At the limits of their patience

/ 10.May, 2011

One of the best ways for attorneys to stay out of trouble with judges (which never hurts when looking to avoid malpractice) is to know when to shut-up, when to sit down, and when not to say anything.  Ex-Philadelphia attorney Alan Feingold serves as an example of how to incur the wrath of multiple judges.  Although suspended since 2006 and disbarred since 2008, opinions involving Mr. Feingold continue to percolate through the system. 

In Feingold v. Hendrzak et al, an action in which we represented one of the defendants, the Superior Court upheld preliminary objections of all defendants finding that dismissal with prejudice was appropriate because Mr. Feingold’s complaint was “utterly frivolous.”  Moreover, the Superior Court took the extraordinary measure of sua sponte awarding all appellees attorneys’ fees, and remanding the action solely for the calculation of those fees.  The Superior Court stated: “We cannot ignore Appellant’s repeated abuse of the court system to harass defendants and opposing counsel with lawsuits that contain nothing more than unfounded allegations.”

On May 5, 2011, the Commonwealth Court upheld an order of the Workers’ Compensation Appeal Board terminating benefits for a claimant represented by Mr. Feingold.  The decision deals for the most part with Mr. Feingold’s argument that the WCJ should have recused herself.  Among the more interesting exchanges before the WCJ was:

JUDGE KELLEY: … The first Claim Petition was dismissed for Counsel’s failure to proceed with the presentation of Claimant’s evidence —

ATTORNEY FEINGOLD: Medical. Medical Evidence.

JUDGE KELLY: in a timely fashion. Mr. Feingold, I believe that if you review the record, the presentation of Claimant’s testimony was also untimely. It took you several hearings to get that made. But in any event.

ATTORNEY FEINGOLD: Because I was on trial, Judge. Something you evidently know nothing about.

JUDGE KELLEY: Mr. Feingold? —

ATTORNEY FEINGOLD: Have you ever been on trial Judge, or just push papers like this for your entire life?

JUDGE KELLEY: You are out of line, Mr. Feingold.


Despite this, the judge found that she had kept her cool, and there was no reason for her to recuse herself.  The Commonwealth Court agreed.

The professional liability avoidance tip to be taken from this?  Know when enough is enough.  There is a time and place for hardheadedness and flamboyance, but there is also a time and place for restraint.

Josh J.T. Byrne, Esquire