Editorial: This lawyer endangers his clients

Editorial opinion on statements made yesterday by Fred M. Feller, attorney, in Alameda County Superior Court, suggesting he doesn’t represent his clients’ best interests.

In my report on yesterday’s courtroom argumentation in Pool versus Berkeley Town House et al., I endeavored to be informative, but also objective.

This entry, by contrast, is not objective: It is my own opinion about the remarks of one of the attorneys in yesterday’s session.

Fred M. Feller represents 7 former directors of Berkeley Town House (BTH). He stated yesterday that his clients had told him I would never settle a lawsuit voluntarily, and he had initially been skeptical of that claim, but my conduct had convinced him his clients had been correct. In particular, he said, I had never once agreed to put my name on a settlement agreement.

That claim is curious. My name is on multiple settlement agreements, and one of them bears Feller’s signature, too. It’s a settlement offer that I made to his clients on 29 October, 2013. Feller signed it on 19 November.

That’s not all. Mr. Feller should well remember that my name, and his, are on that settlement offer, because of the ruling the court issued about it. On 5 February, 2014, the Superior Court found:

Attorney Feller admits that, upon receiving the 998 offer, the individual defendants raced to settle the cross-claims with the contractors, and would only accept a settlement payment from the contractors that would cover the entire amount of Plaintiff’s 998 offer. (See Feller Decl. filed Jan. 13, 2014.) This is an admission that the individual Defendants committed promissory fraud … .

Feller appealed that ruling to the Court of Appeal, and lost. The Court of Appeal ruled on 29 April, 2015, that

Substantial evidence supports the conclusion that, by accepting the 998 Offer, the Individual Defendants induced the 998 settlement by making a promise they had no intent to perform.

The Court of Appeal went on to say:

Substantial evidence—based on the admissions of the Individual Defendants’ counsel to these facts—supported the court’s conclusion that the elements of fraudulent inducement of a contract by false promise had been met.

So, why did Feller make this false claim in court yesterday? He said his purpose was to show the court that it should let the case proceed to trial and stop waiting for BTH and me to settle the case voluntarily.

Does Feller help his clients by poo-pooing settlement efforts and demanding that this case be litigated until the bitter end? If so, the logic must be subtle. His clients are being sued for $224,415, and also for my attorney fees and costs. A settlement negotiated by BTH and me, without Feller’s involvement, would need to leave Feller’s clients free of any personal obligation to pay any of those amounts. But trying the case to the end could leave Feller’s clients with a bill far north of half a million dollars, which they could not be certain anybody else would pay for them. Asking the court to put obstacles in the way of a settlement is like saying “My clients don’t want to wait, so they are willing to risk being liable for about $100,000 each in order to get this over with fast.”

This is reckless. I doubt that Feller’s clients really want that gamble. My guess is that, if they were competently advised, they would agree to let current settlement talks between BTH and me proceed without interference, and they would wish us luck.

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