Legal Malpractice, A Case Study

by Howard Herships, August 24, 2016

(Ed note: Kenny Rogers is still in state prison on a conviction based on the most vague series of allegations we've seen around here. Around the County Courthouse the Rogers matter is referred to as “The Miracle Conviction.” Rogers was as misreprented a defendant as we seen, and we’ve seen legions of incompetent attorneys and judges pass through Mendocino County’s hallowed halls of justice. The late Judge Ron Brown, and a series of attorneys who should be disbarred, bankrupted the Westport man. Mr. Herships nicely sums up what happened. Links to the Rogers saga are at the end for readers interested in the case.)

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The simple issue is that there is a 2006 U S Supreme Court decision in U S vs Gonzales-Lopez written by none other then Justice Scalia which requires that a criminal defendant must be allowed to retain his choice of legal counsel, and that failure to do so is " structural error" which means the conviction must be reversed Pre Se as a defendant does not have to show any prejudice.

Deputy District Attorney Stoen forced Donald Masuda out of the case by his misrepresentation to the trial judge, Brown, that Masuda was going to be called as a witness. This was a totally false representation as Deputy DA Newman told the trial Court on April 25, 2008 that the People could not call Masuda as a witness.

All Masuda wanted was any excuse to be relieved from legal representation so Masuda could walk away with the $127,500.00 retainer Rogers paid him for legal representation through trial.

Masuda never refunded any of the retainer and never provided any accounting for the funds, both of which are illegal in California.

This issue is currently before the Superior Court of California County of Sacramento where Masuda’s sole defense is to assert the statute of limitation as a defense. However, there is a Court of Appeal case from 2014 which holds that the statute of limitations does not apply until the attorney provides an accounting of the clients property and legal services provided.

Masuda admitted in the discovery process no accounting was provided, and on May 12, 2011 Masuda falsely asserted that he had been to two trials and started a third.

Kenneth Rogers had until May 12, 2016 to file his case against Masuda and because the complaint was filed on Oct 4, 2014 Kenneth Rogers Complaint was in fact timely as a matter of law.

There will be ruling on this issue on Sept. 14, 2016 after 2:00 P.M. from the court and the final ruling will be Sept 15, 2016.

The Court of Appeal opinion in Prakashpalan v. Engstrom, Lipscomb and Lack (2014)223 Cal.App.4th 1105, is the controlling law and in that case the Court of appeal ruled because the attorneys never provided any accounting Rule 4-100 and the court held that the 17 years later the party can sue for his funds.

This ruling that Masuda acts were actual theft of Rogers money will go a long way to over turn Rogers’ conviction.

Kenneth Rogers lawsuit against Masuda & Giffard is seeking a personal money judgment including prejudgment interest of $276,500 which includes advanced legal fees of $140,500 which was advanced to these attorneys.

The additional issue which is interesting is that Masuda is currently on probation by the California Supreme Court for the very same issues which he, Masuda, did to another client.

Howard Herships

San Francisco

PS. Rogers paid Masuda $40,000 for the Preliminary Hearing, which is an excessive amount of money. Then Masuda demanded $60,000 for legal representation through trial.

To show you the unethical conduct of Deputy DA Stoen, exhibit 3 to Rogers’ opposition shows that Masuda sent an EMail to Stoen dated Oct. 18, 2007 that he could not proceed to a trial in this case based upon his (Masuda’s) conflict.

Stoen then decided to use that admission by Masuda to file his motion to call Masuda as a witness in the criminal case.

On December 4, 2007, Masuda demanded from Rogers another $27,500 for legal representation through trial in the criminal case, Exhibit 4.

It should be noted that Masuda never disclosed to Rogers that he (Masuda) never had any intentions of proceeding to trial in the criminal case as attorney of record.

Then on January 28, 2008, and done without any notice on Rogers Masuda made an oral motion to withdraw which violates California Rules of Professional Conduct Rule 3-700 (A) (2) as this prejudiced Rogers’ right to seek a refund of the unearned retainer.

These undisputed factual showing violated Rogers’ rights to legal representation at a critical stage of the proceedings in violation of Rogers’ Sixth and 14th amendment to the US Constitution i.e. the right to legal representation.

Additionally, these acts of Stoen, who was actually scared of Masuda ability to win the case before a jury in Rogers’ case, had to force Masuda out of the case.

This case be proven by the Reporter’s transcript of April 25, 2008 where Deputy DA Newman asserted that the People could not call Masuda as a witness and Stoen's insistence was wrong and misleading the court.

Newman's statement that he (Newman) spoke to Stoen and he agreed that the Court must reconsider the ruling relieving Masuda as attorney of record for Rogers.

The Court agreed and set a hearing for May 9, 2008 and the hearing never occurred all because Rogers was never represented an attorney before the trial court.

These proceedings were an actual shame as any competent attorney represent Rogers would have put these issues before the trial court and would have obtained at a minimum a full refund of $127,500 from Masuda and as such Rogers could have been represented by an attorney of choice.

The Exhibits prove the abuses by Stoen who has a duty also as an officer of the Court to put these issues before the Court and failed to do so because Stoen did not want competent legal counsel to represent Rogers, because Stoen could not have received a conviction at trial as there was absolutely no evidence implicating Rogers to the crime.

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Background:

http://theava.com/archives/425

http://theava.com/archives/5409

http://theava.com/archives/4597

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