THE MARTOCCI FILES – PART I
In Memory of a Rambo Family Lawyer
HELL ON WHEELS
January 08, 2010
by David Arthur Walters
When I suggested to an attorney that “hell on wheels” might be an appropriate advertisement for deceased Brevard County family lawyer Henry John Martocci, and said the description was a flattering one in comparison to the contumely at least three of his embittered victims still heap on him daily in terms that I did not care to repeat because I did not want Southern ladies to appear unladylike, the attorney warned me to be careful how I describe the legendary bomber lawyer lest I defame the dead and insult The Florida Bar, the mighty arm of the Supreme Court of Florida that regulates the practice of law.
But there is no way someone could be held liable for defamation of a dead person, I said, because the reputation of a person dies with him as far as the law is concerned. After all, it is impossible to injure a dead man. But what about the persons he leaves behind, his heirs and foundations? I was asked. Well, there is some merit in considering that question in the context of defamation, and some legislature may want to address it. Until then, as far as I know, there are no legal grounds that would hold someone liable to anyone for digging up a dead man to hang him in the public square, figuratively speaking – I think that was actually done to Thomas Cromwell’s corpse. And the historical record will show that the tendency is more to praise than dispraise the dead – shall we put an end to the praise as well? People may criticize someone to no end until he dies, then praise him to no end, make a legend of him.
Even once infamous Tamerlane’s reputation has been made over: he is now a hero to some folk, his towers of skulls condoned or forgotten. Some young lawyers may one day come to admire Henry John Martocci, and long for a return to the good old days when, first and foremost, men were men and women were women, notwithstanding the advance of civilization, presumably measured by how well women are treated in respect to men.
Besides, I intended to tell the truth as I knew it, based upon public records and a few first-hand accounts. I obtained most of the records from The Florida Bar, and if the Bar was remiss in appropriately disciplining Martocci over the years in response to countless complaints, the insult was its own against itself and not something I conjured up out of thin air. If a lawyer’s reputation survives him, and the legal profession in the form of the Bar is his reputational estate, then let the Bar sue the Bar for any defamation ensuing from the publication of its public records.
The man in question here, Henry John Martocci, intimidated female litigants already softened up by abusive husbands. He threw things, got in people’s faces, pointed at their chests, swore, stalked them in courtroom hallways, ambushed them in court and deposition rooms, made lewd remarks, and resorted to misogynist and racist slurs. Not that he hated women completely, for humankind cannot get along without them, and humans are ambivalent creatures; why, he was allegedly observed fondling a favorite court reporter under the table. And he had a girlfriend when the cause of the first successful disciplinary complaint arose; he married her, though it is believed that the love did not endure long, but that alone does not make one party worse than the other. Suffice it to say that he conducted himself as some men are wont to do given their culture, but are not supposed to do in civilized or polite society, at least not openly. In any case, he was a great prevaricator; he used every dirty trick in the unwritten book to win his clients’ cases, if they were men, including rewriting court orders in their favor, and intimidating and ambushing their spouses.
Will not boys be boys? Will not a man be a man? Will not a lawyer be a lawyer? Does not professional contention render the contenders mean? Does not a litigant want to win his case instead of being taken to the cleaners? Then let him hire a “zealous” lawyer.
“Bomber lawyers” are also referred to as “Rambo lawyers” in bar journals. For instance, we found an article by Allen K. Harris in the Oklahoma Bar Journal, entitled ‘Discovery in Civil Matters Rambo Depositions: Controlling the Breeding Ground for Incivility and Other Disruptive Conduct to Enhance Access to Justice.’
“Intentionally rude behavior and legal literature referring to ‘Rambo’ have given birth to the modern-day litigator called the ‘Rambo lawyer,’ named after the warrior John Rambo. David Morrell, First Blood (1972). In the movies a sweat-drenched, disheveled John Rambo fights through clinging jungle vines with guns blazing as he mows down his enemies. In law offices across the country, the John Rambos of the legal world are invading deposition rooms, yelling obscenities at opposing counsel, and attempting to mow down their "enemies" with nasty verbal invectives.”
The Oklahoma Bar article quotes the criticism of Illinois Circuit Judge Richard Curry: "Zealous advocacy is the buzz word which is squeezing decency and civility out of the law profession. Zealous advocacy is the doctrine which excuses, without apology, outrageous and unconscionable conduct so long as it is done ostensibly for a client, and, of course, for a price. Zealous advocacy is the modern day plague which infects and weakens the truth-finding process and which makes a mockery of the lawyers' claim to officer-of-the-court status.”
And the conduct of our very own Florida lawyer Henry John Martocci in one example among many mentioned in Part II, under ‘RECENT DEVELOPMENTS IN DEPOSITION TACTICS: SEXIST, RACIST AND OTHER INSULTING REMARKS IN DEPOSITIONS - THE LITTLE LADY LAWYER.’ “Egregious remarks reported in the recent case of Florida Bar v. Martocci, 791 So. 2d 1074 (Fla. 2001), involved a male lawyer, Henry John Martocci, who demeaned opposing female counsel, Diana Figueroa, belittling and humiliating her, with comments that she did not know the law or the rules of procedure, that she needed to go back to law school, that she was a ‘stupid idiot,’ a ‘bush leaguer,’ that depositions were not conducted according to ‘girl's rules,’ and that her client was a ‘nut case.’ Martocci received a reprimand and probation.”
The client in that case was Florence Berger nee Patton. Diana Figueroa told Florence that the case, which was won but ignored by the Brevard court despite an appellate affirmation, had made her famous and brought her more clients. Florence Patton is currently writing a book about her trials and tribulations within the Brevard County court system, the Department of Child Services, and the local Salvation Army domestic violence center wherein Henry Martocci plays a leading role. She describes the persons involved as “the ring,” as if they were racketeers. We shall discuss the case itself and the details of the disciplinary case against Henry John Martocci later.
Now we should remember that family law, which was at least half of Henry John Martocci’s sole-practitioner practice, is rife with unpleasantness to say the least. That is, family law practice is by nature turbulent, and if the lawyer does not develop a sense of humor and equanimity, the emotional demands may work to his psychological ruin. The family lawyer must somehow bring order to a mess and apply to it legal principles which are only part of the puzzle. It is seldom profitable to invest much time in research, hence his practice is empirical, what he has learned will work in court. To add to the family lawyer’s predicament on the ground is the fact that judges may be of limited competence and confused about simple issues, therefore proceedings are subject to accidents and the process may be likened to a lottery. What one may expect is a result not justice. Somehow the lawyer must profit from all this; and the process may not at all be according to the academic textbook; indeed, it would seem that the profession of law is really a trade: if a person can read and write and has analytical skills, and gains practical experience with a law firm, he might very well perform as well as if not better than a university and law school graduate.
“The one great principle of the English law is to make business for itself,” quoth Dickens in Bleak House. “There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble.”
In any case, all is fair in love and the Battle of the Sexes. Of course the fair sex on the pedestal is naturally prejudiced in its own favor, as is the brutal sex mired in the mud at its base, so that must be considered when Henry John Martocci’s victims damn him to hell.
There is no doubt, however, even among men, that weaker sex gets the worst of the battle at the home from brutal husbands, and then are re-victimized by the legal system, especially when they cannot afford a good lawyer. If that lawyer is female too, then may the Lord help them, for the legal system, which is dominated by men, is subject to what jurists call gender bias, a bias that even female lawyers and judges professedly cotton to in order to succeed; that is, a woman may have to “behave like a man” to take his seat and hold it for very long. I asked Florence Patton why a certain female judge had decided in Henry’s favor given his allegedly misogynist disposition: “I heard rumors that she was bisexual. I met her years ago when I used to hang out with the assistance district attorneys. She didn’t like me then. I also think she was affiliated with Martocci through a relative.”
In December of 1996, when women like Florence Patton, Edna Jane Favreau, and Marji LeCompte were being re-victimized by the judicial system, the Supreme Court of Florida published ‘Gender Bias – Then and Now, Continuing Challenges in the Legal System, The Report of the Gender Bias Study Implementation Commission.’ The Supreme Court created the Commission in 1994 “with the task of focusing on the recommendations made by the original Gender Bias Commission Report of 1990” and its follow up reports to see what recommendations had been acted on. The Commission was naturally stacked with males, lawyers, court administrators, and cops. It reported that equitable distribution in divorce cases was now required by statute, i.e. that “equitable distribution of marital assets is now a statutory reality.”
The Miami Mirror’s continuing review of Edna Jane Favreau’s horrible ordeal at the hands of incompetent and gender-biased attorneys and judges demonstrates anecdotally at least that equitable distribution was by no means a real reality, not in Brevard County. Henry John Martocci with the help of chuckling cronies on the bench stripped her of her assets and left her indigent, adding legal abuse syndrome to the disabilities she suffered from continuous mental torment and physical abuse, including an attempt to permanently shut her up by strangulation. Her every appeal to have her case re-opened because of the fraud perpetrated on the court was denied; in fact, she was ordered not to file appeals, and it was ordered that anything she did file be ignored and shredded. Thus was she shut up as far as the court was concerned, the record of her further abuse by the judicial system and its criminal disregard of the Disabilities Act were destroyed by the judicial shredder.
The Commission noted that “spouses without extensive litigation resources often fail to obtain discovery, and consequently are not treated fairly in the dissolution context, and have little chance of reopening the case once that information because apparent.” The Commission observed that the one-year limit on a motion for relief from a judgment based on fraudulent affidavits in divorce cases had been removed.
Now that would be in a case of intrinsic fraud, meaning that one of the parties had been defrauded. In the event of extrinsic fraud, where the court had been defrauded, called “fraud upon the court”, Rule of Civil Procedure at 1.540 provides that, “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.” Yet, although there is supposed to be no statutory limit to reopening a case where the court itself has been defrauded, the chances of Jane and others like her of getting their cases re-opened are remote because the courts defrauded were engaged in perpetrating the fraud. How could we expect a fraudster to hold itself liable for fraud? Especially when the fraudster has constitutional independence that provides it with the sole, inherent power to discipline itself. Maybe it will feel guilty one day at the sight of Justice blinded to righteousness.
The Commission stated that “recent studies and surveys continue to indicate that gender bias continues in the legal profession, and in the courts to adversely impact female attorneys, parties and witnesses.” There were “reports from various sources, mostly anecdotal, that women are still being adversely affected by gender-biased behavior.” Here is something from Brevard County: “Joyce Grant, Director of ACES (Association for Children for Enforcement of Support) from Brevard County noted regrettable gender bias remarks and lack of interest on the part of judges in enforcing child support obligations in many instances observed by her court-watch group, in the court room.” The judges would have no regret if their feet were not held to the fire by someone. So “It was recommended and suggested that more recent surveys on the economics of gender bias in the profession be done in Florida.” All this was nothing new: in fact, “The original Commission report noted evidence of gender bias in the handling of cases and conduct in the courtrooms of the state court system.” So extensive education was recommended, and a ‘Court Conduct Handbook’ was written and handed out. New Family Law Courts were recommended and established by the original Commission, and the current Commission supported new Family Law Rules, which were adopted by the Supreme Court.
We may thank the Lord High Chancellor for good intentions and tinkering reforms. Meanwhile, gender bias continues as long as man is free to sin, free to despise himself in another, and blame that other for his original sin, of being born an individual alienated from the womb.
Henry John Martocci, born in the Bronx, and he passed away at age 70 on November 24, 2007 at Cape Canaveral Hospital. He was admitted to the New York bar in 1965 and to the Florida Bar in 1977, and was an esteemed member of Phi Delta Phi International Legal Fraternity, the oldest and most prestigious law fraternity in North America, established in the year 1869 to promote a higher standard of professional ethics, and whose other illustrious members include the likes of Benjamin N. Cardozo, Gerald R. Ford, Robert F. Kennedy, Thurgood Marshall, William H. Rehnquist, Franklin D. Roosevelt, and Theodore Roosevelt.
Henry had his allies in the profession. They testified that he was a good lawyer, meaning, first of all, that he won his cases when they were winnable and otherwise put up a good fight. He may have been neurotic; maybe he had anger management issues, yet he was a good lawyer, albeit in want of psychotherapy. His best personal references in the profession even professed that his integrity was impeccable. And when he was forced to admit to the facts of his misconduct after doing his best to skirt them, he claimed that, no matter how unprofessional his conduct might have been, it was not unethical as defined by Florida Bar rules. Well, some lawyers say that whatever is legal is ethical, so there you go.
The Florida Bar is naturally concerned with maintaining the dignity of the profession in respect to its advertisements. For example, in its case against John Robert Pape and Marc Andrew Chandler, who ran television advertisements for their practice displaying the head of a pit bull wearing a spiked collar and the telephone number 1-800-PIT BULL, the Referee held that the respondents did not violate the rule against making statements characterizing the quality of lawyer services; rather, what the lawyers described was their personal qualities; therefore, the profession as a whole was not impugned and the advertisement was constitutionally protected commercial speech.
“There is a big difference (qualitatively and substantively) between quality of services that a lawyer renders and the qualities or characteristics of the advertising lawyer,”quoth the Referee. Although the respondents did not appear before the Referee in spiked collars and duly growl at him, they had complied with the rule that portrayals “be objectively relevant to the selection of an attorney and shall not be deceptive, misleading, or manipulative.” The Florida Bar held that “pit bulls are perceived as loyal, persistence, tenacious, and aggressive,” and that the advertisement was “tastefully done,” and appealed “to a group which might not otherwise seek representation.”
Wherefore our advertisement for Henry John Martocci might read:
HELL ON WHEELS
Henry John Martocci
Feared by Lawyers and Judges Alike
Roll right over your Spouse
Take her to the Cleaners
Send her to Hell
Call 1-800-BUY HELL.”
We may envision him pulling up to the Salvation Army’s domestic violence shelter, where incoming victims were given Welcome Bags and were offered legal advice “if they need it.” According to Florence Patton, the “nutcase” who got on the wrong side of Henry John Martocci when he was representing her estranged husband in a custody battle, Martocci was in league with Cindy Flachmeier, the director of the local Salvation Army domestic violence program back then. That seemed counterintuitive to me: Why would a woman-hating lawyer want to drum up business at the shelter, that is, unless he wanted to re-victimize the victims there?
I asked Florence Patton if she wished, in retrospect, that she had hired Henry John Martocci. She considered the question an insult, and contradicted the claim of his references that he was a man of high integrity.
“Are you kidding? Martocci was gross and arrogant. He would yell anywhere in the courthouse or parking lot words like f--king lunatic, with slobber running out of his mouth. He was disgusting, rude, vulgar, would talk to or about women about sex. He had no morals. His personality made him appear much uglier than he was. Anyway, court would not be an option knowing what I know. I hate to tell you what path I would have taken. They have pretty much taken my children and my life.”
“Are you saying that Henry Martocci won men’s cases but he ripped off women and lost their cases, that female victims were referred to Henry Martocci at the Salvation Army, so he represented not only the abusers but the victims as well?” I asked Florence Patton.
“Yep, that’s what I am saying. I know a couple of the women, or rather I knew them. Henry Martocci totally screwed the women over. Director Cindy Flackmeir at the Salvation Army started referring Henry Martocci to victims getting divorced. It was Flackmeir who referred me to attorney Ellen Shipman, who became Flackmeir’s Assistant Director at the Salvation Army. Shipman was working there in 2001 – I was surprised because she told me she hated the Florida Bar, and was going to teach law at the local university. She charged me a $1,500 retainer and went to court with me for a hearing or two and lost my fight to not have a particular court psychiatrist, Jeff Williamson, appointed for evaluations at the request of Martocci because I did not want a male psychologist, and because another psychologist, Charles Stevens, had already said that further evaluation would be futile and a waste of time. I was shocked when Judge Jacobus agree with Martocci. Ellen Shipman said the psychiatrist was okay, but she expressed her disappointment with the legal system. She told me she was being disbarred – she knew that before she took my case. She said she had a choice of being disbarred or quitting; if she didn’t quit, she would have been sanctioned and disbarred. Shipman informed me just before one of Martocci’s surprise (ambush) hearings that she could not represent me. They had all corners covered in Brevard County. The two, Ellen Shipman and Cindy Flackmeir, were referring women victims to Henry Martocci.”
Florence Patton says she shall reveal, in her forthcoming book, of which we have a preliminary draft, her perspective on the alleged abuses that occurred at the shelter, including abuses of children during visitations in the presence of the authorities. She said she believes that the Salvation Army directors were “bought off”, that the Salvation Army center was “crooked.”
Civic leader Cindy Flackmeir did not respond to our query on the matter. Whatever her viewpoint on the emotionally turbulent situations she has dealt with, it would seem that the genders are not as clearly divided as we would like them to be to support the allegations of bias. Of course we might conjecture that some higher power might be involved in the conduct, perhaps money, or loyalty to friends in “the ring,” and the like traditional virtues. Florence Patton mentioned an F.B.I. Investigation of the Department of Child Services as indicative of the woeful state of affairs. She supports her position with anecdotes that women at the Salvation Army center were generally screwed when referred to Henry John Martocci. I opined that his reputation as an aggressive lawyer may have won women over to him, women who believed he would run roughshod over their estranged espouses regardless of their gender. I did manage to find in his Internet obituary a comment by a woman who thought he was a wonderful man and said that he had won her case. The public forum is full of complaints and praise is not often heard – the pill was not only bitter but had terrible side effects.
“I do remember a gal named Marji,” Florence Patton said, “going to Martocci and she got harmed by him and he had a lien on her place. I knew Marji from the Family Learning Program which we both attended. She knew my whole story and still hired him. I begged her not too. Flackmeir referred him to her. Marji did not care that he harmed so many other women. She did not care about others he harmed and hired him anyway. When I ran into her and she told me she lost her son and her house and business were leaned, I just looked at her and walked away. I refused to speak with her any further.”
We contacted Marji LeCompte. She definitely regretted hiring Henry John Martocci; she had not a kind word to say about him – quite to the contrary. She also complained about the re-victimization of women and children at the Salvation Army center.
“I was tricked into hiring Martocci,” she said. “We agreed to a flat rate to file for custody after the divorce case went horribly because a spineless attorney, a former judge, represented me, and due to a nasty, evil judge presiding over the case. It was the director of the Salvation Army center who referred me to Henry Martocci. I hired him to appeal from the judgment of Judge Lober, a member of the Good Old Boys Club. I fought a judgment that there was to be curbside pick-up of my child, and I argued that “Only trash is picked up curbside.” I asked the court to order visitation assistance for the protection of my own safety and for my son's protection against witnessing any physical or verbal abuse that I would receive during transfers of my child. Even the Melbourne police department wasn't safe, as was documented with the Brevard County courts and with the Department of Child Services. Using a public place is the safest. The Salvation Army center was selected. I finally got my son back into my custody after almost losing him in a truck accident in July 2007. I wish I could sue the State of Florida for assisting with the abuse my son suffered. He thankfully survived it all. Having your children with you is the only blessing that comes from a bad marriage. There is so much to tell, it just never stops. There are so many things average people have never been exposed to or would understand if they were, about how and what is hidden and corrupt in this county on all levels of government agencies and the media.”
She said she had filed a complaint against Henry John Martocci. “Nothing happened with it, but paper trails are good even when the system is crooked; it’s out there for everyone to know even when it is covered up.” When I explained to her that the Florida Bar destroys all complaints for which no public disciplinary action is taken, along with any records that complaints were even made, either to protect the lawyers’ reputations or to conceal a pattern of misconduct on the part of certain lawyers and the Florida Bar itself, she said, “I have the documents. I don't throw away paper trails.”
Florida Bar personnel sometimes deny it, but many complaints are tossed without being recorded in the system. The public has access to the complaints are recorded and are eventually dismissed, but only for a year after no probably cause for discipline has been found. “Consumer complaints” against officers of the law, who are considered to be “public figures,” may be kept public indefinitely even though no probably cause to discipline them is found – just recently, some jurisdictions have started destroying such records quickly, so non-profit entities are being set up to collect copies of the records before they are destroyed. On the other hand, officers of the court, whom the Supreme Court once offhandedly declared not to be public figures, are far more privileged and have managed to secrete information against them. In some states anyone who reveals the information may be jailed; and in others, bar associations have condoned the filing of defamation suits against anyone who reveals the information whether it was made public at one time or not.
In any case, the Florida Bar tolerated, albeit sometimes barely, Henry John Martocci’s misbehavior over several years instead of disbarring him. The first disciplinary case we shall take up in the next part involves a sort of pissing match between him and an opposing attorney, and takes up the notion drawn by him in self-defense that there is a difference between unprofessional and unethical conduct.
-To Be Continued-