives. During the course of the litigation, he said, Mr. Libow had leaned across a table at him, puta finger in his face and screamed, “I’m going to bury you! Do you hear me? I am going to buryyour ass!”

Mr. Johnson evidently has an issue with bureaucrats. Don’t we all? Bureaucrats, as we know, aremembers of the fifth wheel of government, whose derrieres are secure and whose feet are rarelyheld to the fire. He complained to Bar counsel that six months had passed since he had broughthis initial complaint against Mr. Libow to the attention of the “bureaucrats” at The Florida Bar,yet he had not even the courtesy of a reply, despite the fact that “several overt death threats” had been made against him and his wife along with other conduct that led him to believe that theattorney had ethical and emotional issues that should cause any “prudent governing body to barfrom the practice of law.” Moreover, “Given the nature and tone of previous correspondence

from Allen Libow in the course of events that lead us to today, I have come to realize that AllenLibow is so emotionally involved as to render him totally incapable of rational discourse. As aresult, I have made a concentrated effort to avoid dealing with him during the resolution of issuesrelated to the litigation process as well as the pending Bar complaint.”

And Mr. Johnson referred to seven threatening email and five phone calls. For example, hequotes from an email than Mr. Libow had sent to him and others: “’Our babysitter and her twodaughters were murdered late Saturday, early Sunday in their home. The culprit is a man, whowas our babysitter's husband. His actions are very similar to those taken by Mr. David Johnsonagainst me and my family.’ Allen Libow goes on to make what sounds like a murder-suicidethreat when he says ‘I am going down big time,’ and, based on that statement, ‘it is you who will

be going down big time.’ In the twisted, delusional logic of Allen Libow, he is able to make thecomparative leap that the filing of a Bar Complaint and a Counter Claim in Small Claims Courtis the legal and ethical equivalent of a TRIPLE HOMICIDE. Now anyone that can make thatcomparative leap is certainly capable of making the leap that his antagonist deserves to die andfor him to kill the antagonist is nothing more than the legal and ethical equivalent of filing asmall claims action and a Bar complaint. This is your licensee. His behavior, conduct and logicare not at all typical or indicative of a rational individual, especially not one licensed by the




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Florida Bar to practice law. There is something seriously wrong here with the reality andcognitive perceptions of this attorney.”

The Libows and Johnsons were displaying what is known as the Cape Fear Syndrome, anundesirable psychological complex that sometimes emerges in lawyers and their estranged

clients. They have seen the first movie by that name and know what happens to a vindictive manself-trained in the law who files a complaint against a lawyer with the state bar for concealingevidence, and then goes after the lawyer’s family. The jailhouse lawyer is bound to lose at theend of the perverse process. A licensed lawyer may become so incensed by the resistance of hisunlicensed opponent that he projects his own disposition and imagines that his pro se combatantis the rapist Max Cady set out to kill his wife and kids; wherefore he wishes him dead; he will doeverything in his power as a licensed lawyer to bury the man for good, even if that means perverting the judicial process.

According to the accusations in the public record, Mr. Libow, at the alleged instigation of hiswife, had made what a police investigator deemed to be an unsubstantiated accusation, that Mr.Johnson had threatened his family. And Mr. Johnson referred Florida Bar counsels to the “CAPEFEAR” email received from Mr. Libow, noticing that the lawyer in that movie had killed a manwho had threatened his family and filed a bar complaint against him with the North Carolina Bar.The meaning of the only two words, “CAPE FEAR,” put in uppercase in Mr. Libow’s email, wascertainly not lost on the several recipients, especially Mr. Johnson.

“The attorney is desperate to rid himself of this man,” Mr. Johnson recounted. “In an effort to doso the attorney hires some local thugs to track down and then physically assault the attorney’santagonist. The assault by the attorney’s hired thugs fails to deter the antagonist. The story endswhen the attorney has killed his antagonist! Now I don’t give a damn who you are, how big youare, how tough you are or how many guns you own, that is a frightening threat.”

“As a consequence of the Florida Bar’s failure to take some remedial action against thisattorney, my wife and I have become prisoners in our own home. Allen Libow clearly has a perverted perception of reality…. We now lock every door behind us every time as we come andgo. In the evenings we are forced to close all the blinds for fear that Allen Libow (or someonehired by him) will find justification in his troubled mind to shoot one of us in the back as we sitin our own home. We have an office in our home. Before we became the targets of Allen LibowI thought nothing of sitting with my back to that window. Now when my wife enters the room ifthe blinds are open behind me she will close them and cautions me to do the same. No oneshould have to live in fear of a paranoid and deranged attorney. My wife and I live that wayevery day now.”

Let us keep in mind that it still takes two to tango in swampy Florida. Emotions can be especiallycontagious and tormenting in subtropical climes. Anger, and fear of retaliation for angrythoughts and deeds, can be ramped up through a positive feedback cycle until the reactorsvirtually melt down and chaos ensues. We can fairly speculate that the Libows were keepingtheir doors locked and blinds pulled too, and perhaps they had a shotgun, assault rifle, andseveral pistols readily available given Florida gun laws.




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We have elsewhere speculated that there was a tipping point in the relationship between Mr.Johnson and Mr. Libow, where Mr. Johnson might have massaged the lawyer’s ego and gottenthe man off his back. And there was a point like that, where Mr. Johnson tried to bend over backwards and let bygones be bygones, but no dice. He became increasingly alarmed by Mr.Libow’s persistent tone and demeanor, and Mr. Johnson’s temperament does not incline him to

cower before any intimidating man. Further, what the lawyer had done was, to put it simply,wrong; so here we have here a “matter of principle” to fight over at all costs. Many Christianstoday forgive others so they can feel better themselves. But we think Mr. Johnson will neverforgive Mr. Libow and his father-in-law Mr. Tifford for the persecution he and his family havesuffered at their hands, nor is he liable to excuse Mr. Libow’s behavior as the product oftemporary insanity or chemical influences, and sit down with him, Mr. Tifford and Jack Danielsone day in Mr. Tifford’s fabulous hideaway home in Rhode Island. By Golly, this is a case oforiginal sin, of God versus Satan, and that cannot be changed. This is a family feud, a case ofenemies for life at least. We note well the remarks of the Court in the case:

“It is truly not an exaggeration to state that in the combined twenty-five (25) years

of legal experience as a litigator and judge that this court has not seen a morecontentious and unfortunate case history as the instant litigation.” “The instantlitigation has not been aided by the fact that the Libow firm has been primarilyrepresented by Allen Libow’s father-in-law, Arthur W. Tifford, Esq. and Mr.Libow’s sister-in-law, Alexandra L. Tifford, Esq. Unfortunately, theirinvolvement has only served to increase the personal tension between themselves(inclusive of Mr. Libow) and David Johnson.”

Some judges would simply dismiss Mr. Johnson’s case because it is just another bitter feud between a lawyer and client, without considering who initiated the feud and holding him liable.The lawyer would naturally favor the lawyer over the non-lawyer, but we expect the judge to putaside his professional prejudice to do impartial justice in the case at hand. We might dislike if nothate lawyers, and want to kill every last one of them, but without them and the vast system ofconflict resolution they serve, people would have resort to violent feuds and the nation woulddevolve into chaos until, at least, a primitive feudal system was established with definite codes.

Mr. Johnson concluded one of several futile pleas to the bar with, “The Florida Bar has thus far been remiss to take any action whatsoever against an attorney that clearly has no business in the practice of law. While Allen Libow is obviously a contestant in your popularity contest, I’m not.And neither are the countless other people that have and will eventually fall victim to theunethical practices of Allen Howard Libow Esq. The time has come for you folks to get off your bureaucratic asses and tend to this situation ASAP, before this attorney does something thatlands us all on the front page of the newspaper. The time has come for peaceful law abiding

people like ourselves to be free from the threat of imminent danger from a lawyer whoseabysmally unethical conduct falls directly under the purview, authority and responsibility of theFlorida Bar. I remain, Sincerely, David Johnson.”

Florida Bar counsel was offended by Mr. Johnson’s sincere tone; Mr. Johnson said his complaintwas dismissed that day with a chilling criticism of his rude manners. But never mind; he wouldcontinue complaining for justice ever since, thus far to no effect.




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Thus it appears that whether or not Florida Bar staff and counsel investigate and prosecute acomplaint may depend on the tone in which it is made and followed up on. If Mr. Johnson had played nice, if he had maintained a tender, sweet or ingratiating tone, if he had gotten down onhis knees, looking up admiringly while beseeching the authorities, the Florida Bar might have put an end to the malicious prosecution of himself and his wife by one of its highly esteemed

members.

But we cannot be sure if Mr. Johnson’s manners were the cause of the Florida Bar’s grossnegligence. As Martin Luther noted on several occasions when he was called to task for hislogical absurdities, a god works in mysterious i.e. self-contradictory ways. And the Florida Barmight have an ulterior motive for its continuous dismissal of Mr. Johnson’s running complaint,which it is fully aware of to this day. Perhaps detectives will discover and disclose the facts, andlawyers will have the courage to take the Bar before the bar to hold it liable to the full extent ofthe law for what it has done and not done in respect to the case of David Johnson and all likehim.




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REEFER MADNESS & THE SQUARE GROUPER

Scene from ‘Reefer Madness’

Allen H. Libow, Esq. was obviously mad at David Johnson for filing a complaint against himwith the Florida Bar claiming that he had tried to extort $100,000 from him over a $1,621 legalfee claim, but was he more than mad—was he a madman?

The adversarial legal profession is, after all, well known for a high incidence of mental illness

within its ranks. Mr. Johnson’s bar aggravating complaint referred to Mr. Libow as a “psychoticmisfit” with a “psychotic agenda,” and a “creative, twisted, lying son of a bitch.” After Mr.Libow filed his retaliatory complaint against Mr. Johnson and his wife, who was not even a partyto the bar complaint, for defamation, the circuit court would hold the particular references to thelawyer’s mental state are matters of subjective opinion and not statements of objective fact,hence not actionable in a defamation case, but the court declared certain other statements asactionable. Eventually the court dismissed every count against Mr. Johnson, and the appeals ofMr. Libow and his affluent attorney and father-and-law Arthur W. Tifford would force the




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appellate court to affirm. All told, Mr. Johnson had to shell out around a quarter of a milliondollars to defend his family against the licensed predators while the Florida Bar sat on its hands.

If Mr. Libow were mad, was there a method to his madness? Perhaps he was mad about moneyand thought he could pick up a quick hundred grand. The profession certainly has a problem with

bad-mannered attorneys who behave rudely if not crazily to get their way. Mr. Johnson did alittle research of the court records and discovered that Mr. Libow had sued scores of his ownclients. He figured most of them had settled rather than hire another attorney to defend them. Italso appeared to him that Mr. Libow had brought in his big gun, Mr. Tifford, to put the squeezeon the recalcitrant ones where the money involved made it worthwhile. Given the circumstances,an innocent bystander might assume they were running some sort of racket—perhaps Rico, thelegendary gangster after whom the RICO Act was named, was afoot.

An examination of the public record in the court and bar cases gives us a definite impression thatMr. Libow panicked easily and was unduly paranoid – lawyers have good reason to be paranoidwhen everyone is out to get them in the adversarial war of all against all. Many of Mr. Libow’s partners were apparently out to get him; he had a habit of suing or threatening to sue many ofthem, so he should have not been surprised when he was told they did not like him. His behaviorsuggests that he may have been suffering from anxiety associated with the bipolar or borderline psychological disorders.

A great number of people treat themselves with cannabis if not prescription drugs for relief ofanxiety, all of which have side effects and might even aggravate the symptoms. Rumors were bandied about the law firm that Mr. Libow had inhaled. Marijuana is an intoxicating narcotic thathundreds of thousands of Floridians including lawyers happen to regularly enjoy and would liketo legalize. For example, Scott Rothstein, at one time the mostly highly respected and powerfulattorney in Florida, personal friend of the governor and responsible for recommending judicialappointments, had what he called his rock star life come to an abrupt end when he was caught

running a massive Ponzi scheme; testifying recently in an attempt to get his 50-year sentencereduced by ratting out his fellow attorneys, he said that so much pot was being dealt and smokedaround the law firm across the street from a whorehouse he had established for them that he wasmore worried about being busted for that than for his fraud operation.

The drug apparently enhances malignant narcissism, delusions of grandeur and persecution, andis not conducive to the operation of machinery or the practice of law; indeed, the Florida Barshould mandate drug screening for all licensed attorneys. The deleterious effects of cannabiswere exploited early on in the movie Reefer Madness. Smoking pot is not as harmless as its proponents think it to be nowadays, nor is it as harmful as portrayed in Reefer Madness. Still,scientific studies provide ample evidence that marijuana use unleashes paranoia and induces

anxiety and panic attacks. For example, nearly half of the healthy subjects tested at YaleUniversity experienced psychotic symptoms under the influence of the drug’s active ingredient.

If Mr. Libow was using pot, his attorney and father-and-law should have stopped him. Arthur W.Tifford, a member of the Florida Bar since 1967, could certainly attest to the awful truth aboutthe drug’s side effects depicted in Reefer Madness given his experience as a judge advocate inVietnam, where he handled a number of petty marijuana possession cases as a special-courtmartial military judge, and his experience defending infamous pot smugglers in Florida from the




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late 70s through the early 90s—he returned to Florida from Vietnam after a stint at the NavalJustice School in Rhode Island, and served in Miami as an Assistant U.S. Attorney specializingin fraud and racketeering cases before he became a criminal defense lawyer specializing in drugcases, and turned to white collar criminal defense when the drug money dried up.

Capt. Tifford graduated from Brooklyn Law School, who became a member of the Florida Bar in1967, was attached to the 1st Marine Division. On Aug. 1, 1969, the day the Military Justice Act,designed to replace the old disciplinary system with a more judicial process, was signed byPresident Johnson, Capt. Tifford and other lawyers at the Da Nang Headquarters were sworn inas military judges. The new military judges would have authority similar to federal district court judges. They were usually captains, on their first tour of duty, who were given 10-days militaryjudge training in the Philippines. There was a rush to appoint the new judges due to a major break down in discipline, general disrespect for authority, and increase in crimes includingserious crimes such as armed racial conflicts and fraggings. Marijuana offenses were so prevalent that the general-court martial system was overloaded and seldom resulted in evenspecial court-martials. Colonel Robert D. Heinl had summed up the situation with, “By every

conceivable indicator, our army that now remains in Vietnam is in a state of approachingcollapse…. Murdering their officers and noncommissioned officers, drug-ridden anddispirited…buffeted from without and within by social turbulence…race war…and commoncrime…. Often reviled by the public, the uniformed services today are places of agony for theloyal, silent professionals who doggedly hang on and try to keep the ship afloat.”

Special court-martial Judge Advocate Tifford and his colleagues were therefore responsible fornipping pot use in the bud, hopefully before general court-martial behavior ensued from its psychotropic affects. Roughly half of the cases tried by Capt. Tifford and the other special-courtmartial judges rushed into Vietnam were marijuana cases. A breakdown in authority had beencorrectly attributed to the widespread use of the drug. Marijuana was available from unsavorycharacters on every corner, costing only ten cents for the leaves wrapped around a stick. In adangerous environment, such as in war where the prohibition against murder has beensuspended, smoking marijuana might induce a state of paranoia that could result in violentreactions against perceived enemies. Although pot could be purchased easily and cheaply onleave, its distribution was controlled on bases by dealers, some of whom would not hesitate togrenade informants.

Colonel Robert D. Heinl summed up the situation at the time: “By every conceivable indicator,our army that now remains in Vietnam is in a state of approaching collapse…. Murdering theirofficers and noncommissioned officers, drug-ridden and dispirited…buffeted from without andwithin by social turbulence…race war…and common crime…. Often reviled by the public, theuniformed services today are places of agony for the loyal, silent professionals who doggedly

hang on and try to keep the ship afloat.”

Army General William C. Westmoreland said he was aghast when he heard that soldiers weresmoking pot in their bunkers and consequently killing other soldiers. He said it did not happen orrarely happened. But judge advocates knew such offenses were unexceptional. A crackdown onmarijuana usage was deemed necessary – fragmentation grenades should be accounted for andkept out of the hands of soldiers when not in the field.




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Marines and Military Law in Vietnam – Trial by Fire (Dec. 1989), provides an exampleappertaining to the murder of First Lieutenant Tim Rohweller commanded Company K, 3dBattalion, 9th Marines:

‘Late that night, Smith, Napier, Egan, and Dudley, joined by Private First Class

Bobby R. Greenwood and Lance Corporal Hercules E. Brooker, sat before thetransient hooch smoking marijuana and discussed Smith's plan. According toBrooker's later trial testimony, Smith said, "Lieutenant Rohweller and Lieutenant Newsome are in the rear, and when those m*******s go to the field, they'retaking every f****ing body with them." Smith said of Lieutenant Rohweller thathe, Smith, was "going to 'do' that m********** as soon as he crashes" anddiscussed his plan to frag the lieutenant. Dudley told Smith that he was crazy andleft the group. At 0210 on 21 April those in the transient hooch were awakened byan explosion. An M26 fragmentation grenade had detonated in the neighboringcompany office directly under the cot upon which Lieutenant Rohweller slept andinflicted shrapnel wounds of the head, chest, and abdomen.’

Let the voluminous court records archived over the decades show that Judge Advocate Tiffordlearned much during his career including some tricks of the trade in Vietnam. He has a wealth oflitigation experience under his belt; he is certainly no slouch when it comes to caviling and pettifoggery and boasting about the large judgments he has won. He is a wizard at pulling rabbitsout of the hat wherever his fortune is concerned. Indeed, the sophist will use every trick insideand outside of the book he can get away with to get his way, including hypnotizing a judge in theLibow v. Johnson case into thinking the same case is two different cases, and that wrong is rightand right is wrong, anything at all to add to his considerable estate. One of his favorite tactics is burying the court in documents and then rewriting case history as it progresses, makingnumerous misstatements about the content of a filing made thousands of pages in the past.

He does not take a case for nothing. When he takes one, he looks out for number one first, soeveryone but him may lose if given the worst case scenario. Somehow he will come out withsomething for himself even when a case is hopeless—try to get the court to order a detailedaccounting of his costs, including the consultant in Canada, which might exceed the judgmentawarded. One thing is for sure, if there were no money for him in his son-in-law’s allegedlymalicious and abusive defamation suit against the Johnsons, he would not have bothered with itexcept perhaps to warn his son-in-law that defamation cases may cause the disparagementcomplained of to be published even further so that the truth might be ascertained in the publicforum – later on, he tried without success to get the record sealed by the court.

Mr. Tifford has reason to boast about his history but he exaggerates. Several of the huge awardshe obtained are default judgments against bankrupt companies, and he may have troublecollecting fees paid in the form of potentially worthless stock. We get a further inkling of hisnature from his profile on his firm’s website, which states that he “began his career in the law inVietnam as a Judge Advocate General for the United States Marine Corps and a Military Judge,among other responsibilities.” And again: “He has also been certified as a judge advocate

general of the United States Marine Corps and Military Judge j.g. (currently referred to asMilitary Magistrate Judge) pursuant to Article 27(b), Uniform Code of Military Justice, Title 10Appendix, United States Code.” i




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“General” Tifford’s copy is patently overblown, creating the appearance that he is of muchhigher rank than he is. He is just a military lawyer or judge advocate, a grunt lawyer and not theJudge Advocate General. The Marine Corp, whose chief legal officer is called Staff AdvocateGeneral, which recognizes that there is only one Judge Advocate General in the Naval Service,falls within the civilian Department of the Navy. There is only one Judge Advocate General of

the Navy at any one time. He is the highest ranking uniformed lawyer in the Navy. He is thechief legal advisor to the Secretary of the Navy and Chief of Naval Operations. By law that person is appointed a three-star vice admiral or lieutenant general while in office. He can be aMarine, but only one Marine appears on the current list of Judge Advocate Generals: WilliamButler Remey, who served as Judge Advocate General 1880-1892.

At least Mr. Tifford’s advertisement cites the Uniform Code of Military Justice that properlyidentifies him, not as a “Judge Advocate General”, but as a mere judge advocate, i.e. a militarylawyer, and a military judge. Not many people would bother to look up the Code:

§801. ART. 1. DEFINITIONS (1) "Judge Advocate General" means, severally,the Judge Advocates General of the Army, Navy, and Air Force and, except whenthe Coast Guard is operating as a service in the Navy, the General Counsel of theDepartment of Transportation. (10) "Military Judge" means an official of ageneral or special court-martial detailed in accordance with section 826 of thistitle (article 26). (13) "Judge Advocate" means - - (A) an officer of the JudgeAdvocate General's Corp of the Army or the Navy; (B) an officer of the Air Forceor the Marine Corps who is designated as a judge advocate; or (C) an officer ofthe Coast Guard who is designated as a law specialist. §827. ART. 27. DETAILOF TRIAL COUNSEL AND DEFENSE COUNSEL (b) (b) Trial counsel ordefense counsel detailed for a general court-martial - - (1) must be a judgeadvocate who is a graduate of an accredited law school or is a member of the barof a Federal court or of the highest court of a State; or must be a member of the bar of a Federal court or of the highest court of a State; and (2) must be certifiedas competent to perform such duties by the Judge Advocate General of the armedforce of which he is a member.

Marine lawyers were authorized to call themselves “judge advocate” by amendment to theUniform Code of Military Justice of 1950, as amended by Military Justice Act of 1968 signed byPresident Johnson; the Act afforded new due process rights to defendants in special court-martials where intermediate offenses are tried – minor offenses are dealt with in summary court-martials and major offenses tried in general court-martials. An accused, instead of having adisciplinary summary-court martial, where he would have no right to defense counsel and anindependent judge or jury, could opt to have his case tried in special-court martial by a “military

judge”, a lawyer serving as a judge, where certain due process rights would automatically beobserved. The designation “military judge” replaced the former designation “law officer.”

Incidentally, Mr. Tifford likes to brag about his service in Vietnam, referring to his law office asa war room, pointing at commendations on the walls while claiming that he worked with the CIAinterrogating prisoners, but he took no prisoners, he put people in body bags, and the like.




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Frame from ‘Square Grouper – The Godfathers of Ganja’

Mr. Tifford is currently a movie star in the recent documentary, ‘Square Grouper – TheGodfathers of Ganja’, Director Billy Corben’s examination of the 1970s and '80s pot-smugglingculture in South Florida. The film opened in Miami on April 15, 2011, which would have beenthe due date for filing personal income tax returns if it had not been put off until the 18

th of the

month because of the District of Columbia’s Emancipation Day.

Mr. Tifford was apparently house counsel of sorts for the Black Tuna Gang, representing thelikes of the main principals, Robert Platshorn and Robert Meinster, who also appeared in thefilm, not to mention Mark Steven Phillips, who had been on the run for 31 years before hisarrest.

Mr. Platshorn, who has been known to prevaricate, called Mr. Phillips a “bit player” and anoutsider who never sold as much as a seed of pot. The Black Tuna Gang was charged withsmuggling several hundred million dollars of pot into the United States; Mr. Phillips wasimplicated in providing and customizing boats for the operation. Mr. Phillips came out of hidingin Florida, thinking the warrants for his arrest had been cleared. He had only $600 to his name;he declared his income to be $667 per month from Social Security, so the court appointed himcounsel. Apparently, Mr. Tifford was not interested in representing him pro bono despite hisaffection for the good old days.

“I was standing on a Miami street corner in deep shock after my van was totaled by a lady who

ran a light at full speed,” said Mr. Platshorn in a February 1, 2011 contribution to New Times. “Icould barely figure out how to use my cell to call my wife and ask her to call a wrecker to towaway my sweet little old 1993 Villager when I got an incoming call from Art Tifford, my long-time attorney. ‘Mark Phillips has been kidnapped in Chile and returned to the states forsentencing.’”

Mr. Platshorn claimed in his submission that Mr. Phillips was more of a pal than a member of thegang, and that it was Mr. Phillip’s father whom they dealt with at Striker Yachts. He said a story




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about a suitcase of cash might have been true, but Mr. Phillips was certainly not the gang’streasurer as had been claimed. That would be the bookkeeper, Howard Blumin. So poor Mr.Phillips, whom he said is basically innocent of wrongdoing, will now have to die in prison.

The court documents said otherwise, averring that Mr. Phillips had a major role in the operation.

And Mr. Platshorn himself had not downplayed Mr. Phillip’s role when interviewed by BrantleyHargrove for an article published by Broward-Palm Beach New Times on June 18, 2008,wherein he outlined some of the adventures of the gang. Mr. Platshorn said that Mr. Phillip’s wasa screw-up, that everything he touched turned to shit. One adventure proceeded with an offloadof 22,000 pounds of pot to a boat off Cape Fear. The load was then taken up the Cape Fear Riverto the Brunswick River destination, where Customs officials moved in for the bust—we notehere that Mr. Tifford’s client and son-in-law Allen H. Libow would eventually threaten DavidJohnson with “CAPE FEAR.”

In 1992, Mr. Tifford represented Mr. Blumin, who had informed on the Black Tuna Gang in atax case (Platshorn & Meinster v. Commissioner, T.C. Memo. 1992-694): “The issues for

decision are: (1) Whether respondent correctly determined that petitioners had unreportedincome in the amounts determined for each of their respective taxable years in issue, and (2)whether petitioners are liable for an addition to tax under section 6653(b) for each of theirrespective years in issue.” Yes and yes.

Mr. Blumin was the bagman for the operation, and the court noted that he carried around verylarge amounts of cash. Mr. Blumin is also a member of the ‘Square Grouper’ cast. We do notknow if Mr. Blumin testified about how the amount of the legal fees, and when and how theywere paid.

Perhaps no one will ever know how well Mr. Tifford fared representing drug smugglers.Everyone knows that legal fees were often paid with bags and suitcases full of cash from drug

sales back in the day; since then, money laundering laws have been enacted generally prohibitingsuch receipt of dirty money.

We have noticed that Mr. Tifford served as an instructor at the Naval Justice School in Newportafter his return to the States from Vietnam. He possesses to this day a luxurious hideaway homein Portsmouth, Newport, Rhode Island, assessed at less than $2 million – it may be worth farmore. The house was built and improvements were made over several years after the land was purchased, and includes such custom-made features as rafters taken from a barn. Mr. Tifford




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purchased the land in 1979 for $24,750, or around $75,000 in current dollars, land now assessedat $517,000.

Mr. Tifford may have found his coffers short of cash in the late 80s, ten years after he wasreleased from custody, having sunk his surplus funds into his properties. Judges were no longer

so willing to let drug smugglers off on novel constitutional grounds; the easy-money faucet ofthe business had gone dry, leaving him and other criminal lawyers with diminished cash flow. In1989, Mr. Tifford pled guilty to disciplinary charges brought against him by The Florida Bar inregards to the issuance of several worthless checks from his office operating account, ranging inamount from $1 to $9,839. The Supreme Court of Florida (Case 74,809) merely slapped him onthe wrist despite his previous criminal record; he got a public reprimand and had to pay costs of$598.

The Rhode Island land was purchased shortly after he was released from custody for a 1975felony conviction. He managed to have the jury conviction ultimately overturned in federal court by way of writ of habeas corpus in March of 1978. The state failed to make a timely response tothe motion for the writ, and then lost an appeal to undo the mistake in the federal case styledArthur W. Tifford, Petitioner-appellee v. Louie L. Wainwright, Secretary, Department ofOffender Rehabilitation, Respondent-appellant (588 F.2d 954). The federal court stated that thefailure of the state to respond in time was not really fatal inasmuch as the writ would have beenissued anyway because Mr. Tifford’s rights to a fair trial had been jeopardized in the state court because the court had refused to sever his case from the main defendant, his former client S.K.Bronstein, who said he would exonerate Mr. Tifford if they were tried separately. The FloridaSupreme Court ruled that the federal disposition of the case was tantamount to an acquittal; butthe Court declared that the Florida Bar might want to make further inquiries into the matter,which it lazily declined to do despite the fact that he was convicted by a jury after evidenceagainst him was presented. His license to practice law in Florida was reinstated in 1979.

In 2011, a litigant said she overheard Mr. Tifford say in open court, after accusing someone of being a convicted felon—one of his favorite tactics to destroy the credibility of an opponent— that he himself had never been convicted and incarcerated for a crime. Yet Mr. Tifford was infact convicted; he was certainly jailed after being arrested; he may have served time in prisonafter convicted, although the state prison bureau has no record of his incarceration—aspokesperson said there was an indication that the record may have been expunged.Hypothetically, he could have been out on bond pending appeals, and therefore still in “custody”although not incarcerated, and was thus subject to a writ of habeas corpus; although he was infact convicted, the conviction may be considered as illegitimate and never occurring since thelater event was declared tantamount to an acquittal.

Mr. Tifford has apparently done very well for himself since the Square Grouper days, but again,his advertisements seem overblown, and are indicative of his general approach. For example, hiswebpage brags that he and his firm received Top Verdicts in 2001 and 2005.

In 2001, Mr. Tifford came in as No. 6 in the National Law Journal’s Top 100 Verdicts with awhopping award of $388,910,000 in Universal Express Inc. v. Selection Capital Advisors Inc.Mr. Tifford had represented Universal and two of its principals in the SEC action brought againstthem for massive fraud, which continued even after the firm was ordered to fork over $22




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million. The principal operators of both plaintiff and defendant had been and/or were on theirway to prison. Universal Express was a package-shipping and postal store operator, and hadmade a financial arrangement with Selection Capital which involved long-term financing, whichwas never put in place as promised, and the conversion of debentures to stock, which put 2million shares of Universal Express stock in Selection Capital’s hands. The complaint against

Selection Capital alleged that it engaged in a pump-and-dump and naked short selling scheme,rigging Universal’s penny to rise then selling it short without intending nor having the means in place to deliver the stock sold. Billions of shares, six to ten times the outstanding shares of thecompany, were traded in a short period of time at far less than a penny per share.

The judgment against Selection Capital was given in default as no one showed up at the trial.The National Law Journal listed collection of the amazing sum as “pending.” Selection Capitalwas dissolved, so Mr. Tifford went after its principal, ex-convict Ronald Williams, and managedto collect $987,500 in cash and penny stocks in different companies, most of those shares beingrestricted. Mr. Tifford was able to liquidate some of the penny stocks for $136,000, so a total of$1,123,500 was yielded at one point during Universal’s receivership, all of which went to Mr.

Tifford towards his 40% contingency fee and expenses – he said the amount “almost covered”his expenses. Mr. Tifford continued to hold some of the restricted penny stocks. They were in hisname, but he was supposed to hold the stocks for the benefit of Universal Express; that is, withthe exception of stock in Tandem Energy Holdings, Inc, which he kept for himself.

On October 25, 2007, the market value of the shares Mr. Tifford held for Universal Express was$450,000. In fine, the value of the judgment against Select Capital on that date was only$1,573,000 and not the $388,910,000 awarded in the uncontested case.

Mr. Tifford tried unsuccessfully to liquidate the shares in Tandem Energy – the company said theshares were worthless, unregistered shares – so he is pursuing the matter in a Nevada court.

The S.E.C. had gone after Universal Express and its principals, Richard A. Altomare, and ChrisG. Gunderson, in the United States District Court for the Southern District of New York,accusing them of securities fraud. According to the S.E.C., when, on June 21, 2007, it asked thata receiver be appointed, the defendants were “repeated and remorseless violators” who hadengaged in “numerous and inexcusable instances of securities law violations over the course of atleast four years and gained substantial monies in relation to these violations -- which includedfraud at the likely expense of Universal Express shareholders and the investing public…. ” Mr.Tifford represented the defendants, but had to withdraw when it was disclosed that the F.B.I. wasafter Mr. Gunderson and Mr. Altomare, which gave him a conflict of interest in respect to Mr.Gunderson. The defendants were ordered to pay millions of dollars in penalties, disgorgement ofill-gotten gains, and interest. The defendants paid nothing and appealed. Mr. Altomare continued

to sell Universal Express stock. The appeal failed. He would eventually go to jail, insisting allalong that he had been crucified by the S.E.C. for exposing short sellers.

Mr. Tifford’s No. 11 ranking in the National Law Journal’s Top 100 Verdicts for 2005 was for a$163, 591,939 award in McKinney v. Bob’s Barricades Inc., a premises liability case involving asidewalk that had been closed, forcing people to walk onto the highway, where a car slammedinto Patricia McKinney’s boy, damaging his brain. But the award was reduced to $5 million because, moments before the jury came in with the high verdict, Mr. Tifford had negotiated a




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high-low arrangement that capped the defendant’s liability at $5 million. He said it was a gamblethat had to be taken because immediate payment was assured, noting that awards were almostinvariably reduced, wherefore the guardian, as a trustee with a fiduciary duty to hercatastrophically injured ward, was obligated to take the conservative approach. He said thatmany were the times when he had thought he had won a case but it was not really won in the

end; this way, the money would be paid within a month.

Coincidentally, on August 4, 2004, the same day that Mr. Tifford’s son-in-law Allen H. Libowand his firm Libow and Muskat LLP would file suit against David Johnson in Florida, the Libowlaw firm filed suit in Florida against Universal Express. Richard Altomare and ChristopherGunderson would also be named as defendants. An attorney by the name of James S. Usichappeared for Universal Express, and then, on January 14, 2005, he withdrew, leaving thedefendants unrepresented. On January 31, 2005, an attorney by the name of Steven Schwartzbergappeared and filed a notice to depose Mr. Libow and his partner William M. Shaheen. Suddenly,a joint stipulation of settlement was filed. Four days later, Mr. Tifford filed his notice ofappearance in federal court in New York City on behalf of Universal Express, Richard Altomare

and Christopher Gunderson. Walla! So the same law family, Tifford-Libow, sues the stockmanipulators and then defends them.

Now that we have an inkling of what Mr. Tifford does for a living long after he sat as a special-court martial judge in marijuana cases, noticing that he is capable of out-manipulating masterstock manipulators, we shall continue with our account of the Johnson case.

NOTE:

i Arthur W. Tifford Biography

[email protected]

Education• J.D., Brooklyn Law School, 1967• B.S., Queens College, 1965




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Bar & Court Admissions• Florida Bar• New York Bar• U.S. District Courts, Southern, Middle and Northern Districts of Florida

• U.S. Court of Appeals, First, Fourth, Fifth, Ninth, Tenth, Eleventh and Federal Circuits• U.S. Tax Court• U.S. Court of Military Appeals• U.S. Court of Federal Claims

Arthur Tifford is a shareholder in the firm. He practices in all areas of complex civil litigationand federal white collar criminal defense. Arthur Tifford graduated from Brooklyn Law Schoolin 1967. He was admitted to the Florida and New York Bars in 1967. He began his career in thelaw in Vietnam as a Judge Advocate General for the United States Marine Corps and a MilitaryJudge, among other responsibilities. Following his return to the states, he served as an instructor

at the Naval Justice School, Newport before returning to his civilian career which then startedwith his position as an Assistant United States Attorney for the Southern District of Florida,where he worked in the Criminal Division. While there, he created and headed the SpecialProsecutions Section of the Criminal Division. As a federal prosecutor, Mr. Tifford supervisedfederal grand jury investigations and specialized in jury trials involving mail fraud, wire fraudand racketeering. During his tenure as an Assistant U.S. Attorney, Mr. Tifford received theoutstanding performance rating awarded by the United States Department of Justice.

Mr. Tifford has been in private practice in Miami, Florida since 1972 specializing in complexcivil litigation and federal white collar criminal defense. He has received many awards including: National Law Journal "Top 100 Verdicts" in 2005, 2003 and 2001. See Highlights page forawards and other recognition.

Mr. Tifford is licensed to practice law as a member in full and good standing before the SupremeCourt of Florida, the Court of Appeals of the State of New York, the United States DistrictCourts for the Southern, Middle, and Northern Districts of Florida, the United States Courts ofAppeal for the First, Fourth, Fifth, Ninth, Tenth, Eleventh and Federal Circuits, the United StatesCourt of Federal Claims, United States Tax Court, and the United States Court of MilitaryAppeals (recently renamed). He has also been certified as a judge advocate general of the UnitedStates Marine Corps and Military Judge j.g. (currently referred to as Military Magistrate Judge) pursuant to Article 27(b), Uniform Code of Military Justice, Title 10 Appendix, United StatesCode.

Feb.

24,

2011

SOURCE

:

http://www.tiffordlaw.com/attorneys.php




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SUPERLAWYER BEGS TO BE DISBARRED

A

feared

and

loathed

Miami

attorney

petitions

the

Supreme

Court

of

Florida

to

permanently

disbar

him.

By David Arthur Walters

THE MIAMI MIRROR

July 23, 2013

MIAMI BEACH—It appears that the long and illustrious career of Miami lawyer Arthur W.

Tifford is coming to an end soon, at least in Florida—he is also licensed to practice in New York.

On July 8, 2013, Tifford filed a ‘Petition for Disciplinary Revocation of his License Without

Leave to Reapply for Admission.’ The Florida Bar has a complaint against him that it is keeping

secret for now. Tifford’s Petition filed with the Florida Supreme Court reveals that it involves the

misuse of trust accounts.

Tifford would rather ‘resign than be fired’ from his noble profession, metaphorically speaking.

Kenneth Marvin, Director of Lawyer Regulation for The Florida Bar, objected to the notion that

a Disciplinary Revocation is a voluntary “resignation.” He asked: Would someone voluntarily

have their driver’s license revoked? Perhaps he would, we thought, if he were no longer fit to

drive, or if the revocation would save him from a head-on collision. Tifford was unavailable for

comment before deadline.

The semantics: Disciplinary Revocation used to be called a “Disciplinary Resignation,” but the

word was changed, according to Marvin, because the Board of Governors of the Florida Bar felt

that ‘resignation’ sounded voluntary and ‘revocation’ sounded more disciplinary

The Bar must have absolute proof in this case of something very serious, indeed, for Tifford is

not a lawyer who goes down without a fight. In fact, he seldom goes down, preferring to stand




Page

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his ground to the dead end. And it is his pertinacity if not the merits of a case that gives him the

results that cause him to brag that he is a Superlawyer with some of the largest annual wins in

history under his belt—at least one of them appears to be a default judgment against a virtually

bankrupt entity. On the other hand, the feisty 70-years-old lawyer may want to retire to enjoy his

rumored millions in real estate and offshore accounts with the least aggravation. Many of us let

our driver’s licenses lapse in old age.

Tifford went to law school in Brooklyn. He recently called himself the Judge Advocate General

in his website biography, but he was just a judge advocate, i.e., a military lawyer. He began his

career as a judge advocate in Vietnam, serving as a military judge in the special-court-martial

court, where he tried relative minor cases such as marijuana possession. On his return to the

states, he was an instructor at the Naval School in Newport, before becoming an Assistant U.S.

Attorney for the Southern District of Florida, supervising the prosecution of racketeers and

fraudsters. He went on to practice criminal law, serving as counsel and defense attorney for

some of the marijuana traffickers of the infamous Black Tuna Gang. He recently starred in a

nostalgic documentary about those heady days, ‘The Square Groupers—Godfathers of Ganja’

(2011).

When judges changed their minds about the civil rights of drug traffickers and convicting them

became a sort of slam-dunk, money for fees dried up, so Tifford took up defending white collar

criminals, stock scammers and the like. He did rather well for himself representing that sleazy

trade, in one case taking some unregistered stock as a fee and successfully battling for its

liquidation in the courts. He also settled a substantial personal injury case against Bob’s

Barricades before the jury came back with a huge award that made him look bad for settling for

the far smaller amount. Better one in hand than in the bush, he said, for one never knows what

might happen on appeal. Attorneys fear him for his dogged, dilatory tactics that can run them

ragged and cost their clients an arm and a leg. It is said that he makes so many misstatements and

misrepresentations in court that he has already crossed the finish line before someone can

document and complain about everyone of them, and when they do complain nobody would

believe them because of his heroic reputation beginning from the time when he said he took no

prisoners in Vietnam and was putting men in body bags.

The advantage to a troubled attorney like him in filing a Petition for Disciplinary Revocation of

his license under Florida Bar Rule 3-7.12 may be deduced from a reading of the Rule: “If a

disciplinary agency is investigating the conduct of a lawyer, or if such an agency has

recommended probable cause, then disciplinary proceedings shall be deemed to be pending and a

petition for disciplinary revocation may be filed pursuant to this rule.” That means that the

pending investigation may not proceed to a formal finding of probable cause, or, if it does, there

will be no Bar trial.

A bar file becomes public upon a finding of “probable cause.” Tifford’s case has not proceeded

that far, therefore it is a “pending investigation,” which will be dismissed if the Supreme Court




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accepts his Petition, and the original complaint and entire bar file will be destroyed after one year

hence be unavailable for public scrutiny. As long as it is pending and probable cause has yet to

be found, the complaint and the investigative file are confidential, therefore the Bar has refused

to supply us with the identity of the complainant, but would probably confirm the identity if it is

already known. That way, witnesses to misconduct will not be prompted by publicity of the

investigation into coming forward with evidence. Furthermore, patterns of misbehavior cannot

be ascertained in recent cases by way of reference to past inquiries and complaints since not only

have the older records been destroyed, but the record that there were any records as well. Since

the Florida Bar does not give regular public notice in mainstream media of dismissed

investigations and acquittals, the media and the general public that become interested in a

particular attorney’s record will usually make their inquiries too late to get the disciplinary file,

and find that the attorney has a clear record if he or she has not been disbarred.

Rule 3-7.12 requires the petitioner to make a statement disclosing “all past and pending

disciplinary actions and criminal proceedings against the petitioner. The statement shall describe

the charges made or those under investigation for professional misconduct, results of past

proceedings, and the status of pending investigations and proceedings.”

Again, an attorney may be keenly interested in avoiding public scrutiny of his behavior during an

investigation or before a bar trial after finding of probable cause, for the obvious reason that such

scrutiny might cause other victims and witnesses to come forward and make complaints or bear

witness. So a crafty dodger might be more laconic than usual in his Petition for Disciplinary

Revocation. Tifford, who is known for burying courthouses in reams of paper, was especially

taciturn this time.

Tifford’s confession itself is not a full confession, for a petitioner is not required to confess anywrongdoing for which has not yet provoked a complaint. His statement was not given under

oath. He cannot be charged with perjury if he lied. He could be disciplined for lying to the court,

but that would be moot if he is disbarred. He might be jailed for contempt, which would please

his victims, but that is highly unlikely.

In fine, he stated that the current complaint against him involves allegations of trust fund

shortages. He avoids the confession of a serious crime by using the word “allegations.” And he

averred that he received a public reprimand for misconduct in 1989, and that he has no criminal

convictions.

Janet Joyce Vernell, Tifford’s former client turned formidable foe, was outraged by the Petition.

She presented us with a copy of her “Emergency Objections” filed with the court, wherein she

alleges she is a victim who would be adversely affected by the court’s acceptance of Tifford’s

Petition. Her cognizable interest in Tifford’s disbarment as one of his victims liable to suffer

further harm by the acceptance of his Petition presumably gives her some little standing in the

matter before the Florida Supreme Court. If Tifford were suspended from practicing law pending




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the completion of an exhaustive investigation, it might allow her and other victims to recover

some filched money.

The Florida Bar provides an insurance fund to compensate victims, and is charged with

protecting the public against wayward lawyers by diligently investigating them and publicizing

the results so as to maintain the integrity of profession and public confidence in same. She claimsshe lost her $1.2 million home and considerable funds due to his misconduct, which she had

since long complained about to the Florida Bar, not to mention “severe life-altering damages and

suffering.”

Hell has no wrath like a woman who believes she has been befriended by her attorney only to be

cheated. Vernell pursued Tifford doggedly in the courts, but ultimately lost her cause on appeal,

she said, due to a technicality involving the number of pages in a brief.

“I filed my initial brief. Tifford answered after much delay, including a request to have it

stricken, which was denied, so he was forced to file an answer brief, which was about 30 pageslong and attached to over 1,000 pages of BS exhibits of proceedings before we had gotten to this

stage, all meaningless and typical of Tifford. Then I had to file a reply or rebuttal brief. You

cannot exceed 15 pages for that, and mine was 20 pages, so I asked simultaneously with my

filing if I could enlarge it to 20 pages or an extra 5 pages. My exhibits were only 50 pages. My

request was denied and my brief stricken.”

She also filed a complaint with the Florida Bar to no avail: On August 23, 2011, Bar Counsel

Shaneé L. Clark decided that the dispute was over fees and was therefore not a disciplinary issue.

Consumer advocates complain that the old fee dispute excuse is a common strategy disciplinary

agencies use to avoid disciplining lawyers throughout the nation.

On June 17 of this year, she was questioned in a deposition conducted by Tifford’s son-in-law,

Allen Libow, Esq., pertinent to his marital litigation with Tifford’s daughter, Melissa Libow.

Vernell recounted how she and her husband were approached and wooed for their fraudulent

mortgage suit against a bank, and then were duped and cheated by Tifford after he got friendly

with her. She said he wanted a $100,000 retainer but then went down to a zero just to get the

case, and then he allegedly ran up $186,000 in expenses but never supplied invoices to prove he

paid the amounts despite her demands that he do so. She said his negligence deprived her of a

jury trial that she certainly would have won; much to her surprise, her home was suddenly

seized.

During the deposition she spoke about her visit to Tifford’s fabulous hideaway house in Rhode

Island, and his relationship with a Rhode Island woman, whom she thought was a judge, while

his wife was on her deathbed. She said he related how he put 33 of his own men into body bags

in Vietnam, and the special things he did for the CIA. She was suitable impressed, and she

wondered if he want to make a pass at her. She testified during the deposition that Tifford grew

extremely hostile after he found out that she knew he was an ex-con: She had confronted him




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with the conviction although it was expunged from the record. She alleged that he told her he had

concealed the conviction from the New York Bar by lying on the forms.

When Libow asked her if she thought that Tifford would get angry enough to prosecute

somebody for seven years for broaching the fact of his conviction, she said, “I think he almost

has the propensity to win at all costs no matter what, whether it is money, whether it is toaggravate you, whether it's to ruin your life.” She agreed with Libow’s leading questions, saying

not that Tifford was “evil,” but even worse, that he was “evil personified,” someone who would

“say and do anything he needs to get whatever he wants.” However, he was not 100% evil, just 8

on a scale of 1 to 10.

She said she believes the Court should deny Tifford’s Petition and require the Bar to actually

attend to the duty she feels it neglected, and make a full investigation into Tifford’s behavior and

accounts over the years to ascertain the damages done to every victim that may come forward.

She filed her Objections with the Court on July 23 at 9:23 am. The filing was termed an“emergency” filing because Tifford had been careful to file his petition shortly before the Board

of Governors was to meet on July 23 to approve his Petition, which the Supreme Court would

surely grant according to sources at the Florida Bar.

The Objections assert that Tifford’s Petition “is replete with false and/or misleading assertions to

an extent that the Petition should be denied as being insufficient, false and/or otherwise without

merit.”

She states that Tifford was convicted of criminal fraud following a jury trial, and that he filed a

writ of habeas corpus which the State of Florida did not respond to in a timely manner therefore

he was released from custody, and that a “disdainful” statement was made by three justices, that

his release did not determine the facts of his case and his innocence of guilt, therefore the Florida

Bar was not precluded from disciplinary action against him. However, the Florida Bar apparently

took no such action, and handed him his license back.

As for the 1989 reprimand, she says, “Insofar as Petitioner's ‘slap on the wrist’ public reprimand

is concerned, it is noted that the same encompassed Petitioner's issuance of 71 checks returned as

worthless by reason of "insufficient funds" ranging from $1.00 to the felonious sum of

$9,838.54. Notwithstanding, and despite his recent and ongoing boasts on his web site that he is

‘a Super Lawyer with over seven hundred and twenty-eight million dollars ($728,000,000) in

judgments to his credit,’ public records reveal that ‘Arthur Tifford has been repeatedly sued (24

times) by creditors, other attorneys and court reporting agencies for non-payment of his

obligations (with) more than twenty seven (27) Federal tax liens filed against him."

She further states that Florida resident David R. Johnson had sought the assistance of the New

York Bar in censuring Petitioner re his New York State license for his ongoing ethical violations;

to wit, in Johnson’s words:




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"In August, October and November of 2004, I (sic, Johnson) filed three (3) absolutely truthful,

absolutely privileged and unpublished complaints with the Florida Bar regarding the unethical

conduct of Arthur Tifford's son-in-law, attorney Allen Libow. Please note that the one and only

signature that appeared on all three (3) of those Bar complaints was mine alone. Immediately

after receiving the first of those three (3) Bar complaints, I was notified by Allen Libow and

Arthur Tifford that absent the payment to them of ‘nothing less than $100,000’ that they were

going to sue both me and my wife for defamation. When I refused to succumb to the extortionate

demands of those attorneys they did in fact carry through with their nefarious threat to sue us.

Arthur Tifford was the chief extortionist and prosecutor of his daughters and son -in-law's

contrived claims of defamation. By this time it cost my wife and I more than a half a million

dollars to successfully defend ourselves against the malicious contrivances and attempted

extortion of these two maliciously unethical attorneys.”

Johnson alleged elsewhere that a review of court records of suits brought by Libow indicated the

possibility that many other Libow clients may have been pressed by threat of expensive litigation

to settle fee claims far in excess of amounts due, and sued with Tifford’s help if they resisted.

Johnson fought back and won in court although he stopped short of the mastermind, whom

Vernell agreed was the “personification of evil,” perhaps because Johnson’s attorney, Steven J.

Rothman of Jones, Foster, Johnston and Stubbs, who was courageous enough to take the case on

contingency, was afraid of Tifford. A malicious prosecution case against attorneys is difficult to

win in the first place, and going after the attorneys’ attorney on the basis that he is at fault is

likely to be a losing proposition. Tifford even filed an appeal in Johnson v Libow arguing that

attorneys have an absolute right to abuse litigants. Rothman would have had good cause to fear

going after Tifford in the case after looking at the avalanche of paper and convoluted motions

and appeals generated in the underlying cases where Tifford represented Libow.

It was evidently a matter of honor in the Southern feudal tradition for Johnson: it was the

principle of the thing that counted and not the cost. The fatal mistake the shakedown artists made

was going after his wife for something she did not do. Only Johnson can say if the vindication

was worth the aggravation and fortune it cost him. He declined to discuss the disposition of his

suit against Libow.

Allen Libow apparently has an axe to grind with Tifford. It appears from the Vernell transcript

that he may fault his father-in-law for his fall from grace, as if he were his victim too. His

question therein about pursuing someone for seven years for some slight may indirectly refer to

the suit against the Johnsons. Perhaps a cross claim against his own attorney was precluded by

the rules. However, he declined to comment for this article.

Now the relevant rule for the disciplinary revocation of Tifford’s license provides that, “The

Supreme Court of Florida may enter judgment granting disciplinary revocation if it has been

shown by the petitioner in a proper and competent manner that the public interest will not be

adversely affected by the granting of the petition and that such will neither adversely affect the




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integrity of the courts nor hinder the administration of justice nor the confidence of the public in

the legal profession; if otherwise, the petition shall be denied.”

The Florida Bar is an integrated bar, meaning that it is part and parcel of the Supreme Court of

Florida. To allow a miscreant to bow out without a full investigation of his or her misconduct

would cause the bar to fall into further disrepute than it has since some of its most respected andtrusted members were arrested and the past few years, would reflect badly on the supreme bench

that oversees its disciplinary arm, and would keep members of the noble profession in the dark

about their colleagues and the professional association to which they must belong to practice law

in the state.

“I do not foresee the Board not approving his Petition,” Marvin responded when we mentioned

that parties may have unresolved issues that the Bar should look into before approving of a

Disciplinary Revocation.

“We sometimes do encounter resentment from complainants who are upset when we dismiss pending cases after the lawyer is disbarred for some other case(s), and I understand their

sentiment. The purpose of lawyer discipline is not to satisfy an unsatisfied client but to protect

future clients from being harmed. A wronged former client has the civil court system to pursue

their claims and vendettas. A third party has no standing to become involved in a discipline case.

That is, a cognizable interest in the case.”

The Bar evidently wants to wash its hands of Arthur W. Tifford once and for all, and this way of

proceeding is the most convenient realization of its disciplinary goal without further ado. If law

enforcement authorities want to crucify him for any crimes, the Bar stands ready to provide

information, but it may be unable to provide any information at all if the file is destroyed as adismissed pending investigation because the court granted the Petition.

We shall see if Vernell’s effort to be recognized as having a cognizable interest will bear fruit.

Perhaps her Objections filed in the Supreme Court of Florida will serve only to virtually hang

Tifford in effigy on the public record, so to speak. When contacted at home and asked if she

would like to see him hung in effigy in front of the courthouse, she said would like to see him

hung in a town square somewhere in New England. The same question was put to David

Johnson, who said he would like to see him hung by his privates behind the courthouse.

# #




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THE JUDICIAL SWAMP OF IMPRACTICAL OBSCURITY

Chief Judge of Palm Beach Circuit declines online access to case of significant public interest

February 2, 2012

Editorial by David Arthur Walters

MIAMI BEACH—David Johnson v. Allen H. Libow, a case filed in the Palm Beach CircuitCourt, is certainly a case of significant public interest to the nation because it purportedlyexposes one of the worst examples of the abusive and malicious practice of law tolerated by acourt system that claims the sole and inherent power to discipline itself. It is definitely a case the public should scrutinize to see if the allegations of the plaintiff have merit.

Yet what could be one of the most egregious cases of unethical conduct by lawyers and grossnegligence of the Florida Bar in failing to discipline them will barely see the light of day in order

for the consuming public to decide for itself whether the allegations are true or false. Apparentlythe lawyers in question are untouchables. The mainstream press, the much vaunted fourth branchof government, is loath to alienate the profession that has a virtual stranglehold on every walk oflife therefore it ignores the potentially scandalous case. Most importantly, Florida’s judicialsystem is deliberately antiquated in respect to the absence of complete open Internet access to itsso-called public records.




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One of the principles that distinguish our English law as it is rooted in Germanic custom is theancient Rule of Publicity. The Anglo-Saxon court was held in the open air and could be attended by anyone who wanted to witness the battles, overseen by the wisest men in the neighborhoodwho could be mustered for the decision. Even the inquisitive courts of the executive power, suchas the King’s Council sitting in the Starry Chamber, forsook secrecy and competed with the

common law courts for popular favor. Indeed, before the Star Chamber became notorious for itsmalicious prosecutions and arbitrary processes, it was popular among the people because it protected them from the abuses of nobility, circumvented the unwieldy and obtuse legal system,and, most importantly, chastened lawyers who had managed to place the interest of their profession above the common good.

Today the numbers interested in the legal contests cannot fit into a brick-and-mortar courtroom, but technology permits millions to have immediate access. If we had that access, we coulddiscover whether or not there is wisdom in crowds, as democracy maintains. We may not counton the collective wisdom, but we can count on the fact that there are among us lay people whohave enough wits about them to understand from online public access to judicial records

including records of the court’s disciplinary arm that influential attorneys have placedthemselves above the law and evaded justice for many years with the help of judges and anintegrated bar that does not publish acquittals and destroys files a year later to cover up whatmay be its own misconduct, negligence, and ignorance. The little guy gets disbarred for stealingclient funds while the untouchables who resort to massive legalized theft become the mostinfluential and trusted attorneys in the state, until they get too greedy, step over the line and arearrested by the F.B.I.

If only the public could keep an eye on the unfaithful or miscreants, now that God is dead, thedamage they do to society could be mitigated by the crowd’s all-seeing eyes. Of course lawyersare not the only culprits to be recognized and exposed by public observation. The greater thenumber of people watching, the greater the justice that may be done as some of them comeforward with evidence for or against the litigants.

With the glorious exception of the Manatee County Circuit Court, which has just brought its caserecords including document images online, cases in the circuit courts of Florida are obscured bythe Florida Supreme Court’s blanket moratorium on open access by the public, although anelectronic filing system has been installed for attorneys in many of the circuits. The reason givenfor the snail’s pace to online public access, for which there is no deadline, is the need for privacy, although a recent judicial administrative order already mandates that the lawyers and pro se litigants must not include in their filings certain private information exempted by the public records law.

In the good old days, something called “practical obscurity” allowed the courts to keep theidentities of the actors and their behavior in court relatively secret. Only the most thoroughgoinginvestigator could determine exactly what records the court had and what was really going on ina case. If someone was keenly interested in a case, they might have to travel a great distance atconsiderable expense to attend hearings and trials and pore over all sorts of documents to get anunderstanding of a case. It was assumed that records would only be used for proper purposesgiven that practical obscurity. Reporters from the established press, the press with adequateresources, had to establish a cooperative relationship with the clerks or else their access would be




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impeded. They decided what cases to report on. In other words, the established pressmanufactured the news.

The practical obscurity was also impractical. The grinding old system was expected to change ina revolutionary manner with the advance of the Internet. It has indeed changed at the federal

level, where dockets and documents can be accessed via a system called PACER. Many countycourts in Florida provide online access, but not the circuit courts where civil cases must exceed$15,000. Again, the pioneering Manatee County Circuit Court is the exception.

However, an administrative order of the Florida Supreme Court allows the chief judge of a jurisdiction to make non-confidential records in a case of significant public interest electronicallyavailable. 1 Therefore I asked Chief Judge Peter D. Blanc to make the Johnson v. Libow caseavailable on the basis of its public significance. 2 My plea stated that “Johnson v. Libow is ofsignificant public interest inasmuch as its subject matter appertains to the ability of officers ofthe court to pervert judicial process to intimidate, silence, and punish members of the public whofile complaints against them with The Florida Bar. And the case is significant because itappertains to the Bar's failure to restrain all attorneys from doing so, despite the Bar's opinion, inone case of selective enforcement, that such conduct is unethical inasmuch as its interferes withthe administration of justice.”

Amy S. Borman, General Counsel to the 15 th Judicial Circuit, responded on his behalf: “I spokewith the Chief Judge, and, as a policy, he does not designate specific cases for the Clerk &Comptroller to make available electronically. Circuit civil case files are available for inspectionand review at the Clerk & Comptroller’s office in West Palm Beach.”

I responded to Ms. Borman’s letter with a request for the judge’s reasoning: “Now the law ismysterious to those of us who do not practice it, and we are often troubled by judicial decisionswhen they are not explained. I pray that you will, with my apologies for the interruption, ask the

honorable judge to give his reason for his general policy and for his unwillingness to make anexception in this remarkable case. And whatever you might say that will serve to educate the public on the matter will also be naturally appreciated.” 3

Judge Blanc kindly responded on September 28, 2011:

Dear Mr. Walters:

Amy Borman has advised me that you are seeking a better understanding of myreasons for denying your request that I issue an administrative order making alldocket filings electronically accessible to the public free of charge in the case of

David Johnson v. Allen H. Libow, Case No: 502011CA001121XXXXMB.

You have asked that I take this action based upon your belief that this case is “ofsignificant public interest”. Many cases that come through our court system areof significant public interest and the courts and court filings are open to publicscrutiny. However, I have never previously taken the action that you arerequesting in relation to a particular case and choose not to do so now. I believethere is an inherent conflict between the courts remaining impartial and the courts




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rating in advance the relative importance to the public of the cases that come before it. It is not appropriate for the court to determine that any one case isworthy of more public scrutiny than another. Although there is an appellate process for trial judges to certify cases of great public importance, those are done primarily in situations where the case raises a conflict in the application of

existing laws.

The decision that a case is of significant public interest should be made by the public and/or the media, not by the court. It is important to note that the recordsyou seek are all available for review at no charge to you and to all members of the public through the clerk’s office.

Sincerely,

Peter D. Blanc, Chief Judge

Judge Blanc has left us where we started, with the vestiges of practical obscurity. Members of

the public can get in their cars or fly to Palm Beach, where they can inspect the records at thecourthouse. And they will have a considerable hotel expense given the fact that they will have, inthis case and the underlying case it is brought upon for malicious prosecution and an abuse of process that includes dilatory tactics and obfuscation of the issue by clogging the court withmassive filings, over 32,000 pages of documents to digest and take notes on. Of course the clerkwill be glad to send images of the documents to a member of the public at a rate of $1 per page,so that would run $32,000. 4

The established press might be reluctant to spare a journalist for a few weeks to research the caseand fully comprehend the issues involved, even if it were willing to take on Florida’s integrated bar. The professional bar is “integrated” with the Florida Supreme Court, meaning that the same

public branch that licenses and disciplines the profession also represents its political-economicinterests. That is an integrated conflict of interest: the fox is guarding the henhouse. GreatBritain, the mother country of our English law, has in its infinite wisdom disintegrated its bar,severing the responsibility for disciplining solicitors and barristers from the judiciary functionand placing it in the executive under the purview of non-lawyers with legal assistance. Even if anAmerican publisher or editor wanted to expose the constitutional corruption of the Florida Barand its consequences in particularly egregious cases, they would be reluctant to do so. Althoughthe situation is outrageous when understood, the issues are complex and would require anextraordinary attention span from an audience that already “knows that lawyers are liars andcrooks”—which is of course untrue.

On the other hand, if the documents in this case and the underlying case were online, severalthousand heads would prove far better than one. Moreover, dozens who have had experiencewith the lawyers involved might be glad to come forward to relate their experience with goodeffect.

We might ask, “If a judge will allow a proceeding to be televised nationwide, wherein a motheris accused of murdering her baby, and she accuses her father of incest and covering up the causeof the baby’s death, why will not Judge Blanc allow online access to the Johnson v. Libow case?




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Because it is not about what publishers believe the people are actually interested in, child-murderand incest?”

I am a member of the traditional press referred to in the Constitution, a one-man press or pamphleteer, and I say Johnson v. Libow is a case that should be of significant public interest

and would be if the case were fully aired. Wherefore Judge Blanc, given that reasoning, shouldhave opened up the process for online scrutiny.

But to be fair to Judge Blanc, and reading between the lines, I believe he may have washed hishands of this case because to vary from his general policy and to determine that it alone wasworthy of significant public attention might imply a partiality prejudicial to justice being servedin his circuit.

Obviously, Judge Blanc and his chief clerk should make open online access to all non-confidential court records their priority. That the Palm Beach court system is strapped for fundsis no excuse. The savings of going paperless is a proven fact. In any case, justice would be betterserved by lifting her out of the swamp of impractical obscurity.

# #

NOTES

1

No. AOSC07-49 INRE: REVISED INTERIM POLICY ON ELECTRONIC RELEASE OFCOURT RECORDS: ADMINISTRATIVE ORDER…. This administrative order revises andsupersedes the interim policy contained in Administrative Order AOSC06-21. After consultationwith the Court, the revisions to the interim policy recommended by the Access Committee areapproved. The revised interim policy continues to allow extensive docket information, as well asall final orders and judgments of the courts, to be made available electronically, such as on a publicly accessible internet website, as long as no confidential information is released. Inaddition, as originally provided, a chief judge of a jurisdiction can direct that all non-confidential

records in a case of significant public interest may be made available electronically. To facilitateorderly access to records affecting real property, the revised interim policy continues to allowcertain records affecting real property to be released. Further, any non-confidential Florida courtrecord can be provided electronically in response to a request, provided the record has beenmanually inspected by the clerk of the court in order to ensure that no confidential information isreleased. DONE AND ORDERED at Tallahassee, Florida, on September 7, 2007.




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2

July 23, 2011

Honorable Peter D. Blanc, Chief JudgePALM BEACH COUNTY COURT SYSTEMc/o Sharon R. Bock,Clerk & Comptrolleror Stephanie LeeJudicial Assistant

RE: Case: 502011CA001121XXXXMB DAVID JOHNSON V ALLEN H LIBOW

Your Honor:

I respectfully request the court to issue an administrative order to make all the filings on thedocket in the above-captioned case electronically accessible to the public free of charge.

Johnson v. Libow is of significant public interest inasmuch as its subject matter appertains to theability of officers of the court to pervert judicial process to intimidate, silence, and punishmembers of the public who file complaints against them with The Florida Bar. And the case issignificant because it appertains to the Bar's failure to restrain all attorneys from doing so,despite the Bar's opinion, in one case of selective enforcement, that such conduct is unethicalinasmuch as its interferes with the administration of justice.

Broad public access to court records is increasingly limited to the minute portion of the publicthat have the means to visit the courthouse, Most often that would be members of the so-calledlegitimate press.

I have called attention to this important case to mainstream newspaper reporters in Florida,including but not limited to reporters with the Miami Herald and the South Florida BusinessJournal.

My effort to elicit "legitimate" coverage in this case has been in vain. Mainstream mediareporters have informed me that, since this subject may very well involve criticism of TheFlorida Bar therefore the Florida Supreme Court of which the Bar is part and parcel, and sincethe Bar itself is notorious for its past prejudice in favor of influential attorneys, coverage wouldalienate a major source of "legitimate" news and would furthermore be a waste of time inasmuch

as the court has "inherent powers" over lawyers that cannot be influenced by the press or publicopinion not to mention the legislative and executive branches.

As for the judicial opinions the organized media does cover, I have often found its reportsmisleading and sometimes plainly wrong in fact and law, when I did manage to recover a copy ofthe judicial action reported on.




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Additionally, I have not always been able to get a complete case file in some cases because ofcosts, particularly where attorneys are involved whose practice is to file hundreds of pages at atime in hopes of bewildering the court and running up litigation costs.

I have done my best, as a member of the traditional Press, that being a "press of one" or"pamphleteer" sometimes critical of the judiciary, i.e. the "Press" for which the ConstitutionalAmendment was drafted, to cover this particular case, but at present can say nothing about it because the records are not available and the parties are silent due to pending litigation and mylack of status as a "legitimate" reporter.

It is with all that in mind that I reiterate my prayer for an order providing that the filings in thiscase - at least the pleadings themselves - be made electronically available to the general publicfree of charge.

Yours truly,

David Arthur Waltersaka "The Miami Mirror"

cc:

Kenneth MarvinDirector of Lawyer RegulationTHE FLORIDA BAR

3

Amy S. BormanGeneral Counsel15th Judicial Circuit205 North Dixie Highway5th FloorWest Palm Beach, Florida 33401

Re: Electronic Availability of Judicial Records

Dear Ms. Borman:

Thank for your email of 24 August 2011.

I deeply appreciate that fact that you spoke to Chief Judge Blanc in response to my request tomake a particular case of extraordinary public importance electronically available to the public.

Of course the public will never know how important this case is unless it is aired by themainstream press, which that so-called legitimate press is not wont to do inasmuch as the




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judiciary is a primary source of the news that it filters for public consumption with its owncorporate interests in mind, and the immediate and widespread revelation of the unclad subjectmatter in the instant pleadings may cause the public to hold the Florida Bar and the institutioninto which it is integrated in some contempt, from which the publishers may fear some

retribution. In fine, this case may prove embarrassing to the legal profession and especially to itsruling elite. It is all about shutting people up who would complain about the misbehavior oflawyers.

I am naturally disappointed that Chief Blanc, as a matter of general policy, declined to make thecase filings electronically available without providing his reasoning for that policy, especiallysince electronic records are court records subject to public access law, and the FloridaConstitution may be applicable to a request for same.

Please correct me if I am mistaken here, but the privacy-versus-publicity controversy in respectto electronic access to case files was taken up for eventual settlement by the Florida SupremeCourt. I recall that a moratorium on electronic access to records was declared, but with the proviso that the chief judge of a court could make records of public importance electronicallyavailable after the clerical staff redacted confidential information. And most lately I believe anorder was laid down that placed the responsibility on officers of the court to make sure no pleadings were filed that reveals information confidential by law. Finally, I thought there was adeadline set after which all electronic records were to be made available, but to the best of myknowledge, and I suppose you would know the fact of the matter, the deadline has passed,leaving me to think, perhaps mistakenly, that the limbo period persists, so that the chief judge ofeach court has discretion, which Chief Judge Blanc now exercises in the negative as we watchtrials telecast at no charge to millions of viewers.

I am aware of public statements by the Florida Supreme Court extolling the Court’s willingness

to bend over backwards to provide public access to records, and it seems to me that suchgraciousness might extend to the voluntary conduct of lower court judges.

I suppose you know, but I do not know, what the legal extent of Judge Blanc’s discretion might be when the benefits of making the case records immediately available to the public worldwidefar outweigh the cost of embarrassing a few people who hold some sway over the lives ofcountless individuals; particularly, in this case, when it comes to their right to petition the FloridaBar and other governmental agencies for redress of their grievances against lawyers without being punished for doing so.

Now the law is mysterious to those of us who do not practice it, and we are often troubled by

judicial decisions when they are not explained. I pray that you will, with my apologies for theinterruption, ask the honorable judge to give his reason for his general policy and for hisunwillingness to make an exception in this remarkable case. And whatever you might say thatwill serve to educate the public on the matter will also be naturally appreciated.

Sincerely,

David Arthur Walters




~ 9 ~

4

August 31, 2011

Subject: PRR - Response to PRR from The Justice Network (Gillespie) re: Johnson v. Libow,dated 08.29.11

Mr. Gillespie:

Please note that case dockets are available for public viewing on-line on our website at CourtRecords. The Supreme Court currently has a moratorium that prohibits clerks from postingimages of pleadings on the internet. If you want copies of the actual pleadings, there are twooptions:

1. We can provide you with the cost and make arrangements for payment by credit card andtransmit a pdf document via email or,

2. We can provide you with the cost, and once we have received your payment and a stamped,self-addressed envelope, we will mail the pleadings to you, or you can pick them up.

The cost of obtaining a copy of court records is set by Florida Statute and is listed in our GeneralFees. The cost for copying court records is $1.00/page. The Complaint is 10 pages @$1.00/page, making the total amount due $10.00. If paying by check, please make your check payable to: Clerk & Comptroller, Palm Beach County, and if mailing, please send to: DeniseCoffman, Legal Counsel, Clerk & Comptroller, Palm Beach County, Post Office Box 229, WestPalm Beach, FL 33402. Upon receipt of payment, we will forward the documents to you. If

you are paying by credit card, please contact our office to make the necessary arrangements.

Thank you.

Nancy Jill ArdellLegal Secretary

[email protected]

Constitutional Clerk & ComptrollerServing the Citizens of Palm Beach County

301 N. Olive Ave.|West Palm Beach, FL 33401




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THE CAPE FEAR SYNDROME

Movie set for Cape Fear storm

The Libows and Johnsons were subject to the Cape Fear Syndrome, an undesirable psychologicalcomplex that sometimes grips lawyers and their estranged clients. They have seen the first movie by that name and know what happens to a vindictive man self-trained in the law who files acomplaint against a lawyer with the state bar for concealing evidence, and then goes after thelawyer’s family. The jailhouse lawyer is bound to lose at the end of the perverse process. Alicensed lawyer may become so incensed by the resistance of his unlicensed opponent that he projects his own disposition onto him and imagines that his pro se combatant is the rapist MaxCady set out to kill his wife and kids; wherefore he wishes him dead; he will do everything in his power as a licensed lawyer to bury the man for good, even if that means perverting the judicial process.

Woe unto clients like David Johnson if they durst complain to the Florida Bar about themisconduct of attorneys like Allen Libow, for vengeance is mine, sayeth those lords of the law.Of course the Florida Bar’s website and Bar counselors advise the public that a lawyer may notsuccessfully sue a complainant who files his petition for redress of grievances against attorneyswith the Florida Bar and does not publish it elsewhere. Kenneth Marvin, Director of LawyerRegulation, will cite a leading Florida case to that effect, Tobkin v. Jarboe, 710 So.2d 975 (Fla.1998), and send a copy of it to the inquirer. But that does not restrain lawyers from actually




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perverting the judicial process to maliciously prosecute a complainant for defamation, forcinghim to either shut up or put his money where his mouth is, or both. David Johnson simply wouldnot shut up, and he has paid dearly for it in money and emotional distress.

To begin with, Mr. Johnson was convinced that a rogue lawyer was trying to shake him down for

$100,000 over a $1,621 fee dispute. Although Mr. Libow is also a CPA, his law firm was notvery good at mathematics: Mr. Johnson was dunned for $5,014 after he had already shelled outabout $9,000 to handle his suit against Michelin Many. When he demanded an accounting, hewas credited $1,750 because he had been billed for an attorney’s appearance that had not beenmade, resulting in a default judgment against him, although the expenses associated with errorand recovering from it were, he said, nearly $3,000. A further adjustment reduced the amountdue to $2,086. At one time Mr. Libow magnanimously said Mr. Johnson owed the firm nothing.However, Mr. Libow changed his mind when Mr. Johnson would not leave his business with thefirm after Cynthia Becker, the associate handling the case, left his employ. Mr. Libow insistedthat $1,621 was due, plus a $398 fee for itemizing the bill, a surcharge he subsequently deducted because, he said, it was only made for illustrative purposes and not to violate Bar’s accounting

rules. And he demanded $100,000 from Mr. Johnson, or else all legal hell would break loose.But Mr. Johnson was about not to be shorn by an attorney’s greed and ill will; he would lay out aquarter-million dollars to defend himself and his family.

On August 6, 2004, just two days after Mr. Libow filed the charging suit for the $1,621, he or hiswife filed an allegedly baseless police report against Mr. Johnson, claiming that he and hisfamily were being threatened with physical violence because they were Jewish.

On August 16, 2004, Mr. Johnson, who had decided to represent himself in the small claimscourt, filed a letter of complaint with The Florida Bar, stating that Mr. Libow had called him inan effort to persuade him to leave his case with Libow and Muskat LLP instead of letting Ms.Becker take the case with her. The following are excerpts from the public record:

“Up to that point I had never had any interaction or communication whatsoeverwith anyone at Libow & Muskat other than Ms. Becker. The phone call from Mr.Libow turned out to be a concentrated effort by him to talk me out of allowingMs. Becker to represent me. Initially, Mr. Libow limited his sales pitch toexpounding on the virtues of “his firm’s” legal expertise and resources. It soondigressed into defamatory remarks about the integrity and competence of Ms.Becker, whom he claimed was working out of a suitcase. His derogatory remarksabout a fellow attorney caught me off guard….

“Please keep in mind that I had an important hearing that was scheduled just days

away. According to invoices received from Libow & Muskat, most of theadditional fees were for “legal research” done by Ms. Becker in preparation forthe impending hearing. This hearing was originally scheduled for February. I wasoriginally told that the hearing had to be rescheduled because of some faux pas byopposing counsel. Mr. Libow was eager to tell me that the hearing had actually been rescheduled because Ms. Becker had failed to file the proper documentationwith the court in a timely manner.




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“Mr. Libow spent the better part of half an hour trying to convince me to let hisfirm represent me. His sales pitch consisted primarily of disparaging remarksabout Ms. Becker’s competency and integrity. When I mentioned the excessivefees, he told me that Ms. Becker had a bad a habit of “over billing her clients forlegal research”. He told me that I was only one of many clients of Ms. Becker that

had complained about excessive fees. He went on to tell me that because of that,he was forced to make “adjustments” to the bills of some clients. I was told that inone case that the “adjustment” was nearly $11,000. During our conversation, Mr.Libow repeatedly offered to “wipe the slate clean”, saying that I wouldn’t “owehim a dime”. The more I resisted letting Mr. Libow represent me, the moredefamatory his remarks with regard to Ms. Becker became.

“He told me of how ungrateful she was, as he had made a lot of effort toaccommodate her “special needs”. (Ms. Becker uses a wheelchair.) He told meshe was, “fired from her last job for incompetence”, and, that if I had any hope of prevailing in my litigation then I would let him and “his firm” represent me. The

insults poured out of this man like rain. It didn’t take me long to develop a strongdislike for Mr. Libow. I politely terminated the phone call from Mr. Libow with a promise to call him back after speaking with my wife about the developments. His parting comment was, ‘Remember, you won’t owe me a thing, we will start with aclean slate’.

“My wife and I were devastated by these developments. We had all this time,money, aggravation and emotion tied up in this litigation and through no fault ofour own here we were in the middle of a war between two attorneys. I waitedmore than an hour before calling Ms. Becker. I needed the time to gain mycomposure and get in the frame of mind to decide how I was going to handle this

situation.

“My wife and I decided that, at this time, it would serve no purpose to inform Ms.Becker of all the venomous comments of her old boss. We needed Ms. Becker torepresent our interests at this upcoming hearing and we didn’t want to say or doanything that might detract her from that task.

“When I finally phoned Ms. Becker I did tell her that we had been contacted byMr. Libow. Without going into very much detail I told her that her old boss wasnot very happy about her sudden departure. I also told her of some of hiscomments and of his offer to “wipe the slate clean”. She told me that Mr. Libow

had phoned her as well and that the phone call had ended up in a screamingmatch. We talked about many issues including the upcoming hearing. Ms. Beckerwas very confident of our position and the probabilities of prevailing. As such, wetold her to e-mail us her Retainer Agreement and the Consent To Substitution OfCounsel. She did, we signed them both and faxed them back to her.

“As promised, I phoned Mr. Libow back to advise him of our decision. To say theleast, he was not happy. It was more of the same. I had had just about as much of




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Mr. Libow and his venom as I could stand. I told him so, and hung up the phone.Mr. Libow’s quest for revenge began almost immediately. He refused to sign theconsent form for substitution of counsel. In an effort to glean more fees and driveup my expenses he set what would ordinarily be a routine matter for docket andhearing before the court.”

Mr. Libow would sue Mr. Johnson for including such grievances as follows in his complaint tothe Bar, although far worse has been said about attorneys at large:

“You will notice that Mr. Libow seeks to charge me $397.57 for efforts that hisassociate(s) allegedly made to comply with my lawful request for substantiationof their claim. According to the revised bill it took his associate(s) 1.80 hours at$200 an hour to mail me a 13-page computer generated document. You will alsonotice that the alleged work was done on 6/29 and 6/30, a full week before myrequest of 7/7/2004.

“As you know, State and Federal law mandates that Mr. Libow is statutorilyobligated to invoice his clients without benefit of remuneration. Mr. Libow alsoknows that Jessie James used a horse and a six-gun to carry out his robberies. Mr.Libow uses a computer and the United States Mail to carry out his. I have since been told by Ms. Becker that what happened to me was not unique, but was in factstandard practice with regard to what Mr. Libow considered to be his ‘lesssophisticated clients’.

Mr. Johnson was obviously deeply affronted by the lawyer’s “venomous” bites, to which hereacted contumaciously, pleading in vain with the Bar to apply an antidote:

“Mr. Libow persisted with his demands and a torrent of e-mails went back andforth between us. My impression of Mr. Libow was that he was a spoiled brat thatwas accustomed to getting his way. He had no regard for whom he hurt, whom heslandered or whom he stole from. Mr. Libow was the center of his own universeand everything revolved around him. It was becoming equally apparent that therewas no depth to which this man would not stoop to gain some advantage. At one point Mr. Libow accused me of being anti-Semitic (Exhibit F). In another, heaccused Ms. Becker of among other things, civil theft (Exhibit G).

“The only thing I ever threatened Mr. Libow with was legal action if he did not goaway and leave us alone. I never once threatened to do anything unlawful or

physical to Mr. Libow or anyone else. At this point all communication between ushad been via e-mail, so, this is an easily verifiable fact. However, that fact wouldnot prevent Mr. Libow from contacting the Boca Raton Police Department andthe Jacksonville Police Department, concocting a story and filing a false policereport. He claimed that I had made physical threats against him and that he andhis family were in eminent danger of physical violence from me (Exhibit G “1”).




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“This attorney, made a calculated effort to gain some advantage in this civilcontroversy and at the same time avoid his ethical obligations as dictated by (DR-7-105 rules; 4-3.1, 4-4.4, 4-8.4 (c) and 4-8.4(d)). Apparently this pathetic excusefor a man went home and convinced his wife that she and her children were ineminent physical danger from me. This obviously had the desired effect on Ms.

Libow and a police report claiming imminent physical violence was filed againstme with the authorities.

“This incident speaks volumes as to the character and total absence of ethics inMr. Libow. Now one of two things has happened. Either this man had nocompunction whatsoever about frightening his wife and children in a calculatedattempt to gain some advantage in this controversy, or his wife is his co-conspirator. I don’t believe the latter to be the case. I suspect that it is possible ifnot probable that Mr. Libow modified (forged) some of the e-mails in order toaccomplish the desired effect on his wife. Also, I am told that his wife is on theverge of divorcing him for other transgressions; perhaps this is why he had no

compunction about scaring her and involving her in this controversy.

“An example of Mr. Libow’s propensity for and expertise at twisting the truth tosuit his psychotic agenda can be found on exhibit “G”. After convincing his wifeto file a (false) police report on me, he says, “I too will be forced to provide aninformation statement concerning your physical threats of “taking me task” etc”.Well, on the third from last paragraph of exhibit “D” you will find the quote thathe refers to. In total it says that I will, “seek every lawful remedy available to meunder every relevant authority to take you to task for your transgressions.”

“Now, you have to be a pretty creative, twisted, lying son of a bitch to convinceyour soon to be ex- wife to report that to the police as a “physical threat”. Thisman deserves to be disbarred. He is a pathological liar. He is intellectually andemotionally unfit for his position of trust in the community. And he is a disgraceto his profession.

“I have just learned that on August 4, 2004 Mr. Libow sued my wife and I inPalm Beach County Court. He could have simply filed his threatened charginglien. But no, that wouldn’t allow him to inflate the costs and expenses would it?

“Mr. Libow has wrought untold damage on my wife and I. The litigation that weare so heavily invested in is falling apart, thanks in very large part to Mr. Libow.Something needs to be done to protect the public from the likes of Mr. Libow and

his band of thieves. I believe that’s your job. Sincerely….”

On August 30, 2004, Mr. Johnson complained to the Florida Bar that Mr. Libow was trying toextort $100,000 from him, and that the police report had been an attempt to coerce him into paying. On October 11, 2004, Mr. Libow tendered a “Proposal for Settlement” for $100,000: “Asa proposal for settlement, my wife and I will walk away for $100,000. Anything short of that,and we will fully prosecute our case.”




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Again, the amount finally disputed in small claims court was only $1,621. Mr. Libow and his bevy of attorneys, particularly his father-in-law Arthur W. Tifford, the mastermind of theensuing defamation-suit strategy, evidently had something else in mind; to wit, putting Mr.Johnson’s ass in the sling over his complaint to the Florida Bar.

On January 31, 2005, in an email to Mr. Johnson and several lawyers, Mr. Libow likened Mr.Johnson to the murderer of his babysitter and her two daughters: “Our babysitter and her twodaughters were murdered late Saturday, early Sunday in their home. The culprit is a man, whowas our babysitter's husband. His actions are very similar to those taken by Mr. David Johnsonagainst me and my family….”

On February 10, 2005, Mr. Johnson, who was so alarmed by the email that he began sleepingwith a loaded gun beside his bed, addressed the Florida Bar: “In the twisted, delusional logic ofAllen Libow he is able to make the comparative leap that the filing of a Bar Complaint and aCounter Claim in Small Claims Court is the legal and ethical equivalent of a TRIPLEHOMICIDE. Now anyone that can make that comparative leap is certainly capable of makingthe leap that his antagonist deserves to die and for him to kill the antagonist is nothing more thanthe legal and ethical equivalent of filing a small claims action and a Bar complaint. This is yourlicensee. His behavior, conduct and logic are not at all typical or indicative of a rationalindividual, especially not one licensed by the Florida Bar to practice law. There is somethingseriously wrong here with the reality and cognitive perceptions of this attorney.”

The Florida Bar did nothing for months, and then took umbrage at Mr. Johnson’s “tone” when heasked staff to get of their bureaucratic assess – his complaint was dismissed that day but Mr.Johnson kept on complaining.

“Upon reading this diatribe from Libow,” Mr. Johnson later reflected, “it occurred to me that ifhis psychotic pendulum was to swing the other way, the cold blooded murder of my wife and I

could be considered by Libow to be an equivalent response to the filing of that Bar complaint.That night, and for the first time in sixty years, we slept with a loaded gun in the house and itwas right by our bed.”

Mr. Johnson had no doubt that Mr. Libow was, to say the least, emotionally disturbed. A rumorwas bandied about by alienated lawyers that he inhaled pot to relieve his anxiety. Medicinalmarijuana treatment of psychopathological syndromes can make the cure worse than the disease.When deposed on Dec, 4, 2006, he said nothing of marijuana but he did testify that he had beenunder a certain psychiatrist’s care for five years, and that he was taking the prescription drugXanax for anxiety and insomnia, and Effexor for anxiety. He said he had taken Xanax whenreading Mr. Johnson’s “horrible” email and complaints about him to the Florida Bar. He

testified that the drugs had not caused him to suffer any memory loss although he could notremember how long he had been taking them. He said he believed he had starting taking Effexorabout “the time that Mr. Johnson began poisoning my reputation.”

In a February 10, 2007 letter to the Florida Bar, Mr. Johnson summarized the discoveriesappertaining to Mr. Libow’s use of prescription drugs:




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“The depositions and investigations that were conducted during the course of the Libow’slitigation against us revealed that; Allen Libow has been under almost constant psychiatric carefor his persistent psychosis for more than twenty years. Consequently, Mr. Libow’s psychiatristhas prescribed some very powerful medications, including but not limited to, Effexor, Luvox [adrug similar to Effexor] and Xanax. Apparently those medications were prescribed for good

reason. Research shows many of the mental conditions that would prompt a PsychiatricPhysician to prescribe such powerful medications are; Manic Depression, Obsessive Compulsivedisorder and Bi-polar disorder. All of these maladies are at or near the top of that list. Despite being under psychiatric care for over twenty (20) years, Mr. Libow claimed during hisdepositions to have no knowledge of his official mental diagnosis. At one point claiming that asfar as he knows, he suffers from nothing more that anxiety. . However, research into themedications (Composite Exhibit A-L-17). taken daily by Mr. Libow reveal that thosemedications are typically prescribed to individuals who suffer from more serious mentalillnesses, such as, “bipolar disorder, severe depression, abnormal anxiety, irritability” obsessivecompulsive disorder, etc…. As set forth in the attached medical authority (Composite Exhibit A-L-17) one the side effect of these illnesses and the medications prescribed to treat them is

‘holding false beliefs that cannot be changed by facts.’ Other side effects include but are notlimited to, Abnormal thinking, delusions, agitation, bizarre behavior, outbursts of anger,irritability, confusion, suicidal thoughts, feeling of suspicion and distrust, loss of sense of reality,aggressive behavior, unusual excitement, talking or acting with excitement you cannot control.”

Bipolar disorder, also known as manic-depression illness, is characterized by radical moodswings to so-called mood episodes on each pole, from joyful and excited, to hopeless and listless.Manic behavior includes but is not limited to feeling high and happy, restlessness, insomnia,talkativeness, impulsiveness, overvaluation of one’s self, and so on, while depressive behaviorincludes but is not limited to feeling tired, irritable and let down, trouble concentrating andremembering, undervaluation of one’s self, thoughts of suicide, suicide attempts and so on. The

moods last for relative long periods of time, perhaps for weeks. Anxiety disorders are associatedwith this disorder. Although there is no known cure for bipolar disorder, professionals such aslawyers may continue to function if treated with psychotherapy and drugs. Substance abuse iscommon among persons with bipolar disorder. The afflicted person may attempt to relieve hissymptoms at one pole or the other through the self-medication of drugs such as alcohol,marijuana, heroin, cocaine, etc, and/or he may rely on doctors to prescribe mood-stabilizing,anticonvulsant or antipsychotic drugs, perhaps along with serotonin reuptake inhibiting drugs, totreat his symptoms, the side effects of which may, paradoxically, aggravate the symptoms andeven result in suicide.

People whose behavior borders on psychosis or disjunction from reality were at one time called“borderlines,” and the term endured. The person with borderline disorder, which is associatedwith other disorders such as bipolar, depression and anxiety disorders as well as disordersresulting from drug abuse, has intense, brief bouts of depressed, angry, and anxious moods, perhaps lasting a few hours or a day at most. He feels unworthy, is severely slighted by negativecriticism and anything else perceived to be rejection. His social relationships are quite unstable.Borderlines have a high incidence of self-injury including suicide. They are more likely thanothers to be victims of violence. So called mood-stabilizing drugs and antidepressants are used toalleviate the symptoms.




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Many people swear by Xanax despite paradoxical side effects including rage, hostility, mania,aggressive and bizarre behavior, hallucinations, paranoia, delusions, suicidal ideation and troublesleeping. Some of the known side effects, some of them paradoxical, of Effexor – a serotonin-norepinephrine reuptake inhibitor (SNRI) used to treat of major depression and anxiety disorders – are insomnia, memory loss, nervousness, agitation or increased anxiety, panic attacks,

psychosis, hostility, mania, homicidal thoughts, aggression, depersonalization. Mania, psychosis,rapid cycling and mixed states seemed to be especially induced by the drug in bipolar patients,i.e. those suffering from rapid mood swings. And an increasingly high risk of suicide was notedin subjects taking the drug, something that the Bar should find alarming since the legal profession itself has a high incidence of suicide attempts and successful self-murders.

Mr. Libow examined Mr. Johnson’s bar complaint and some email on his home computer.According to a June 6, 2006, deposition, he said email from Mr. Johnson “freaks me out and Ihave to take more” (Xanax than usual). He said he became anxious later that day, particularlyover the email, so he took some Xanax.

Q. What specifically in those e-mails, then, caused you later in the day to prescribe yourself Xanax or take Xanax?

A. Well, I don't –

MR. TIFFORD: Excuse me. Let's give me a chance to make objections to theform of the question, which I now pose. That's a disjunctive question. Which one –

MR. PERRY [Johnsons’ lawyer]: I'll rephrase.

MR. TIFFORD: -- do you want answered?

BY MR. PERRY

Q. What was the purpose that you took Xanax on Saturday?

A. I couldn't believe that there was a human being out there that thought that themovie Cape Fear was really something where the attorney was the lunatic in themovie. It was the client. And for anybody to construe it that way really had tohave problems and I was nervous for myself and my family still to this day withMr. Johnson in the room.

Q. You're afraid of Mr. Johnson? Is that what you're saying?

A. Yes. I -- I can only do so much for myself, but for my wife and my kids,there is --there is worry about what Mr. Johnson is capable of doing.

Q. Okay.

A. -- someone who can make that kind of conclusion.




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Q. So you're -- you're --

A. -- about the movie Cape Fear.

Q. You're reading the Cape Fear e-mails? Is that what you were reading?

A. Yeah.

Q. Okay. Anything else that you were reading that caused you anxiety that day?

A. No.

We remember the classic pot-boiler well – marijuana enthusiasts claim that it is far more thrillingwhen viewed under the influence of weed. The character Sam Bowden in the latest screenplay ofthe vigilante-gone-mad book (The Executioners) by famed Florida author John D. Macdonaldwas the public defender of illiterate rapist Max Cady.

No doubt Mr. Libow’s lead counsel, ex-Marine judge advocate Capt. Tifford, noted well that, inthe original movie, Bowden was a judge advocate, i.e. member of the Navy’s Judge AdvocateGeneral Corps, on leave in Australia, where he witnessed the rape. But in the latest screenplay,Bowden was not a witness; as Cady’s defense attorney, he forfeited a professional scruple and buried evidence about the promiscuity of the victim; as a consequence, his client would get alonger, much deserved prison sentence.

We recall that Cady learned to read law books including the Holy Bible while in prison. Hetattooed scriptures about vengeance on his body, and unsuccessfully appealed his case severaltimes pro se. After his release, he stalked the Bowden family. Bowden tried to have him arrested, but a policeman pointed out that there had not yet been evidence of a crime, so Bowden

threatened Cady, who recorded the threat and got a restraining order; in addition, his new lawyerfiled a complaint with the North Carolina State Bar, vowing to have Bowden disbarred.

The movie culminated in a scene on Cape Fear, to which the Bowden family fled. Cadyconfronted them on their boat, beat up Bowden and got ready to rape his wife and daughter, buthe was squirted with lighter fluid and set afire; he jumped into the river to douse the flames, pulled himself back aboard, and conducted a mock trial of Bowden, who confesses he had buriedevidence that would have drawn Cady a lesser sentence; however, to exculpate himself, heclaimed a woman’s promiscuity does not excuse rape – that defense had since been disallowed by the courts. Bowden got the best of Cady, shackled him to the boat and nearly caved his headin with a rock. Apparently Cady had not read the part of the Bible that says, “Vengeance is minesayeth the Lord.” The boat sank downriver taking Cady with it.

What sank into Mr. Johnson’s amygdala, the almond-shaped portion of the brain that deals withemotional responses such as fear and anger, was the fact that the victim who was killed in CapeFear was not the lawyer but was the lawyer’s nemesis, the client he had betrayed. And the factthat he, similar to Cady, was appearing pro se in the county court case, and had filed complaintsagainst the lawyers with the Florida Bar, lawyers whom he perceived as unscrupulous formaliciously prosecuting him and perverting judicial process in an attempt to shake him down for$100,000 to begin with, certainly did not go over his heed unheeded.




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“Now I don’t give a damn who you are,” Mr. Johnson complained to the Florida Bar on February10, 2005, “how big you are, how tough you are or how many guns you own, that is a frighteningthreat, especially coming from someone with the delusional self-serving perception of reality thatis Allen Libow.”

The Cape Fear emails were a culmination of a January 2005 email exchange between Mr.Johnson and Chad Laing, an attorney with the Libow firm, over the scheduling of hearings onmotions, with copies to Mr. Libow and other attorneys in his firm involved with the case. Mr.Laing, accordingly to Mr. Johnson, would eventually have cause to hate Mr. Libow, to leave thefirm and sue it (Chad R. Laing Esq. v Libow & Shaheen, Circuit Court Case 502008CA012256).

Mr. Johnson, appearing in the small claims court pro se without help of counsel, was anxious togo to trial, wherefore he had filed a motion for a speedy trial and expected to be heard on hismotion via telephone on Dec. 17, 2004. The perverted litigation process he was then confrontedwith was enough to drive any layman mad, although lawyers are accustomed to it and may use itto their advantage. The judicial assistant for the county court said he would be called, but he didnot receive the expected call at the appointed time. He said had waited an hour and a half to becalled, and then called the judicial assistant, whom he said told him, after she put him on holdand returned from her investigation, that she was puzzled because his motion had been deniedalthough he had not been called by the court. He also thought there would be hearings that dayon two motions made by the plaintiff, rescheduled from Jan. 21, 2005, as per notice receivedfrom the Libow firm on Dec. 14, 2004. He later went online and checked the Palm Beach CountyCourt docket to find that his motion for a speedy trial had been dismissed. Since there was norecord of the plaintiff’s two motions, he assumed they had been abandoned.

When he apprised Mr. Laing of what had happened on his end, Mr. Laing informed him that the judge had not had time to hear the plaintiff’s motions that day, so they would be heard on theoriginally scheduled day, January 21, 2005. As for the denial of Mr. Johnson’s motion for a

speedy trial, there must have been a misunderstanding between him and the judicial assistant: itwas Mr. Johnson’s responsibility to call the court and therefore appear before it; at least that waswhat Mr. Laing said he had learned over his years of experience as a licensed lawyer. The courthad waited an hour for his call by putting the case at the end of the docket, and then went aheadwith the hearing based upon Mr. Laing’s arguments and a review of the file: motion denied.

Mr. Johnson believed he was being tricked by the double rescheduling of the plaintiff’s twomotions, now set back to the original date with no notice to him. As Mr. Johnson explained itlater, “Laing had somehow managed to get the hearing moved from Judge Jaffee’s courtroom(which is where the hearing was scheduled and where I was calling) to Judge Bragger’scourtroom. I was not made aware of this apparent last minute change and both Laing and Libow

knew that. How am I supposed to call the judge if I don’t know who or where he is? While I wasanxious to get the case to trial ASAP, Libow was concentrating his efforts in the exact oppositedirection. He was intent on churning the litigation process in a concentrated effort to get his feesup to the $100,000 that he was demanding from us.”

One of the Libow motions was to invoke the rules of procedure used in the circuit court, theinvocation of which would put him at a disadvantage against lawyers well versed in all the tricksof the litigious trade.




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“You are now telling me that it is your intention to have those very same motionsheard on January 21, 2005. When had you planned to inform me of this hearing?Did you hope to win again by default? Are fairness, ethics and courtesy that rare acommodity?”

Mr. Laing, not appreciating suggestion of unethical behavior, said that he was not trying to hideanything. He reiterated Mr. Johnson’s responsibility, and responded, in part:

“…. I have done nothing improper at anytime during this litigation. If you needto pick a fight with someone, go right ahead and argue with the Judge during theJanuary 21, 2005 hearing or draft an e-mail or letter to Judge Breggar. I am surehe would appreciate your antics…. It is not my responsibility to hold your handthrough this litigation….. I do not appreciate you somehow placing blame on mefor your incompetence….”

That handily flamed the sparks into flames; at least Mr. Johnson was obviously inflamed:

‘My antics? Your conniving is blatantly obvious. You are desperately trying to prevail on procedure because your case has no merit…. You rescheduled yourmotions to be heard along with mine at 8:45am on December 17th. I made noobjection, though I could have based upon your improper three (3) days notice.When you noticed me that you had rescheduled your motions to be heard on12/17/2004 you effectively abandoned the previously scheduled hearing date ofJanuary 21, 2005. Under the rules of procedure you cannot have two (2) hearingsscheduled simultaneously with regard to the very same motions. I am certain thatgiven your "years of experience in Small Claims Court and Circuit Court" thatyou are no doubt aware of this fact. I am likewise certain that you routinely ignorethe rules of court that run contrary to your twisted agenda of winning at any price.

If I were not so anxious to be rid of you, I would force you to reschedule thismatter. Every time I have to deal with you people I feel the need to go take ashower…. I caution you to make some effort to behave in a fair and ethicalmanner. I will be filing another addendum to my Bar Complaint against you withregards your most recent unethical conduct. I will continue to complain to theFlorida Bar so as long as you continue to behave in an unfair and/or unethicalmanner.’

Mr. Laing, now ever so cool and professional, simply responded all actions taken by him and hisfirm had been ethical, fair and in line with procedure, and that he had no regrets. At that juncture,Mr. Libow impulsively inserted himself into the email exchange, with copies to everyone

concerned, simply shouting two words:

CAPE FEAR!!

Mr. Libow’s message had the desired effect on Mr. Johnson:

‘YOU ALVIN [ALLEN], ARE ABOUT AS MENTALLY SICK ANINDIVIDUAL AS I HAVE EVER HAD THE MISFORTUNE TO




12 | P a g e

ENCOUNTER! THAT MAKES YOU A DANGER TO YOURSELF ANDOTHERS. YOU NEED TO HAVE YOUR DOCTOR INCREASE YOURMEDICATION BEFORE YOU DO SOMETHING THAT LANDS YOU INPRISON FOR THE REST OF YOUR LIFE!

‘KNOWING THAT YOU HAVE THE MATURITY AND MENTALCAPACITY OF A TWELVE YEAR OLD, I DELIBERATELY TRIED TOAVOID DEALING WITH YOU. THAT IS WHY I ADDRESSED MYINQUIRY TO THE LESSER OF THE TWO EVILS IN YOUR "FIRM"

‘UNLESS YOU HAVE SOMETHING TO SAY THAT IS GERMAINE TO THEPENDING LITIGATION DO NOT CONTACT ME IN ANY WAY, SHAPE,MATTER OR FORM. ON SECOND THOUGHT, DON'T YOU EVERCONTACT ME AGAIN FOR ANY REASON WHATSOEVER. IF YOU HAVESOMETHING TO SAY THEN SAY IT THROUGH ONE OF YOURLACKEYS.

‘I SAW THE MOVIE TO WHICH YOU REFER AND I FULLYUNDERSTAND YOUR THREAT. I WILL INCLUDE THAT INFORMATIONIN THE ADDENDUM TO THE PENDING FLORIDA BAR COMPLAINT.’

Mr. Libow’s rejoinder soon followed:

‘It was not a threat. It was a warning to one of my associates about just howdangerous you really are. We will deal with you, in kind, as you know the actionsyou have taken (some of which I believe you have the mental capacity tounderstand but, for some reason, don’t care about their repercussions to your wifeand yourself) have now increased your liabilities to levels of which you have no

comprehension. Again, given that you are such a “man of means”, I stronglysuggest that you contact no one in my firm through any means but by motionthrough an attorney hired by you. Any further communication you make without being made by motion will not be answered. So, write away, if you will. It willgo without further answer, but rather with questions, when you are deposed.’

Mr. Johnson’s means were modestly middle-class. The plaintiffs would eventually have someonefly up to take a close look at the home the Johnsons were remodeling, to assure themselves thathis means were more than adequate; no doubt they figured he would eventually cave in to their$100,000 demand, a sum they conceived to be with the “sweet spot” range where affluent peoplecough up a settlement rather than resist at far greater expense to themselves. But Mr. Johnson

would take out a second mortgage to fight what he considered was a continuous attempt to extortmoney from him – ironically, considering that he was the one being sued for libel, on old termfor such threatening letters was ‘libel.’

In retrospect it is apparent that Mr. Libow was projecting his own malice or ill will onto Mr.Johnson, who was duly incensed and not about to back off, hence a vicious cycling ensued. Mr.Libow was his own worst enemy and that put everyone around him at risk, particularly hischosen archenemy – the screen for his unbridled self-enmity. The easily enraged lawyer,




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apparently subject not only to delusions of persecution but to the delusions of grandeur on theflip side of the paranoia coin, even to episodes of malignant narcissism, was rendered doublydangerous to anyone who crossed him when he had Mr. Tifford to back him up in a court of law.Mr. Johnson had good cause to fear the two when in unholy alliance against him; maybe heshould have offered Mr. Tifford $25,000 to be done with the matter.

Indeed, perhaps he should have tried to chisel the $100,000 down or even tried to embrace Mr.Libow like a friend or loving Christian if he had known how Mr. Tifford liked to brag about hisalleged combat experience in Vietnam, how he was “a trained killer,” and about his connectionsto the CIA and its secret missions, which of course the agency would deny if he was captured behind enemy lines. He was overheard recalling that he personally put twenty-three men in body bags, and saying that he took no prisoners in Vietnam, implying they were killed afterinterrogation.

# #




Page 1 of 9

FROM THE MALICIOUS PROSECUTION OF DAVID JOHNSON

by David Arthur Walters

Seizure of Courthouse by Rebels during Shay’s Rebellion

THE FLORIDA SUPREME COURT’S BUREAUCRATIC ASS

Beware! If you file a complaint against an attorney with the Florida Bar, you may be sued by that

attorney for defamation. The suit against you will ultimately be unsuccessful provided that youhave a quarter-million dollars or so to defend yourself. And if you win the case because you were

financially able to retain an attorney and got the luck of the draw from the court, you may neverrecover your expenditures or your peace of mind; despite your forgiving religion, you may beleft embittered for the rest of your life. And while you are being literally tortured on the legal

rack, the Florida Bar may, as one David Johnson knows only too well, “sit on its bureaucratic

ass.”

The defamation lawsuit brought by Allen H. Libow, Esq. and his bevy of attorneys against David

Johnson and his wife in the Palm Beach County Circuit Court was in retaliation for an absolutely




Page 2 of 9

privileged petition Mr. Johnson had made to the Florida Bar, the licensing and disciplinary “arm”

of the Supreme Court of Florida, begging for redress of his grievances against Allen H. Libow,

an officer of the Supreme Court of Florida. Mr. Johnson won the case after an agonizing battle

protracted by the punitive dilatory and deceptive tactics of the plaintiff’s lawyers, and has nowsued Mr. Libow for malicious prosecution. Hopefully he will win his case, not only for his own

sake but for the sake of the class of consumers who are routinely abused by members of theFlorida Bar while the Florida Bar sits on its thumbs, claiming there is no probable cause to believe there is any such abuse while it is going on under its noses, or “asses,” if you please.

Unfortunately for the consumers of legal services in Florida, it is ultimately up to the costly and

cumbersome law courts and not the Florida Bar to protect the victims of unethical lawyers from

retaliation for filing complaints against them with the Florida Bar, the “arm” of the Florida

Supreme Court with which the political-economic interests of lawyers are “integrated” in aninherent and colossal conflict of interest pursuant to the judicial branch’s self-declared “inherent

power” to regulate its members and protect itself from interference from the executive and

legislative branches.

Judges sitting in the county and circuits courts may discipline unruly lawyers with sanctions,fining them or tossing them in jail for contempt. They may also have a state attorney appointed

to prosecute an attorney in the relevant circuit court for an alleged violation of the Rules of the

Florida Bar, a step that is rarely taken. Judges also have a right and a duty to turn unethical

practitioners into the Florida Bar; the lawyers charged with investigating the conduct of lawyersthere will naturally take a judge’s complaint seriously, but judges, who are lawyers themselves,

seldom file such complaints against lawyers.

And of course consumers may file complaints at the headquarters of the Florida Bar, where staff

lawyers dispense with the most of them as patently non-actionable. Alternatively, complaintsmay be filed with Florida Bar grievance committees, agents of the Florida Supreme Court

dominated by lawyers, throughout the state. Relatively few consumer complaints are thoroughlyinvestigated if at all, and a finding of probably cause that the Rules were violated occurs only in

a very small percentage of the total complaints received from consumers. And then bar counsel,acting as a prosecutor, prosecutes the cases before a referee, an agent of the Supreme Court

appointed by the Court, before whom the disciplinary case, deemed by the Rules to be neither

criminal nor civil, is tried according to an informal procedure. The Supreme Court reviews thereferee’s findings and recommendations, and makes the final judgments, most likely softening

the recommendations of the referee.

Although this disciplinary process is highly favorable to lawyers on the whole, or rather to those

who choose to kowtow to the power elite, and especially favors lawyers and those practicing

with powerful law firms, lawyers naturally resent having complaints about them filed with their peers at the Florida Bar. The legal process may resolve conflicts inasmuch as it averts violent

physical combat, but consumers embittered by the experience for one reason or the other may

wish to blame the lawyers, either rightly or wrongly, and complain about their conduct to theself-regulating Bar. The indignant lawyer may feel that s/he has been defamed, or may wish the

bar to believe so, hence s/he may threaten to file a defamation suit against the complainant if the

complaint is not withdrawn, or s/he may simply file suit to retaliate and put the squeeze on theconsumer.




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The lawyer may feel that s/he has every legal right to do just that. Until the mid-twentieth

century, courts held that attorneys have a right to bring malicious prosecution, defamation, and

similar tort cases against people who bring disciplinary complaints against them. After all, would

it not be unconstitutional to deprive attorneys of a right afforded to everyone else, to obtain aremedy in court for damage to their reputation? But officers of the court are now held to a higher

standard that impinges on the usual rights. Nearly thirty states have explicitly barred such actions by court rule or statute. They are barred by common law in the State of Florida since Stone v.Rosen and Tobkin v. Jarboe. The Florida judiciary has mercifully granted a special privilege—

not a right—for consumers to petition the government for grievances against lawyers without

being successfully sued for doing so. The Florida Bar, to the best of our knowledge, has onlyrecognized that privilege once, in The Florida Bar v James Daniel Eckert, File No. 2009-11,071

(6C), and has not explicitly enshrined the privilege as a Rule despite our request to do so. But

never mind, the Bar may violate its own Rules with impunity, as we have noticed in a numbercases; the rule-maker is naturally above the rules.

STONE V. ROSEN

The notion of ‘privilege’ in a libel action is that conduct that otherwise might be punished isimmune because of certain circumstances. That privilege may be limited by qualifications set by

law, or the privilege may be absolute. A person publishing an absolutely privileged statement to

a public authority could not be successfully sued for defamation even if the injurious statement

were a bald-faced lie maliciously made. If s/he published it elsewhere, a defamation suit might be successful.

In the case of Stone v. Rosen, 348 So.2d 387 (Fla. 3d DCA 1977), one Lynne Rosen wrote a

letter to The Florida Bar complaining that attorney David Stone was improperly commingling his

personal funds with those of his clients. The Florida Bar found no probable cause to bringdisciplinary proceedings against Stone. Stone then filed an action for malicious prosecution

against Rosen claiming that Rosen's accusations to The Florida Bar were false, malicious, andmade without probable cause. But Rosen asserted the defense of absolute immunity for all

complaints made against a lawyer with the appropriate regulatory agency, The Florida Bar. Thetrial court entered summary judgment in favor of Rosen, finding that Rosen's complaint to The

Florida Bar was at least qualifiedly privileged.

The appellate court affirmed the trail court’s finding, stating that the privilege was absolute, “A

more important point is what we find to be an absolute privilege on the part of a citizen to makea complaint against a member of the integrated bar of this State,” noting that, “There is a split of

authority in the country as to whether or not one making a complaint against a member of the bar

is entitled to a qualified privilege or an absolute one.”

Florida attorneys would simply have to grin and bear unfounded complaints made against them:

“For the sake of maintaining the high standards of the profession and disciplining those whoviolate the Canons of Legal Ethics, one who elects to enjoy the status and benefits as a member

of the legal profession must give up certain rights or causes of action which, in this instance, is

the right to file an action against a complainant who lodges an unsuccessful complaint with theGrievance Committee of The Florida Bar.”




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The Florida appellate court cited Toft v. Ketchum, 18 N.J. 280, 113 A.2d 671 (1955), a New

Jersey Supreme Court case involving a malicious prosecution action by an attorney against a

citizen who had filed a complaint with the grievance committee. In holding that an absolute

privilege was the appropriate defense, Chief Justice Vanderbilt, joined by William Brennan, whowould become a United States Supreme Court Justice, Justice Vanderbilt wrote:

“In dealing with this issue we are confronted by two conflicting considerations of

policy. On the one hand, there is the injury that may be suffered by any attorney

as a result of the institution of disciplinary proceedings against him on what turnsout to be improper or groundless charges. Even if the charges against him are

found to be baseless and the complaint is dismissed, he still may suffer from the

public knowledge of these proceedings which may damage his reputation and

injure his ability in the future to earn a living. On the other hand, however, it is inthe public interest to encourage those who have knowledge of any unethical

conduct of attorneys to present such information to the appropriate county ethics

and grievance committee so that this court may carry out its constitutional

disciplinary duties…. In attempting to do justice as between these two conflictinginterests, we are necessarily forced to give great weight to the fact that we have

been charged by Constitution with the solemn duty of ridding the bar of thosewho are unfit to practice our profession. As we have seen, this is fundamentally a

duty to the public and it is necessary that we make every effort to do this job to

the best of our ability. If each person who files a complaint with the ethics andgrievance committee may be subject to a malicious prosecution action by the

accused attorney there is no question but that the effect in many instances would

be the suppression of legitimate charges against attorneys who have been guilty of

unethical conduct, a result clearly not in the public interest. And although todeprive an attorney of his right to recover damages in a civil action for the

malicious filing of such a complaint without probable cause occasionally works ahardship upon the attorney…we are of the opinion that this result must follow ifwe are to properly carry out our constitutional duty to maintain the high standards

in our bar…."

Unfounded complaints and perhaps even legitimate complaints filed with The Florida Bar were

kept confidential at the time of Stone v. Rosen, so at least no harm would be done to an

attorney’s reputation provided that the complainant limited his or her complaint to The FloridaBar: “The present rules of the integrated bar give counsel adequate protection of confidentiality

until a finding of probable cause and an independent vote as to whether or not the proceedings

will be made public.” (Art. 11, Rule 11.12, Integration Rule of The Florida Bar).

Stone v Rosen set the precedent for Florida in respect to lawyers prosecuting persons who filecomplaints against them with the Florida Bar: “This case appears to be one of first impression in

Florida,” stated the court, “and has drawn the interest of The Florida Bar by its appearance in this

proceeding as amicus curiae. Therefore, because of the impact of this decision on the members

of The Florida Bar, we are going to certify same to the Supreme Court of Florida as passing upona question of great public interest.”




Page 5 of 9

Since Stone v Rosen was decided, the Florida Supreme Court adopted Florida Bar Rule 3-7.1,

which opened up the grievance process to public scrutiny; in effect, once a final decision is made

on a complaint, the record becomes public and any person may refer to it or republish it with

impunity, just as s/he could in a court case where the records were not sealed by court order.After all, how could the enforcement arm of the Florida Supreme Court be held accountable if its

findings of no probable cause were kept secret? Now it does that by destroying the file includingthe record that there was any file one year after the decision is made. By the time someone hascause to check out an attorney on the Florida Bar’s website, that record along with perhaps a

whole string of records indicating a pattern of misconduct has been destroyed in order to protect

the reputation of the attorney and render the Bar unaccountable for negligence and misconduct.

TOBKIN V. JARBOE

The more recent case that the Florida Bar currently cites in response to inquiries about the

liability of persons who file complaints against attorneys is Tobkin v. Jarboe, 710 So.2d 975(Fla. 1998). Attorney Donald A. Tobkin had appealed the judgment of the Florida district court

against him to the Supreme Court of Florida. Attorneys for the Jarboes described the situation to

the Supreme Court of Florida in their Answer Brief dated December 22, 1997.

“This case arises from a decision in August 1989 by Donald A. Tobkin, a Florida

Bar member, to undertake representation of the Jarboe family -- Linda and herthree children, Kimberly,' Deborah and Ryan Jarboe -- in a probate matter arising

in Pennsylvania even though he was not a member of the Pennsylvania Bar. After

the Jarboes, who lived in Ohio and Indiana, terminated Tobkin for making falsestatements about them in pleadings, one of the daughters, Kimberly, complained

in letters to the Florida Bar dated February 25, 1992, and April 17, 1992, about

Tobkin's professional conduct. Her mother allegedly verified theallegations.Tobkin sued his former clients on August 4, 1992, claiming breach of

contract and various torts. Persevering through multiple dismissals, he ultimatelyamended his complaint to include claims for libel based on the Bar complaints.

The trial court finally dismissed the fourth version of the complaint on March 26,1996, three-and-a-half years after the lawsuit began. The Fourth District upheld

that result more than a year later on May 21, 1997. Now, almost six full years

from the date of Kimberly's first complaint to the Bar, Tobkin, having lost all hisother claims against the Jarboes, continues to prosecute Kimberly and her mother

for libel. The judicial odyssey forced upon Linda and Kimberly by his libel claims

demonstrates the need for an absolute privilege to protect those who complain tothe Florida Bar. As this Court and others have recognized in placing general

restraints on actions for defamation, a lawsuit for libel is a potent weapon in the

hands of any civil litigant who wishes to deter critics.. In the hands of a lawyerunsettled by a former client's complaints, a lawsuit for libel is not only a potent

weapon, but a potentially debilitating weapon that can be deployed at minimal

cost to the lawyer but with such maximum effect on the complainant that even its

existence threatens the integrity of the Bar and its members by silencinglegitimate critics. For this reason, Florida courts, as well as courts throughout the

country, historically have embraced the principle that absolute protection isessential to protect citizens, who themselves are benefitted only rarely by the




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Bar's quasi-judicial disciplinary proceedings, from libel suits based on the

complaints that commence those proceedings.”

The attorneys cited Nodar v. Galbreath 462 So.2nd

893 (Fla 1st DCA 1985) as an expression of

the “general restraints” Florida courts have placed on defamation suits. That case, “recognizing

necessity of common law privilege to protect speech,” would also be cited in the Answer Brief by the Johnson’s attorney in Libow v. Johnson in the Fourth District Court of Appeal Case No.

4D08-1014 (2008). The “common law privilege” protecting speech is the privilege recognized

by Florida and other states independently of the privileges “constitutionalized” by the U.S.Supreme Court’s interpretations of the United States Constitution. The person allegedly defamed

by Joseph J. Nodar in Nodar v. Galbreath, Patricia Galbreath, was not a lawyer; she was a public

high school teacher highly offended by Mr. Nodar’s remarks before a meeting of a Broward

County school board during a period set aside for public commentary. He claimed that his sonwas being harassed by two teachers, one being Ms. Galbreath, who was, he said, unqualified to

teach. The court held that his speech was privileged inasmuch as “they were the statements of a

citizen to a political authority regarding matters of public concern, i.e., the school curriculum and

the performance of a public employee.” The privilege being considered was “qualified” becauseit did not exempt defamatory statements made with “express malice” i.e. with ill will, hostility,

evil intention to defame and injure: where a person speaks upon a privileged occasion, but thespeaker is motivated more by a desire to harm the person defamed than by a purpose to protect

the personal or social interest giving rise to the privilege, then it can be said that there was

express malice and the privilege is destroyed. “The words themselves, we believe, are not soextreme as to demonstrate express malice. Petitioner merely said that the teacher had harassed

and verbally abused his son, that she was unqualified to teach the course, and that her

performance as a teacher was victimizing his son. While we must accept the unchallenged

conclusion of the jury that these words were defamatory, the words do not inherentlydemonstrate express malice.” Attorneys and journalists interested in the distinction between

constitutional “actual malice” and common law “express malice” may wish to study this case.

Now in Tobkin v. Jarboe, The Supreme Court of Florida gave its final order on May 28, 1998:

“We approve the decision of the Fourth District Court of Appeal in Tobkin and, as explainedabove, resolve any conflict in the Bar Rules decision in favor of an absolute immunity for an

individual who files a complaint against an attorney as long as the complainant makes no public

announcement of the complaint outside the grievance process. It is so ordered.”

“Florida is not alone in recognizing an absolute immunity for individuals who file

complaints against members of an integrated Bar,” stated the Florida SupremeCourt.“Most jurisdictions throughout the United States recognize an absolute

immunity for Bar complainants. See, e.g., Ala. R. Disc. P. 15(a); Ga. State Bar R.

4-221(g). In addition, the American Bar Association's Model Rules for LawyerDisciplinary Enforcement recognize an absolute privilege for communications

made within grievance procedures. See Model Rules For Lawyer Disciplinary

Enforcement Rule 12 (1993)(The ABA Model Rules For Lawyer Disciplinary

Enforcement Rule 12 states in relevant part: Communications to the board,hearing committees, or disciplinary counsel relating to lawyer misconduct or

disability and testimony given in the proceedings shall be absolutely privileged,




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and no lawsuit predicated thereon may be instituted against any complainant or

witness.)”

Tobkin’s counsel argued that absolute immunity from retaliation was only afforded to Bar

complainants at the time of Stone v Rosen because innocent attorneys were protected by

confidentiality under the Bar Rule in place at the time. However, since the relevant Rule waschanged, so that all completed files were opened up to publicity whether the lawyer charged was

held guilty or innocent, they argued that the absolute privilege was effective removed. That

argument did not wash with the court:

“We resolve this apparent conflict in favor of the district court's decision in

Tobkin. The changes made to the rules in our Bar Rules decision did not removethe absolute immunity afforded an individual who files a Bar complaint against a

member of The Florida Bar under the circumstances that exist here. Inherent in

the Bar Rules decision was this Court's recognition of the strong public policyreasons for encouraging individuals with knowledge of attorney misconduct to

step forward and present such evidence so that this Court may carry out its

disciplinary duties. We acknowledge the possibility that groundless or baselesscomplaints against attorneys may sometimes be filed by individuals. However,

Bar complainants must be encouraged to step forward with legitimate complaints,

which will further the important public policy of disciplining attorney

misconduct.”

“We also recognize the inequitable balance of power that may exist between anattorney who brings a defamation action and the client who must defend against

it, which in turn creates the potential for attorney intimidation of Barcomplainants. Attorneys schooled in the law have the ability to pursue defamation

litigation through their own means and with minimal expense when compared

with the Bar complainants. Conversely, the cost of litigation coupled with the riskof liability in defending against such an action could be enough to discourage an

individual from bringing a meritorious complaint. The mere possibility of chilling

valid complaints would undermine public confidence in this Court's ability to

regulate and discipline unethical members of The Florida Bar.

“Thus, we hold that an individual who files a complaint against an attorney and

makes no public announcement of the complaint, thereby allowing the grievance

procedure to run its natural course, is afforded absolute immunity from adefamation action by the complained-against attorney. However, if, after filing a

complaint, the complainant comments publicly or outside the grievance process,

then the afforded immunity ceases to exist.”

“Recognizing an absolute immunity for a complainant who follows The Florida

Bar grievance procedures when filing a complaint will prevent any chilling effecton Bar complaints while at the same time adequately protect attorneys. If an

individual files a complaint against an attorney and the Bar Grievance Committee

finds probable cause to believe the attorney is guilty of misconduct justifyingdisciplinary action, then the attorney is clearly in no position to complain about




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the absolute immunity afforded the complainant. However, if a baseless Bar

complaint is filed against an attorney and the Bar Grievance Committee returns a

finding of no probable cause, then public exoneration is a suitable remedy for any

negative effects created by the public awareness that a complaint has been made

against that attorney.”

We note again that once the process is completed, the file becomes a public record regardless of

guilt or innocence; the findings can be retrieved from The Florida Bar website, and the

underlying case documents are available on request as per the Florida Constitution and Statutes.The published records of cases in which no probable cause were found are especially crucial to

the public monitoring of the performance of The Florida Bar in light of the frequent complaintsthat the lawyers ruling the Bar are arbitrary, prejudiced in favor of influential attorneys, and

sometimes incompetent.

Not only did lifting the gag order imposed under the previous Bar Rule encourage individuals to

step forth, the new Bar Rule, by allowing public access to grievance records, was intended to

foster public respect and confidence in the disciplinary system itself if not in lawyers at large.However, and most unfortunately for the public, The Florida Bar, duly authorized by a general

records retention administrative rule promulgated by the Supreme Court of Florida, destroys all

records of complaints filed against attorneys one year after a finding of no probable cause, alongwith any records that there were any such complaints – even worse, many complaints deemed

unworthy are not even logged into the system. Where probable cause is found, the official

documents are posted the lawyer’s page at the Florida Bar website; however, where there is no

probable cause, the lawyer’s page will show no disciplinary action. During the course of theinvestigation, secrecy is maintained; unless one knows that a case is pending and can describe it

in particular, the Florida Bar will not say it is pending. A member of the general public would

never know that a dismissed case was closed without constantly calling The Florida Bar for

information. That way, patterns of lawyer misconduct and misconduct of The Florida Bar itselfcan be and have been concealed. Sadly, there are ongoing attempts by police departments to

adopt for police officers a system similar to that for officers of the court; they would destroy allrecords where no probable cause was found to discipline an officer; that way, there would be no

record that an officer, for example, had been accused of using excessive force two dozen times,

indicating a pattern of misbehavior although he was not disciplined for it.

Now none of the above is intended to impugn the Florida Bar for the good work that it does do.

We especially sympathize with Bar counsel and referees whose efforts to crack down on a particular kind of misbehavior are thwarted by the Florida Supreme Court in shameful decisions.

Sadly, Floridians have to wait until the conduct of some of the most influential and trusted

lawyers in the state, encouraged by laxity and broken windows everywhere, becomes soegregious and blatant that they are sent off to jail by federal judges. Indeed, there is much that

the Florida Bar should do that it does not do for one reason or the other, the ground of those

reasons being its inherent conflict of interest as an integrated bar.

One day Florida may wise up, like the mother country of English Law, and disintegrate the

Florida Bar, putting the disciplinary process in the executive branch, in a non-lawyer agency,advised, of course, by lawyers. In any case, as long as The Florida Bar sits on its hands while

people like David Johnson are stretched on the rack in court by its members, and expects the




Page 9 of 9

costly and cumbersome law courts to ultimately discipline attorneys in many cases, we have

every right—not a privilege—of calling the Florida Bar the Florida Supreme Court’s

Bureaucratic Ass. We can only hope that the public including lawyers and journalists will start

kicking it instead of kissing it.

#

#

A fascinating Kentucky case on this subject:

Morgan & Pottinger & GMAC Mortgage Corporation v. Noel Mark Botts, Supreme Court of Kentucky,

2009‐SC‐00515‐TG, 2009‐SC‐000751‐SC, 2009‐SC‐00224, April 21, 2011




Page | 1

FROM ‘THE MALICIOUS PROSECUTION OF DAVID JOHNSON by David Arthur Walters

THE LAWYER’S COMMON DENOMINATOR

David Johnson had pleaded desperately in vain with the Florida Bar to reign in its “miscreant”member, Allen H. Libow, whom he said had overbilled him and was harassing him with phonecalls, e-mails and threats of arrest after he refused to leave his case with the Libow firm instead

of letting Cynthia Becker take the case with her when she left the Libow law firm. The publicrecord reveals that, in an August 30, 2004, letter to the Florida Bar, Mr. Johnson complained thatMr. Libow was trying to extort $100,000 from him, and had filed a false police report in anattempt to coerce him into paying:

‘On August 6, 2004 just two days after Libow filed his $1,621 small claimsaction, I was notified that Allen Libow had contacted the Boca Raton andJacksonville police departments in an effort to have me arrested. Allen Libow toldthe police that I was making “threats of physical violence” and that those threatswere directed at him, his wife and his children. Allen Libow told the police that Imade these threats “because he [Libow] is Jewish”. EXHIBIT A-L-14 is a copy of

the Boca Raton Police Report filed personally by Allen Libow. In a clumsyattempt to avoid complicity, Allen Libow stated in the attached e-mail (EXHIBIT“C”) that it was his wife’s idea to “report you [me] to the police”, not his. But asclearly evidenced by that Police report, it was Allen Libow who contacted thePolice, not his wife. As a consequence of Libow’s attempts to have me arrested, Icontacted the Boca Raton Police Department where I spoke first with C.S.O.Casolari and later with Detective Dibenedetto. I advised them that allcommunications between Allen Libow and myself were in writing and that if I




Page | 2

had in fact made any “threats of physical violence” as alleged by Allen Libow thatthose threats could easily be found in those written correspondence.Consequently, Detective Dibenedetto requested copies of these allegedlythreatening communications. Upon review of those communications DetectivesDibenedetto and B.D. Turnbull stated in their official police report that they

“could not find any threats made within the messages.” Nor did they “observe anyimplicit statement which could be construed as a specific threat against Mr.Libow.” Allen Libow attempted to elevate the alleged crime of “threats of physical violence” to the level of a felony hate crime by claiming that I wasthreatening him and his family ‘because he is Jewish’. The police addressed thatissue as well when they stated in their official police report that “Mr. Libow,himself, does make reference to his religious background without any provocationfrom Mr. Johnson.”

‘In making what is clearly a false Police report of a serious crime, one of the firstthings that Allen Libow does is to advise the Police, ‘Johnson is refusing to pay

his firm a debt that is owed for services.’ Allen Libow apparently thinks thatintimidation and coercion from the police might help to motivate some payment.At the close of their investigation the Police conclude “no further investigation isrequired.” Unfortunately, this would not be the last time that Allen Libow wouldthreaten me with arrest. As evidence by the attached e-mails (compositeEXHIBIT “D”) my imminent arrest and incarceration was a recurring threat maderepeatedly by Allen Libow. All I had to do to avoid the possibility of arrest andincarceration was to send Allen Libow a check for $100,000.

‘Throughout this litigation, Allen Libow would repeatedly accuse me of making“threats of physical violence” toward him and/or his family. I defy Allen Libow to produce any evidence of so much as a single “threat of physical violence” towardhim and/or any member of his family.’

David Johnson’s September 2, 2004 addendum to his complaint to the Florida Bar No. 2005-50,223(15A) averred that “Allen Libow is guilty of filing a false police report as defined by FSS817.49.” He attached an email from Mr. Libow threatening him with police action, with Mr.Libow stating that he was “not in control” of his wife’s decision to have him “provide aninformation statement concerning your physical threats of ‘taking me to task.’” That quoted phrase appeared in the context of the email Mr. Johnson had sent him: “I will without benefit ofany further notice to you or your representative(s) seek every lawful remedy available to meunder every relevant authority to take you to task for your transgressions.” So the Libowsinterpreted “taking to task” as a “physical threat” of the nature of a hate crime.

Mr. Libow wound up his email threat “on a civil note,” as he put it, and asked Mr. Johnson tohave his attorney contact his attorney. Mr. Johnson interpreted that as a “sinister ploy to coerceme into settlement.” So he fired back, “You go your way, I’ll go mine. You drop all yourdemands and I will forgo my legal remedies with regard to your unlawful practice.” Mr. Libowresponded with a request that Mr. Johnson have his attorney draft an offer of settlementaccordingly and send it to him for review. Mr. Johnson asked if they had a deal or not. Instead ofresponding with a yes or no answer, Mr. Libow gave him an eight-paragraph email, in the




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seventh paragraph admitting that Mr. Johnson had got stuck in a controversy between him andCindy Becker. Mr. Johnson replied to Mr. Libow, informing him that he needed “psychologicalcounseling,” said his offer of settlement was withdrawn, and instructed him to stop emailing him.

Now we see from the public record that Mr. Johnson often referred to Mr. Libow’s mental state,

identifying him as “emotionally disturbed,” “emotionally challenged,” “a psychotic misfit,”“emotionally unfit for his position of trust in the community,” and so on. His allegations as to themental soundness of the lawyer would eventually be treated by the circuit court as mere opinionsnot actionable at law as defamation, a technical position we may address in another part of thisseries. Suffice it to say for now that the legal profession has one of the highest incidences ofmental illness. A review of the public file indicates that Mr. Libow was subject to emotionaldisturbances, and may have been exhibiting bipolar or perhaps borderline syndrome; if theFlorida Bar investigators had diligently examined the complaints before them, they would haveseen some cause to intervene to assist their afflicted member. Be that as it may, Mr. Johnson,given what he and his family suffered, demonstrated little sympathy for psychologicalrationalizations; he was convinced he was dealing with a scoundrel if not a crazy fox who was

trying to shake him down for $100,000.

In his letter to the Bar, Mr. Johnson stated that, unknown to him, Mr. Libow had filed a suitagainst him and his wife two days prior to the August 6, 2004 email exchange, wherefore Mr.Libow’s attempt to negotiate had been a pretense, one made in “bad faith.” Nonetheless, wecannot opine what Mr. Libow’s intentions were at the time. And he might have, if his will wereill at the time, in a positive mood swing to goodwill, agreed to drop the matter. Still, Mr.Johnson, given his continuous adverse experience with Mr. Libow, had absolutely no faith inhim.

Mr. Johnson further complained to the Bar that Mr. Libow, by communicating about theirrelationship with Mrs. Libow, had breached confidentiality: “Finally, the issues between Allen

Libow and myself were of no concern to Mrs. Libow or anyone else outside the law firm ofLibow & Muskat. I believe that I have a right under the Florida Bar Rules to expect that thecommunications between my attorney, past or present, are confidential even after the terminationof that relationship. I had a lawful right to expect that the communications between us wereconfidential. Mr. Libow had an ethical and legal obligation under the law to protect thatconfidentiality.”

After nine months had passed since Mr. Johnson filed the complaint, he besought the Bar, whichhad yet done nothing, to “get off your bureaucratic asses and do something before this twistedmadman lands us all on the six o’clock news.” The Bar investigator told him he did not like his“tone,” and the complaint was dismissed that day, the Bar finding “no probable cause” to sustain

his grievance. One month later, Mr. Libow, apparently poised for the occasion, sued Mr. andMrs. Johnson for defamation with regard to the comments Mr. Johnson alone had made in anabsolutely privileged and unpublished complaint to the Florida Bar. All in all, forty-one countsof defamation would eventually be asserted and finally defeated in circuit court, upheld onappeal.

Mr. Johnson had alleged certain facts in his Bar complaint, submitted some documentation insupport thereof, and vehemently expressed his opinions on the facts, opinions that in large part




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disparaged Mr. Libow’s character, stating, for example, that, while “Jessie James used a horseand a six-gun to carry out his robberies, Mr. Libow uses a computer and the United States Mailto carry out his.” He further claimed that Mr. Libow carried out said robberies on “lesssophisticated clients”; had a “total absence of ethics”; was guilty to “concocting a story andfiling a false police report”; “modified (forged)” email; was a pathological liar predisposed to

“wild accusations”; overbilled and used unlawful collections methods; abused the legal process;was a “psychotic misfit” with a “psychotic agenda,” besides being a “creative, twisted, lying sonof a bitch.”

And there was more where that came from. The tenor of the extensive complaints wouldnaturally offend the sensibilities of members of the bar, lending them to think that the entire profession was under attack – we have heard similar complaints about lawyers in generalthroughout our history, some of them culminating in the revolutionary cry, “Kill the lawyers and burn down the courthouses!”

Mr. Johnson’s complaints were not couched in an ingratiating or groveling tone, a tone that onelady with years of experience with the Florida Bar says people should adopt to get things done:“At all times your posture must be subservient, as if the bar staff is above you,” she said. But Mr.Johnson does not want to hear about tones, and be presented with a tuning fork and sent off totone management class. As some rabbis have said, it is good to hate evil and act accordingly. Thevery idea that he should play nice and kiss the asses of bureaucrats or anyone else for that matterto get justice done deeply offends him and moves him to say unpleasant things about those whowould silence him when he has a valid complaint about their conduct.

No, Mr. Johnson was not about to be good dog and roll over for the Libows of the world, presenting him with $100,000, which is a common denominator for a certain class of lawyerswhen it comes to retainers and settlements – be sure to demand an itemized accountingsubstantiated in every respect. Mr. Johnson’s animadverted resistance to the bittersweet end – the

defamation claims against him were dismissed but he is out $250,000 so far – was not part oftheir equation; hopefully his adamancy will do the profession some good.

Mr. Johnson had already advanced around $9,000 to Libow & Muskat LLP for the Michelin vMany case that was being handled for him by Ms. Becker at the Libow firm, but the firm thendemanded an additional $5,014. Mr. Johnson, incredulous, asked for an accounting. It wasdetermined that he had been charged $1,750 for a hearing that had never taken place because Ms.Becker had failed to appear. The bill was further adjusted downward, and then fees of $2,086were claimed. Yet when Mr. Libow called Mr. Johnson down from the roof he was repairing,and tried to persuade him during that 41-minute conversation to leave the case with the firm, hetold him that he owed nothing. But when he was adamant in letting Ms. Becker continue to

represent him after she left the Libow firm, he got a bill for $1,621.90. An additional 397.57 wastacked onto that for itemizing the invoice, at the rate of $200 per hour, a charge claimed as a debtcollection fee; but that amount, said to be merely illustrative when challenged, would be droppedas not really owed. On August 4, 2004, a claim was filed in county small claims court for only$1,621.90.

On October 11, 2004, just two months after Mr. Johnson had filed his complaint with the FloridaBar, a “Proposal for Settlement” was tendered to him by Mr. Libow for a settlement of $100,000:




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“As a proposal for settlement, my wife and I will walk away for $100,000. Anything short ofthat, and we will fully prosecute our case.”

Mr. Johnson complained that this offer in the context of events was an extortionate demand,considering the charging lien was for only $1,621.90. Mr. Libow and his attorneys, particularly

his father-in-law Arthur W. Tifford, the mastermind of the defamation strategy, evidently hadsomething else in mind; to wit, putting Mr. Johnson’s ass in the sling over his complaint to theFlorida Bar.

The initial pretrial conference on the debt claim in small claims court was set for November 10,2004. Two days prior, on November 8, 2004, the plaintiffs had moved the court for leave toinvoke the Florida Rules of Civil Procedure; according to Mr. Johnson, the plaintiffs did notformally notice him as required. He would be put to serious disadvantage as a layman if he hadto abide by the same complicated rules professional lawyers follow. Other motions to invoke therules were denied. At the pretrial conference, the judge ordered the parties, over their objections,into the mandatory mediation required by the small claims court.

Mediation proceedings are conducted off the record. On February 10, 2005, Mr. Johnson wouldcomplain to Florida Bar investigators Lillian Archbold and Joel Klaits that Mr. Libow, in the presence of the mediator, dropped the pleasant demeanor he had previously displayed beforeJudge Jaffee; he leaned across the table and pointed his finger in Mr. Johnson’s face andscreamed: “I’m going to bury you! Do you hear me? I am going to bury your ass!” He laterrecalled that, “As Libow spoke his threats, his face was blood red and his anger was so allconsuming that he could hardly get the words out and he spat and stuttered them. At that point itwould not have surprised me if he had levitated off the ground as his head spun around.”

After three failed attempts to invoke the civil rules of procedure, the plaintiffs motioned the courtfor leave to amend their claim to include unspecified damages for defamation, upping the ante

beyond the $15,000 limit of the county small claims court so the case could be automaticallymoved from the small claims court to the circuit court, where the complicated rules wouldautomatically apply. At a hearing before Judge Debra Moses Stephens on February 1, 2005, EricStockel, representing Libow et al, alluded to defamatory email and an anonymous defamatoryletter allegedly sent to Allen Libow’s wife.

Attorney Stockel also mentioned the complaint Mr. Johnson had filed with The Florida Bar, acomplaint which, he said, “is permitted,” apparently acknowledging that complaints filed withthe Bar against attorneys are presumably absolutely privileged, i.e. the complainant is immunefrom prosecution for defamation. However, he added, there were other recipients of complaints:“Governor Jeb Bush, the Federal Trade Commission, and other areas where that was sent.” One

“other area” was the Florida Attorney General. Yet communications to the Governor, the FederalTrade Commission, the Florida Attorney General and the like public officials and entities would be protected as well, according to received law well known by attorneys. Indeed, the circuit courtin the Johnson case would invoke the common law rule that, “a citizen complaint directed to thewrong governmental entity does not lose its privileged status.” The Florida circuit court citedImperial v. Drapeau, 716 A. 2d 244 (Ct. App. Md. 1998): “The ordinary citizen need not, at the peril of defending a defamation action, sort through the complexities of governmental




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organization in a system of dual sovereigns, with county, municipal, and special taxing districtoverlays on the State component….”

As a matter of fact, the Florida Bar rules that for a lawyer to merely threaten someone for bringing a complaint against him with the Bar is an unethical act prejudicial to the administration

of justice. Nevertheless, the Libows and the Libow law firm would file and pursue thedefamation complaints with a vengeance until ultimately defeated in the circuit and appellatecourts. Mr. Johnson won in the end, but his expenses, which he has not yet recovered as of thiswriting, were about $250,000. The Johnsons eventually, on January 24, 2011, filed suit againstthe Libows and the Libow law firm for malicious prosecution and abuse of process, a case pending as of this writing (February 12, 2012).

Judge Stephens referred to Plaintiff’s untimely motion to amend their claim to includedefamation as “strange” and possibly a “ruse” to gain for themselves the invocation of the procedural rules that had been previously denied by both her and another judge in the case. Shesaid that, although she was not accusing the plaintiffs of “abuse of process,” their motion gaveher the distinct impression that they “may be abusing the process.” Of course that was preciselywhat Mr. Stockel was doing on Mr. Libow’s behalf: perverting the process, and with malice. Shetold Mr. Stockel that it was her job to make certain that that was not in fact the case; she wouldneed to see the evidence of defamation within 30 days, as a prerequisite to granting any motionto amend and remove. Mr. Stockel persisted with his ruse:

MR. STOCKEL: Again, the general rules of pleading and its notice state, as YourHonor is aware, you just need to present the allegations that the claim is being brought in excess of the minimum jurisdictional requirements of that court,. Inthis case it’s $15,000 for Circuit Court, exclusive of costs, interest, attorney’sfees, et cetera. But the actual damages being sought, in this case for defamationwe’re seeking, you know, the damages thereto, the publication of that, the filing

of certain documents with both the Florida Bar which is permitted but GovernorJeb Bush, the Federal Trade Commission, other areas where that was sent.There’s been a mailing which we believe – plaintiff believes was from Mr.Johnson directly to Mrs. Libow which we need to take discovery of which wouldcause further damage to both the reputation that’s been published. And withregard to moving it, Rule 1.170 of the Florida Rules of Civil Procedure state thatif a demand is exceeding the jurisdiction of the current court, transfer shall bemade, and I have a copy, Your Honor, if it makes it easier.

THE COURT: Thank you. And the reason I’m going over this with you socarefully is because the last time we were here Mr. Johnson had filed a

counterclaim which claimed a jurisdictional amount that would have put it in theRules of Civil Procedure and he withdrew that jurisdictional amount because he believed that if he went into – if they used the Rules of Civil Procedure that hewould be completely lost.

MR. STOCKEL: Okay.




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THE COURT: And so it seems strange that now we come back and have a – nowa lawsuit filed which in effect takes it into Circuit Court. I have to make very surethat – and this is no reflection on you but just to state because the Court has to beneutral I have to be sure that bringing this into Circuit Court is not just a ruse toget where you want it to be prior to this.

MR. STOCKEL: I understand, and I anticipated Your Honor on questioning meon that. Subsequent to that hearing in the meantime there have been severalcorrespondences back and forth via e-mail and regular mail. This is not a matterof the record at this point in time, and I present it to Your Honor with theacknowledgement that Mr. Johnson has not seen a copy of this document. We believe this is a letter that Mr. Johnson prepared sent to Melissa Libow and wouldsupport the evidence of the defamation claims. I can present it to Your Honor justto get an idea of some of the information that’s going back and forth again.

Mr. Johnson denied he had sent the anonymous defamatory letter which Mr. Stockel had saidthat Mr. Johnson had not seen – he probably meant that he had not yet given Mr. Johnson a copyof the evidence he intended to present to the court. The judge wanted to see the supposedlydefamatory email, but Mr. Stockel said he did not have copies.

THE COURT: Mr. Johnson, it’s probably time to get you in on this. Did you senda letter to Mrs. Libow?

MR. JOHNSON: No, Ma’am, I certainly did not.

THE COURT: You haven’t sent anything to her?

MR. JOHNSON: No, Ma’am, and if you’d like to swear me in, I’ll swear to it.

---

MR. STOCKEL: The evidence will show eventually on the defamation claimsthat many of the contents of this letter are similar, not verbatim, to emails thatwere received from Mr. Johnson.

---

MR. STOCKEL: I do not have a copy of those emails. They’re not necessary forthe filing of – and to be attached as exhibits to the complaint so they haven’t been presented as evidence to the Court yet.

Then Mr. Johnson, attempting to point out to the court the nature of the malicious andobstructive process he was being subjected to, said that Mr. Libow had accused him of a hatecrime and tried to get him arrested. Further, he said, Mr. Libow had associated him with theJanuary 2005 murderer of Mr. Libow’s babysitter, Shanette Jones, and her two daughters, Ashleyand Joanna Robinson; the girls’ step-father, who had attempted suicide, was suspected in theshooting. The family had made a lot of money in real estate; Mr. Libow would representShanette Jones’ parents in the wrongful death civil suit.




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Mr. Libow, in his email to Mr. Johnson, had said that he, Mr. Johnson, was “going down bigtime.” Mr. Johnson was referring to the email he had received just the day before the February 1,2005 hearing before Judge Stephens, from Allen H. Libow to his former partner Jaclyn Muskatand David Johnson, with copies to attorneys in his firm and to Alexandra Tifford, the daughter ofMr. Libow’s father-in-law, Arthur W. Tifford – the affluent attorney who would represent Mr.

Libow in the circuit and appellate courts and who was the mastermind of the prosecution of thedefamation case against the Johnsons. Mr. Libow evidently believed that Ms. Muskat and Mr.Johnson had conspired against him; she would testify later that she had had no communicationswhatsoever with Mr. Johnson.

From: allen h. libow, esq.To: Jaclyn(AT)floridatitleandtrust.com ; David JohnsonCc: Chad R. Laing ; stockel(AT)llmattorneys.com ; Jeffrey M. Glotzer ;ali_tifford(AT)bellsouth.net ; William M. Shaheen

Sent: Monday, January 31, 2005 9:37 AMSubject: Cease and Desist and Injunction

To the both of you-

Our babysitter and her two daughters were murdered late Saturday, early Sundayin their home. The culprit is a man, who was our babysitter's husband. Hisactions are very similar to those taken by Mr. David Johnson against me and myfamily.

Ms. Muskat, I know, has been feeding this psychopath with information all aboutmy life, friends and family; probably including where I live, as Mr. Johnson tookit upon himself to send my wife an "anonymous" letter, filled with false cruelty.

We have contacted the police regarding same.

Within the next day, we will be contacted by the police for information. At that juncture, we will tell them of the horror that the two of you have brought into ourhome, and that protection will be necessary, as well as an investigation of you both.

On the civil side, Mr. Johnson and Ms. Muskat, I will be amending our complaintfor permanent injunction, once again, and call up for emergency hearing, a motionfor restraining order. Ms. Muskat will be joined to that complaint. You two wanta legal battle, well you now have one.

I have tried to be conciliatory to you both. At this point, I, however, need to protect my family from the likes of both of you. You said it, Mr. Johnson, I am"going down big time" and, based on that statement, it is you who will be goingdown "big time", only I will do it through both the civil and criminal legal system,and not by nasty and defamatory letters to your wife.




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As for you, Ms. Muskat, you have aided and abetted to this psychopath's rage offear, that has been brought into my home. From here, I will personally take overthe suit against the Johnson's and add Ms. Muskat. There will be no more playinggames by you in the small claims court. Nor, will there be any more nonsensecoming from any of you to my office and home.

Ms. Muskat, there will also be no settlement of Simbabear. We will send you acheck for $10 and cause your redemption to be entered on the corporate books; itis $10 more than your interest is worth due to it having no marketability. If youwish to change that, you will need to file your arbitration complaint, pursuant tocontract.

If you need to contact someone, contact me. If you have a lawyer, have themcontact me. If you want to call the police, have them contact me. I will be happyto entertain all of them to your treachery.

By those copied, do not speak with, nor contact in writing Ms. Muskat and Mr.Johnson. I will take things from here.

Allen H. Libow, Esq.

After Mr. Johnson brought that letter up, Judge Stephens ordered him to desist from “insulting people.” Then Mr. Johnson asked the judge how to stop Mr. Libow from sending him threateningemail, stating that he had received several email threats. She said he would have to make a proper motion in circuit court for that.

MR. JOHNSON: …. I received an email yesterday – I received seven emailsyesterday from Allen Libow. Let me read you the first sentence of that email. It

says, “Our babysitter and her two daughters were murdered…. Actions are verysimilar to those taken by Mr. Johnson…. Mr. Libow has some serious emotional problems. Those were the –

THE COURT: Okay, Mr. Johnson.

MR. JOHNSON: The complaint filed with the Bar.

THE COURT: Mr. Johnson.

MR. JOHNSON: Yes, ma’am.

THE COURT: I really wish you would refrain from insulting people. We don’t –the Court is not here to listen to that.

MR. JOHNSON: Ma’am.

THE COURT: Do you understand? If you think he has emotional problems, I’msimply asking that you keep them to yourself. Okay?




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---

MR. JOHNSON: Is there any way that the Court can stop Mr. Libow fromemailing me? He sent me seven threatening emails, yesterday, seven.

THE COURT: Mr. Johnson, you would have to file an appropriate motion forthat. Okay? There’s action that you can file if that’s what you wish with theCourt, and then it would be reviewed in time. But if you don’t file the appropriatemotions, there’s nothing this court can do about it. And I think the appropriatemotions would be in Circuit Court.

The Court may have been correct although unfair, for Mr. Johnson wanted to show that thedefamation claim was sheer bunk and part of a malicious scheme to pervert judicial process to a“nefarious” end.

If the judge had allowed herself some latitude and had considered the behavior that Mr. Johnsoncomplained about, she might have reported it to the Florida Bar, where her word would no doubt be considered more profound than Mr. Johnson’s, or at least her statement would have lent someofficial credence to his complaint that the judicial process was being perverted. After all, Canon3D – Disciplinary Responsibilities – of The Code of Judicial Conduct for the State of Florida,which is rarely invoked, states that “(2) A judge who receives information or has actualknowledge that substantial likelihood exists that a lawyer has committed a violation of the RulesRegulating The Florida Bar shall take appropriate action.” The Commentary pertinent to thatclause reads, “Appropriate action may include direct communication with the judge or lawyerwho has committed the violation, other direct action if available, or reporting the violation to theappropriate authority or other agency. If the conduct is minor, the Canon allows a judge toaddress the problem solely by direct communication with the offender. A judge havingknowledge, however, that another judge has committed a violation of this Code that raises a

substantial question as to that other judge's fitness for office or has knowledge that a lawyer hascommitted a violation of the Rules of Professional Conduct that raises a substantial question asto the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, is required underthis Canon to inform the appropriate authority….”

But Judge Stephens was careful to show respect for her bar colleague before the bench althoughraising “neutral” doubts as to his client’s motives in order to protect Mr. Johnson—the neutralityMr. Johnson praised her for in his communications with the Florida Bar. As laymen we may begto differ as to her motive; we cannot say for certain whether she was a person of good will or illwill – Kant has said that only the will itself can be unconditionally good, only good intentionscount, wherefore moral worth cannot be judged by the unpredictable effects of its exercise.

If a layman had been elected to judge this case, he might have simply told the plaintiffs that, ifthey had a defamation claim, then to go file it in circuit court and get whatever relief that could be had for that there, leaving the small debt claim to be settled in county court where it wasoriginally lodged. In fact, after the debt claim was removed along with the spurious defamationclaim for unspecified damages to circuit court, the debt claim was remanded back to the countycourt for a Kafkaesque process reminiscent of the famous absurdist’s The Trial. Wherefore thecourt’s time and money and the defendant’s time and money had been wasted by the perversion




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of process to perpetrate fraud on the court. But procedures if not justice are a mystery to laymen,so it is no wonder why one has to be a licensed lawyer nowadays to fill a judge’s skirts. As for justice, the Greeks had Zeus proclaim, despite of and because of his own misdeeds, that everysane adult should have a sense of justice, and those who do not should be put to death or banished. Zeus himself was bound to fall. May people be outraged by injustice, and adequate

remedies obtained.

Judge Stephen’s order to produce evidence of defamation and to specify damages was notcomplied with by the several Libow attorneys arrayed against Mr. Johnson, who was defendinghimself. Instead, a memorandum of law was submitted stating that the court had no choice butallow the claim to be amended; all that was required was to state that it was in excess of $15,000, period. She regretfully agreed that she had to go along with the ruse on this technical ground, andshe granted the plaintiff’s motion to amend and remove it to the circuit court on the very day(March 7, 2005) that is was supposed to go to trial. Upon the successful removal of the countycourt case to the circuit court, all mention of the allegedly defamatory anonymous letter used toget it into circuit court mysteriously vanished from the Libow’s pleadings.

Mr. Johnson was not about to let the Anonymous Defamatory Letter Ploy employed by theLibows to up the ante to get the case removed to circuit court go unnoticed. He complained thatthe letter, similar in some grammatical respects to letters the Libows had received over the years,long before they were even aware of his existence, must have been sent by someone else orfabricated by Mr. Libow. Mr. Libow would testify in a circuit court deposition that he neveractually said that Mr. Johnson had authored the anonymous, allegedly defamatory letter:

Q. Okay. Didn't you originally claim in this litigation that this letter wasauthored by David Johnson?

A. I did not. I thought -- I didn't know what -- I -- I received it at about thesame time as the bar complaints came. And whoever sent it could have, if itwasn't Mr. Johnson himself, could have made Mr. Johnson the most likelysuspect. So there could have been -- it's --

Q. Mr. Libow, so I'm clear, have you ever accused Mr. Johnson of being theauthor of this letter?

A. Actually no.

Q. Okay. Have you -- have you ever accused Jane Johnson of being the authorof this letter?

A. No.

Q. Okay. Have you ever accused David Johnson of being the person whotransmitted this letter?

A. No.




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Q. Okay. And this letter was received by you or by your wife?

A. By my wife.

Q. And did she open it or did you open it?

A. She opened it.

Mr. Libow would eventually name five former law partners as suspected sources of theanonymous defamatory letters he had received over the past several years, long before he andMr. Johnson knew each other existed. As for the allegedly defamatory email referred to but not produced in small claims court, Mr. Johnson believed that it must have been forged. One of thecounts of defamation in the lawsuit against him included his privileged statement to the FloridaBar that he suspected Mr. Libow had forged email: “I suspect that it is possible if not probablethat Mr. Libow [Allen H. Libow] modified (forged) some of the emails in order to accomplishthe desired effect on his wife.” That is, Mr. Libow was suspected of frightening his wife into

insisting that he call the police on Mr. Johnson. The circuit court deemed Mr. Johnson’saccusation, that evidence was forged, to be an actionable statement of fact, rather than just mereopinion upon which no action for defamation could be pursued at trial.

As for the charges made to the police department, a fascinating exchange between Mr. Johnsonand Arthur W. Tifford took place between during Mr. Tifford’s inquisition of him on December22, 2006. Mr. Johnson had stated that, ever since he had the initial 41-minute conversation withMr. Libow while fixing his roof, wherein Mr. Libow had flown into a rage when he learned Mr.Johnson wanted her to keep the case with Ms. Becker when she left firm, and had castigated Ms.Becker in the lewdest of terms, he had insisted on limiting and did limit all his communicationswith Mr. Libow to writing, with the exception of one brief, 3-minute conversation with Mr.Libow when he returned his phone call.

Mr. Tifford would have liked to have shown that Mr. Johnson was lying about confining allcommunications to writing, and, further, that the 41-minute telephone conversation, which wasobviously not in writing, included threats that Mr. Libow would later on allege to the police; hereferred to that initial conversation, and implied via loaded questions that Mr. Johnson hadthreatened the Libows in that conversation, although the subject matter had been whether or nothe would leave the case with the firm instead of letting Ms. Becker take it with her.

Q. So, it's your word against Mr. Libow as to whether or not you threatened himand his wife and his children in that phone conversation.

A. He never made any allegation that I did.

Q. He didn't?

A. No.

Q. Well, what was that police report all about?




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A. He made the police report because he didn't realize they were going to askhim for his documentation.

Q. Really?

A. Yes.

Q. In addition to self-education, are you also a clairvoyant, Mr. Johnson?

MR. PERRY: Objection as to form, argumentative.

A. No.

Q. The facts are---

A. I'm not a proctologist either, Tifford, but I recognize an asshole when I seeone.

Q. Well, stop looking at me when you speak those words.

A. How apropos.

Q. Do you have anger issues, Mr. Johnson?

Mr. Johnson had not called Mr. Tifford an asshole; he was simply reciting one of thosewisecracks bandied about. But the termed stuck to Mr. Tifford as far as he was concerned. Hetook it as a personal offense, and would later indignantly tell judges that Mr. Johnson had calledhim an asshole. He must have thought that the vocalization had slandered every member of barand bench, as if an asshole were their common denominator.




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FROM THE MALICIOUS PROSECUTION OF DAVID JOHNSON by David Arthur Walters

FLORIDA BAR V. ECKERT – THOU SHALT NOT BLACKMAIL LITIGANTS

Blackmailer in frame from Hitchcock’s ‘Blackmail’

In The Florida Bar v James Daniel Eckert, File No. 2009-11,071 (6C), The Florida Bar averredthat Mr. Eckert had represented Jean Camposecco in post dissolution of marriage proceedings,and that, while the case was pending, the opposing party, Robert Camposecco, filed anInquiry/Complaint form against the lawyer with The Florida Bar, which it received on March 4,2009, alleging that Mr. Eckert had blackmailed him, and had personally called him at homealthough he was represented by an attorney, one Phillip McLeod.

Mr. Camposecco withdrew the complaint on March 21, 2009, stating that, although he believedMr. Eckert was somewhat unethical, he did not believe he originated the “blackmail” suggestion,attributing that to his ex-wife. On June 4, 2009, the Florida Bar advised Mr. Camposecco that the

file had been closed per his request.

However, on June 11, 2009, Mr. Camposecco asked that the withdrawn complaint be reopened,saying he regretted having asked that the case be closed. He said he had done so because hisattorney, Mr. McLeod, had been upset that he had filed the Bar complaint against his fellowattorney behind his back without telling him about it; consequently, Mr. McLeod resigned fromhis case; but he wanted Mr. McLeod to stay with the case because he knew it so well, and he did