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A prominent Clayton family law firm has plunged into scandal over its handling of emailed evidence in a contentious custody dispute.
The case has become the talk of a bitterly divided St. Louis family law bar and features a $25,000 sanction against Hais, Hais, Goldberger & Coyne, one of the highest-profile firms in the field locally, for being in receipt of hundreds of emails between opposing counsel and his client.
Attorney Jay Fisk looks through the stack of documents sent to him by Hais, Hais, Goldberger & Coyne after he subpoenaed the firm in September, seeking a full record of all the emails between his client, Michael Howard, and Howard’s attorneys that the firm had received. Hais attorneys represented Howard’s ex-partner in a custody dispute over the couple’s son. Photo by Karen Elshout
The emotions are running high, so high in fact that some of the on-the-record allegations of a lawyer no longer involved in the case are not printable without risking a libel suit.
St. Louis County Circuit Judge Barbara Wallace detailed her own concerns about the lawyers’ conduct when she levied the sanctions in a March 15 judgment.
“The Court is shocked at the conduct of the Hais Firm, primarily that of lead counsel Susan Hais,” Wallace wrote.
The judge went on to characterize the firm’s actions as wrong, even if not necessarily illegal.
“Clearly, the credible evidence, and very specifically this response by [Susan Hais] herself, indicates knowledge of the content of the emails, possession, rather than deletion of the emails, intent to use the emails to ‘hurt’ petitioner, and a consciousness that there was something just not right about having the emails of petitioner and his attorneys,” Wallace wrote in that judgment.
Heated discussion has percolated among practitioners in the St. Louis family law bar since a pair of one-day sanction hearings in October, which featured the subpoenaed testimony of three Hais firm attorneys.
Curious family law practitioners attended the hearings or stood in the hallways outside of Judge Wallace’s courtroom, trying to listen in.
This is what they heard.
Michael Howard, a father in a years-long custody dispute, accused attorneys Susan Hais, Samuel Hais and Elliot Goldberger of receiving
Susan Hais
confidential emails he exchanged with his attorneys and others about the case. The Hais firm represented Howard’s ex-partner, Maria Howard-Samples, in a custody fight over the couple’s 8-year-old son.
Some of the hundreds of emails, which went back years and included Howard’s communications with his attorneys past and present, contained lists of possible experts, questions for depositions and what Wallace characterized as “other sensitive, strategic material.”
The Hais attorneys contend they never used the emails during the course of their representation and instructed Howard-Samples orally to stop forwarding the messages to them. They also said they believed that Howard-Samples obtained the emails properly with a password that Howard failed to change when the couple split. Conversely, if she did obtain them improperly, they argue, attorney-client privilege would preclude them from revealing the impropriety.
Still, in her judgment, Wallace wrote that she was shocked by the Hais firm’s conduct.
Sam Hais
“These are attorneys who themselves depend upon the confidentiality of their communications with their clients for the effective representation of those clients,” Wallace wrote. “The use of the emails does not have to be illegal to be wrong.”
In a separate judgment also issued March 15, Wallace granted joint physical custody of the child to both parents and sole legal custody of the child to Howard.
The Hais firm plans to appeal the sanctions portion of Wallace’s judgment, which they say stemmed from a series of procedural and jurisdictional errors.
“I’m confident it’s going to be overturned,” said Alan Mandel, who represented the Hais firm in the fall 2010 sanctions proceedings.
At least three disciplinary complaints have been filed against the Hais attorneys with the Office of Chief Disciplinary Counsel for their conduct in the case, said Merle Silverstein, an attorney connected with the sanctions matter who filed one of the complaints.
Mandel noted that the family law community’s voracious appetite for gossip about the case — and the subsequent leak of the judgment, which he says should have remained confidential — reveals “a domestic bar that’s at each other’s throats.”
It’s true that you don’t have to look very far for a family law attorney who’s happy to see the Hais firm hit with a hefty sanction. Jody Wolff, a 23-year veteran of St. Louis family law, represented Howard-Samples in the ongoing custody dispute before the Hais firm did.
Wolff said Wallace’s judgment validates her own opinion of the Hais firm “and what’s going on over there,” she said.
“Most people don’t want to be on their bad side, but I don’t particularly care a rat’s patootie. I’m not dependent on Susan Hais,” Wolff said.
Susan Hais did not return a message seeking comment. Her husband and law partner, Samuel Hais, a former family court judge in St. Louis County, directed a reporter’s questions to Mandel and Michael Downey, the firm’s ethics counsel.
“We’re not sure [Wolff’s] comment even deserves a response,” Downey said in reaction to Wolff’s comments, including some not printed here out of libel concerns. “To the extent it does, it is false and defamatory.”
Wolff said Howard-Samples did send her emails as part of the case, “but they were generally emails between her and Michael.” Wolff said she never saw any emails between Howard and his attorneys. She said she withdrew from the case in 2008 after Howard-Samples filed for bankruptcy and discharged nearly $30,000 she owed to Wolff’s firm.
‘Where did you get this?’
When St. Louis family law attorney Jay Fisk took on Michael Howard as a client, he had no idea of the legal and ethical battle that awaited him two years down the road.
Fisk had just left a 10-year stint as attorney with Legal Services of Eastern Missouri, where, before his 2008 departure from the office, he worked as the managing attorney of LSEM’s Family Law Unit.
After a decade of representing domestic violence victims, Fisk was ready to branch out. He was also eager to work with children; guardian ad litem work would eventually make up about half of his practice.
In January 2009, he rented a 9-by-9 office in the Euclid Plaza Building on Delmar Boulevard, set up his cellphone and laptop, and hung out his shingle. Howard was his first client.
“I knew it would be contentious based on the legal history,” Fisk said. “These people had been in court before.”
But the total complexity of the case didn’t reveal itself to Fisk until an Aug. 9, 2010, meeting at the Hais firm to try to settle Howard’s motion to modify custody. In attendance: Fisk, Howard, guardian ad litem Mary Davidson, and Howard-Samples and two of her attorneys, Samuel Hais and Goldberger.
For a period of months in 2009 and 2010, Howard-Samples had continued to send her attorneys at the Hais firm Howards’ emails concerning the case, said Mandel, the attorney for the Hais firm.
“At some point, Samples insisted that they use the emails,” Mandel said. “That’s when she brought them out.”
The afternoon meeting already had a strange vibe around it, said Davidson. Howard-Samples had arrived late, and staff at the firm shunted her off into another office, Davidson said. Meanwhile, she, Fisk and Howard sat in a conference room waiting for the meeting to start. Hais firm attorneys shuttled in and out of the room offering vague excuses for the late start, Davidson said.
“We knew something was going on, but we didn’t know what was going on,” Davidson said.
When the meeting finally started, the Hais attorneys began by saying they had advised Howard-Samples not to do what she did next. Then, Howard-Samples pulled out her own settlement proposal. Attached were about six of Howard’s emails concerning the case.
Fisk said he was shocked.
“I asked, ‘Where did you get this?’ She said, ‘I’m not at liberty to say,’” Fisk said. “I said, ‘Well, that concludes our meeting.’”
In the collection of emails, Davidson spotted a couple of emails she had sent to Howard.
“Once I realized what I was looking at, it didn’t take long,” Davidson said. “My first response was to tell Jay Fisk, ‘I’m going to put this in my briefcase, and I am not going to read these, because there are emails between you and Michael here.”
Davidson said because a GAL doesn’t have attorney-client privilege with the parents in a case, her own emails with Howard didn’t stand on the same legal ground as those between Howard and his attorneys. But the breach still disturbed her.
“There was nothing in there that … I wouldn’t have said to people’s faces,” she said. “But it’s very different when you find out someone’s been lifting out of emails communication that you intended to be private, if not confidential in the legal sense.
“I felt compromised.”
A different direction
Shortly after the failed settlement attempt, Fisk filed a motion for sanctions against Howard-Samples. The Hais firm subsequently halted its representation of her. She then hired Silverstein, a domestic law attorney with Rosenblum, Goldenhersh, Silverstein & Zafft.
Said Fisk: “When [Silverstein] got involved, he then let me know there were other emails. And then he let me know there were even more emails. Then he let me know there were emails with Susan Hais’ handwriting on Post-its on them.”
Wallace’s judgment also referenced Hais’ Post-it notes, and that the notes “discussed the merits of the underlying custody case,” according to the judgment.
In late September, Fisk amended his motion for sanctions, adding the Hais firm, Susan Hais, Samuel Hais and Goldberger, and hit the three attorneys with subpoenas.
“Not served with process, just subpoenaed,” Mandel noted. “They were called to testify.”
In the moment Maria Howard-Samples pulled out the first stack of emails at the August settlement attempt, attorney Jay Fisk said he was shocked. What had begun as a motion to modify custody would soon morph into complex litigation about attorney-client privilege that would force Fisk to question three Hais attorneys in court. “I never wanted it to turn into this,” he says. Photo by Karen Elshout
Among other objections about the sanctions proceeding, Mandel said Wallace issued the subpoenas based on Howard-Samples’ testimony at a separate sanctions hearing in early September. It was testimony that the Hais firm never had the chance to challenge in court through cross-examination, Mandel said.
“The Haises weren’t even parties at that point,” he said. “The whole motion for sanctions was ridiculous.”
The same subpoena forced the Hais firm to turn over all emails between Howard and his attorneys, as well as any other documents or communications referencing Howard’s emails. The firm handed Fisk a file of emails and documents four inches thick.
“I was just stunned,” Fisk said. “It was so far beyond what I had anticipated.”
Fisk said about 60 percent of the emails was Howard’s communications with his prior attorney; 40 percent was his own emails with Howard.
For Fisk, the case morphed from a simple, albeit contentious, motion to modify to a complex study of attorney-client privilege, privacy and confidentiality.
“I never dreamed it would turn into this,” he said. “I never wanted it to turn into this.”
But as a lawyer, you have to advocate for your client, no matter where the case takes you, he said.
“I had never put an attorney on the stand,” Fisk said. “I put three very experienced, very well-known attorneys on the stand over the course of a day.”
That night, Fisk went home and emailed a friend: “Sometimes you do things you never thought you could do.”
A question of use
The Haises testified that they did nothing wrong and instructed Howard-Samples to stop intercepting her ex-partner’s emails, said Silverstein, who represented Howard-Samples at the sanctions hearing.
At her own sanctions hearing, Howard-Samples testified to just the opposite, Silverstein said. “She said, ‘Once they found out I was able to intercept those messages, they told me to continue doing that and bring the printed messages to them.’”
Silverstein said his portion of the case had two smoking guns, both of which Wallace quoted in her judgment. The first was four or five printed pages of emails that Susan Hais had dotted with Post-it notes full of instructions for Howard-Samples.
“Which indicated she had read the damn things and was advising Maria about them,” Silverstein said.
As Wallace wrote in her judgment, “Despite their continued assertion they did not ‘use’ the emails, plainly and simply, these actions constitute use of the emails by the Hais Firm, and specifically by Susan Hais.”
The second smoking gun was an email Susan Hais sent to Howard-Samples. In it, Hais wrote, “We can also take Michael’s [deposition] but oddly I would only do that if they were trying to take yours since we have emails that will hurt him. By the way, how do you think they figured out about the emails?” according to Wallace’s judgment.
Silverstein said he didn’t try to defend Howard-Samples’ retention of the emails.
“I told the judge it was reprehensible,” he said. “The question was, was she acting at her lawyer’s direction or her own?”
Wallace sanctioned Howard-Samples in her judgment but didn’t assess any monetary sanction.
‘They did their best’
The Hais attorneys weren’t the only people to testify at the sanctions hearings. Downey, their ethics counsel, also did.
In an interview, Downey said during the period when Howard-Samples sent them the emails, the Haises believed their client obtained them legally, which meant the emailing parties had no reasonable expectation of privacy. If they did suspect Howard-Samples improperly obtained the emails, attorney-client confidentiality prevented the firm from telling anyone, he said.
“In an ordinary setting, you only do that if there’s a significant risk that death or substantial bodily harm will occur” as a result of your client’s possible actions, Downey said. “There was never any indication that was going to happen.”
According to Wallace’s judgment, the Hais firm contends that when Howard-Samples sent her attorneys the first batch of printed emails, the content so concerned the Haises that they suggested Howard-Samples contact the FBI and certain criminal defense attorneys.
The Hais firm claimed the emails indicated that Howard and his prior attorney “had colluded in certain illegal activities,” according to the judgment.
Art Nissenbaum, a St. Louis family law attorney, was a previous guardian ad litem on the case. He said some of his emails with Howard turned up in the Hais firm’s subpoenaed collection of emails. Nissenbaum said Howard’s previous attorney may have instructed Howard via email to keep track of his son’s calls with Howard-Samples.
“I don’t think it was anything where [the prior attorney] would have been saying you need to wiretap something,” Nissenbaum said.
Silverstein, Howard-Samples’ current attorney, said his client did go to the FBI with the emails, but officials there told her to come back to them after the conclusion of the custody and sanctions matters.
“They were put in a difficult situation,” Downey said of the Hais attorneys. “They did their best to try to navigate through it. The best indication
Michael Downey
is the incredible list of people they contacted at the outset. They had the client talk to the FBI. They talked to me. It all indicated that they didn’t perceive they were doing anything wrong.
“This wasn’t a lawyer sneakily saying, ‘Ha ha, we’ve got it, let’s hold on to it and keep it secret.’”
The Hais attorneys contend Howard-Samples ignored their advice and continued to forward emails to the firm. If a client isn’t following your instruction, the best thing to do is withdraw, Downey said. But the Hais attorneys were in a tough spot. The trial dates for the motion to modify were spread out over a number of months. If they withdrew, they were effectively forcing Howard-Samples to find another attorney in the middle of a trial, Downey said.
Susan Hais and the Hais firm do wield a fair amount of power in the St. Louis family law community, said Leigh Joy Carson, a solo family law practitioner. That’s because they handle so many cases and so many high-dollar cases.
Carson said she has faced Hais attorneys in cases, and while their style can veer toward aggressive, they never withheld documents or mischaracterized portions of the case. Carson said when she struck out on her own 12 years ago, Susan and Sam Hais sent her a lot of business, almost one new client per week.
“I’m always loyal to that,” Carson said. She described Susan Hais as gracious and particularly encouraging of Carson when she started out on her own. But Carson wondered aloud where an attorney should draw the line if a client shows up with emails from an ex-partner.
“General emails are one thing, but, emails with his attorneys? I mean, other attorneys? Wouldn’t you stop reading?”
Mandel said no matter the ultimate outcome of a possible appeal, the sanctions proceeding has taken its toll on the Hais firm. He said if someone walked into a St. Louis family law attorney’s office and mentioned they had been thinking about hiring the Hais firm for a matter, that attorney’s voice would drop into a low whisper: “You know the Haises just got sanctioned. You shouldn’t hire them.”
“Even if they are exonerated, which they will be, the harm is done,” Mandel said. “That’s why these things are designed to be confidential.
“They can’t be fixed.”
While I realize the forum of this article and the audience who are concerned with legal procedures etc. The real story here is what has happened to this poor child. It is sad that the people charged with doing what is in the best interests of the child are more concerned with legal manuvering and winning. I am way too familiar with this on going custody situation and there is no justice to be had in this Family Court.
The corrupt Mo. Family Court system must be evaluated. There are so many victims it is not funny.
Quick to report an attorney’s situation, but slow on the draw when it comes to reporting on Missouri’s corrupt judges?
This is horrible but not a surprise. Why is the State ignoring the corruptness happening in the courts?
There is NO accountability for judges not following the law and legislating from the bench.
This destroys lives and there is no oversite. Please do not think for one minute the appeals process is fair.
Its the same people protecting the same people.
We need reform and we need it now. All of these stories mean nothing without action and accountability to our tax paying citizens.