Sunday, July 1, 2012

Why I Was Forced to File a Pro Se Motion after the FBI Raid

       A Pro Se Motion is one filed by an individual without representation by a lawyer.  "Pro se" means "for oneself" and  "Motion" is a formal request to a judge, as the overseer of the Court, to read a document and take action.  The request is usually for a Hearing, or a change in the date of a Hearing, or for the judge to recognize a new lawyer, or to acknowledge new information about a case already in progress.
     I should not have had to file a motion Pro Se, because I had a lawyer, Curtis Fallgatter, from Jacksonville, Florida.  He should have filed a Motion for an Emergency Hearing on my behalf.  I had hired him to fulfill this specific task.  An old friend was willing to make a short-term loan for the $20,000 retainer--Mr. Fallgatter's stated cost--so long as I hired Mr. Fallgatter. I knew nothing about him except what his website advertised, but he had recently won a small case for a medical supply company, so I presumed he knew something about the medical world.  
     I was in dire circumstances and couldn't complain about someone willing to loan me $20,000 for legal help, even if that person insisted on a specific lawyer.  I needed to petition the Court to get the FBI and its prosecutors to return my patients' charts and give back enough of the money they'd confiscated so I could keep my clinic open.  Magistrate Judge Jones had signed the seizure warrants but had not granted the FBI authority to close my clinic, nor was my medical license revoked.  But without medical charts and capital to pay staff salaries and bills the FBI was achieving the same aim.  They were shutting down my clinic by strangling its resources.
     Mr. Fallgatter spent two weeks on my case.  He made one visit to my clinic, bringing with him a retired FBI agent and a subsidiary lawyer, Mark Barnett, from his firm.  They interviewed some of my staff while the clinic was in operation. After one day of observation they said the clinic seemed to be a highly professional, efficient operation serving the needs of a broad spectrum of people, and offering many important services on site.  The lawyers could not discern a cause for the raid. Mr. Fallgatter said, "I would choose to come to a clinic like this," and asked me a few medical questions about his mother.  Mark Barnett talked to me about his personal medical history, so I assumed these two men felt confidence in me as a physician. 
They said they had no clue what the government was up to.  Colasante Clinic wasn't one of the "Pill Mills" gaining notoriety in Florida, nor were we sending claims for illegitimate services. 
      Mr. Fallgatter agreed to file a petition with the Court to have the affidavits opened, patient charts returned, and money for clinic operations refunded.  
     "Affidavits" are documents containing facts or implications presented in such a way as to convince a judge to allow the FBI to take what would otherwise be illegal action.  In my case the affidavits must have convinced Magistrate Judge Jones to sign off on a "Search and Seize" warrant for the Clinic and "Forfeitures" on my personal and business bank accounts.  "Forfeiture" is a formal word for the act of taking someone's money.  In my case, when Magistrate Jones signed off on the FBI's requests for forfeitures it meant the FBI could send an agent to my two banks and demand all the money in my personal and clinic bank accounts.  The presumption was that the money didn't belong to me, that it had been obtained illegally. 
     "Fraud" and "Money Laundering" are the charges that accompany actions against a clinic like mine and, I am told, are fairly routine routes the FBI takes to justify a raid.
     There must have been a great deal of misinformation in the affidavits, or Magistrate Jones wouldn't have allowed for such violence against a solo medical clinic in a small community.  Surely he would have understood that such extreme actions would be very damaging, if misguided, for my clinic's future and for my patients and employees.  
     Mr. Fallgatter prepared a Motion, cutting and pasting much of the text from e-mail information I sent him into the standardized format for a legal document.  His contribution was to organize the information in such a way as to make a persuasive argument, and to add one item from case law to show that there was a precedent for the Court to return medical charts when patient care would be compromised without them.   
     I waited for him to file the Motion, but there were inexplicable delays.  I called repeatedly to assess his progress.  He wanted it to be perfect, he said, so the judge would rule in my favor.
     Finally one Wednesday night I insisted that he file the document, which he had sent me for approval--"Send it exactly as it is," I said, "so I can get some action from the Court." 
     "I will do it," he stammered, "but there is a small problem."
     "What problem?" I wanted to know.  It was 9 pm and I was working at my desk in the clinic, finishing office notes for the day and confirming the accuracy of the coding for services.
     "Didn't my secretary get hold of you?"
     "No.  About what?  Curtis, what are you trying to say?"
     "It's just a small matter about the money."
     "What matter?"
     "You have a balance due," he informed me.
     "But it's only been two weeks, and you were sent  $20,000," I reminded him.  "Or did you not receive the payment?"
     I had instructed my friend to send the money via wire transfer directly to Mr. Fallgatter, rather than delaying receipt of the cash by using the USPS.  He should have received it several weeks ago.
     "I received that payment," he confirmed.  "But there is still a balance due."
     "How much?"  I was doing calculations in my head.  Even if he had worked twenty-four hours a day, could he have used up the entire retainer in two weeks?  How?  
     "Well, it's only a small's just that...your balance is...let me see...$26,000 more."
     "What?"  I thought I hadn't heard him correctly.  I knew how expensive legal fees could be.  But we had agreed on an hourly rate, I had been following his involvement closely, and I couldn't fathom how in two weeks he could have racked up charges of $46,000.  The Motion for an Emergency Hearing hadn't even been filed.  I knew my case wasn't the only one in his workload, as he had made reference to other cases and appearances in the prior two weeks. 
     "I can't file the Motion until I receive another $26,000," Fallgatter said coolly.  He seemed to have regained his confidence.  
     "You mean you are going to hold me hostage until I give you another $26,000?  You know I have no cash.  You know I don't have access to that kind of money.  And where is your statement of services?  Why didn't you let me know when the retainer was used up?"
     "I guess my secretary is behind in her work," he explained.  "She just hasn't sent you the bill yet."
     "So you're telling me you won't file the Motion?"
     "I'll be happy to file it for you, once I receive payment," he repeated.  "Can't your friend loan you more money?  Do you need the wire instructions for my bank account again?"
     There was no way I could borrow more money.  Why should I need to?  We hadn't moved one inch toward recovering the clinic's resources; meanwhile, I was working out the details for closing the clinic altogether, should this be my only option.   
     This was my introduction to legal representation in the world of federal defense lawyers.  I requested that Mr. Fallgatter withdraw from the case immediately, went home, wrote up the Motion myself, visited the courthouse the next morning, and filed it.   
     Curtis Fallgatter agreed to withdraw, but reminded me that I would still owe him the $26,000 balance,  plus interest, accruing daily.  My faith in our legal system was plummeting.
     The Judge granted a hearing.
     Since Mr. Fallgatter never formally withdrew from the case via a notification to the Court, I knew I could force him to follow through with his initial commitment and defend the Motion at a Hearing.  
     So we had a Hearing on September 14, 2012.  Mr. Fallgatter was my legal counsel, and Mr. Mark Thomas, a Gainesville lawyer who doesn't take federal cases but understands healthcare law, was present to assist him.
     After the Hearing I fired Mr. Fallgatter.
     Now he is suing me for the outstanding balance, more than $60,000.  For the job of writing a single, limited Motion and defending it at a Hearing he had charged $86,000. 
     Now I have Mr. Fallgatter's lawsuit on top of the federal investigation.  I asked several lawyers to review Mr. Fallgatter's invoices.  One said the charges were "outrageous," another said it made him ashamed of his profession, and a third advised me to file a complaint with the Florida Bar.  I was told that a reasonable fee for the services he rendered (a Motion and a Court Hearing) would have been $6,000 to $8,000, not $86,000.
     At this rate, I thought, if  the federal government doesn't  bankrupt me, the lawyers will.  

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