‘Recording of Hillbroom phone talk was proper’

Guam lawyer David J. Lujan’s recording of his telephone conversations with his former client, Junior Larry Hillbroom, was proper and not unethical, according Vietnam-based lawyer Barry J. Israel.

Israel, through counsel Theodore Frank, said that pursuant to the federal “one-party consent” law, only Lujan’s participation was required to record the two telephone conversations between Hillbroom and Lujan.

Israel defended Lujan’s action in his motion filed Monday before the U.S. District Court for the NMI to dismiss Hillbroom’s legal malpractice lawsuit against him and Lujan.

Frank said the court should dismiss the lawsuit based on Hillbroom’s statement that he no longer wishes to proceed with it.

Alternatively, Frank said, the court should hear this issue as soon as possible.

In Israel’s motion to dismiss Frank said that Hillbroom has instructed his counsel as early as Feb. 2, 2009, to dismiss the lawsuit but his counsel has yet to comply with the instruction.

Lujan joined in Israel’s motion to dismiss.

Hillbroom, through counsel Rachel Dimitruk, opposed the motion to dismiss last week, saying he wants to proceed with his lawsuit. He also asked the court to sanction Lujan and Israel in the amount of $11,950 for allegedly taping his conversations, describing this as an ethical violation. He also asked the court to disqualify Frank as counsel for Israel.

In Israel’s reply last Monday, Frank said the telephone number that Hillbroom was on during the two telephone conversations had the area code “208,” which is an Idaho area code that covers the city of Boise and all 45 counties of Idaho.

Frank said it would appear that, at least for the first telephone call, Hillbroom was in Idaho at the time; a state where he owns property, used to live, and where he previously attended drug rehabilitation.

Frank said Idaho is a “one-party consent” state and the recording was therefore legal.

Frank said that having the telephone conversations recorded practically assists the court in determining the appropriate method of resolving this.

Without the recordings, Frank said, the court would be faced with a “he said, she said” dispute, limiting the court’s determination to whether Lujan is more credible than Hillbroom’s counsel.

Frank noted that Hillbroom’s counsel’s reference that the recordings may be a violation of Guam law is nonsensical.

Frank said the Guam statute governs recording “outside a private place” of “sounds originating” in that public place.

He said Lujan recorded the telephone conversations on his telephone, such sounds originating over the telephone line and not in a public place.

Frank said he received the recordings via email from Lujan.

Frank said he did not tell Lujan to call Hillbroom, did not tell Lujan to record the conversations, and did not tell Lujan what to say to Hillbroom or what to elicit from him.

Frank said his conduct is compliant with his duties of candor to the court and zealous advocacy on behalf of Israel.

Frank said Hillbroom is using “this improper request for disqualification to gain an undue tactical advantage.”

Frank said to deprive Israel of his counsel of choice would unfairly prejudice Israel. If he is disqualified from the case, he said, Israel would have to find a new attorney that could review over nine years of litigation and eight years of documents covering the alleged events in only 11 days in order to defend Israel at his May 7 deposition by Hillbroom, and then prepare for a November trial, and incur the exorbitant cost of getting a new counsel up to speed.

On Hillbroom’s counsel’s requests for sanctions, Frank said they are in bad faith and seek to chill Israel’s right to petition the court for proper relief.

Frank noted that the most telling omission from Hillbroom’s counsel’s opposition to their motion to dismiss the lawsuit is any declaration, statement, or affirmation under oath from Hillbroom himself.

Instead, Frank said, Hillbroom’s counsel have chosen to offer nothing more than inadmissible, self-serving hearsay.

“One cannot ignore the possible conclusion that, as plaintiff recently stated to Lujan that he was pushed into filing this lawsuit, plaintiff is again being left out of the decision-making process,” he said.

Frank said Hillbroom’s initiation of the telephone call to Lujan was his “cry for help” in the face of his powerlessness to control his case.

Frank said the court should be the one to make a determination as to what Hillbroom’s actual motive and desire are with this case.

“It would be a violation of the parties’ and counsel’s duties, and defendants’ due process right, just to sweep this under the rug and not advise the court and seek its guidance,” he said.

Frank also asserted that Lujan was and is entitled to communicate directly with Hillbroom, as they are both parties to this litigation.

In his lawsuit, Hillbroom alleged that Israel and Lujan conspired with a former trustee to inflate their contingency fee when the fortune of the late business tycoon and DHL co-founder Larry Hillblom was still undergoing probate proceedings in Superior Court.

Israel and Lujan served as counsel for Hillbroom in the probate matter.

Hillbroom is one of the four DNA-proven children of Hillbroom. His name is spelled differently from that of Hillblom.

Hillblom died in a seaplane crash off Anatahan waters on May 21, 1995. His body was never recovered.