Wikipedia defines plagiarism “as the representation of another author’s language, thoughts, ideas, or expressions as one’s original work.” In short, it is stealing and fraud, misrepresenting someone else’s ideas to enhance your reputation.
That’s what Allan Skatkin, plagiarist and con artist, did.
In 1984, Shatkin copied verbatim portions of an article that I published in 1979 in the highly respected and prestigious “California State Bar Journal,” the official peer-reviewed publication of The State Bar of California delivered to every lawyer in the state.
My article, “Consumers’ rights in the legal marketplace: Problems of contingency fee clients who change attorneys,” was critical of a California Supreme Court decision that burdened a consumer with the risk of being sued because of a dispute between lawyers over the allocation of a contingency fee.
Personal injury clients, who realize that they made a poor choice in selecting an attorney to represent them on a contingency basis, often look for a new attorney who offers a track record of accomplishment and the likelihood of a better outcome for their case. When the second lawyer takes on the lawsuit, the first lawyer is entitled to be paid once there is a recovery. The California Supreme Court ruled that the first lawyer should sue the former client to collect the reasonable value of the services provided before being fired.
As an alternative, I recommended that when multiple attorneys have generated a contingency fee recovery, the attorneys should be left to decide how to share the contingency fee generated by the lawsuit. In short, the consumer should not be subject to a lawsuit. As a matter of public policy, it should be easy to discharge the first lawyer and hire a replacement without the consumer taking on the risk of being sued.
My recommendation has become the established practice throughout California in cases where it is necessary to allocate contingency fees between competing lawyers. The Court of Appeal well explains the process in Cazares v. Saenz, 208 Cal. App. 3d 282 (1989).
Five years after my article, Shatkin published an entitled “Protecting Attorney Fee Lien Rights” in the California Trial Lawyers’ Forum.
Some might consider Shatkin’s copying my work flattery, but without citing my work and giving appropriate credit, Shatkin is a thief.
I wrote Shatkin in June 1984 and told him that “I found portions of your article extremely well written – especially those portions that I authored and published in the California State Bar Journal.” He never responded.
Compare my original article with Shatkin’s plagiarism in light brown italics.
Alexander Original: In 1972 in Fracasse v. Brent, the California Supreme Court established a new rule of damages in actions by attorneys seeking payment of attorney’s fees from clients who had retained counsel under a contingency fee contract but who subsequently discharged their attorney before the contingency occurred. The court, speaking through Justice Burke, held that under these circumstances, an attorney is limited to a quantum meruit recovery, i.e., the reasonable value of services provided once the contingency has occurred.
Shatkin’s Plagiarism: Fracasse v. Brent (1972) 6 Cal. 3d 784, enunciated a new rule regarding damages in actions by attorneys seeking payment of attorney’s fees from clients who had retained counsel under a contingency fee contract and subsequently discharged their attorney before the contingency occurred. The Supreme Court held that the attorney is limited to the reasonable value of·services provided (i.e., quantum meruit recovery) once the contingency has occurred.
Alexander Original: Fracasse reversed the contract price rule, reaffirming the consumer’s absolute right to discharge counsel. Such discharge does not discharge the attorney’s lien itself, which survives discharge, allowing plaintiff’s former counsel to recover attorney’s fees out of the proceeds of any settlement or judgment due and owing.
Shatkin’s Plagiarism: Fracasse reaffirmed the client’s absolute right to discharge counsel. However, such discharge does not discharge the attorney’s lien itself, which survives discharge, allowing plaintiff’s former counsel to recover attorney’s fees out of the proceeds of any settlement or judgment.
Alexander Original: Bandy v. Mt. Diablo Unified School Dist. held that the discharged attorney cannot intervene in the underlying cause of action in order to establish his lien interest in the anticipated recovery; he must maintain a separate action against the client to enforce any lien rights. Later the same year the decision in Siciliano v. Firemen’s Fund Ins. Co. established the discharged attorney’s right to enforce his lien against a judgment or settlement as an equitable assignee of the client’s recovery to the extent of the fees and costs which are due to him. As a result of this case, the discharged attorney can obligate the defendant and his insurer in the underlying cause of action by giving actual notice of the attorney’s lien to the potential equitable debtor. Normally this is accomplished by filing a notice of lien in the original action.
Shatkin’s Plagiarism: Bandy v. Mt. Diablo Unified Sch. Dist. (1976) 56 Cal.App.3d 230, held that the discharged attorney may not intervene in his former client’s personal injury action in order to establish his lien interest in the anticipated recovery. Instead, he must enforce it in an independent action. Later the same year in Siciliano v. Fireman’s Fund Ins. Co. (1976) 62 Cal.App.3d 745, the court established the discharged attorney’s right to enforce his lien as an equitable assignee of the judgment or settlement to the extent of fees and costs which are due to him for services. The discharged attorney can obligate his former client, the Defendant, and its insurance carrier, in the underlying cause of action, by giving actual notice of the attorney’s lien. This is accomplished by filing a “Notice of Lien” in the original action.
Alexander Original: A normal contingent fee case also presents further difficulties. It is not easily divisible as to the quality of time or labor performed by the attorneys. Often the most difficult and valuable services are rendered in uncovering the true nature of the underlying liability, securing evidence, locating experts and counseling the client before substantial discovery begins or appearances are made.
Shatkin’s Plagiarism: The normal contingent fee case presents difficulties in that it is not easily divisible as to the quality of time or services performed by the original and substituted attorneys. Frequently, the most valuable and difficult services are rendered in uncovering the true nature of the underlying liability and the appropriate legal theories, obtaining evidence, locating experts and witnesses, and counseling the client before substantial discovery commences or appearances are made.
Shatkin is a thief who confiscated my words, thoughts, and ideas . Yes, this happened a long time ago. I should get over it, but it still annoys me. Although it is salutary that this perpetrator is no longer a member of The State Bar of California and cannot practice law. Amen.
