BUSINESS

Florida AG Pam Bondi Pressured By Targets Of Investigations To Soften Approach, Critics Say

10/12/2011 05:34 pm ET | Updated Dec 12, 2011

FORT LAUDERDALE, Fla. -- Last December, when she was still investigating foreclosure fraud as a top lawyer in the Florida attorney general's office, June Clarkson gave a PowerPoint presentation to a legal association.

Her presentation amounted to an indictment of Lender Processing Services, or LPS, a company near the center of ongoing state investigations into claims that foreclosures have been rushed en masse through the legal machinery, without proper documentation. She flashed images of paperwork on a screen under the heading "forgeries," asserting that LPS' former subsidiary, Docx, had produced phony documents to justify unlawful foreclosures.

The legal association later sent Clarkson a thank-you note, calling her tutorial "invaluable." Word of her presentation reached New York, where a state Supreme Court judge cited it in a harshly-worded ruling that a bank lacked the right to foreclose on a Brooklyn home.

But the Jacksonville-based LPS was furious, particularly about one slide in the presentation: an image of the children's board game Candyland, a satirical reference to the mortgage securitization process. The following month, a lawyer for LPS sent a letter to Clarkson and Theresa Edwards -- a colleague who co-authored the presentation -- calling their PowerPoint display "irresponsible" and "inflammatory," adding: "The legitimate question at this point is whether you are still capable of conducting this investigation."

Upper management in the attorney general's office, which also received a copy of the LPS complaint, ultimately answered that question in the negative. The incoming director of the division of economic crimes admonished the two assistant state attorneys general, they say. In May, Clarkson and Edwards resigned under threat of being fired, according to the attorney general's office.

Florida has some of the highest rates of foreclosure in the country, and is home to many of the companies accused of improper document handling, yet the state's enforcement apparatus has treated many of these companies with striking lenience, according to former state prosecutors and lawyers who represent Florida homeowners.

Many cite the forced departure of Clarkson and Edwards as a vivid example of how mortgage companies and law firms successfully exploit connections to Florida's attorney general to soften legal probes, insulating themselves against the consequences of alleged law-breaking.

"The division of economic crimes has long fostered an atmosphere in which, as Clarkson and Edwards found out, and as I have found out in seven-and-half years of having one effort after another squelched, bold action is rare," declared Andrew Spark, a former assistant attorney general in Florida, in a blistering memo he released publicly before resigning in August. "The people of the State of Florida have the right to better, but under its current management, the situation can only get worse."

"Like the Securities and Exchange Commission ignoring Bernard Madoff's scams, our office -- like so many agencies -- was asleep at the wheel while the future of the state's economy was being ravaged by mortgage fraud -- when it really mattered," Spark continued.

Florida Attorney General Pam Bondi, through spokeswoman Jennifer Meale, declined repeated requests for comment. But Meale dismissed assertions that the agency has softened its enforcement against improper foreclosure practices. "We aggressively prosecute wrongdoing regardless of the subject of the investigation," Meale said in an email.

Bondi has drawn criticism from local lawyers for accepting campaign contributions from companies the attorney general is investigating. LPS and its former parent Fidelity National Financial -- which is under investigation by the attorney general, as part of the LPS probe -- together contributed at least $2,000 to Bondi's campaign last year, according to the National Institute on Money in State Politics.

Executives of ProVest, a Tampa-based company that notifies homeowners of a foreclosure, and which is being investigated by the state attorney general, also made personal contributions to Bondi's campaign. Chief executive and founder Scott Strady, president James Ward and executive vice president Victor Draper each contributed $500 to Bondi's campaign, according to the National Institute on Money in State Politics.

"No amount of campaign contributions" affects Bondi's commitment to fulfilling her duties, Meale said in an email.

As the news of Clarkson and Edward's forced departures spread through Florida this summer via local blogs and newspaper reports, the resulting public outcry challenged the notion that the state was really looking out for homeowners. Official explanations from the attorney general that the pair had been ousted for poor job performance did not appear to win over many skeptics.

"It felt like finally someone was listening," said attorney Matthew Weidner, who represents homeowners in foreclosure. "That's why the announcement of the firings was such a punch to the gut."

State Sen. Eleanor Sobel, a Hollywood, Fla., Democrat, along with another state lawmaker, wrote to U.S. Attorney General Eric Holder, asking that the terminations of Clarkson and Edwards be "reviewed by an investigatory agency not directly associated with the State of Florida in an effort to get the most neutral review."

As pressure mounted, Bondi herself called for an investigation into the ouster, even as her office maintained the personnel decision was "mundane." A Florida agency, the Department of Financial Services, opened an investigation in August. DFS Inspector General Ned Luczynski, who is conducting the probe, declined to comment on it.

"Here we finally have two superstars, and they get the axe," Sobel said. "They got fired for doing a good job."

A FAMILIAR COMPLAINT

Among some of those who have recently worked in the state attorney general's office, such complaints seemed only to confirm the ways of the institution as they knew it -- one vulnerable to the influence of politically-connected outsiders.

"They don't want to be aggressive toward corporations," said a former assistant state attorney general who asked not to be named because of concerns about his current job. "If they were as aggressive as they could be, or wanted to be, they would double the size of the economic crimes division,” he added, noting that the division is funded by recoveries from its cases.

The office seems to be guided by an attitude of "don't push too much," this former employee said.

Spark, the former assistant attorney general who penned the critical memo, worked in the Tampa bureau. He said the office suffered from what he termed "litigation-phobia," describing several cases in which top-ranking officials pushed for what he viewed as premature resolutions, before a full investigation could take place.

In one case, Spark opened an investigation into an auto dealership that was using deceptive advertising, he said. It turned out that a lawyer who represented the auto dealership, Robert Shimberg, had served on Bondi's transition team. According to Spark, his superiors noted that Shimberg was the dealership’s counsel as they urged Spark not to pursue a full investigation.

In his memo, Spark cites an email he received from Richard Lawson, director of the division of economic crimes, which said that Shimberg was a lawyer for the "very prominent" business. "You should be aware of this in case the [attorney general] has any questions," Lawson said in that email, according to Spark's memo.

Meale, the attorney general's spokeswoman, declined to comment on Spark's memo, citing the existence of an internal investigation into the former employee. Shimberg called Spark's portrayal "ridiculous."

Other developments at the attorney general's office have provoked charges that the agency is often intertwined with companies it ought to be aggressively prosecuting. Two high-ranking employees recently left their posts for jobs at companies under investigation. Joe Jacquot, former deputy attorney general, left government service for a job as senior vice president of government affairs at LPS, the company announced in June.

Jacquot recused himself from discussions and actions involving LPS, as of late October of last year. He told a reporter from the News Service of Florida that he had nothing to do with the investigations of foreclosure firms initiated under the previous attorney general, Bill McCollum.

Mary Leontakianakos, formerly director of the division of economic crimes, this year went to work for the Fort Lauderdale-based foreclosure law firm Marshall C. Watson, which the state attorney general was investigating. Edwards, who was working the Marshall Watson case with Clarkson, said the $2 million settlement with the company in March was less than the $7 million she had wanted.

Leontakianakos, now chief counsel at Marshall Watson, said through a spokeswoman that she was not at all involved with the settlement with the law firm.

“I am very proud of my service at the Florida Attorney General's office," she said through the spokeswoman.

A REPRIMAND FROM ON HIGH

Clarkson and Edwards say the first clear sign of trouble came in February, courtesy of a visit from Lawson, the director of the division of economic crimes -- the first time they met him. He quickly signaled that he was fielding a lot of negative reports about them back in the state capital, they recalled.

According to Clarkson and Edwards, Lawson told them: "I expected to come down here and find a couple of coyotes."

Reached on his cellphone, Lawson declined to be interviewed for this story.

Lawson said he didn't want to hear any more complaints about the two attorneys, according to Clarkson and Edwards.

"I said to him, 'How can we stop opposing counsel from contacting you?'" Clarkson said. "The way he was talking to us, I thought there was nothing he would do but fire us."

Only one month earlier, Joan Meyer, a lawyer at Baker & McKenzie who was representing LPS, had written the letter of complaint, asserting that Clarkson and Edwards had unfairly impugned the company in their PowerPoint presentation.

LPS provides software to banks to manage mortgages, and to law firms that process foreclosures for banks. The company has come to dominate the foreclosure industry: More than half of all American mortgages in foreclosure are processed with its software, according to the company.

In addition to the allegations that its Docx unit fabricated foreclosure documents, LPS has confronted accusations from plaintiffs, including a trustee for the U.S. Department of Justice, that the company engaged in illegal fee-splitting -- accepting kickbacks from law firms that win foreclosure business. LPS chief executive Lee Kennedy said the fee-splitting charges were "without merit" and noted during a conference call this summer that three of these cases had been either dismissed or resolved in the company's favor.

The PowerPoint presentation featured assignments of mortgage -- which are crucial in proving the right to foreclose on a home -- bearing the signature of Linda Green, a former Docx employee who signed as a "vice president" of a host of companies she did not work for, including Bank of America, Wells Fargo and American Home Mortgage Servicing.

Several Docx employees signed the name Linda Green -- as officers of these companies -- resulting in various "Linda Green" signatures that differed markedly, the presentation suggested.

"Who is the real Linda Green?" the PowerPoint asked.

In her letter to Clarkson and Edwards, Meyer -- the LPS attorney -- argued that the practice of signing as a "vice president" of a company was approved by the various institutions involved.

And LPS has said it ended the policy that produced the apparently differing signatures. When LPS discovered that multiple employees were signing as Linda Green, it fired the manager who was responsible and shut down Docx last year, the company has said.

Meyer lamented that Clarkson and Edwards had "already acted as judge and jury with written publications of your conclusions," adding: "We have already contacted your supervisors in the Florida Attorney General's Office in Tallahassee to request an investigation of your conduct."

The attorney general's office initially defended the PowerPoint, which bears the seal of the office on its first page.

Mark Hamilton, who was interim director of the division of economic crimes in the weeks before Lawson took that job, told Meyer in a letter that the PowerPoint was intended for educational purposes, and that the documents used were publicly available.

"First and foremost the presentation was provided as a general overview of the types of documents our office has received from third parties as a result of the foreclosure crisis," he wrote. "The investigation by our office into the issues surrounding the foreclosure crises is ongoing in nature and the presentation should not be viewed as intended to comment on the liability of any particular company."

Two days before Hamilton wrote that letter, a senior official in the attorney general's office -- who ranked above Clarkson and Edwards -- gave a similar presentation to the Florida Senate. Trish Conners, associate deputy attorney general, used some of the very same documents that appeared in the earlier PowerPoint presentation.

But the attorney general's office concluded that the presentation by Clarkson and Edwards crossed a line. This particular use of those LPS documents -- even though they were obtained from third parties -- was inappropriate, said Meale, the spokeswoman for the attorney general.

A difference between the presentation by Clarkson and Edwards and the presentation by Conners was that Conners "did not draw any conclusions" about an ongoing investigation, Meale said. Using words such as "fraud" and "forgery" is "completely inappropriate until an investigation is complete and wrongdoing has been substantiated," Meale added in an email.

LPS spokeswoman Michelle Kersch said the company did not play a part in the dismissal of Clarkson and Edwards.

"The Florida Attorney General's decision to dismiss Ms. Clarkson and Ms. Edwards was not requested by LPS nor were we consulted in the matter," Kersch said in an emailed statement. "From the very start of these inquiries, LPS has only been interested in ensuring a fair and transparent process. This letter was sent in pursuit of that goal and did not request that any employee be terminated from the Florida Attorney General's office."

'SITTING ON YOUR HANDS'

Clarkson and Edwards' aggressive tack on foreclosures garnered enemies beyond LPS. Shapiro & Fishman, a law firm based in Boca Raton that the attorney general accused of using fabricated documents to speed through foreclosures, took issue with a subpoena the attorneys served last year. The order was "outrageously broad" and "totally sloppy," said attorney Gerald Richman, president of the firm Richman Greer, who represents Shapiro & Fishman.

Richman's complaints extended beyond the subpoena to the conduct of Clarkson and Edwards. "They acted very unprofessionally in the way they treated us, and the way they treated the investigation," he said, calling them "arrogant." He went over their heads to complain to their supervisor, he said.

Clarkson and Edwards dismissed that characterization. "If you don't bow down to him, you're arrogant," Clarkson said. Edwards explained that her aggression toward opposing counsel comes with the job description: "That's when you get your best deals, when you push them really hard," she said.

But Richman ultimately claimed victory. He said his interactions with Clarkson and Edwards were a factor in the attorney general's decision to force them out.

"I think the experience with us, along with other things, led to the firing," he said. "In my opinion, the firing was totally justified based on how they treated people."

Meale, the spokeswoman for the attorney general, said that "no one group or subject of an investigation has any ability to make a personnel decision in the attorney general's office."

A judge ultimately sided with Richman on his complaint about the subpoena, ruling in October to quash the attorney general's demand for documents. Palm Beach County Judge Jack Cox called the subpoena "vague," "invasive" and "unduly burdensome" in his ruling.

Critics including Clarkson and Edwards noted that Cox was subsequently nominated as a candidate for a seat on the prestigious Fourth District Court of Appeal -- by a commission that included Richman.

McCollum, the attorney general at the time, filed a motion for a rehearing, arguing that the court's "fundamental premise" in its decision to quash the subpoena was "mistaken."

But Judge Cox stuck with his initial decision. In April, while Bondi was in office, the Fourth District Court of Appeal ruled that the attorney general could not investigate Shapiro under the statute it was using.

Bondi's office never appealed that ruling. And the attorney general has not filed any new subpoenas against foreclosure law firms since the ruling, Meale acknowledged.

"What our office is doing right now is considering all possible strategies for moving forward," she said.

Others have a different view, accusing the attorney general of stalling in the interest of letting the malefactors off the hook.

"Are you just sitting on your hands?" asked April Charney, an attorney at the nonprofit Jacksonville Area Legal Aid, who defends homeowners and trains other lawyers. "Have you been so co-opted and infiltrated you're just helping them run the statue of limitations? As far as I can tell, that's what's happening."

'SO MUCH MORE'

Clarkson and Edwards are in the process of starting a new law firm that will represent homeowners. Before moving to their new office in Fort Lauderdale, they temporarily occupied a cramped space in a two-story building in nearby Hollywood, the walls adorned with Joan Miro reproductions.

On a damp August morning, the phone rang. A man claiming to be a whistle-blower was on the line, detailing what he saw as a pattern of fraud at his former employer. Clarkson and Edwards scribbled notes as they listened.

"I can't get any lawyers involved," the man said through the phone. "They're all scared because of what happened to you guys."

Clarkson and Edwards are keen to stay in the game, they say, even as they come to terms with the reality that they will be unable to take on wrongdoing on a large scale, deprived of the attorney general's office as a platform for prosecution.

"People are still contacting us," Clarkson said. "They think we're still lawyers on the case, and we're not. But they know we know things that probably won't ever get out now."

"There's so much more to expose, is the problem," she added. "There's so much more."

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