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Lozano Smith Sanctioned

Lozano Smith "Attorneys at Law" SANCTIONED for LYING!

One of California's Largest Law Firms Representing School Districts Against Students, Parents, and Teachers has been SANCTIONED by a Federal Judge for LYING!

The American Society for Ethics in Education is overjoyed that a Federal Court has finally taken action against a law firm that INTENTIONALLY engaged in lying and obstruction of justice on behalf of one of their school districts: Bret Herte Unified School District. Tragically, Lozano Smith managed to drag out this case over SEVEN YEARS (school districts and their attorneys are notorious for intentionally delaying help for special needs students - they're willing to do whatever it takes to stall and often spend huge sums of money fighting parents seeking help for their children that would have been far less expensive had the districts followed the law and helped these students in the first place. What is so notable about this case is that not only did the judge levy sanctions against Lozano Smith but that Lozano Smith is a huge firm that, according to their own web site "is a full-service law firm serving numerous public agencies in California, including over 300 school and college districts and numerous cities, counties, and special districts." At the moment, many of these same school districts are now making what we believe are profoundly stupid statements in their continued support for Lozano Smith.

While ASEE has already posted the complete text of this court's order, a portion of that lengthy (and horrifying) document is posted immediately below - this should provide the public with just a small sample of what is contained in the complete document.

The following is an excerpt for the complete court order (pages 64 to 67) All text is believe to have been transcribed exactly as written except portions that have been highlighted, by ASEE, to emphasize some of the more horrendous statements. This portion of the order pertains to a description of Lozano Smith and some of the attorneys involved - including Michael Smith, a founding shareholder in the firm!


"D. Lozano Smith

Lozano Smith characterizes itself as a “recognized leader” in special education law in California and that it provides training seminars for special education attorneys and administrators. Mr. Fulfrost, the managing partner of Lozano Smith’s Santa Monica Office was heavily involved in the early stages of this case and is an expert in special education and students with disabilities. See accessed October 11, 2004. Mr. Smith is a former Senior Deputy County Counsel for Fresno County Schools and has been practicing law for 24 years. Id. Mr. Sklar was admitted to the bar in 1995 and lists his specialty as Education Law. Id. Ms. Yama practices law with a primary focus in special education and has assisted school districts with IEP meetings, mediation and due process hearings and has presented at workshops related to special education in California. Id. Mr. Fulfrost, Mr. Smith, and Mr. Sklar further all actively worked on this case at various times as detailed by Plaintiff’s submission filed February 25, 2004, pp. 2:5-4:4, and the submission filed November 5, 2003, pp. 5:23-6:10 and 7:17—8:12.

Lozano Smith contends that the mistakes made in this case are the result of Ms. Yama’s actions and Ms. Yama’s actions alone. See Doc. 137, Lozano Smith Memo re OSC, 3:7-15. Mr. Smith has stated that Ms. Yama was an experienced attorney who he felt (based on an active working relationship over a four year period) could handle the case and submit pleadings without direct supervision. See Smith Decl., 2:3-3:2. Lozano Smith appears to argue that because it previously provided Ms. Yama with “sufficient training” and “supervision,” the firm has not engaged in bad faith sanctionable conduct. Lozano Smith ignores the fact that Ms. Yama was not the only attorney who signed misleading pleadings and it ignores the repeated objections and warnings from Plaintiff about its malfeasance.

The various papers filed with the Court were signed by no less than three Lozano Smith attorneys: Edward Sklar, Elaine Yama and Michael Smith, a founding shareholder. In fact, Ms. Yama states she did not write, but merely incorporated, the distorted and incorrect legal arguments from the Trial De Novo brief written by Mr. Sklar.10 See Doc. 154. This raises question whether a culture of misrepresentation and deception exists at Lozano Smith, if an attorney more senior than Ms. Yama (who already has seven years experience), submitted the previously discussed misleading and inaccurate legal papers. Lozano Smith contends, without citation, that recklessness alone is not enough for sanctions under 28 U.S.C. § 1927. Doc. 136 at 5:11 and at 6:9-11. This is not entirely accurate. Under Fink v. Gomez, 239 F.3d 989 (9th Cir. 2001), the Ninth Circuit recently reconciled its prior cases and stated: ‘[R]ecklessness suffices for § 1927, but bad faith is required for sanctions under the court’s inherent power.” Id. (Emphasis added.) Lozano Smith appears not to fully recognize the severity of the problems created by its lack of professionalism or still believes that it and Ms. Yama have not “really” breached their professional responsibilities. Lozano Smith argues Ms. Yama’s actions were careless or inadvertent, but not in bad faith, because she did not knowingly or recklessly raise a frivolous argument or argue for the purpose of harassing her opponent. Doc. 136 at 5:20-23. This argument is untenable given the substantial evidence that Ms. Yama had ample notice and opportunity to correct the mistakes which were expressly identified by Plaintiff’s counsel, yet repeatedly submitted by Defendant’s counsel to the Court.

Lozano Smith also reiterates Ms. Yama’s specious argument that she relied on the Hearing Officer’s characterization of the facts of the case. Id. at 5:24-27. Contrary to this assertion, Ms. Yama cited to the administrative record and the hearing transcript, not the hearing officer’s decision, to support her misstatements of fact. Their claim is specious that it is the hearing officer’s fault. Lozano Smith and Ms. Yama were not entitled to rely on the hearing officer’s errors in reciting facts, when the available evidentiary record was to the contrary and should have been their reference source for de novo judicial

Lozano Smith contends that it was entitled to rely upon the Hearing Officer’s legal and factual conclusions based on 5 C.C.R. 3085” and, therefore, because the Hearing Officer reached a “legal conclusion” that the accommodations provided under Section 504 of the Rehabilitation Act of 1973 . . . fulfilled the District’s obligations under the Individuals With Disabilities Education Act,” the law firm engaged in no wrongful conduct by arguing that 504 accommodations satisfy IDEA. See Doc. 150 at 2:4-7. Lozano Smith’s post hoc explanation does not accurately describe the errors included in its Motion for Summary Judgment brief nor does it accurately describe the Hearing Officer’s findings.

The Hearing Officer never determined “that the accommodations provided under Section 504 of the Rehabilitation Act of 1973. . .. fulfilled the District’s obligations under the Individuals With Disabilities Education Act.” See Doc. 150 at 2:4-7. The Hearing Officer determined the District denied Robert a FAPE, i.e., the District did not fulfill its obligations under . . .”

ASEE Salutes

  • Federal Judge, the Honorable Oliver W. Wanger for having the integrity to finally break the lock hold multi-billion dollar law firms, such as Lozano Smith, have upon the rights of special needs students who we believe are regularly subjected to similar treatment around the country.
  • The student and the parents of the student who persisted and did not give up. As this case so vividly points out, school districts and law firms, such as Lozano Smith, will stop at nothing to drag these cases on for years.

ASEE Endorsements Pertaining to this Case

  • California Association for Parent-Child Advocacy (CAPCA) - This organization emerged from successful efforts to prevent disastrous changes in special education law in California and was founded by Kathryn Dobel and Maureen Graves (the WONDERFUL Attorney who prevailed in the case against Lozano Smith) created CAPCA to oppose legislative changes regarding shortening statute of limitations and reversing the burden of proof for special education hearings.

ASEE Condemns

  • Lozano Smith Attorneys at Law - A "Professional" Corporation that proclaims itself as "California's Premier Public Agency Law Firm." ASEE urges all Californians to express their outrage at this "law firm" with their elected officials.
  • Bret Harte Union High School District for their participation is this vile attack on ethical behavior in preventing children from receiving the education they are entitled to.
  • Michael E. Smith, a founding shareholder of Lozano Smith.
  • Howard J. Fulfrost - "the managing partner of Lozano Smith’s Santa Monica Office was heavily involved in the early stages of this case." As Mr. Fulfrost's bio notes (assuming it hasn't been removed by the time you read this), he was a student teacher in for a special education program at one time.
  • Ed Sklar - a Lozano Smith attorney who claims to specialize in "Education Law" (is that an oxymoron?)
  • Elaine Yama - the Lozano Smith attorney who bore the brunt of the heat. For additional information on Ms. Yama, view her public record regarding the California Bar Association take actions against her.

News Articles Pertaining to this Case

  • Calaveras Enterprise (January 21, 2005) "Bret Harte Union High School District fined by federal judge"
  • Clovis Independent News (January 28, 2005) "Sanctions against law firm do not impact Clovis Unified School District: District to continue work with counsel" - (Link no longer valid.)
  • Fresno Bee (January 20, 2005) Fresno schools cut law firm - (Link no longer valid.)
  • Fresno Bee (January 19, 2005) "School districts waste time, money fighting special education cases" - (Link no longer valid.)
  • Fresno Bee (January 19, 2005) "Judge's criticism answered earlier, law firm says" - (Link no longer valid.)
  • Marin Independent Journal (January 27, 2005) "School districts use accused law firm" (Link no longer valid.)
  • Monterey Herald (January 20, 2005) "Lozano Smith attorneys throughout state ordered to take ethics training"(Link no longer valid.)
  • Modesto Bee (January 19, 2005) "School District, Lawyer, Firm Fined" (Link no longer valid.)
  • Monterey Herald (January 23, 2005) "Keeping tabs on attorneys' work necessary" (Link no longer valid.)
  • Oregon Parents United (January 2005) "Sanctions for attorney's violations fo duty of candor and not to impede, obstruct, or the vexatiously multiply proceedings" (Link no longer valid.)
  • (January 19, 2005) "California Federal Judge Sanctions Law Firm For Lying in a Special Education Case"
  • Pasadena Weekly "School district pleads ignorance after judge sanctions contract attorneys and orders them to attend ethics training" The main title for this article is an extremely STUPID one - "Who could have guessed?" It displays the cluelessness of the media that has ignored issues like this for far too long.
  • Santa Cruz Sentinel (January 21, 2005) "Clients back sanctioned law firm: Ethics training ordered for firm representing P.V. schools" (Link no longer valid.)
  • Tulare Advance-Register (January 21, 2005) Judge sanctions schools' law firm: Lozano Smith attorneys represent 31 school districts in Tulare County (Link no longer valid.)
  • Union Democrat (January 20, 2005) "District fined in special ed case" (Link no longer valid.)