Bobby N. Harmon
104 E. Grundy Ave. Tel No. (859) 336-3652
Springfield, KY 40069
December 26, 2000
VIA Fax @ (808) 524-4844
Mr. Bradley R. Tamm, Esq.
Pioneer Plaza, Suite 1500
900 Fort Street Mall
Honolulu, HI 96813
RE: In re Harmon; Ch. 7 BK Case No. 99-04339
Dear Mr. Tamm:
Thank you for your letter dated December 17, 2000, in which you enclosed Steven Guttman’s letter dated December 14, 2000.
First, to address Mr. Guttman’s letter:
As I still do not have a copy of Exhibit 5, I cannot make any determination of whether this clears up any issues or not. I had thought that this Exhibit might contain a breakdown of the entities contributing to the settlement, the amount that each contributed, and the attorneys representing each of the entities named in my RICO lawsuit. This is the information that I need in order to determine if any misrepresentations were made. If Exhibit 5 does not contain this information, then I would need to see whichever documents contain this information.
Mr. Guttman states that “neither the Trustee or I believe there were any misrepresentations in connection with the settlement.” As this is a legal case, shouldn’t we all be held to a higher standard than “we believe”? As I said in my previous letter, there should be existing written documents that clearly state the names of the clients that each attorney is representing.
Mr. Guttman goes on to state: “As you know, attorneys can represent more than one party in a lawsuit and represent other parties in different lawsuits provided they have permission of the clients and have made a disclosure of who they represent in the specific litigation.” This is precisely my point. From the documents that I have been provided, there is a strong indication that certain attorneys in this case may NOT have had permission of the clients and may NOT have disclosed who they were representing in the specific litigation. In fact, I “believe” they may have deliberately MISREPRESENTED on whose behalf they were negotiating the settlement.
I base this belief on the signatures in the court documents of which I do have copies. To me, these documents definitely appear to be inconsistent and conflicting. Again, it should be rather simple for Mr. Guttman to provide written “proof” in the form of the original engagement letters. Then, as I said in my previous letter, “it would indicate that my suspicions were incorrect and further action probably would not be necessary.”
As I also stated in my previous letter:
“On the other hand, if such documents do not exist, then I believe this would be a clear indication that fraud was involved and that some action should be taken. It legal action is needed, then the question becomes who should be the party to initiate such action. Being a layman I am not sure, but I would think that it would be the Bankruptcy Trustee’s responsibility as she, presumably, is charged with making certain that ALL parties are acting in good faith and that no fraud is committed.”
“If fraud has indeed been committed, then the creditors in this bankruptcy are also being defrauded and suffering monetary losses. If the Bankruptcy Trustee does not take action in a fraud situation, then it would appear that the creditors (especially Bank of America in this case) would also have cause for action. If this is correct, then it would seem that it would be more practical for all the creditors and debtors to file some sort of joint action, rather than our taking independent action. If this is true, then should we contact the creditors’ attorneys in this case, or would this be the responsibility of the Bankruptcy Trustee?”
Mr. Guttman went on to say: “Independent of the attorney disclosures to the Trustee, I do not understand why your client is concerned about the overlapping representation. It had no negative impact.” To respond to this, I am not concerned about “overlapping” representation. What I am concerned about is “conflicting” representation – that is, where there may be strong conflicts of interests between the parties – and about deliberate misrepresentation and fraud.
If overlapping representation was the only issue, then Mr. Guttman is probably correct that it had no negative impact. But if, indeed, there were “conflicting” representation, misrepresentation, or fraud involved, would Mr. Guttman and Mary Lou Woo, the Trustee, not agree that this would have had a definite negative impact on the settlement? And, if conflicts, misrepresentation and fraud were committed, would the Trustee still oppose any action, or would she be required under trust law to take action? As I am not an attorney, these are the questions I need to ask.
Turning now to your letter, I am not anxious to challenge anything in court on my sole initiative at this stage. As you may know, I tried for three years without success to find an attorney that would represent me in my original lawsuit on a pro bono or contingency fee basis (as I could not afford otherwise). No attorney wanted, or could afford, to take on these giants, so that I (who was never in court in my life) was forced to take them on myself – with the inevitable result.
So, as I have indicated in previous correspondence, if there have been no misrepresentations or fraud, then I don’t foresee the need for further challenges on my part. However, if fraud or misrepresentations have entered into this case, then I would think that it would be the responsibility of the Trustee to pursue whatever action is required (including appointing an attorney) and that payment for legal costs would be made from my estate. Again, these are legal questions that I need to ask.
As to who should represent me, should it become necessary, the way I see this case is that whatever fraud may have been committed was committed in the course of the bankruptcy proceedings, and against both the creditors and debtors. Therefore, it would seem to me that any challenge would be best handled by a bankruptcy attorney.
I am almost certain that Mr. Hughes would not be in a position to handle the case, due to a conflict of interest; that is, unless Island Insurance Company chose to do so in order to recover the monies that they paid out on my behalf from their insurance policy (which I believe may have been in excess of $150,000).
Mr. John Goemans is not residing in Hawaii at this time and did not represent me in the RICO case.
It may be possible that Mr. Arnold Phillips, who did represent me in the RICO case, could represent me in this situation, but I am wondering if there may be a potential conflict-of-interest as he participated in the settlement meetings. I have not discussed this possibility with him as yet, but will put the question to him by way of a copy of this letter.
In any event, I would think that any lawsuit, if one becomes necessary, would be against the ATTORNEYS who may have committed the fraud, NOT against the entities I named in my RICO case. There is, of course, one exception to this which is Torkilson, Katz, et al., as this law firm was a named defendant in my RICO lawsuit as well as being the firm allegedly representing other named parties in this same matter.
When responding, please note my new address at the heading of this letter. My mother is in poor health, and I will be here for an indefinite period taking care of her.
Thank you for your much-needed assistance. I look forward to your early response.
Very truly yours,
Bobby N. Harmon
encls.
cc: Arnold Phillips, Esq.; Roy Hughes, Esq.
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