Two Freshwater attorneys ask to withdraw

I thought the Dennis family and the school had all ready settled?

They settled with the school but not with Freshwater, and since the allegations deal with Freshwater's behavior in the school in his capacity as a teacher the insurer is still on the hook.

I've learned that the hearing is still scheduled to resume April 29, and that Hamilton has asked the school treasurer to issue 17 more subpoenas. There are two days scheduled in April, and then no more scheduled until early June. Since Freshwater last year exercised his right to suspend the hearing when school is not in session, that means that June 7 is the last day hearings can be scheduled until late August if he exercises that option again this year.

I also heard from an independent source that Hamilton had a student in the high school passing out his cards and soliciting testimony from other students. My (possibly incomplete) understanding is that the high school principal put a stop to that on the ground that the district doesn't allow solicitation and/or passing out unapproved material in the school. That's a single-source story, so I can't completely vouch for it.

Here's my uninformed conjecture: Either Freshwater and Hamilton are suing their own team, or they're involved in something so unethical that the attorneys don't want to be associated with it.

I'm actually taking a break from studying the Ohio Rules of Professional Conduct for an exam tomorrow...
I'm thinking it's likely that the attorneys discovered that there's a conflict between the school district and Freshwater, and the attorneys can't represent both when there's a conflict.

Since there seems to be no apparent incentive to conclude the hearing, it could go on for a very long time.

Those attorneys don't represent the school, only Freshwater. The school has their own insurance lawyers.

unoit said: Those attorneys don't represent the school, only Freshwater. The school has their own insurance lawyers.

Tim said: I'm actually taking a break from studying the Ohio Rules of Professional Conduct for an exam tomorrow... I'm thinking it's likely that the attorneys discovered that there's a conflict between the school district and Freshwater, and the attorneys can't represent both when there's a conflict.

This is going to make such a great movie, a la "The Informant".

Gotta be a Coen brothers film.

See the amendment and addition to the OP above. The two withdrawing attorneys represented only Freshwater, not the other district defendants, and Hamilton has requested that the administrative hearing be closed.

I wonder if Steve P intends to pop into this thread to continue insisting that Freshwater is still coming out ahead, then whine about how we're all so mean for disagreeing with him, too.

Hmm. I wonder if the insurer plans to sue Freshwater to recoup their losses...

Okay, this is (informed) speculation on my part, as I am a lawyer who has faced ethical problems with clients before, which this sounds like here.

While Tim is right that a conflict between the school district and Freshwater might well have caused a request to withdraw from representing both Freshwater and the district, the settlement by the district should have ended that problem.

Another possibility is that the insurance company has disclaimed and decided that it has no duty to defend Freshwater, though that may be unlikely because an insurance company's "duty to defend" is broader than its "duty to indemnify." Generally speaking, if the claim even arguably fits within the coverage, the insurance company has to provide a defense.

As to Daffyd ap Morgen's suggestion that the carrier intends to sue Freshwater, that is highly unlikely. There are strong prohibitions against carriers suing anyone who arguably are their own insureds.

There is one distinct possibility (that I am in no way suggesting is true in this case): a lawyer who has good reason to believe that a client may commit perjury is required to ask to be relieved without revealing the basis for the request.

Ultimately, whether or not the lawyers are relieved, we are unlikely to learn why. Courts usually keep that a closely guarded secret.

Having made one of these "noisy withdrawals" myself at one time, I think there's both more and less here than meets the eye.

First, this is probably not a conflict issue; if it was, the nature of the conflict would be disclosed in the affidavit, the identity of the parties affected would be disclosed in the affidavit, and there would be a specific mention of whether waiver was considered.

So, then, what does that leave? Most probably one of three things:

* personality conflicts have made it impossible to continue with the representation (although I consider this unlikely given that the affidavit names a specific date);

* the client has fallen so far behind on billings that the lawyers must withdraw to keep from doing the equivalent of throwing good money after bad (unlikely, but possible if 23 April was somehow linked to an arrearage date); or

* on 23 April, the attorneys came into actual knowledge of actual or intended perjury, or of actual or intended process without a colorable legal basis, that the client demanded the attorneys present to the court

"Noisy withdrawals" like this are intended to call the court's attention to the attorney's discomfort, and also to protect the attorney from later bar discipline. The hows and whys are... complex (and, as Tim will no doubt agree, needlessly so, particularly under Model Rules 8.3 and 8.4). Basically, they're a message to the judge along the lines of "Something is rotten, here, Your Honor. I can't tell you about it; but don't blame me when you get pissed off about it later, because I'm warning you as loud as I can that something is rotten with the administration of justice in this matter (and it's not just last month's egg salad sandwich in a broken refrigerator), and I'm withdrawing as soon as I know about it."

C.E. Petit said: [SNIP] First, this is probably not a conflict issue; if it was, the nature of the conflict would be disclosed in the affidavit, the identity of the parties affected would be disclosed in the affidavit, and there would be a specific mention of whether waiver was considered.

So, then, what does that leave? Most probably one of three things: * personality conflicts have made it impossible to continue with the representation (although I consider this unlikely given that the affidavit names a specific date); * the client has fallen so far behind on billings that the lawyers must withdraw to keep from doing the equivalent of throwing good money after bad (unlikely, but possible if 23 April was somehow linked to an arrearage date); or * on 23 April, the attorneys came into actual knowledge of actual or intended perjury, or of actual or intended process without a colorable legal basis, that the client demanded the attorneys present to the court

I can't beleive that this has been going on for almost TWO YEARS! What the hell is wrong with our school systems and courts?! This should have been resolved within a few months! Freshwater belongs in jail!

Remember how this all started?
http://pandasthumb.org/archives/2008/06/teaching-intell.html

Dale Husband said: What the hell is wrong with our school systems and courts?!

Eric wrote:

"He’s probably worried that limiting Freshwater’s time to present evidence (to 1.5 years!) would result in a legal suit or appeal based on the claim that Freshwater wasn’t given a fair hearing..."

That's probably right. However, I would pay cash money to hear Freshwater argue in court that two years was not sufficient time for him to present his case. Of course the answer is simple, just set a deadline after which he will incur all costs of the proceedings. That should wrap the matter up nicely.

Hamilton has now requested that the hearing be closed to spectators and media, claiming that potential jurors in the federal trial may be unduly influenced by media coverage of the hearing.

The apparent absence of conflict and the request for closed hearing seem to point to an ethical problem. Most likely, Freshwater has demanded to be put on the stand and the lawyers have good reason for believing that he will perjure himself. There are ways to handle such a situation, but they require that the attorneys treat their own client as a hostile witness. Another possibility is that the attorneys have become aware of solid facts that would destroy their client's case, either entirely or as to a claim that the client has demanded to be asserted.

Subpoena requests

I mentioned above that Hamilton has requested additional subpoenas be issued. I've obtained the subpoena request. He is demanding additional material from the district that is apparently from Freshwater's classroom. He is also requesting that subpoenas be issued to 16 additional witness, many of them students.

One requested witness is Ian Watson, former President of the Board of Education who was not re-elected to the Board last fall. Seven months ago the Ohio Supreme Court denied Hamilton's request for a writ of mandamus to compel Watson to testify when he was a member of the Board. I don't know whether that still holds now that Watson is no longer on the Board, but Hamilton's current request looks essentially identical to the one that was denied by the Supreme Court, requesting both Watson's testimony and a variety of documents including Watson's appointment calendar for a specified period in 2008-2998.

Olorin said: The apparent absence of conflict and the request for closed hearing seem to point to an ethical problem. Most likely, Freshwater has demanded to be put on the stand and the lawyers have good reason for believing that he will perjure himself. There are ways to handle such a situation, but they require that the attorneys treat their own client as a hostile witness. Another possibility is that the attorneys have become aware of solid facts that would destroy their client's case, either entirely or as to a claim that the client has demanded to be asserted.

RBH said: Subpoena requests...including Watson's appointment calendar for a specified period in 2008-2998.

Guestion. Would the testimony in a closed adminstrative hearing be subject to subpoena and be admissable in a related civil trial?

Juicyheart said: Guestion. Would the testimony in a closed adminstrative hearing be subject to subpoena and be admissable in a related civil trial?

For those keeping score, we can add the defection of two of Freshwater's attorneys and the denial of his request to close the hearing to Steve P's list of losses to rationalize.

RBH said: The referee has denied Freshwater's request to close the hearing. So we'll all be there bright and early tomorrow morning.

Paul Burnett said: What if Freshwater isn't there? Or Hamilton?

Maybe they figure he already perjured himself. How much talking has he done on the stand? It doesn't take much if you're a creationist. Has he said more than two words yet?

386sx said: Maybe they figure he already perjured himself. How much talking has he done on the stand? It doesn't take much if you're a creationist. Has he said more than two words yet?

W. H. Heydt said:

RBH said: Subpoena requests...including Watson's appointment calendar for a specified period in 2008-2998.

*That's* going to take some doing!

RBH - Thank you for all your hard work covering this, it's really helping to follow the case.

I can see the administrative hearing lasting forever because of a less then fully competent administration, but presumably a federal judge will have less patience for this nonsense?

Dornier Pfeil said: I can see the administrative hearing lasting forever because of a less then fully competent administration, but presumably a federal judge will have less patience for this nonsense?

You know Richard, part of me is going to miss this when it is all over. Of course, since I'm already in my mid-40's, I'm not discounting that this process may survive me. Thanks for your on-going coverage.

For the legal eagles, I have a vague recollection that once you address a topic, you cannot subsequently plead the 5th. Is this a reality or Hollywood or a difference between a courtroom & a hearing or not true at all. If anyone has time, please enlighten me. Programming has rules, law is a bit more flexible and subject to interpretation.

Could this possibly be related to the mysterious satchel of evidence that appeared in an alley a few months back?

waynef said: Could this possibly be related to the mysterious satchel of evidence that appeared in an alley a few months back?

There is not possible outcome for this that the politico-religionists can't spin as oppression.

DistendedPendulusFrenulum said: There is not possible outcome for this that the politico-religionists can't spin as oppression.

DistendedPendulusFrenulum said: There is not possible outcome for this that the politico-religionists can't spin as oppression.

According to the Columbus Dispatch for April 29 it was more of the same: he-said, she-said testimony from Freshwater and former students.

Never. Ending.

I know it's been a while, but isn't this hearing to provide information to the school board so they can confirm or rescind the decision they've already made to terminate Freshwater? Seems to me they were at the point of diminishing returns two years ago.

Do they believe that if they keep this going long enough Andy Kaufman will materialize, beating a drum and singing, "Here I come to save the day!"

Seriously.

Doc Bill said: According to the Columbus Dispatch for April 29 it was more of the same: he-said, she-said testimony from Freshwater and former students.

The ads have infected atleast the half of the posts on the front page that I checked. You may want to check your spam filter.

fyi, aol email was hacked last night. at least 2 of my clients have already called this am telling me to ignore any emails from them.

Gaaah. I HATE spammers!

Typically attorneys withdraw (in cases I've been involved with) when the client's conduct in regards to the trial is immoral and/or illegal. For example, if someone tampered with witnesses... Or stole and/or manufactured documents... Breaking and entering because you believed the other side was violating discovery...

That sort of stuff.

I still think THE story is whether or not this can set a precedent for abusing teacher's union rules and teaching contracts to basically make an example of Mt. Vernon school district - to demonstrate that it's easier to let a kamikaze teacher slip creationism into science class than to try to get rid of him on those grounds.

Freshwater has a defense fund, and I think he's willing to martyr himself paycheck-wise for the cause. It's definitely civil disobedience for creationism.

Some good could come of it; the next John Freshwater may get a notice right away that his behavior isn't to code. Moreover, the lines will be more clearly drawn next time, I hope.

Teachers and kids both have a right to bring Bibles, etc. to school. And to pray there, if it's not being led by the teacher. Etc.

But I still think this tactic has more potential than the more blatant top-down stuff in Dover, PA had. A lot of fundies regard teachers' unions as secular and socialistic, too, so they won't mind giving union rules and contracts a bad reputation at the same time as they push for creationism in the schools.

Oh, and Richard, thanks again for all the hard work. I dunno why things like this and Kitzmiller v. Dover are so addicting, really.

In the year 2525 ... if the Freshwater case is still alive ... if education can survive ... they may find?

Marion Delgado said: In the year 2525 ... if the Freshwater case is still alive ... if education can survive ... they may find?

Marion wrote:

"I still think THE story is whether or not this can set a precedent for abusing teacher’s union rules and teaching contracts to basically make an example of Mt. Vernon school district - to demonstrate that it’s easier to let a kamikaze teacher slip creationism into science class than to try to get rid of him on those grounds."

That may be what is really going on here. Maybe everyone realizes that the jig is up. Maybe everyone realizes that Freshwater must be made a sacrificial lamb. Maybe everyone realizes that unless he is fired that things are really going to get bad for everyone involved. But maybe they are all trying to show how costly and time consuming it can be to actually do anything about teachers who place their religious convictions above their teaching responsibilities. Maybe it is all one big conspiracy!

Even when Freshwater is finally and irrevocably terminated, after five years of legal battles and ten million dollars in court costs, won't that just encourage others who are already getting away with illegal activity to be more vocal? After all, they can always point to the Freshwater case and say "see, do you want that to happen here?"

DS said: Marion wrote: "I still think THE story is whether or not this can set a precedent for abusing teacher’s union rules and teaching contracts to basically make an example of Mt. Vernon school district - to demonstrate that it’s easier to let a kamikaze teacher slip creationism into science class than to try to get rid of him on those grounds." That may be what is really going on here. Maybe everyone realizes that the jig is up. Maybe everyone realizes that Freshwater must be made a sacrificial lamb. Maybe everyone realizes that unless he is fired that things are really going to get bad for everyone involved. But maybe they are all trying to show how costly and time consuming it can be to actually do anything about teachers who place their religious convictions above their teaching responsibilities. Maybe it is all one big conspiracy! Even when Freshwater is finally and irrevocably terminated, after five years of legal battles and ten million dollars in court costs, won't that just encourage others who are already getting away with illegal activity to be more vocal? After all, they can always point to the Freshwater case and say "see, do you want that to happen here?"

DS said: Marion wrote: "I still think THE story is whether or not this can set a precedent for abusing teacher’s union rules and teaching contracts to basically make an example of Mt. Vernon school district - to demonstrate that it’s easier to let a kamikaze teacher slip creationism into science class than to try to get rid of him on those grounds." That may be what is really going on here. Maybe everyone realizes that the jig is up. Maybe everyone realizes that Freshwater must be made a sacrificial lamb. Maybe everyone realizes that unless he is fired that things are really going to get bad for everyone involved. But maybe they are all trying to show how costly and time consuming it can be to actually do anything about teachers who place their religious convictions above their teaching responsibilities. Maybe it is all one big conspiracy! Even when Freshwater is finally and irrevocably terminated, after five years of legal battles and ten million dollars in court costs, won't that just encourage others who are already getting away with illegal activity to be more vocal? After all, they can always point to the Freshwater case and say "see, do you want that to happen here?"

I sure hope you guys are right. I sure hope that Freshwater eventually pays big time. I sure hope that there will be no way for anyone to spin what eventually happens to him as a victory in any meaningful sense. I sure hope that it serves as a lesson to others. Indeed, I sure hope that he has, or does, commit perjury and has to eventually pay for it. That might send a better message than what happened at Dover.

Whatever eventually happens, at least now people will know that someone is watching and that laws will be enforced, even if everyone, including the person in charge, is actually sympathetic to you.

DS said: Marion wrote: "I still think THE story is whether or not this can set a precedent for abusing teacher’s union rules and teaching contracts to basically make an example of Mt. Vernon school district - to demonstrate that it’s easier to let a kamikaze teacher slip creationism into science class than to try to get rid of him on those grounds." That may be what is really going on here. Maybe everyone realizes that the jig is up. Maybe everyone realizes that Freshwater must be made a sacrificial lamb. Maybe everyone realizes that unless he is fired that things are really going to get bad for everyone involved. But maybe they are all trying to show how costly and time consuming it can be to actually do anything about teachers who place their religious convictions above their teaching responsibilities. Maybe it is all one big conspiracy! Even when Freshwater is finally and irrevocably terminated, after five years of legal battles and ten million dollars in court costs, won't that just encourage others who are already getting away with illegal activity to be more vocal? After all, they can always point to the Freshwater case and say "see, do you want that to happen here?"

Stuart wrote:

"That won’t work. Either they go after folks like Freshwater, or parents pissed off that their kids are being proselytized will sue.

Either way, school districts face legal action. Damned if they do, damned if they don’t."

Right. So the only way out is to make sure that your teachers are following the law in the first place. What a concept.

Stuart Weinstein said:

DS said: Marion wrote: "I still think THE story is whether or not this can set a precedent for abusing teacher’s union rules and teaching contracts to basically make an example of Mt. Vernon school district - to demonstrate that it’s easier to let a kamikaze teacher slip creationism into science class than to try to get rid of him on those grounds." That may be what is really going on here. Maybe everyone realizes that the jig is up. Maybe everyone realizes that Freshwater must be made a sacrificial lamb. Maybe everyone realizes that unless he is fired that things are really going to get bad for everyone involved. But maybe they are all trying to show how costly and time consuming it can be to actually do anything about teachers who place their religious convictions above their teaching responsibilities. Maybe it is all one big conspiracy! Even when Freshwater is finally and irrevocably terminated, after five years of legal battles and ten million dollars in court costs, won't that just encourage others who are already getting away with illegal activity to be more vocal? After all, they can always point to the Freshwater case and say "see, do you want that to happen here?"

That won't work. Either they go after folks like Freshwater, or parents pissed off that their kids are being proselytized having crosses burned onto them with a Tesla coil by some old man with a sick fetish will sue. Either way, school districts face legal action. Damned if they do, damned if they don't.

I find it amusing that a group that is aligned with econonomic conservatives is so intent on waisting taxpayer money with so many sham lawsuits and legal proceedings. I also think it's a shame that people like Freshwater feel like they have a right to use their authority as educators to bully kids into adopting their respective religious ideology.

J . Biggs said: I find it amusing that a group that is aligned with econonomic conservatives is so intent on waisting taxpayer money with so many sham lawsuits and legal proceedings. I also think it's a shame that people like Freshwater feel like they have a right to use their authority as educators to bully kids into adopting their respective religious ideology.

J . Biggs said: I find it amusing that a group that is aligned with econonomic conservatives is so intent on waisting taxpayer money with so many sham lawsuits and legal proceedings. I also think it's a shame that people like Freshwater feel like they have a right to use their authority as educators to bully kids into adopting their respective religious ideology.

DavidK said: Religious righteous groups and creationists couldn't give a damn about the public schools...