NOTED FEDERAL SENTENCING “EXPERT” GETS SUED FOR UNLAWFUL PRACTICES AND FRAUD

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I just received a copy of a complaint (SC122538) (PRAKASH VS. ELLIS COMPLAINT) filed by Keith A. Fink and Olaf Muller of Fink & Steinberg against self proclaimed sentencing expert Alan Ellis, along with attorneys Mark Allenbaugh, and David Dratman.  Ellis and Allenbaugh are not licensed in California but live in California.  A copy of the complaint can be linked here:  PRAKASH VS. ELLIS COMPLAINT

Alan Ellis Alan Ellis - Attorney - federal criminal law

Alan EllisAlan EllisSome background on Mr. Ellis.  He goes under the business name, The Law Offices of Alan Ellis which focuses its practice exclusively on federal sentencing, prison and post conviction work.  Ellis claims that the primary goal of attorney Alan Ellis and his legal team is to help every client obtain the lowest possible sentence at the best facility available with the greatest opportunity for early release. Mr. Ellis, founder of the firm, is a past president of the National Association of Criminal Defense Lawyers and is a Fulbright Award winner. He has 40 years of experience as a criminal defense lawyer, law professor and federal law clerk. The United States Court of Appeals for the Ninth Circuit according to Ellis has referenced him as  “nationally-recognized expert in federal criminal sentencing.”  This was in a 2002 case affirming the denial of Ellis’s admission as harmless error.   He is the author of the Federal Sentencing Guidebook, the Federal Prison Guidebook, and the Federal Post-Conviction Guidebook.  The writer has read the book and it is a good book.   He claims he recently published a two part article on Federal Sentencing for The Champion, the monthly magazine of the National Association of Criminal Defense Lawyers.  Yet, the date of that article is not on his website.

Alan Ellis has not been without controversy and criticism.  Here is a copy of  the link to Theodore Ross’s article:

http://www.alternet.org/print/story/146573/how_one_lawyer_learned_to_make_money_gaming_the_prison_system_in_his_clients%27_favor

Here is a pdf of the article:

Ellis Article

“Which makes the fact that the Guidebook dispenses little service value highly interesting. Ellis’s book provides reams of information but none of the skill necessary to exploit it. This falls to Ellis alone. A convict (or his hapless attorney) who opts to use the Guidebook rather than hiring Ellis stands little chance.”

“The Guidebook, then, must be viewed as something other than a book: it is, in fact, an advertisement,marketing the splendors of Ellis’s particular legal expertisece of securing placement”

“To understand Ellis and his book, one must first accept his membership among a longstanding cadre of traditional Americans: that of the huckster.”

The article examines Ellis’ use of the federal sentencing guidelines and his promotional efforts through his marketing book.

Alan Ellis claims to have offices in San Francisco, New York and Shanghai.  Ellis is not licensed to practice law anywhere but Pennsylvania. He claims his legal team at the Law Offices of Alan Ellis consults with defense attorneys and represents clients charged with or convicted of white collar and other federal crimes in Federal courts across the nation and abroad .  Ellis is not known to have any full time associates licensed in California, as he is not licensed here.  His story  sounds great unless you were Ramanathan Prakash, the plaintiff in a recently filed civil action.  Dr. Prakash is presently serving a prison sentence for health care fraud.  The 9th Circuit recently granted him a re-sentencing on issues unrelated to any work Ellis and his “team” did.  In fact, they affirmed the obstruction of justice enhancement in the opinion.

Plaintiff was tried and convicted for conspiring and committing health care fraud in the matter entitled United States v. Ramanathan Prakash, District Court. Case No. 2:08-CR-0427-MCE. Because Plaintiff stood to be sentenced for up to ten (10) years of jail time, Plaintiff and his son Sririam Prakarash (“Sriram”), acting on Plaintiff’s behalf, decided to seek out and hire a criminal defense attorney specializing in sentencing proceedings to assist them in the sentencing process in connection with trial counsel, the writer of his blog. Plaintiff ultimately was referred to Defendants Ellis and the Ellis Law Firm.  Months after Ellis was retained, this writer withdrew from the case at the client’s request and Ellis alone was responsible for sentencing.

Defendant Allenbaugh was not a partner, associate, or member of Ellis or Ellis Law Firm.  He had his own wholly-separate law firm. Defendants Ellis and the Ellis Law Firm probably entered into a fee sharing arrangement with Defendants Allenbaugh and the Allenbaugh Law Firm.  Since Ellis is not licensed in California, he cannot practice law using a PC or LLP but it is unclear if he has any separate corporate entity.  None is listed with the Secretary of State.  The defendant has to consent in writing to any fee sharing arrangement.  If they did not, it is further evidence of an illegal fee sharing with unlicensed attorneys who have offices in California the complaint alleges.

Prakash contends neither he nor his family members knew that Defendant Ellis and Defendant Allenbaugh were not licensed to practice law in California, such that neither could not appear in Plaintiff’s pending criminal matter without applying pro hac vice and without local counsel also appearing with them on Plaintiff’s behalf. Defendant Ellis was admitted pro hac vice to represent Plaintiff in his criminal matter on or around September 12, 2011. Defendant Allenbaugh never applied for pro hac vice admission to represent Plaintiff in any capacity (even though he went on to do considerable work in this matter on Plaintiff’s behalf as his counsel) the complaint alleges.

Ellis was admitted to practice law prior to 1995.  Any attorney admitted to the California State Bar after 1995 in the Northern District of California may not be a member of that bar.  The Eastern, Southern, and Central all prohibit resident attorneys who are not members of the State Bar of California from practicing law in their court.  A true legal  anomaly has arisen as to Alan Ellis that like his book, he has capitalized on for years without any scrutiny until now.

Ellis relies on a 2002 case that dealt with a defendant’s Sixth amendment right to counsel and local rules precluding admission to the bar of a Central District federal court in California as to unlicensed attorneys with the California State Bar.  In United States v. Walters (9th Cir. 2002) 309 F.3d 589, 592, Walters argued in that case that the local rule as applied to him as a criminal defendant violated the Sixth Amendment by denying him the right to be represented at sentencing by his privately retained attorney of choice. That right, he argued, includes the right to have his attorney admitted pro hac vice, if necessary, unless some countervailing consideration outweighs the defendant’s constitutional interest.
The 9th Circuit agreed with Walters but found harmless error.   “A defendant’s right to the counsel of his choice includes the right to have an out-of-state lawyer admitted pro hac vice.” United States v. Lillie, 989 F.2d 1054, 1056 (9th Cir.1993) (citation omitted), overruled on other grounds by United States v. Garrett, 179 F.3d 1143 (9th Cir.1999). “[A] decision denying a pro hac vice admission necessarily implicates constitutional concerns.” Panzardi–Alvarez v. United States, 879 F.2d 975, 980 (1st Cir.1989) (citation omitted). The Sixth Amendment grants criminal defendants a qualified constitutional right to hire counsel of their choice but the right is qualified in that it may be abridged to serve some “compelling purpose.” United States v. D’Amore, 56 F.3d 1202, 1204 (9th Cir.1995), overruled on other grounds by United States v. Garrett, 179 F.3d 1143 (9th Cir.1999). “A criminal defendant’s exercise of this right cannot unduly hinder the fair, efficient and orderly administration of justice.” United States v. Panzardi Alvarez, 816 F.2d 813, 816(1st Cir.1987) (citations omitted). “The sixth amendment, however, does not countenance the mechanistic application of a rule that permits a district court, without articulating any grounds, to deny a defendant his right to counsel of choice.” Id. at 817. The Panzardi court further stated:
The mere fact that a defendant seeks to retain an out-of-state attorney does not hinder the efficacious administration of justice. His choice of counsel must be respected unless it would unreasonably delay proceedings or burden the court with counsel who was incompetent or unwilling to abide by court rules and ethical guidelines.”
816 F.2d at 817–18.
Ellis has wrongly construed this right over the years according to the complaint as a right to avoid admission to the State Bar of California, while still charging hundreds of thousands of dollars to clients.  In this case, Ellis and “his team” charged over $250,000 for a single botched sentencing that the defendant had to pay additional fees to a third attorney to complete.  A Constitutional right to counsel runs parallel to the State Bar Act and California’s right as a state to regulate the legal professional and protect its residents.  A defendant may have a Constitutional right to counsel but Ellis does not have a Constitutional right to practice law in California without being admitted to the bar.  Out of state attorneys have no right to practice law in California.   The question whether an applicant should be admitted to the State Bar and thereby obtain a license to practice law in California is governed by state law. In California, the general requirements and standards for admission to the State Bar are set forth both in statutory provisions enacted by the Legislature (Bus. & Prof. Code, § 6060 et seq.) and in court rules that are promulgated by this court (see, e.g., Cal. Rules of Court, rule 9.30 [Rules on Law Practice, Attorneys, and Judges]; see also Rules of State Bar, rules 4.1 to 4.269 [Admissions and Educational Standards]).   Although both the Legislature and this court possess the authority to establish rules regulating admission to the State Bar, under the California Constitution the California Supreme Court  bears the ultimate responsibility and authority for determining the issue of admission.  In re Garcia, 58 Cal. 4th 440, 451, 315 P.3d 117, 124, 165 Cal. Rptr. 3d 855, 863, 2014 Cal. LEXIS 1, 19-21, 2014 WL 24011 (Cal. Jan. 2, 2014)
The complaint alleges, that unbeknownst to Plaintiff and Plaintiff’s family members, neither Defendant Ellis nor Defendant Allenbaugh was authorized to practice law in California as unlicensed attorneys because both resided in California, both were regularly employed in California, and both regularly engaged in professional services in California. Ellis in particular had appeared as pro hac vice counsel no less than fifty-five (55) times in various California matters over the past twenty-odd years. The complaint alleges that Defendant Ellis submitted false entries relating to the same in his pro hac vice application to the U.S. District Court when he applied for pro hac vice admission in Plaintiff’s criminal matter.

It is obvious to this writer, an attorney who used to represent Prakash, that defendant Ellis confuses a Sixth Amendment right to counsel with being required to be licensed in the State to where one practices in and charges a fee.  The writer is not aware of any State that allows foreign attorneys living in that state to run a law firm the charges its residents of that State without being licensed.  Alan Ellis has been getting away with this for years.  Apparently from reading the lawsuit, Allenbaugh has as well.

His family members, the complaint alleges, had no idea that the secretary’s fee’s were grossly unreasonable and higher than the hourly rates charged by many California attorneys.

The complaint alleges that Plaintiff and Plaintiff’s family members had no idea that most California-based attorneys do not charge hourly rates at all for their individual staff members’ time. Plaintiff and Plaintiff’s family members had no idea that the venue provisions requiring Marin County, California as the “exclusive jurisdiction” for any dispute relating to the same, as well as the term limiting the parties to any such action as “Alan Ellis and any signatory,” and the one-sided fee collection terms, were unreasonably oppressive, harsh, one-sided, unconscionable, and unenforceable as a matter of California law pursuant to C.C.P. § 395(a).  It should be noted that Ellis is supposed to be a fiduciary to Prakash.  The contract has to be with his client’s best interests in mind.

The compliant further alleges  Plaintiff and Plaintiff’s family members further had no idea that the term requiring a “non-refundable retainer of $75,000″ was unconscionable, unreasonably harsh, oppressive, and unenforceable as a matter of law. Plaintiff and Plaintiff’s family members further had no idea that the retainer agreement itself was illegal and unenforceable as a matter of law for the above-referenced reasons, as well as because Defendants were not authorized to practice law in California under California’s Business and Professions Code § 6125,California Rule of Court 9.40, and Eastern District of California Local Rule 180(b)(2).

The complaint further alleges that Plaintiff and Plaintiff’s family members further had no idea that Defendants’ legal practice itself constituted a criminal misdemeanor under California’s Business and Professions Code § 6126, punishable by fines and jail time. Had Plaintiff and Plaintiff’s family members known these facts and the truth about Defendants’ “expertise” in federal sentencing, Plaintiff would never have hired Defendants and each of them as his counsel, nor would they have hired them under the oppressive, unlawful, and unconscionable terms of the Retainer Agreement.

In or around March 2012, Plaintiff’s original attorney Ronald Richards (the writer) substituted out of the matter. Around this time, Defendants misrepresented to Plaintiff and Plaintiff’s family members that while it was not necessary for them to hire new counsel, it was preferable for them to hire a licensed attorney named Dratman to serve as local counsel who had a practice near Sacramento. Defendants failed to disclose to Plaintiff and Plaintiff’s family members that without hiring Dratman (or some other California-licensed attorney) to replace Richards, Ellis was not able to appear on Plaintiff’s behalf in any fashion in his case as pro hac vice counsel, nor was Allenbaugh (who had never even applied for pro hac vice admission) . Richards was never Ellis’s local counsel and in fact, refused to sponsor him due to various concerns about his license status and residency.

Following their retention by Plaintiff, the complaint alleges the Defendants and each of them failed to exercise reasonable care and skill in performing legal services for Plaintiff, notwithstanding their self trumpeted “expertise” in federal criminal sentencing. Defendants’ failure to exercise reasonable care and skill in performing legal services on Plaintiff’s behalf ultimately led to the imposition of a higher jail time sentence than was originally requested by Plaintiff’s criminal prosecutor and recommended by Plaintiff’s probation officer.  The complaint also alleges the Defendants’ failure to exercise reasonable care and skill also led to obstruction of justice charges made against Plaintiff, as well as yet more jail time therefore added to Plaintiff’s total criminal sentence. The complaint further alleges the Defendants’ failure to exercise reasonable care and skill further delayed sentencing proceedings for months on end, all of which ultimately added to Plaintiff’s time spent in custody in or around Sacramento County.

Attorney James  Spertus worked diligently to unwind the damage caused by Defendants, which included but was not limited to preparing and filing Objections to the Pre-Sentence Report and Position re Sentencing and a Response Brief to the Government’s Supplemental Sentencing Memorandum. Spertus attached Declarations of Fault signed under penalty of perjury by Ellis and Allenbaugh as well as a Declaration from the Trustee and Attorney for the Trust.  (See pages 31-38 of the Ellis Complaint)  The result of the these errors the complaints alleges negligently causing the Court to sentence Plaintiff to additional years of jail time by and through their inability to timely and thoroughly submit PSR forms to the Court, Defendants grossly overcharged Plaintiff for these “services.” Defendants ultimately charged Plaintiff over $250,000 for landing him two extra years of jail time. Defendants’ unnecessary and unconscionable fees were based among other things on unnecessary motion practice, services billed for but never performed, and the use of unnecessary “experts” and “consultants.”

The complaint finally alleges serious charges and asks for big money plus attorneys fees:

“Defendants further concealed their unconscionable, unreasonable, impermissible, and illegal fees in their own invoices in various ways, including but not limited to charging for 3+ months at a time per invoice, setting forth billing entries in non-chronological order, block-billing multiple tasks as single entries, double-billing, and billing for time spent on other matter unrelated to Plaintiff’s case. As a direct and proximate result of Defendants’ aforementioned acts and omissions, Plaintiff has been damaged in a sum yet to be determined, but which he is informed and believes is in excess of $5,000,000.00. Because Defendants Ellis and Allenbaugh are not licensed to practice law in California, Plaintiff is further entitled to treble damages suffered and attorneys’ fees and costs incurred as against Defendants pursuant to C.C.P. § 1029.8”

 The resulting proceedings will be very interesting.  Alan Ellis has malpractice insurance.  It is doubtful his policy will cover Allenbaugh and Dratman.  Since most federal prisoners don’t normally have the extra resources to go after their former lawyers, this case is rare.  It is also an anomaly because it exposes an unlicensed attorney in California charging California residents without being subject to Mandatory Arbitration, State Bar regulation, or other consumer protections.

Ellis has had a distinct advantage in that he has been able to operate in California without the regulatory oversight the other attorneys have to fall under.  Since he has a special niche, this practice has gone largely unchallenged or noticed until now.

Keith Fink, Prakash’s civil attorney is known for taking hard and challenging cases.   Like the writer, he was a member of the UCLA national championship debate team in different years.

His wikipedia link is here to see his background:

http://en.wikipedia.org/wiki/Keith_Fink

This will be a case this firm will be following closely.   Normally, a criminal sentencing costs $30,000 to $50,000.00 depending the complexity.   It is hard to fathom a $250,000.00 bill based upon prevailing rates.  It is expected that Ellis will have a full explanation.  The fee sharing laws in California are strict.  The fees are disgorged and returned to the client if they are shared with an unlicensed attorney and/or the client didn’t consent to the fee sharing arrangement.

Keith Fink also has his new partner Olaf Muller working on this case and his long time partner Kevin Steinberg also assisting.  The firm has committed a lot of resources towards this endeavor  Prakash has now employed a new legal team that appears intent on exposing this matter, getting all of his fees returned plus his new attorney’s fees plus tort damages.

The writer will update this blog as events unfold in what should be one of this year’s most important and interesting pieces of civil litigation in the area of attorney client fee disputes, attorney malpractice, and out of state attorneys’ oversight.

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